Sentenced to death for robberies and murders

Mississippi Reports

TURNER v. STATE, 1999-DR-01828-SCT (Miss. 1-4-2007) EDWIN
HART TURNER v. STATE OF MISSISSIPPI No. 1999-DR-01828-SCT.
Supreme Court of Mississippi. January 4, 2007.

TRIAL JUDGE: HON. C. E. MORGAN, III, DATE OF JUDGMENT:
02/15/1997, COURT FROM WHICH APPEALED: CARROLL COUNTY
CIRCUIT COURT

DISPOSITION: PETITION FOR POST-CONVICTION RELIEF DENIED

ATTORNEYS FOR APPELLANT: JAMES W. CRAIG , JANE E. TUCKER

ATTORNEY FOR APPELLEE:OFFICE OF THE ATTORNEY GENERAL, BY:
MARVIN L. WHITE

EN BANC.

RANDOLPH, JUSTICE, FOR THE COURT:

1. Edwin Hart Turner (Turner) shot and killed
Eddie Brooks and Everett Curry during robberies of two
convenience stores in Carroll County. A jury first found
him guilty of two counts of capital murder and subsequently
found that Turner should be sentenced to death for both
murders. Turner’s appeal from those convictions and
sentences was affirmed by this Court, and rehearing was
denied. Turner v. State, 732 So.2d 937 (Miss. 1999). The
United States Supreme Court denied certiorari. Turner v.
Mississippi, 528 U.S. 969, 120 S.Ct. 409, 145 L.Ed.2d 319
(1999).

2. Both through counsel and pro se, Turner now
asks this Court to grant him post-conviction relief
pursuant to Miss. Code Ann. Sections 99-39-1, et seq. He
raises numerous issues, primarily related to effectiveness
of his attorneys at trial and on appeal. After a thorough
review of the claims raised in the petitions, the Court
finds that Turner failed to establish that his attorneys
were ineffective and that the other claims raised in the
petitions lack merit. Accordingly, the petitions are
denied.

FACTUAL AND PROCEDURAL BACKGROUND

3. Turner’s accomplice, Paul Murrell Stewart
(Stewart), confessed his involvement in the robberies and
murders. Stewart pled guilty to two counts of capital
murder and received consecutive life sentences without
parole. As part of his plea agreement, he agreed to testify.
At trial, Stewart testified that he and Turner spent the
night of December 12 and the early morning hours of
December 13, 1997, driving around Carroll and Leflore
Counties drinking beer and smoking marijuana. They decided
to rob a convenience store. Turner was armed with a 6
millimeter rifle, and Stewart was armed with a .243 rifle.
They drove to Mims One Stop on U. S. Highway 82 between
Carrollton and Greenwood. After surveying the scene, they
decided that the store was too crowded so they left and
drove west to another convenience store on Highway 82. The
second store, Mims Turkey Village Truck Stop, was occupied
only by one clerk, Eddie Brooks. As Turner and Stewart
entered the store, Turner ordered Brooks to get down on the
floor. Before Brooks could comply, Turner shot him in the
chest with the 6 millimeter rifle. However, neither Turner
nor Stewart could open the cash register. Both fired their
rifles into the cash register, but it still wouldn’t open.
Meantime, Brooks was still alive, lying wounded on the
floor. Before they fled the scene, Turner placed the barrel
of his rifle to Brooks’s face and pulled the trigger. The
second shot proved to be fatal.

4. After failing to obtain money from the cash
register, Turner and Stewart decided to return to Mims One
Stop. They parked behind the store and headed toward the
door. Stewart went into the store and ordered the cashier
to open the cash register. Turner encountered Everett Curry
pumping gas in front of the store. While Stewart was inside
robbing the store, Turner ordered Curry to the ground and
took cash from Curry’s wallet. As Curry laid on the ground
pleading for his life, Turner unmercifully shot him in the
head. Meanwhile, Stewart took approximately $400 from the
cash register. The two fled the scene and returned to
Turner’s house. Curry was abandoned to die.

