Opinion
No. 2001-DR-00230-SCT.
May 27, 2004. Rehearing Denied February 10, 2005.
Appeal from the Supreme Court remanded to the Circuit Court, Oktibbeha County.
Office of Capital Post-Conviction Counsel by David Voisin, Robert S. Mink, attorneys for appellant.
Office of the Attorney General by Marvin L. White, Jr., attorney for appellee.
EN BANC.
¶ 1. Willie Jerome Manning was convicted of capital murder of Jon Steckler and Tiffany Miller in Oktibbeha County in 1994. He was sentenced to death one day later, on November 8, 1994. Manning's conviction and sentence was affirmed by this Court in Manning v. State, 726 So.2d 1152 (Miss. 1998). The motion for rehearing was denied on October 8, 1998. The United States Supreme Court denied Manning's petition for writ of certiorari on April 5, 1999. Manning v. Mississippi, 526 U.S. 1056, 119 S.Ct. 1368, 143 L.Ed.2d 528 (1999).
¶ 2. After denial of the petition for writ of certiorari, in accordance with Jackson v. State, 732 So.2d 187 (Miss. 1999), we remanded the matter to the Circuit Court of Oktibbeha County for appointment of post-conviction counsel. The circuit court then appointed the Office of Capital Post-Conviction Counsel (OCPCC) to represent Manning in post-conviction relief proceedings.
¶ 3. Upon consideration of Manning's petition to proceed in the trial court on post-conviction relief and in our light of our holding in Weatherspoon v. State, 732 So.2d 158 (Miss. 1999), we find reversible error in the trial court's admission of the testimony by one of the State's witnesses that he volunteered to take a polygraph test. Therefore, the conviction and sentence in this case are hereby vacated, and this matter is remanded for a new trial and further proceedings consistent with this opinion.
FACTUAL BACKGROUND
¶ 4. On December 11, 1992, Tiffany Miller and Jon Steckler were shot and killed in Oktibbeha County, Mississippi. They were students at Mississippi State University and were last seen leaving Jon's fraternity house around 1:00 a.m. on December 11, 1992. Tiffany drove a Toyota MR2 sports car and lived off campus at the University Hills Trailer Park.
¶ 5. A motorist discovered Jon Steckler lying on the right side of Pat Station Road at approximately 2:15 a.m. When Deputy Sheriff Robert Elmore arrived at the scene at 2:33 a.m., Jon still had a pulse. While waiting for an ambulance, the deputy noticed drag marks through the gravel road into the woods and there he discovered Tiffany's body. She had been shot twice in the face at close range. Jon was shot once in the back of the head and had extensive abrasions occurring prior to his death, which were consistent with being run over by a car at low speed. Tiffany's car was found the next morning parked in front of apartments on Old Mayhew Road, approximately one hundred yards from her residence at the University Hills Trailer Park.
¶ 6. In the early hours of the morning of the murder, John Wise, a fraternity brother of Jon Steckler, went to his car which was parked outside the fraternity house. At that time, he did not notice anything suspicious and locked his car. Later in the morning, Wise found that his car had been broken into and several items stolen. Several of the stolen items were later linked to Willie Jerome Manning through testimony of several of the State's witnesses. One of the items reported stolen from Wise's car was a gold-colored token. Subsequently, a gold token, very similar to the one reported stolen from Wise's car, was recovered at the murder scene.
¶ 7. The prosecution initially indicted Manning for murder in the course of a kidnaping, but later amended the indictment, substituting a robbery charge. The State introduced evidence purporting to link the stolen items, including a leather jacket, a CD player, the gold token, and a silver engraved beverage holder to Manning. The State also introduced testimony that Manning attempted to sell a watch and ring matching the description of the watch and ring that Jon Steckler was wearing the night he was killed. Much of the testimony regarding the stolen items came from Manning's former girlfriend, Paula Hathorn. More testimony came from two jailhouse informants who testified that, while incarcerated, Manning admitted killing the students and selling the gun he used.
¶ 8. Manning argues that the lack of physical evidence linking him to the crime, together with questionable testimony from witnesses was totally inadequate to support a capital murder conviction. There were no matching fingerprints or footprints at the scene linked to Manning. Manning asserts that the testimony of Hathorn was not credible since she was induced by a $25,000 reward for solving the crime and the State's lenient treatment on a number of charges pending against her. Manning seeks to discredit the testimony of the jailhouse informants, noting that one of the informants initially gave a false statement to the police implicating two other suspects.
