Richard Gerald Jordan v. State of Mississippi

1IN THE SUPREME COURT OF MISSISSIPPI
NO. 2002-DR-00896-SCT
RICHARD GERALD JORDAN
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 04/24/1998
TRIAL JUDGE: HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION
COUNSEL
BY: DAVID P. VOISIN
ROBERT RYAN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: MARVIN L.WHITE, JR.
DISTRICT ATTORNEY: CONO CARANA
NATURE OF THE CASE CIVIL - DEATH PENALTY - POST
CONVICTION RELIEF
DISPOSITION: LEAVE TO SEEK POST-CONVICTION
RELIEF, DENIED - 03/10/2005
MOTION FOR REHEARING:
MANDATE ISSUED:
EN BANC.
WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1. Once again this Court reviews Richard Gerald Jordan’s death penalty case. Since his
conviction in 1976 for the murder of Edwina Marter, Jordan’s case has been reviewed a total
of six times by various courts, including this Court, the United States Court of Appeals for the
Fifth Circuit and the United States Supreme Court.
FACTUAL BACKGROUND
¶2. In January of 1976, Richard Gerald Jordan traveled to Gulfport from Louisiana. He
telephoned the Gulf National Bank and asked to speak to a loan officer. After he was told that
Charles Marter could assist him, Jordan ended the call and found Marter’s Gulfport residence
address in the telephone directory. He went to the Marter’s residence and, pretending to be
an employee of the electric company, gained entrance to the house. He kidnapped Charles’s
wife, Edwina, forcing her to leave her three-year-old son sleeping alone in the house. Jordan
forced Edwina to drive to a deserted area of the DeSoto National Forest.
¶3. Jordan shot Edwina in the back of the head. The defense claimed that Edwina tried to
run away and that Jordan attempted to fire a warning shot over her head. The bullet entered her
skull at the lower right occipital area of the brain and traveled upward, exiting above her left
eye. The State claimed that Jordan executed Edwina by firing one bullet into the back of her
head as she knelt in front of him.
¶4. Jordan then disposed of the murder weapon and called Charles Marter, telling him that
he had kidnapped Edwina and that she was alive and well. Jordan demanded that Charles leave
$25,000 on a blue jacket that he would find on the side of U.S. Highway 49. However, when
Charles attempted to leave the money, he did not find the jacket. Jordan called Charles the
next day and again demanded the $25,000. He assured Charles that Edwina was fine and that
she was concerned for her children. On his second attempt, Charles found the jacket and left
the money, as he had been instructed. When Jordan retrieved the money, two officers
attempted to arrest him. Jordan escaped but was later captured at a roadblock. He confessed
2
to the crime and told police where to find Edwina’s body. He cooperated with the investigating
officers, telling them where he had disposed of the gun and showing them where he had hidden
the money and his automobile.
¶5. Jordan was convicted and sentenced to death in 1976. Subsequently, the law pertaining
to death penalty proceedings changed, and Jordan’s conviction and sentence were vacated. See
Jackson v. State, 337 So. 2d 1242 (Miss. 1976). In 1977, Jordan was retried in a bifurcated
trial and was again convicted and sentenced to death. The conviction and sentence was affirmed
by this Court in Jordan v. State, 365 So. 2d 1198 (Miss. 1978), cert. denied, 444 U.S. 885,
100 S. Ct. 175, 62 L. Ed. 2d 114 (1979). See also In re Jordan, 390 So. 2d 584 (Miss. 1980)
(on petition for writ of error coram nobis).
¶6. His death sentence was later vacated by the U.S. Court of Appeals for the Fifth Circuit
due to unconstitutional penalty-phase instructions. Jordan v. Watkins, 681 F.2d 1067 (5th
Cir.), rehearing denied sub nom. Jordan v. Thigpen, 688 F.2d 395 (5th Cir. 1982). The Fifth
Circuit remanded the case for a new sentencing trial.
¶7. In 1983, Jordan was again sentenced to death and that sentence was affirmed by this
Court. Jordan v. State, 464 So. 2d 475 (Miss. 1985). However, based on its decision in
Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986), the Supreme
Court vacated Jordan’s death sentence.1 Jordan v. Mississippi, 476 U.S. 1101, 106 S. Ct.
1
The trial court’s exclusion of the testimony of jailers and visitors in the sentencing
phase denied petitioner his right to present all relevant evidence in mitigation. Skipper v.
South Carolina, 476 U.S. 1, 106 S. Ct. 1669, 90 L. Ed. 2d 1 (1986).
3
1942, 90 L. Ed. 2d 352 (1986). On remand, Jordan entered into an agreement with the State
whereby he would forego another sentencing trial and accept a sentence of life imprisonment
without parole.
¶8. In 1994, this Court invalidated that agreement, finding that life without parole was not
an option under then Miss. Code Ann. § 97-3-21 (1987). Once again Jordan’s case was
reversed and remanded for another sentencing hearing. Jordan v. State, 697 So. 2d 1190
(Miss. 1997). On April 24, 1998, Jordan was again sentenced to death, and this Court
affirmed that sentence in 2001. Jordan v. State, 786 So. 2d 987 (Miss. 2001), cert. denied,
534 U.S. 1085, 122 S. Ct. 823, 151 L. Ed. 2d 705 (2002). Jordan is now seeking post-
conviction relief and has filed an application for leave to proceed in the trial court and the
petition for post-conviction relief. Finding no merit to Jordan’s claims, we deny Jordan’s
application for leave to seek post-conviction relief.
ANALYSIS
¶9. In the motion for post-conviction relief, Jordan raises thirty claims. We have
consolidated those claims below.
I. Blood Spatter and the “Execution-style” theory
¶10. Jordan raises ten claims that are included under this heading. Broadly stated, Jordan
objects to the way in which the State presented its theory that Edwina Marter was killed
“execution-style.” Jordan’s position has always been that he shot Edwina when she suddenly
ran away from him. The State refuted Jordan’s defense with Officer David Melton who
4
testified that blood spatter patterns at the scene demonstrated Edwina was in a stationary
position, standing or kneeling in front of Jordan when she was shot. The State also presented
the testimony of forensic pathologist, Dr. William D. Atchison, who opined that Edwina was
not running away from Jordan and was, in fact, probably kneeling in front of him.