5. Based on their investigation of the robberies
and killings, law enforcement officers suspected Turner in
the murders. One witness had reported that one of the
perpetrators had a white towel wrapped around his face.
Turner was known to wrap a towel around his face to conceal
his disfigurement from a botched suicide attempt. Turner was
also a suspect in a motor vehicle violation and for fleeing
police in Leflore County the night of the shootings. A
warrant had been issued for his arrest on those charges.

6. Therefore, officers sought to question Turner.
Turner allowed them into the house where two rifles were
observed. In a car outside the house, officers found two
items — a white plastic mask like one reported to be
used in one of the robberies and a rifle shell. After
obtaining a warrant, the officers seized a 6 millimeter
rifle and a .243 rifle, along with several boxes of
ammunition. The State’s firearms expert later testified
that the shell casings found at the scene of Brooks’s
murder came from the two rifles found in Turner’s home.
Additionally, Turner’s fingerprints were found on the 6
millimeter rifle. Finally, the cashier at Mims One Stop
identified Turner.

7. Turner was indicted for two counts of capital
murder. The trial court granted the defense’s motion for a
transfer of venue. The case was tried in Forrest County.
Turner was convicted of both counts. After hearing evidence
of mitigation, the jury found that Turner had actually
killed Brooks and Curry, that he had attempted to kill both
victims, that he had intended that the killings take place,
and that in both instances, he had contemplated that lethal
force would be employed. Finally, the jury found that both
killings were committed for pecuniary gain during the armed
robberies. On both counts, the jury found that the
mitigating factors did not outweigh the aggravating factors
and that Turner should be sentenced to death.

ANALYSIS

8. In his petition for post-conviction relief,
Turner raises ten issues. All but two of those claims are
allegations of ineffective assistance of counsel. The
issues raised in the petition are:

I. Venue transfer from Carroll County.

9. Turner retained two renowned attorneys, John
Collette of Jackson and James K. Dukes of Hattiesburg.
Collette continued to represent Turner in the direct
appeal. Collette and Dukes enjoy a statewide reputation of
respect and competency, and both are well seasoned trial
attorneys with years of experience in representing criminal
defendants.

10. The standard for determining if a criminal
defendant received constitutionally effective counsel is
well established. “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 (1984). A defendant must demonstrate that
his attorney’s actions were deficient and that the
deficiency prejudiced the defense of the case. Id. at 687.
“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 v. Washington, 466 U.S. at 687.
The focus of the inquiry must be whether counsel’s
assistance was reasonable considering all the
circumstances. Id.

Judicial scrutiny of counsel’s performance must be highly
deferential. (citation omitted) . . . A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is,
the defendant must overcome the presumption that, under
the circumstances, the challenged action `might be
considered sound trial strategy.’

Stringer, 454 So.2d at 477, citing Strickland, 466 U.S. at
689. Defense counsel is presumed competent. Johnson v.
State, 476 So.2d 1195, 1204 (Miss. 1985)

Then, to determine the second prong of prejudice to the
defense, the standard 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.

. . .

There is no constitutional right then to errorless
counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.
1988); Mohr v. State, 584 So.2d 426, 430 (Miss. 1991)
(right to effective counsel does not entitle defendant to
have an attorney who makes no mistakes at trial; defendant
just has right to have competent counsel). If the
post-conviction application fails on either of the
Strickland prongs, the proceedings end. Neal v. State, 525
So.2d 1279, 1281 (Miss. 1987); Mohr v. State, 584 So.2d
426 (Miss. 1991).

Davis v. State, 743 So.2d 326, 334 (Miss. 1999), citing
Foster v. State, 687 So.2d 1124, 1130 (Miss. 1996).