STANDARD OF REVIEW
¶ 9. This Court has long recognized that post-conviction relief actions have become part of the death penalty appeal process. Jackson v. State, 732 So.2d at 190. The standard of review of capital convictions and sentences is "one of `heightened scrutiny' under which all bona fide doubts are resolved in favor of the accused." Flowers v. State, 773 So.2d 309, 317 (Miss. 2000).
ANALYSIS
¶ 10. In his Petition for Post-Conviction Relief, Manning raises numerous claims. The majority of those claims relate to the State's failure to disclose evidence and claims of ineffective assistance of counsel. While the Court has considered all of Manning's claims separately, the claims have been combined for clarity as: I) polygraph examination; II) ineffective assistance of counsel; III) failure to disclose exculpatory evidence; and, IV) cumulative errors.
At trial, Manning was represented by Mark G. Williamson and Richard Burdine, and on appeal, by Mark G. Williamson and Clive A. Stafford Smith.
I. POLYGRAPH EXAMINATION
Whether the testimony of a State witness that he volunteered to take a polygraph examination was reversible error in light of this Court's holding in Weatherspoon v. State.
¶ 11. Earl Jordan, a convicted burglar, was in jail at the same time as Manning. Jordan had given statements to the police implicating two other men in the murder of Tiffany and Jon. Investigators later ruled out the possibility that the others were involved in the crime. Jordan then told the authorities that Manning had confessed to murdering the students. The State offered Jordan's testimony at trial. On cross-examination, Jordan admitted that he had previously implicated others for the same crime and that he was hoping for favorable treatment from the State on his pending charges. The cross-examination also highlighted some discrepancies in Jordan's testimony and the facts surrounding the crime. Then upon re-direct the prosecutor asked Jordan whether he volunteered to take a polygraph on the information that he provided in this statement and Jordan answered affirmatively.
[The prosecution on re-direct] Now you were questioned at length about your motives, you were questioned at length about the substance of what you testified to. Mr. Jordan, didn't you volunteer to take a lie detector test on this?
¶ 12. The defense objected, and the trial court initially sustained that objection. Moments later the trial court reversed its decision, allowing the State to question Jordan about his volunteering to take the polygraph.
[The prosecution after the objection was overruled]: Mr. Jordan, did you volunteer or agree to take . . . a lie detector test?
A: Yes, I did.
The trial court then refused to allow defense counsel to conduct a re-cross-examination of Jordan concerning his statement about the lie detector test.
¶ 13. On Manning's direct appeal, this Court found no error in the prosecutor's questions about the polygraph and held that the questioning was proper since the State made no attempt to disclose whether Jordan had actually taken the polygraph and/or the results of the test. Manning v. State, 726 So.2d at 1179. This decision was based upon Conner v. State, 632 So.2d 1239, 1257-58 (Miss. 1993), in which we held that the trial court did not abuse its discretion when it allowed testimony concerning the willingness of a witness for the State to take a lie detector test polygraph test in order to rehabilitate that witness' testimony. With respect to the polygraph test, Manning now argues that he is entitled to a new trial on three bases.
¶ 14. First, Manning argues that this Court has reversed course, since his direct appeal and held that questioning a witness about his or her willingness to take a polygraph is improper. Weatherspoon v. State, 732 So.2d 158 (Miss. 1999). In Weatherspoon, the defendant wanted to testify that he had volunteered to take a polygraph test. The trial court refused to allow that testimony and this Court affirmed noting that "it should be made clear that any evidence pertaining to a witness's offer to take a polygraph, refusal to take a polygraph test, the fact that a witness took a polygraph test or the results of a polygraph test is inadmissible at trial by the State or by the defense." Id. at 163. In Weatherspoon, this Court specifically noted Manning's case:
Recently, in Manning v. State, 726 So.2d 1152 (Miss. 1998), relying on the Conner decision, this Court held that the testimony of State's witness Earl Jordan that he had volunteered to take a polygraph examination "was proper redirect after Jordan's credibility had been attacked on cross-examination by the defense." Manning, 726 So.2d at 1179. Upon careful consideration and further review, we find that testimony pertaining to a witness's offer to take a polygraph, whether it be a witness for the State or the defense, is not admissible at trial. To the extent that this holding affects Conner v. State, Lester v. State[, 692 So.2d 755 (Miss. 1997)], and Manning v. State, cited supra, those cases are overruled.