¶11. As he has in past pleadings, Jordan once again objects to the testimony of Officer David
Melton and to Melton’s qualifications as an expert witness. Melton testified for the first time
in Jordan’s 1983 trial and in every subsequent trial. The State correctly points out that the
Court has now twice considered David Melton as an expert witness and the evidence regarding
blood spatter patterns. In both instances, the Court has denied Jordan relief. In the 1985 direct
appeal opinion, we held that Melton was properly qualified to express an opinion regarding
blood spatter. See Jordan v. State, 464 So. 2d 475, 484 (Miss. 1985). Again, in the most
recent appeal, we held that the trial court properly admitted Melton’s testimony. Jordan v.
State, 786 So. 2d at 1017. The State argues that this claim cannot be re-litigated under the
provisions of Miss. Code Ann. § 99-39-21(3). Furthermore, the State points out that any
attempt to litigate this claim on a different legal or factual theory than that previously
forwarded is barred by the provisions of Miss. Code Ann. § 99-39-21(2).
¶12. We agree that this issue has already been litigated and is now procedurally barred.
Jordan is attempting to rephrase the issue as a knowing presentation of false or misleading
evidence, but the underlying claim is the same one that has already been addressed and found
to have no merit.
5
¶13. Notwithstanding the procedural bar, we will examine the merits of the claim. David
Melton had received training in the interpretation of blood stains and could opine with authority
about the blood found at the scene. Melton testified that he was employed by the Gulfport
Police Department from 1966-1969 and by the Harrison County Sheriff’s Department from
1972-1977. He attended the Mississippi State Law Enforcement Training Academy and
received training in fingerprints and blood stains. As this Court has already determined, the trial
court did not err in allowing Melton’s testimony.
¶14. We now also consider the standard to be applied to Jordan’s claim that the State
knowingly presented false testimony. Jordan asserts that if there is any reasonable likelihood
that the allegedly false evidence affected the judgment of the jury, then the defendant is
entitled to a new trial. We find that Jordan has not demonstrated a reasonable likelihood that
David Melton’s testimony on blood spatter evidence resulted in a death sentence where it is
undisputed that Jordan was twice convicted and sentenced to death in previous trials in which
David Melton did not testify on the issue of blood spatters. We find that the issue is without
merit.
¶15. Jordan’s next argument is that it is a violation of the law of the case doctrine and the
doctrines of collateral and judicial estoppel to allow the State to present evidence that Edwina
was killed “execution-style.”2 He argues that at the first two trials, the State acquiesced to his
2
The law of the case doctrine stands for the proposition that whatever was once
established as the controlling legal rule of decision, between the same parties in the same case,
continues to be the law of the case, so long as there is a similarity of facts. Mauck v.
Columbus Hotel Co., 741 So. 2d 259, 266-67 (Miss. 1999).
6
account that he shot Edwina when she tried to run away from him. He argues it was error then
for the State, in subsequent proceedings, to argue instead that Edwina was kneeling in front of
Jordan when she was shot. Jordan cites a number of federal cases for the proposition that
pursuing inconsistent theories is cause for reversal. Donnelly v. DeChristoforo, 416 U.S.
637, 94 S. Ct. 1868, 40 L. Ed. 2d 431 (1974); Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir.
2000); Drake v. Kemp, 762 F.2d 1449, 1470-79 (11th Cir. 1985). 3
¶16. The State argues the evidence that Edwina Marter was killed execution-style was not a
new theory. The State attempted to introduce this evidence at the sentencing trial in 1977 and
the State used this theory in its re-sentencing of Jordan in 1983.
¶17. We agree with the State and also now find that no objection was raised on this claim at
trial or on appeal. Furthermore, Jordan could have and yet failed to raise this issue in previous
post-conviction pleadings. Therefore, Jordan’s claim that it was a violation of the law of the
case doctrine and the doctrines of collateral and equitable estoppel to allow the State to
present evidence that Edwina was killed “execution-style” is now procedurally barred by Miss.
Code Ann. § 99-39-21.
3
We find those cases distinguishable. In Smith v. Groose, the prosecution used two
contradictory statements as to when a murder occurred to convict two defendants at separate
trials. In Drake v. Kemp there were two defendants in two different trials where the
prosecution argued different theories to convict each of murder. In Donnelly v. DeChristoforo,
there were two defendants in joint trials. Prior to the conclusion of the trial, one defendant
pled guilty to the murder. In closing arguments as to DeChristoforo the prosecutor remarked
about DeChristoforo’s motive for continuing to stand trial after his co-defendant pled guilty.
The U.S. Supreme Court held that the comment did not render the trial fundamentally unfair
and that DeChristoforo was not denied due process.
7
¶18. Notwithstanding the procedural bar, we find this issue has no merit. In the trials prior
to 1983, the trial court never held Melton’s testimony inadmissible with regard to the
substantive content of blood spatter testimony. Therefore, there was no law of the case as to
Melton’s testimony established in the 1977 trial. This Court previously held Melton’s blood
spatter testimony and Dr. Atchison’s testimony as to the position of the victim’s body to be
admissible. Furthermore, the State was not attempting to relitigate Jordan’s conviction, but
was introducing evidence of aggravating factors with regard to re-sentencing.
¶19. Next, Jordan asserts that misconduct by the special prosecutor hampered defense
counsel’s ability to raise an objection to the State’s inconsistent theories and hampered his
ability to cross-examine the State’s experts about their qualifications and conclusions on the
issue of blood spatter evidence. Jordan asserts that the special prosecutor led defense counsel,
Tom Sumrall, to believe that transcripts of prior trials were unavailable for review. Having
failed to review the transcripts of prior trials, it was impossible for the defense attorney to
realize that the State was pursuing inconsistent theories in the 1998 re-sentencing trial. Jordan
argues that the State’s misleading statements about the availability of the transcripts was a
violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
¶20. The State correctly points out that all of the transcripts of the earlier proceedings are
public records and, as such, were equally available to the State and the defense. Also the State
argues that what Jordan describes would not be a Brady violation.
¶21. In King v. State, 656 So. 2d 1168 (Miss. 1995), this Court noted:
8
United States v. Spagnoulo sets forth a four-prong test to determine
whether a Brady violation has occurred mandating a new trial. To establish a
Brady violation a defendant must prove the following: (1) that the government
possessed evidence favorable to the defendant (including impeachment
evidence); (2) that the defendant does not possess the evidence nor could he
obtain it himself with any reasonable diligence; (3) that the prosecution
suppressed the favorable evidence; and, (4) that had the evidence been disclosed
to the defense, a reasonable probability exists that the outcome of the
proceedings would have been different. Spagnoulo, 960 F.2d 990, 994 (11th Cir.
1992), citing United States v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989),
(cert. denied).
656 So. 2d at 1174. It is well settled that exculpatory evidence in the possession of the
prosecution must be turned over to the accused in a criminal proceeding. However, as this
Court has held, the prosecution is under no duty to turn over its entire file to the defense.
Boches v. State, 506 So. 2d 254, 563 (Miss. 1987) (citing Scott v. State, 359 So. 2d 1355,
1361 (Miss. 1978)).
¶22. Furthermore, the affidavit of defense counsel Tom Sumrall filed with Jordan’s petition
for post-conviction relief does not support the claim that Sumrall was somehow misled as to
the existence of transcripts. Sumrall stated he knew that the transcripts generated in previous
proceedings were voluminous. He stated he received a box full of transcripts, but then
discovered that some were incomplete. He explained he had generous access to the special
prosecutor’s files and transcripts and was provided with any copies that he wanted. We find
this claim is without merit.
¶23. While much time and argument has been expended on the blood spatter evidence, that
evidence is only one portion of a larger context of evidence upon which the jury could have
sentenced Jordan to death. After a defendant is convicted of a capital offense, the trial court
9
shall conduct a separate sentencing proceeding to determine whether the defendant should be
sentenced to death or life imprisonment, with or without parole. Miss. Code Ann. § 99-19-
101(1). Miss. Code Ann. § 99-19-101 provides in pertinent part:
(3) For the jury to impose a sentence of death, it must unanimously find
in writing the following:
(b) That sufficient aggravating circumstances exist as enumerated
in subsection (5) of this section; and
(c) That there are insufficient mitigating circumstances, as
enumerated in subsection (6), to outweigh the aggravating
circumstances.
Miss. Code Ann. § 99-19-101 further provides, in pertinent part:
(5) Aggravating circumstances shall be limited to the following:
(d) The capital offense was committed while the defendant was
engaged, or was an accomplice, in the commission of, or an
attempt to commit, or flight after committing or attempting to
commit, any robbery, rape, arson, burglary, kidnapping, aircraft
piracy, sexual battery, unnatural intercourse with any child under
the age of twelve (12), or nonconsensual unnatural intercourse
with mankind, or felonious abuse and/or battery of a child in
violation of subsection (2) of Section 97-5-39, Mississippi Code
of 1972, or the unlawful use or detonation of a bomb or explosive
device.
(f) The capital offense was committed for pecuniary gain.
(h) The capital offense was especially heinous, atrocious or cruel.
Jordan was convicted of capital murder. In the bifurcated sentencing proceeding and the re-
sentencing proceedings, the jury has found sufficient aggravating circumstances to impose the
death penalty. The jury’s finding in the most recent trial clearly indicates it found beyond a
reasonable doubt that Jordan murdered Edwina; the murder was committed in the commission
10
of a kidnaping; the murder was committed for pecuniary gain; and, it was especially heinous,
atrocious and cruel, supported by the fact that she was subjected to the mental torture caused
by her abduction from her home where she was forced to leave her three-year old son alone.
¶24. Even if the testimony on the subject of blood spatter patterns were excluded, there were
still sufficient proof of aggravating circumstances to support Jordan’s death sentence. See
McGilberry v. State, 843 So. 2d 21, 29 (Miss. 2003) (where this Court addressed the
aggravating circumstance of whether McGilberry created a great risk of death to many persons
and held that "[i]f one aggravator is found to be invalid, we are authorized to re-weigh the
remaining aggravators against the mitigating circumstances and affirm, hold the error to be
harmless, or remand for a new sentencing hearing. Miss. Code Ann. § 99-19-105(5)(b) (Rev.
2000).”
II. Ineffective assistance of counsel
a) Blood spatter
¶25. Jordan raises a number of claims of ineffective assistance of counsel. The first several
of those claims are that defense counsel, Tom Sumrall, was ineffective for failing to prepare
to rebut Melton’s blood spatter testimony, for failing to hire a blood spatter expert to refute
Melton’s testimony and for failing to object, at trial, to Melton’s qualifications as an expert on
the subject. Jordan asserts that Sumrall could have and should have contacted Robert McDuff,
who represented Jordan from 1988 through 1991, to get McDuff’s files on this subject. 4 Jordan
4
Tom Sumrall (defense counsel) provided an affidavit in which he states that had he
realized Melton would be testifying as a blood spatter expert, he would have asked for funds
11
notes that Sumrall failed even to review transcripts of the previous trials, which would have
alerted Sumrall to the subject matter of Melton’s testimony.
¶26. The State points out that defense counsel, in 1998, may have been somewhat at a loss to
challenge Melton’s qualifications where this Court had already found no reversible error in
permitting Melton to testify as an expert. Jordan v. State, 464 So. 2d at 486. The State also
notes that Jordan had the services of Dr. Leroy Riddick, also a forensic pathologist, to dispute
the theory presented by Melton and Dr. Atchison.
¶27. While we agree that Melton had been found qualified to testify as an expert in Jordan’s
previous trials, we are troubled by Jordan’s defense counsel’s confession that he failed to
realize that blood spatter evidence would be presented. Certainly, Sumrall should have realized
that such testimony was possible because Melton had testified on the subject in 1983. We find
that Sumrall’s performance was deficient on this point.
¶28. However, the analysis of this issue does not stop there. Next, we must determine
whether that deficient performance prejudiced Jordan’s defense. In this petition, Jordan merely
states that it was prejudicial and points out that the blood spatter testimony was central to the
State’s case. A meritorious claim of ineffective assistance of counsel requires more than the
mere statement that the defendant was prejudiced and requires more than just the petitioner’s
allegations that this subject matter was central to the State’s case. As we have noted, Jordan
was convicted and sentenced to death twice before David Melton’s blood spatter testimony was
to hire an independent expert.
12
ever presented to a jury. While the blood spatter testimony is clearly an emotional and highly
charged detail of Jordan’s trials after 1983, there was enough evidence even without such
testimony to convict Jordan twice before.