¶ 15. Second, Manning argues that because he was not allowed to cross-examine Jordan after the reference was made to the polygraph test, nor was any mention of the polygraph made in the mandatory discovery, he had no opportunity to rebut this evidence.
¶ 16. Finally, Manning argues that he was denied his full right to discovery about whether Jordan took a polygraph and the results of such test. He contends that he was unaware of a polygraph examination until the information was first elicited by the State on re-direct of Jordan. Because of a lack of notice and discovery, Manning does not know whether a test was actually given and, if so, what the results were of such an examination. Manning argues that while the prosecution knew that the results of such a test would be inadmissible that it used the question about a willingness to do so as a way of knowingly creating a false impression of the evidence.
¶ 17. With respect to the discovery issue on the polygraph test, Manning cites to cases by the U.S. Supreme Court holding that the State's knowing use of or its failure to correct false testimony or its presentation of evidence which creates a materially false impression of the evidence violates the defendant's right to due process. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).
¶ 18. The State argues that the issue of the line of questioning on the polygraph has already been litigated on direct appeal and should not be relitigated on post-conviction review. The State also argues that the holding in Weatherspoon should not be applied retroactively because the issue is not one of fundamental fairness as to entitle Manning to an exception to the procedural bar. Furthermore, the State argues that even if Weatherspoon is applicable, there is no reversible error because the mere mention of a polygraph test is not reversible when compared to other evidence presented. The State argues that Jordan's testimony and other facts presented to the jury were enough to sustain the verdict.
¶ 19. We find that Weatherspoon applies in this case and that the trial court erred in allowing testimony that Jordan volunteered to take a polygraph test. Jordan was the State's star witness against Manning, and his testimony was faltering. He had previously made statements implicating others who were later determined not to be involved. He came forward with testimony of Manning's jailhouse confession shortly before Manning's trial was to begin and he offered testimony that is inconsistent with other testimony. The prosecution, on redirect, used the questioning about Jordan's willingness to take a polygraph to rehabilitate Jordan's testimony after the defense conducted its cross-examination.
Jordan testified that Manning told him that another person, Jessie Lawrence, was involved in the murders. Lawrence was in jail in Alabama at the time the murders took place.
¶ 20. We conclude that this was no inadvertent mention of a polygraph test and the trial court erred in allowing Jordan to testify that he volunteered to take a polygraph test. Therefore, the conviction and sentence in this case must be vacated, and this matter is remanded for a new trial and further proceedings consistent with this opinion.
¶ 21. The remainder of Manning's grounds for relief involve ineffective assistance of counsel claims and claims that the State failed to disclose exculpatory evidence. We find these claims are without merit, with the exception of the failure by the State to disclose tape recordings and transcripts with respect to conversations between the witness, Hathorn and Manning, issue III, infra. We find further discovery is warranted on this claim.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
¶ 22. "The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A claimant must demonstrate that counsel's performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. "Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Stringer v. State, 454 So.2d 468, 477 (Miss. 1984) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). The focus of the inquiry is on whether counsel's assistance was reasonable considering all the circumstances. Id. A reviewing court must strongly presume that counsel's conduct falls within a wide range of reasonable professional assistance. Further, one who claims ineffective assistance must overcome another presumption that the challenged act or omission "might be considered sound trial strategy." Id. at 477. In other words, defense counsel is presumed competent. Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. 2052.
¶ 23. As for the second prong of prejudice to the defense, a reviewing court must determine whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Mohr v. State, 584 So.2d 426, 430 (Miss. 1991). This means a "probability sufficient to undermine the confidence in the outcome." Id.