¶29. The Strickland standard is familiar; whether petitioner was prejudiced by the deficient
performance. Prejudice occurs when the defendant shows that “there is a reasonable probability
that , but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Strickland v. Washington, 466 U.S. 668, 684, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Jordan’s petition fails to meet the Strickland standard on the second prong. Jordan’s
argument that the blood spatter evidence was central to the case is not enough to undermine
confidence in the result. This claim is without merit.
b) Jury instructions
¶30. Jordan’s next claims of ineffective assistance of counsel pertain to the jury instructions
and the form of the verdict. Jordan argues that the jury instructions favored the State’s theory
and failed to instruct the jury on the defendant’s rebuttal of that theory. Jordan also argues, as
he has on previous appeals, that the use of the heinous, cruel and atrocious jury instructions
improperly allowed the jury an evidentiary short-cut to finding the aggravating circumstances.
13
¶31. Jordan cites Keys v. State, 635 So. 2d 845 (Miss. 1994),5 in support of the argument that
the jury instructions took away the jury’s discretion to consider his theory that the murder was
not unnecessarily tortuous or physically painful to Edwina, and, therefore, was not heinous,
atrocious and cruel. We do not agree. In Jordan’s case the jury instruction did not take away
the discretion of the jury to consider his theory of defense. Instead the instruction set forth the
State’s theory and provided the basis for finding aggravating circumstance that the murder was
heinous, atrocious and cruel.
¶32. As the State points out, this Court has already addressed the merits of the underlying
claims that Jordan now raises under the guise of ineffective assistance of counsel. See Jordan
v. State, 786 So. 2d at 1001-04 & 1026. (where this Court addressed the exact issues on jury
instructions and found that the instructions were not unconstitutionally vague or over-broad and
that the jury’s verdict, while not in ideal form, was in sufficient form to indicate the intent of
the jury).
¶33. We find that Jordan’s ineffective assistance of counsel claims are based upon claims that
have already been raised by Jordan and addressed by this Court. See, Jordan v. State, 786 So.
2d 987 (Miss. 2001); Jordan v. State, 464 So. 2d 475 (Miss. 1985). Jordan cannot now
relitigate these issues under the guise of ineffective assistance of counsel claims. Furthermore,
Jordan cannot demonstrate that his counsel’s performance fell below a reasonable professional
5
In Keys, the jury was instructed that if it found the defendant had armed himself and
confronted the victim, then it could not find the defendant acted in self-defense.
14
standard and that counsel’s performance caused prejudice to his defense where this Court has
found the jury instructions proper, the verdict sufficient to indicate the intent of the jury and
the evidence sufficient to support the verdict. We find no merit to this claim.
¶34. In a closely related claim, Jordan argues that the trial court erred in accepting the jury’s
verdict which merely copied verbatim the flawed jury instructions. The jury’s verdict, in
pertinent part, was as follows:
Three, Richard Jordan committed a capital offense which was especially
heinous, atrocious & cruel & whether the murder was conscienceless and
pitiless. In support of the circumstances the State claims that Edwina Marter was
murdered in execution style & that she was subjected to extreme mental torture
caused by her abduction from the home wherein she was forced to abandon her
unattended three-year-old child & removed to a wooded area at which time she
was shot in the back of the head by Jordan....
Jordan argues that the verdict was not in substantial compliance with the requirements of the
law and was not an intelligent response to the trial court’s instructions. Jordan cites Harrison
v. Smith, 379 So. 2d 517, 519 (Miss. 1980), a civil case in which the verdict appeared to find
both parties negligent without apportioning fault, and Stewart v. State, 662 So. 2d 552 (Miss.
1995), a criminal case in which the jury’s verdict found the defendant guilty of both capital
murder and conspiracy to commit capital murder, rather than guilty of one or the other.
¶35. Miss. Code Ann. § 99-19-9 provides that where there has been substantial compliance
with the law, a jury’s verdict will not be reversed for mere want of form. Case law instructs that
if the jury’s intent can be understood in a reasonably clear manner, there has been substantial
compliance and there is no error. "[T]he basic test with reference to whether or not a verdict
is sufficient as to form is whether or not it is an intelligent answer to the issues submitted to
15
the jury and expressed so that the intent of the jury can be understood by the court." Miss.
Valley Gas Co. v. Estate of Walker, 725 So. 2d 139, 151 (Miss. 1998); Harrison v. Smith, 379
So. 2d 517, 519 (Miss. 1980) (quoting Henson Ford, Inc. v. Crews, 249 Miss. 45, 160 So. 2d
81, 85 (1964)). In Cole v. State, 756 So. 2d 12 (Miss. Ct. App. 1999), the Court of Appeals
found that a verdict with misspellings and unusual abbreviations was not so unclear as to be
reversible error. We find that the jury’s verdict in the present case can be understood in a
reasonably clear manner and, as such, will not be reversed just because it is a poor translation
of the jury instruction(s). It was not deficient performance on the defense counsel’s part to fail
to object to the form of this verdict.
¶36. Jordan also argues that defense counsel was ineffective for failing to object because the
especially heinous aggravator “doubled up” with the kidnapping aggravator. He argues that in
explaining “especially heinous” the trial court explicitly referred to the extreme mental torture
caused by the abduction from her home, and that this made the especially heinous aggravator
duplicative of the kidnapping aggravator.
¶37. This Court has already addressed and decided this underlying claim. In the 2001 Jordan
opinion, the Court stated:
The two aggravating factors of kidnapping and heinousness are not
"doubled up" in the case at hand. Jordan could have kidnapped Edwina without the
crime being heinous. He could have allowed Edwina to secure the safety of her
child. He did not have to kill her in the cold and inhumane way he did. After he
received his ransom, he could have returned her to her family, physically
unharmed. This claim is without merit.
16
786 So. 2d. at 1005. Likewise, we now find this claim under the heading of ineffective
assistance of counsel to be without merit.
¶38. Finally, Jordan argues that defense counsel should have objected to the special
prosecutor’s remarks during closing arguments. Those remarks pertained to the privileges that
Jordan enjoyed, and might continue to enjoy, at the state penitentiary at Parchman and on
Jordan’s having used and misused the judicial system. Other remarks included the prosecutor’s
referring to Jordan as a scam artist or con man.
¶39. The State argues that, because this Court held the underlying substantive claims to be
without merit, Jordan cannot now sustain a claim of ineffective assistance of counsel because
he cannot show deficient performance and actual prejudice.
¶40. We agree with the State. In the 2001 opinion, the Court found, first, that Jordan’s
counsel did make two contemporaneous objections which were overruled. Secondly, the Court
found that Jordan himself had already introduced some of the same facts regarding his activities
and conduct at Parchman into evidence and that the remarks did not unduly prejudice the jury
against Jordan. This claim of ineffective assistance is without merit.
c) Mental Health Examination
¶41. Jordan makes several claims of error pertaining to the mental health examination
conducted by Dr. Henry Maggio prior to Jordan’s 1998 re-sentencing. The basis of Jordan’s
first claim is that Dr. Maggio was given a copy of a report of a previous mental health
17
examination conducted by Dr. Clifton Davis. Jordan argues that Dr. Davis’ report contained
materially false information and that the State was aware that the information was false.6
¶42. At the 1998 re-sentencing trial the defense opted not to call Dr. Maggio as a witness
because his report was unfavorable to Jordan. However, the State had a copy of Dr. Maggio’s
report and used information from that report to cross-examine a key mitigation witness. Jordan
argues that it was improper for the State to use the report to impeach defense witnesses because
the report was based on erroneous information and, therefore, unreliable.
¶43. The State points out that it was Jordan who requested both of the mental health
examinations and that it was the trial court which ordered that Dr. Maggio be given a copy of
Dr. Davis’ earlier report. The State committed no error in complying with the court’s order.
¶44. In the most recent opinion, this Court examined a related version of this issue and
thoroughly examined Jordan’s constitutional claims. The Court found no error in the State’s
impeachment of Jordan’s mitigation witness with information from Dr. Maggio’s report where
the report was never introduced into evidence or read to the jury. Furthermore, as we held
before, the State was within its rights to use Dr. Maggio’s report to impeach the mitigation
witness as to veracity, credibility and his knowledge of the defendant when that witness’
testimony directly contradicted information contained in Dr. Maggio’s report.
¶45. The materially false information about which Jordan complains is the statement in Dr.
Davis’ report that Jordan was dishonorably discharged from the Army. Jordan includes evidence
6
The materially false information of which Jordan complains is a statement in the
report that notes that Jordan was dishonorably discharged from the Army.
18
that he was honorably discharged. From the record, we find little explanation for this error in
the report. The report states that Jordan told Dr. Davis he had been dishonorably discharged.
Jordan also admits that the information could have been entered incorrectly in the report.
There was much more information in both Dr. Davis’s report and Dr. Maggio’s report that
Jordan does not challenge as untrue. The majority of the information used for impeaching
Jordan’s witness had absolutely nothing to do with Jordan’s discharge from the Army, honorable
or otherwise. Jordan cites United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d
342 (1976), for the longstanding proposition that the State has a responsibility not to present
false or misleading evidence. Agurs involved undisclosed evidence that the murder victim had
prior convictions for violent crimes. The case sets out the U.S. Supreme Court’s standard for
judging the materiality of undisclosed or false evidence.
The proper standard of materiality of undisclosed evidence, and the
standard applied by the trial judge in this case, is that if the omitted evidence
creates a reasonable doubt of guilt that did not otherwise exist, constitutional
error has been committed.
96 S. Ct. at 2401-02. The misinformation of which Jordan complains was not material.
Furthermore, it was not a denial of Jordan’s constitutional rights for the special prosecutor to
supply a copy of the earlier mental health evaluation to Dr. Maggio. Therefore, this claim is
without merit.
¶46. Next, Jordan asserts that trial counsel was ineffective for failing to inspect the files of
the special prosecutor and/or the files of prior defense counsel, in which case he would have
found that Dr. Davis’ report contained inaccurate information as to Jordan’s discharge from the
19
Army. Jordan also asserts that trial counsel had an obligation to ensure that the court-appointed
psychiatrist conducted an evaluation consistent with accepted practice.
¶47. As the State points out Dr. Maggio’s report does in fact note that Jordan himself
explained he had been honorably discharged from the Army. Dr. Maggio was made aware of
the discrepancy during his own examination of Jordan. Jordan suffered no prejudice from the
discrepancy between the two mental health reports and he has not demonstrated that trial
counsel was ineffective for failing to object to Dr. Maggio’s report. Strickland, supra.
Therefore, this issue has no merit.
¶48. Next, Jordan asserts that he did not give a knowing and intelligent waiver prior to
cooperating with Dr. Maggio. He argues that he was never informed that anything he said to the
mental health examiners could be used against him by the State to secure a death sentence.
Jordan continues that had he known that Dr. Maggio’s report was going to be sent to the
prosecutor, he would not have cooperated with the doctor in the evaluation.
¶49. This Court has already addressed similar issues related to Dr. Maggio’s evaluation in its
most recent opinion. Jordan v. State, 786 So. 2d at 1006-10. This claim is procedurally barred
pursuant to Miss. Code Ann. § 99-39-21.
¶50. However, we will examine the merits of Jordan’s claim. Jordan specifically complains
that he was not aware that anything he said to Dr. Maggio could be used against him and that
because he was not aware of this, he could not have given a knowing and intelligent waiver with
respect to the use of those statements at the sentencing proceedings. Jordan cites Estelle v.
Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981), and Gardner v. Johnson, 247
20
F.3d 551 (5th Cir. 2001). 7
Estelle v. Smith provides that the Fifth and Sixth Amendments
require that a defendant be fully apprised, prior to examination, that what he says might be used
against him for sentencing purposes.
¶51. There are distinctions between Jordan’s claim and the cases he cites. In Estelle v. Smith,
the mental health examination was a court-ordered examination and the defense counsel was not
aware of the scope of the examination or notified prior to the sentencing trial that the report
would be used against the defendant. Likewise, in Gardner the mental health examination was
a court-ordered exam and counsel was not aware that it would be used against the defendant
during the sentencing phase.
¶52. In the most recent resentencing trial in this case, it was the defense who requested
Jordan be given a mental health evaluation for the purposes of exploring whether Jordan
suffered from post-traumatic stress syndrome, for purposes of mitigation. Because Jordan’s
counsel requested the psychiatric examination, he was well aware, and even intended, that
statements he gave be used at the resentencing trial. Furthermore, because Dr. Maggio was
appointed upon the defendant’s request, he was not a “state actor” for purposes of an Estelle v.