¶ 24. In a death penalty case, the ultimate inquiry is "whether there is a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death." Strickland v. Washington, 466 U.S. at 695, 104 S.Ct. 2052. There no constitutional right to errorless counsel. Mohr v. State, 584 So.2d at 430. The right to effective counsel does not entitle a defendant to have an attorney who makes no mistakes at trial but simply affords the right to have competent counsel. If the post-conviction application fails on either of the Strickland prongs, the analysis of that issue ends. Davis v. State, 743 So.2d 326, 334 (Miss. 1999) (citing Foster v. State, 687 So.2d 1124, 1130 (Miss. 1996)). The claims for ineffective assistance of counsel will be addressed with regard to: A) impeachment of Earl Jordan and Frank Parker; B) the testimony of Paula Hathorn; and C) defense counsel's failure to present an alibi defense and mitigating evidence and failure to preserve issues for appeal.
A. Whether Manning was denied his right to effective counsel for trial counsel's failure to impeach Earl Jordan and for counsel's failure to adequately develop evidence to impeach Frank Parker.
¶ 25. Manning argues that his defense counsel was ineffective for failing to properly impeach Earl Jordan and failing to cross-examine Jordan about certain details of his testimony and any deal that may have been struck with the State in exchange for the testimony. Likewise, Manning asserts that his trial counsel was ineffective for failing to exercise due diligence and failing to uncover evidence to impeach Frank Parker, another jailhouse informant. Manning argues that failure to follow-up for purposes of impeachment, failure to lay a proper foundation to rebut the testimony of the State's star witness, failure to follow well-established evidentiary rules and missed opportunities to impeach Jordan as a credible witness meets the Strickland standard of ineffective assistance of counsel.
¶ 26. The State asserts that Manning's ineffective assistance of counsel claim as to Jordan's testimony was addressed on direct appeal and cannot be relitigated in post-conviction proceedings. Furthermore, the State argues that Manning's claim of ineffective assistance of counsel as to Parker's testimony is procedurally barred for failure to raise it on direct appeal, noting that several other claims of ineffective assistance were raised on direct appeal and that this one should have been included. Lastly, the State argues that Manning's claim that his counsel failed to adequately impeach Frank Parker is absolutely refuted by the trial transcript.
¶ 27. The State is correct. On direct appeal, we found that Jordan was thoroughly cross-examined and that there was other evidence before the jury that Jordan was hoping for a favorable deal in exchange for his testimony. The transcript indicates that the defense counsel cross-examined Jordan and attempted to discredit his testimony. Manning's defense counsel's performance was not deficient merely because he did not conduct the cross-examination of Jordan in every regard as the post-conviction counsel asserts he should have done. Post-conviction counsel has the benefit of hindsight. See, Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
¶ 28. Notwithstanding the procedural bar, as to the testimony of Frank Parker, the transcripts reveal that defense counsel conducted a thorough cross-examination of Parker, including the fact that he had criminal charges in Texas dropped after he came forward with information in Manning's case. Defense counsel also pursued a line of questioning attempting to call into doubt whether Parker could really have overheard the conversation in which Manning stated that he sold the gun(s) on the street. We find that these claims fail to meet the Strickland test and are without merit.
B. Whether Manning was denied effective assistance of counsel with respect to the testimony of Paula Hathorn.
¶ 29. Manning argues that defense counsel, Mark G. Williamson, had a conflict of interest because he had previously represented Paula Hathorn, one of the State's key witnesses, on bad check charges. Manning also asserts that the trial judge was on notice of the conflict and committed error when he did not conduct a thorough inquiry into any possibility of a conflict. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). If the trial judge has a reasonable basis to believe that defense counsel faces an actual conflict, the judge must conduct a hearing. The failure to do so mandates reversal. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Manning asserts that "an actual conflict exists when defense counsel is compelled to compromise his or her duty of loyalty or zealous advocacy to the accused by choosing between or blending the divergent of competing interests of a former or current client." Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). This conflict, Manning argues, had an adverse effect on his defense because his attorney had no real opportunity to rebut or refute any of the false testimony that Hathorn provided and her false testimony undermined the credibility of Manning's defense.
¶ 30. The State succinctly argues that this claim was raised on direct appeal and cannot be relitigated on post-conviction review. See, Miss. Code Ann. § 99-39-21(3); Wiley v. State, 750 So.2d 1193, 1200 (Miss. 1999); Foster v. State, 687 So.2d 1124, 1135-37 (Miss. 1996). The allegations that the State presented evidence that created a false impression and withheld information from the defense is all supported, in Manning's post-conviction relief application, by an affidavit of Hathorn given during a recent incarceration and expressed vaguely, years after the trial.
¶ 31. In Manning's case, Hathorn was merely a witness, not a party to this action and Williamson's representation was completely unrelated to the events and charges of the Manning case. There was no reasonable basis for the judge to conduct a hearing as to any such conflict. On direct appeal, we found that defense counsel conducted a full cross-examination of Hathorn, and there is no reasonable probability that the result of the trial would have been different if the jury had never known that defense counsel had represented Hathorn in the past. Furthermore, on direct appeal, this Court held that defense counsel had no conflict in his representation of Manning. This issue has been litigated and is barred as a basis for post-conviction relief.
¶ 32. Also related to Hathorn's trial testimony, Manning alternatively asserts that his trial counsel was ineffective for not adequately impeaching Hathorn. Manning claims that his attorney failed to take steps to establish the falsity of her testimony about his representation of her and he failed to impeach her with the vast number of bad checks that she had written since she first began giving statements to the sheriff. Manning argues that such impeachment would have shown Hathorn's willingness to lie because of her anger and would have revealed Hathorn's false testimony about Williamson's representation of her, the magnitude of Hathorn's criminal history and the subsequent lenient treatment that Hathorn received on her pending charges.
¶ 33. The State again argues res judicata and procedural bar to this claim. The State also asserts that the charges of trial counsel's ineffectiveness are refuted by the trial transcripts and an on-point review of those issues on direct appeal.
¶ 34. This issue was litigated on direct appeal and this Court found Manning's trial court representation to be effective. The Court noted that "the record indicates that Williamson conducted a full cross-examination of Hathorn." Manning v. State, 726 So.2d at 1169. We find that this issue is procedurally barred and without merit. Defense counsel conducted a full cross-examination of Hathorn and while Hathorn did make comments as the defense counsel's past representation of her, it was not in such a way as to prejudice Manning's defense or cause counsel to be ineffective.
C. Whether Manning was denied effective assistance of counsel due to trial counsel's:
1) failure to adequately investigate and present an alibi defense, or in the alternative to move for additional time to conduct necessary investigation.
¶ 35. Trial counsel produced several witnesses that placed Manning at a nightclub, the night of the murders. However, two of those witnesses were only able to testify that they saw Manning at around 11:30 or 12:00. The testimony of Manning's other witnesses was impeached and criticized by the State as being unreliable. Manning asserts that if trial counsel had conducted a more thorough investigation he could have presented a substantially stronger case. Post-conviction counsel includes the affidavits of Sherron Armstead Mitchell, Doug Miller and Troylin Jones. The recollections of these witnesses place Manning at the nightclub well after midnight and one of the witnesses' statements place Manning at the nightclub at the very hour that the murders were taking place. Manning argues that he was prejudiced by counsel's failure to develop more substantial evidence in support of his alibi and notes that reviewing courts have found counsel ineffective for inadequately presenting an alibi defense. See Grier v. State, 299 S.C. 321, 384 S.E.2d 722 (1989).
Manning also cites State v. Tapia, 151 Ariz. 62, 725 P.2d 1096 (1986); Richardson v. State, 189 Ga.App. 113, 375 S.E.2d 59 (1988); People v. Pitts, 257 Ill.App.3d 949, 196 Ill.Dec. 225, 629 N.E.2d 770 (1994).
¶ 36. We find that Manning fails to establish that his trial counsel's performance was deficient where counsel produced several witnesses placing Manning at a nightclub on the night of the murder.
2) failure to preserve for review issues for direct appeal and for other errors committed during the first phase of his capital trial.
¶ 37. Manning argues that trial counsel failed to preserve several issues, including his assertion that the prosecutor violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in striking blacks from the jury pool where his reasons were pre-textual. Likewise, Petitioner argues that trial counsel's performance was deficient when he failed to object when Hathorn testified as to Manning's prior bad acts and character. Manning also argues that defense counsel promised, in his opening statement, to produce testimony that someone else had confessed to the crime. When the defense counsel did not follow through by presenting this testimony, the prosecutor noted it in his closing argument. The defense attorney's unkept promise of testimony was detrimental to Manning's defense. Finally, Manning asserts that defense counsel was ineffective for failing to object when the prosecutor referred to Manning as a "monster" and likened the case to the O.J. Simpson case.