Smith warning. This Court addressed a similar claim in which a defendant asserted that he was
not given adequate warnings. See Cole v. State, 666 So. 2d 767, 780 (Miss. 1995) (the expert
7
As Estelle v. Smith teaches, the Fifth Amendment requires that the defendant in a
capital trial who is subjected to a court-ordered psychiatric examination be informed that he
is free to refuse to participate in that examination because its results can be used against him
at the sentencing phase of the trial to secure the death penalty. Gardner, 247 F.3d at 563.
21
appointed by the court at the defendant’s request was not a “state actor” associated with the
prosecution).
¶53. As has already been noted, Dr. Maggio’s report was not put in evidence nor was it read
to the jury. It was used by the prosecution to impeach a mitigation witness who testified that
he had known Jordan for many years, that he trusted him and thought him to be a good man. The
prosecutor had the witness silently read portions of Dr. Maggio’s report that included
information that Jordan embezzled money from his employer, joined the Army to avoid
prosecution, was convicted in a military court-martial proceeding and spent time in a federal
prison.
¶54. The warnings were not warranted in the instant case. However, even if it was error not
to give the warning, the error was harmless. This claim is without merit.
¶55. Next, Jordan asserts that trial counsel should have objected to the appointment of Dr.
Maggio and should have requested appointment of a psychologist. As we have held, a defendant
is not entitled to a psychiatrist or psychologist of his choice, but only has the right to a
competent one. Manning v. State, 726 So. 2d 1152, 1190-91 (Miss. 1998); Woodward v.
State, 726 So. 2d 524, 528-29 (Miss. 1997); Butler v. State, 608 So. 2d 314, 321 (Miss. 1992);
Willie v. State, 585 So. 2d 660, 671 (Miss. 1991). Jordan cannot demonstrate that his trial
counsel was deficient or any resulting prejudice from mere undeveloped assertions that another
expert would have been beneficial. Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86
L. Ed. 2d 231 (1985); Burns v. State, 729 So. 2d 203, 223-24 (Miss. 1998).
22
¶56. Jordan provides nothing to show what prejudice arose from trial counsel’s failure to
pursue another or a different mental health expert. Therefore, Jordan fails to meet the
ineffective assistance of counsel standard set forth in Strickland v. Washington, supra.
¶57. Jordan asserts that he was denied his right to a mental health examination because Dr.
Maggio’s evaluation was deficient. Jordan asserts that it is widely known in the defense
community that Dr. Maggio’s evaluations are cursory at best. Jordan also argue that Dr. Maggio
did not use accepted criteria to diagnose antisocial personality disorder.
¶58. We find this claim is procedurally barred for failure to object at trial or raise this issue
on direct appeal. Brown v. State, 798 So. 2d 481, 491 (Miss. 2001); Wiley v. State, 750 So. 2d
1193, 1208 (Miss. 1999); Foster v. State, 687 So. 2d 1124, 1138 (Miss. 1996).
¶59. Notwithstanding the procedural bar, this Court has long recognized Dr. Maggio’s
qualifications and acceptance as an expert in the field of psychiatry. A defendant is not entitled
to a favorable mental health evaluation, but is instead entitled to a competent psychiatrist and
an appropriate examination. Ake v. Oklahoma, 470 U.S. 68, 83, 105 S. Ct. 1087, 84 L. Ed. 2d
53 (1985); Jackson v. State, 860 So. 2d 653, 669 (Miss. 2003). This claim is without merit.
III. Jury Instructions
¶60. Jordan asserts that the heinous, cruel and atrocious jury instructions were improper
because the aggravating factors were not defined with any specificity and that this created an
evidentiary shortcut for the jury. He argues that the jury was instructed that if they found that
the killing was committed execution style, then they should find the aggravating circumstance
and use it when determining whether Jordan should live or die. Jordan cites Taylor v. State, 672
23
So. 2d 1246, 1275-76 (Miss. 1996). In Taylor, the Court found that an instruction which
informed the jury that the death penalty may be imposed if they found the murder to be
especially heinous, atrocious and cruel was improperly presented to the jury because there was
no evidence before the jury of how the murder was committed. There was evidence that the
victim was strangled and there was testimony that strangulation is a painful and slow way to die,
but no specific evidence of how this strangulation was especially heinous, atrocious and cruel.
¶61. The subject of this claim is the court’s instruction to the jury at the conclusion of the
penalty phase of Jordan’s trial. Instruction number one advised the jury as follows with respect
to the especially heinous, atrocious and cruel aggravating circumstance:
Whether Richard Jordan committed a capital offense which was especially
heinous, atrocious and cruel and whether the murder was conscienceless and
pitiless. In support of this circumstance, the State claims that Edwina Marter was
murdered in execution style and that she was subjected to the extreme mental
torture caused by her abduction from the home wherein she was forced to
abandon her unattended three year old child and removed to a wooded area at
which time she was shot in the back of the head by Jordan.
¶62. This argument has already been litigated and decided against Jordan and is now
procedurally barred under the provisions of Miss. Code Ann. § 99-39-21(3). See Jordan v.
State, 786 So. 2d at 1002-03.
¶63. Notwithstanding the procedural bar, we find there was sufficient evidence to support the
jury instruction. This Court has found sufficient evidence to support a heinous, cruel and
atrocious jury instruction in a factually similar case. In Woodward v. State, 726 So. 2d 524
(Miss. 1997), Woodward objected to a similar instruction, arguing that because he shot the
victim in the back of the head, killing her instantly, the murder was not heinous, cruel or
24
atrocious. We disagreed and, looking to the facts of that case, found that the victim was
abducted from her car in broad daylight, forced into the defendant’s truck and driven to a
wooded area where she was forced to her knees and made to perform fellatio on the defendant.
She was then raped, and as she tried to gather her belongings, Woodward shot her in the back
of the head. Woodward then went back and finished out his day cutting and hauling pulpwood.
The Court stated that clearly the abduction and rape of the victim was heinous, atrocious and
cruel and the fact that Woodward returned to his job demonstrates that the crime was
conscienceless and pitiless. Id. at 538-39.