¶ 38. The State argues that Manning is wrong to assert that the defense counsel did not preserve Batson claims. The defense attorney did raise a claim under Batson, and the court required the State to give reasons for its strikes. Those reasons were then reviewed by this Court on appeal. Next the State argues that Manning's claim that the defense counsel was ineffective for failing to object to Hathorn's testimony cannot be sustained where the underlying substantive issue was raised on direct appeal and decided against the Manning.
¶ 39. The State correctly points out that the issue of Hathorn's testimony and whether or not trial counsel was ineffective was litigated on direct appeal and that it is now procedurally barred. As for the merits of this claim, we find that Manning's claims do not rise to the level of Strickland.
3) failure to develop and present evidence in mitigation of punishment.
¶ 40. Manning asserts that trial counsel had a duty to uncover all relevant mitigating evidence and to conduct a thorough investigation into possible mitigating evidence. The record indicates that there were witnesses who had knowledge of Manning's family and were willing to cooperate with defense counsel. Specifically, there are letters in the file from Mark Williamson (defense counsel) to Richard Burdine (co-counsel) suggesting witnesses for the mitigation portion of the penalty phase of trial. Those witnesses were apparently never contacted. Furthermore, Manning includes affidavits from an attorney in Louisiana and an investigator which declare the existence of valuable mitigating evidence that was never presented at trial. Failing to present such evidence, Manning argues, is proof of his trial counsel's deficient performance and satisfies both prongs of Strickland.
¶ 41. The "failure to present a case in mitigation during the sentencing phase of a capital trial is not, per se, ineffective assistance of counsel." Williams v. State, 722 So.2d 447, 450 (Miss. 1998), citing Williams v. Cain, 125 F.3d 269, 277 (5th Cir. 1997). In the present case, Manning's defense attorney did in fact present a case in mitigation for the jury to consider. Furthermore, this claim was raised on direct appeal and the Court found that Manning failed to show prejudice related to the trial counsel's failure to call other witnesses. Furthermore, the Court noted that "additional character witnesses would not have, with any reasonable probability tipped the balance between mitigators and aggravators." Manning v. State, 726 So.2d at 1170. This claim is procedurally barred where this Court has already addressed its merits.
4) incoherent and prejudicial closing argument.
¶ 42. Manning argues that because of the lack of investigation and preparation for the penalty phase of trial, the defense counsel had nothing substantial to present in his closing argument. Petitioner argues that defense counsel, therefore, presented a powerless and incoherent closing argument which resulted in prejudice to his defense. Manning argues that this satisfies both prongs of Strickland and warrants post-conviction relief.
¶ 43. On direct appeal, this Court found that trial counsel's closing argument was coherent and not a poor strategic choice. We noted: "It is the opinion of this Court that Burdine's performance was not deficient." Manning v. State, 726 So.2d at 1171. Because we addressed this on direct appeal, we now find this issue procedurally barred.
5) failure to object to improper prosecutorial argument at the penalty phase.
¶ 44. Manning argues that the prosecutor's remark in the closing argument improperly elaborated on religious themes and violated his constitutional right to a reliable determination of his sentence. He also asserts that the prosecutor made improper and prejudicial references to what Manning might do if he were paroled. Furthermore, Manning argues that his trial counsel was ineffective for failing to object to these remarks and preserve the issues for appeal.
¶ 45. The State counters that the claim was not raised on direct appeal and is therefore barred. Without waiving the bar, the State argues that this Court has held that arguments with scriptural, religious or biblical references are proper when made in response to scriptural or religious arguments by defense counsel. Looking to the transcript, it is clear that the prosecutor was responding to those type of "vengeance is mine" arguments set out by the defense.
¶ 46. We agree that this claim is barred for failure to raise it on direct appeal. Notwithstanding, we find this claim has no merit where this Court has found biblical or scriptural references in closing arguments to be within the broad latitude afforded at trial.
[t]his Court has continually held that counsel is afforded broad latitude in closing argument. This latitude, set out by the Court in Nelms Blum Co. v. Fink, 159 Miss. 372, 382-383, 131 So. 817, 820 (1930), has been referred to in the context of capital cases. In Nelms, we stated that "[c]ounsel may draw upon literature, history, science, religion, and philosophy for material for his argument." Id. at 382-384, 131 So. 817. See Hansen v. State, 592 So.2d 114, 139-140 (Miss. 1991).