¶64. In the present case, as has been stated above, Jordan abducted Edwina from her home in
broad daylight, forcing her to leave her three-year-old son sleeping alone in the house. He
forced her to drive to a wooded area on the pretext that he was going to deliver her to his partner
while he retrieved ransom money from her husband. Upon arriving at the wooded area Edwina,
undoubtedly, realized that there was no “partner” waiting for Jordan. Jordan shot her in the back
of the head and then drove back into town and continued with his plan to extort money from
Charles Marter, where for two days he led Charles to believe that his wife was alive and well.
¶65. There was sufficient evidence for the jury to find that Edwina’s murder was heinous,
atrocious, cruel, conscienceless and pitiless. There was no unconstitutional burden-shifting in
the jury instructions or evidentiary shortcuts for the jury. Nor were the instructions
unconstitutionally vague or overly broad. The instructions properly limits the jury’s discretion,
advising them that they may find the aggravating factor only if they find that Jordan “utilized a
25
method of killing that inflicted physical or mental pain upon Edwina Marter before her death,
that there was mental torture and aggravation before death.” This claim is without merit.
¶66. Next, Jordan argues that the jury instructions improperly instructed the jury to disregard
sympathy. Jordan asserts that the defense counsel was ineffective for failing to object to the
following instruction:
You should consider and weigh any aggravating and mitigating
circumstances, as set forth later in this instruction, but you are cautioned not to
be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public
opinion or public feeling.
This is exactly the jury instruction that has long been approved by this Court as a proper
statement of law. However, Jordan argues that there is an intervening case in which this Court
held that sympathy is a proper consideration for the jury. King v. State, 784 So. 2d 884 (Miss.
2001). The facts in King are distinguishable from Jordan’s case. In King, the trial court
instructed the jury from the bench to totally disregard sympathy. King, 784 So. 2d at 889-90.
This Court has approved the very instruction given to Jordan’s jury and has held that the jury
instruction does not inform the jury that they must disregard in toto sympathy. This claim has
no merit.
¶67. Jordan also argues that the jury should have been given a “catch-all” instruction as to the
fact that they should consider and weigh all of the evidence in mitigation of punishment. Jordan
has presented this argument before on direct appeal and now raises it as an ineffective
assistance of counsel claim. This claim is therefore procedurally barred. Notwithstanding the
procedural bar, we will once again discuss the merits of this claim.
26
¶68. At trial, Jordan presented testimony from family members that he was a good father and
son and had a good reputation and had served his country in Vietnam. Jordan also presented
testimony that he was a model prisoner and had been productive while incarcerated. He asserts
that the jury should have been instructed on how to consider the non-statutory mitigating factors
that were presented. He cites Jackson v. State, 684 So. 2d 1213, 1238 (Miss. 1996), and
Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, Fl L. Ed. 2d 1 (1982), to support his
assertion. Both of these cases stand for the proposition that a defendant is entitled to present
almost unlimited mitigating evidence.
¶69. This Court has often approved the use of a catch-all instruction as to the jury’s
consideration of mitigating evidence in a sentencing trial. Wiley v. State, 750 So. 2d 1193,
1204 (Miss. 1999) (quoting Jackson v. State, 684 So. 2d at 1213, 1238 (Miss. 1996)). In Scott
v. State, 878 So. 2d 933 (Miss. 2004), the Court approved the following instruction.
Consider the following elements of mitigation in determining whether the
death penalty should not be imposed: Any matter--any other aspect of the
defendant's character or record, any other circumstances of the offense brought
to you during the trial of this cause which you, the jury, deem to be mitigating on
behalf of the defendant.
Id. at 983.
¶70. Also in Scott v. State, the Court reiterated that when considering a challenge to a jury
instruction on appeal, the jury instructions are not viewed in isolation, but read as a whole to
determine if the jury was properly instructed. Id. at 966; Burton ex rel. Bradford v. Barnett,
615 So. 2d 580, 583 (Miss. 1993). Similarly, this Court has stated that "[i]n determining whether
27
error lies in the granting or refusal of various instructions, the instructions actually given must
be read as a whole. When so read, if the instructions fairly announce the law of the case and
create no injustice, no reversible error will be found." Coleman v. State, 697 So. 2d 777, 782
(Miss. 1997) (quoting Collins v. State, 691 So. 2d 918 (Miss. 1997)). In other words, if all
instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules
of law, no error results. Scott v. State, 878 So. 2d 933 (Miss. 2004) (citing Milano v. State, 790
So. 2d 179, 184 (Miss. 2001)). See Austin v. State, 784 So. 2d 186, 193 (Miss. 2001). See also
Agnew v. State, 783 So. 2d 699, 701 (Miss. 2001).
¶71. In Jordan’s sentencing trial, the instructions clearly advised the jury it could consider
any other matter brought up during the trial as mitigating evidence. Sentencing instruction No.
1 advised the jury that “in reaching your decision, you may objectively consider the detailed
circumstances of the offense for which the defendant was convicted, and the character and
record of the defendant himself.” Sentencing instruction No. 3 advised the jury that the sworn
testimony that was read from the witness stand was entitled to the same consideration and
should be judged as to the credibility and weighed just as live testimony is considered.8
Sentencing instruction No. S-5 explains that the jury must apply reasoned judgment in light of
the totality of the circumstance. Sentencing instruction No. D-3 instructs the jury that each
individual must evaluate the evidence in mitigation and weigh each mitigation circumstance in
the balance.
8
This goes specifically to the mitigation testimony of Jordan’s parents who were
deceased at the time of the 1998 trial.
28
¶72. Even though the jury did not get a standard catch-all instruction like this Court approved
in Scott, taking the instructions as a whole, the jury was instructed that it should consider and
weigh all of the evidence in mitigation of punishment. This claim is without merit.
IV. Due Process and Other Constitutional Claims
¶73. Jordan argues that of all the inmates sentenced to death prior to the change of law
announced in Jackson v. State, 337 So. 2d 1242 (Miss. 1976), he is the only one who remains
on death row. All the other ultimately received a life sentence. Jordan also argues that, like
him, several death row inmates entered into sentencing agreements whereby they agreed not to
seek parole in exchange for the State not seeking the death penalty. He asserts that none of
those other inmates were re-sentenced to death following this Court’s decisions to void those
agreements. Jordan also argues that his exemplary record while in prison and evidence of
changed character entitles him to post-conviction relief.
¶74. The State points out that Jordan raised this same argument in his most recent direct
appeal and that this Court denied relief. Jordan v. State, 786 So. 2d at 1030. Therefore, this
claim is barred by the doctrine of res judicata under the provisions of Miss. Code Ann. § 99-39-
21(3).
¶75. Notwithstanding the procedural bar, it is suggested that Jordan’s equal protection
argument fails. He does not raise specific details of his own re-sentencing that demonstrate
discrimination. He is not challenging a specific law or statute, nor is he asserting that he is a
member of a class to which the death penalty is unfairly imposed. Instead, he is arguing that he
is entitled to post-conviction relief because other inmates, once on death row, have been
29
resentenced to life in prison. This Court has held that “...a defendant who alleges an equal
protection violation has the burden of proving "the existence of purposeful discrimination."”
Scott v. State, 878 So. 2d at 993 (citing Whitus v. Georgia, 385 U.S. 545, 550, 87 S. Ct. 643,
646, 17 L. Ed. 2d 599 (1967)). Likewise, Jordan must prove the purposeful discrimination "had
a discriminatory effect" on him and the decision-makers in his case acted with discriminatory
purpose. Wayte v. United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531, 84 L. Ed. 2d 547
(1985); Scott v. State, 878 So. 2d at 993.
¶76. Jordan offers no evidence specific to his own case that would support an inference that
the decision-makers acted with a discriminatory purpose. He asserts only that because others
have been given life sentences, he should be given a life sentence. Jordan does not meet the
burden of proving an equal protection violation. Therefore, this claim is without merit.
¶77. Next, Jordan argues that it was error to allow the special prosecutor to prosecute this
case. He argues that the special prosecutor was not a disinterested prosecutor, rather the
prosecutor had a personal vendetta against him. This claim has already been litigated and is now
procedurally barred pursuant to § 99-39-21(3). As to the merits of this claim, we noted in
Jordan’s most recent direct appeal, the Fifth Circuit has ruled that, where special prosecutors
are appointed, district attorneys must “retain control of the prosecution.” Faulder v. Johnson,
81 F.3d 515, 517 (5th Cir. 1996). In this petition as on direct appeal, Jordan fails to offer any
proof that the Harrison County District Attorney’s Office did not retain control over the
prosecution of this case. We have already found that during most of the pre-trial hearings and
at trial, the District Attorney himself or one of his assistants was always present with the special
30
prosecutor. Jordan v. State, 786 So. 2d at 1030. Likewise, Jordan fails to demonstrate the
“prosecutorial vindictiveness” about which he complains. This claim has no merit.
¶78. Jordan argues that after four reversals of his death sentence and the passage of so many
years since the crime was committed, he has been denied the ability to present a comprehensive
case in mitigation. Specifically, Jordan points out that his parents are now deceased and he was
denied the important emotional impact of their testimony in the sentencing trial. Jordan cites
cases dealing with the importance of presenting all relevant mitigating evidence and the right
to compel the attendance of favorable witnesses. Taylor v. Illinois, 484 U.S. 400, 408, 108 S.
Ct. 646, 98 L. Ed. 2d 798 (1988); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d
973 (1978); Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976); Chambers
v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); Davis v. State, 512
So. 2d 1291, 1293 (Miss. 1987); Leatherwood v. State, 435 So. 2d 645, 650 (Miss. 1983).
¶79. The State argues that despite the passage of so much time and the death of Jordan’s
parents, trial counsel has been able to present all available mitigating evidence. Transcripts of
prior testimony are available and have been read in the subsequent proceedings where live
testimony is not available.
¶80. Jordan has had the benefit of all of the mitigating evidence that was available the first
time he was convicted and sentenced to death. Although, the form of some of the evidence is
not the same as it was in the original presentation, it is still available and has been utilized to
the best extent possible by defense counsel. Likewise, Jordan was convicted and sentenced
to death in his very first trial in 1976 when, ostensibly, all of his mitigation witnesses were alive
31
and well. Therefore, we find that Jordan fails to demonstrate any actual prejudice from the
unavailability of his parents’ live testimony. This claim has no merit.
¶81. Next, Jordan asserts that a statement given to Officer Albritton should have been
excluded because it was given after Jordan’s arraignment proceedings in which he asked that an
attorney be appointed to represent him. Jordan cites Michigan v. Jackson, 475 U.S. 625, 106
S. Ct. 1404, 89 L. Ed. 2d 631 (1986), which held that if police initiate interrogation after
defendant’s assertion, at arraignment or similar proceedings, of his right to counsel, any waiver
of defendant’s right to counsel for that police-initiated interrogation is invalid.
¶82. Jordan has challenged the admissibility of this same statement from the very beginning
of this long series of appeals. Both this Court and the federal courts have found this claim to
be without merit. In this Court’s most recent opinion, in 2001, we expressly considered the
Michigan v. Jackson decision and decided that the issue of whether the tape recorded
statement given to Officer Albritton, post-arraignment and without appointed counsel present,
was without merit.
Despite his allegations that his case is not yet final, Jordan has received
four appellate reviews of this issue, and we have now twice decided that the issue
is procedurally barred. Most importantly, the issue is harmless error at best. Our
initial decision on this issue showed the admission of that statement to Officer
Allbritton was harmless since it was merely cumulative of the properly obtained
statement that Jordan gave to FBI Agent Watts. Jordan, 365 So. 2d at 1203.
Jordan v. State, 786 So. 2d at 1020.
¶83. Lastly, Jordan simply says that in light of the cumulative effect of the errors, he is
entitled to post-conviction relief.
32
¶84. Where there are no individual errors, there can be no cumulative error. Foster v. State,
639 So. 2d 1263, 1303 (Miss. 1994). This Court has previously recognized that "[w]here there
is no reversible error in any part, .... there is no reversible error to the whole." Doss v. State,
709 So. 2d 369, 401 (Miss. 1996) (quoting McFee v. State, 511 So. 2d 130, 136 (Miss. 1987).
This Court has further 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). The record indicates that Jordan received a fair trial. This issue is
without merit.
CONCLUSION
¶85. We deny Jordan’s application for leave to file a petition for post-conviction relief in the
trial court.
¶86. LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED.
SMITH, C.J., COBB, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
33