Berry v. State, 703 So.2d 269, 281 (Miss. 1997). Manning fails to demonstrate prejudice. III. FAILURE TO DISCLOSE EXCULPATORY EVIDENCE
Whether Manning was denied constitutional rights by the State's knowing presentation of false evidence and failure to disclose exculpatory evidence.
¶ 47. Manning argues that the State presented testimony from Frank Parker that included numerous lies and misrepresentations, that the State knew or should have known that Parker was lying and that despite exercising due diligence, defense counsel was not able to uncover impeachment material, the truth about Parker's pending charges in Texas or other evidence of his motivation for testifying. Manning asserts that Parker lied about pending criminal charges against him and lied as to the severity of those charges, and that he denied the fact that his testimony was motivated by the possibility of reward money. Further, Manning asserts that the fact was never disclosed that authorities in Mississippi had actually shown Parker crime scene photos and promised to help him with the criminal charges pending in Texas. Manning argues that Parker's testimony was crucial to the prosecution and was the only link between Manning and the gun used to kill the students Manning argues that the State knowingly presented false testimony and, due to the crucial nature of this testimony, will not be able to show beyond a reasonable doubt that the use of the false testimony was harmless.
¶ 48. Manning points out that Fifth Circuit case law and precedent from the U.S. Supreme Court mandates that a "a new trial is required if the false testimony could have . . . in any reasonable likelihood affected the judgment of the jury." Barrientes v. Johnson, 221 F.3d 741, 756 (5th Cir. 2000) (citing Napue v. Illinois, 360 U.S. at 271, 79 S.Ct. 1173, and Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). Manning also cites Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), holding that the suppression of favorable evidence is a violation of the defendant's due process rights. Favorable evidence includes that which is either directly exculpatory or items which can be used for impeachment purposes. Giglio, 405 U.S. at 153-155, 92 S.Ct. 763.
¶ 49. The State asserts that this allegation was addressed on direct appeal and is now procedurally barred. The State argues that the existence and nature of the charges pending against Parker were brought out on the direct questioning and, in more detail, on cross-examination. The State also points out the affidavits that Manning now uses purportedly to show that Parker had a deal with the State for his testimony, show instead that Mississippi authorities never made an explicit promise to help Parker with the criminal charges in Texas until after he had testified. The State also asserts that Manning fails to show actual prejudice sufficient to overcome this waiver. Wiley v. State, 750 So.2d 1193, 1210 (Miss. 1999). Furthermore, the State argues that Manning fails to establish that this material to which he points is "exculpatory" material under this Court's analysis of Brady, citing Todd v. State, 806 So.2d 1086, 1091-92 (Miss. 2001).
¶ 50. In determining whether a Brady violation has occurred, thus mandating a new trial, this Court applies the four-prong test articulated in King v. State, 656 So.2d 1168, 1174 (Miss. 1995) (adopting four-prong test from United States v. Spagnoulo, 960 F.2d 990, 994 (11th Cir. 1992)). The defendant must prove: A four-part test assists in determining whether Brady violations have occurred: a) that the State possessed evidence favorable to the defendant (including impeachment evidence); b) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; c) that the prosecution suppressed the favorable evidence; and d) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. Todd v. State, 806 So.2d at 1092.
¶ 51. Manning argues that U.S. Supreme Court precedent instructs the State that its knowing use of or its failure to correct false testimony or its presentation of evidence which creates a materially false impression of the evidence, violates a defendant's right to due process. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). The prosecutor knew or should have known that Hathorn was not truthful, but he pressed ahead to rehabilitate her credibility and tarnish the jury's view of the credibility and competence of the defense.
¶ 52. Manning also argues that the State had a duty to disclose any agreements or material assurance that it had made to Hathorn in exchange for her testimony and that the State failed to fully disclose the deal that had been made with Hathorn as to her pending charges. Manning contends that the failure to disclose this information impacted his ability to challenge Hathorn's credibility. The U.S. Supreme Court has held that when the reliability of a given witness may well be determinative of guilt or innocence, non-disclosure of evidence affecting credibility especially evidence of any understanding or agreement as to a future prosecution, violates due process. Giglio v. United States, 405 U.S. at 154-55, 92 S.Ct. 763. Manning also argues a violation of Brady for the State's failure to disclose information associated with the Hathorn's testimony. Manning asserts that the State failed to disclose the true nature of Paula Hathorn's position as a state agent and withheld tape recordings between Hathorn and Manning that were made at the insistence of and by law enforcement officers. Hathorn was provided a list of topics to cover and was instructed to telephone Manning. Manning asserts that the transcripts of those telephone conversations show that Hathorn failed to elicit any incriminating statements from Manning and indicate that several of the statements made by Hathorn directly contradict her subsequent trial testimony. Manning also argues that it was never disclosed to the defense that the State threatened to charge Hathorn as an accessory after the fact to murder. All of these things, Manning argues, could have been used for impeachment purposes and to illuminate Hathorn's motivation for testifying.
¶ 53. The State argues that Manning fails to back up this claim that there are cassette tapes and transcripts related to Hathorn's testimony. They argue that there are no exhibits attached to affidavits that these items were found. They also contradict Manning's claim that the defense was not able to impeach Hathorn as to her contradictory statements where the trial transcripts indicate that this very information was brought out at trial and on direct appeal. Furthermore, the State notes that Hathorn's relationship with the sheriff's department was also brought out at trial and on direct appeal.
¶ 54. The transcripts indicate that the defense did question Hathorn as to any "deal" she may have had with the sheriff's department in exchange for the information that she supplied on Manning. Included in the exhibits attached to the petition for post-conviction relief is an affidavit from Manning's trial court defense lawyer explaining that he did not know that there were cassette recordings and transcripts of conversations between Hathorn and Manning. One typed and one hand-written transcript is attached as an exhibit, indicating the existence of the tapes. We find that this claim has merit if it is proven that the State had those cassette tapes and transcripts in its possession and did not disclose the same to Manning's defense counsel.
IV. CUMULATIVE EFFECT OF ERRORS
Whether Manning was denied his constitutional rights due to the cumulative effect of errors at the culpability and at the penalty phase of his capital trial.
¶ 55. Manning says that it is clear "[w]hen all errors are taken together, the combined prejudicial effect requires reversal." Randall v. State, 806 So.2d 185, 217 (Miss. 2001) (citing Williams v. State, 445 So.2d 798, 810 (Miss. 1984)). Manning also argues that his constitutional rights were violated by the cumulative effects of the above-argued errors.
¶ 56. The State again argues that Manning is not entitled to raise this claim on petition for post-conviction relief and that, even if the claim were proper, the State has demonstrated that there were no errors in the conduct of the sentencing phase and no ineffective assistance of counsel established. The State asserts that there is no cumulative effect because the above-argued claims have no merit and that several of the underlying substantive claims had already been decided direct appeal.
¶ 57. This Court has noted, "A criminal defendant is not entitled to a perfect trial, only a fair trial." McGilberry v. State, 741 So.2d 894, 924 (Miss. 1999), citing Sand v. State, 467 So.2d 907, 911 (Miss. 1985). As we have found reversible error in the admission of the testimony as to a polygraph examination, it is unnecessary to address the cumulative error claim.
CONCLUSION
¶ 58. The petition for post-conviction relief is granted in part and denied in part. We conclude that, in light of the intervening decision in Weatherspoon v. State, the trial court committed reversible error in allowing Jordan to testify that he volunteered to take a polygraph test. We also find that further discovery is warranted as to the failure by the State to disclose tape recordings and transcripts with respect to conversations between the witness, Hathorn and Manning. Therefore, Manning's conviction of capital murder (two counts) and sentence of death are hereby vacated, and this matter is remanded for a new trial and further proceedings consistent with this opinion.
¶ 59. PETITION FOR POST-CONVICTION RELIEF GRANTED IN PART AND DENIED IN PART; JUDGMENT OF CONVICTION OF CAPITAL MURDER (TWO COUNTS) AND SENTENCE OF DEATH VACATED; AND CASE REMANDED FOR A NEW TRIAL.
SMITH, C.J., COBB, P.J., CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ, EASLEY AND RANDOLPH, JJ., NOT PARTICIPATING.