11. Turner first argues that his attorneys were
ineffective in asking that venue be transferred from
Carroll County. Upon the advice of counsel, Turner
knowingly waived his right to be tried in Carroll County.
In retrospect, Turner now maintains that Carroll County
residents and potential jurors likely would have known about
his troubled family history and his psychiatric treatments.
His unpersuasive argument is that Carroll County jurors
might have been more lenient than the jurors of Forrest
County.

12. The only case cited by Turner is State v.
Caldwell, 492 So.2d 575 (Miss. 1986). In Caldwell, the
defendant’s death penalty trial was transferred to another
county at the defendant’s request. He was convicted and
sentenced to death. Ultimately, the United States Supreme
Court reversed the death sentence and remanded for a new
sentencing hearing. Upon remand, Caldwell requested that
the hearing be held in the original county. That request
was denied by the trial judge. This Court found that
Caldwell had the right to be tried in the county where the
crime occurred and the fact that he had previously waived
that right was not binding, after an appellate court later
reversed for a new trial. Id. at 577.

13. Caldwell is distinguishable, as it did not
involve issues of attorney effectiveness. The issue there
was whether the defendant had the right to “undo” a
previous request to transfer venue from where the crime was
committed in a subsequent proceeding. The Court found that
he still had the right to be tried in that county. Turner
had the right to be tried in Carroll County. However, he
waived that right and venue was properly transferred to
Forrest County. In the absence of remand, the issue of
where he would like to be tried is moot.

14. Turner asserts that his attorneys were
ineffective in requesting that venue be transferred, but
fails to offer proof that would demonstrate that the
attorneys’ performance was deficient. Any prejudice claimed
by Turner is entirely hypothetical. Turner has not shown,
and we ponder, how it could be shown, that a Carroll County
jury would have found differently. See Cabello v. State,
524 So.2d 313, 317 (Miss. 1988); Gilliard v. State, 462
So.2d 710, 714 (Miss. 1985) (finding that petitioners had
shown no prejudice in attorneys’ failure to seek transfer
of venue).

15. Additionally, Turner cannot overcome the
presumption that, under the circumstances, seeking a change
of venue was sound trial strategy. See Knox v. State, 901
So.2d 1257, 1262 (Miss. 2005) (citing Stringer v. State ,
454 So.2d 468, 477 (Miss. 1984). In Wilcher v. State, 863
So.2d 719, 750 (Miss. 2003) this Court held that “defense
counsel is under no duty to attempt to transfer venue and,
therefore, the decision not to would fall within the realm
of strategy. We find that, likewise, the decision to obtain
a venue change is within the realm of strategy.” (Internal
citations omitted).

16. Turner’s attorneys filed a motion in which
they alleged that there had been “a great deal of highly
prejudicial and adverse pervasive publicity in this case,
including both media and word of mouth publicity, making a
fair trial impossible.” On the day after the murders, the
Greenwood Commonwealth printed a story about the crimes
with a picture of Turner in handcuffs after his arrest. The
attorneys’ decision that Turner was more likely to get a
better result in another county was more than justified.
The question is whether counsel’s strategic advice resulted
in such a breakdown in the adversarial process so that the
conviction and sentence were rendered unreliable. Stringer
v. State, 454 So.2d 468, 477 (Miss. 1984). We find that
there were valid strategic reasons for the attorneys’
decision to request a change of venue from Carroll County.
We find no deficiency in the performance of Turner’s
attorneys on that claim.

II. Failure to raise a Batson challenge.

17. Turner claims that during jury selection, his
lawyers should have made a motion pursuant to Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.Ed.2d 69
(1986). The record is silent about the racial breakdown of
the members of the jury pool. Turner’s attorneys did file a
pre-trial motion to prevent the State from excluding jurors
based on the juror’s race. Turner and his accomplice
Stewart are white. The murder victims were
African-American.

18. Once again, the attorneys’ performance is
presumed to be competent. Hansen v. State, 649 So.2d 1256,
1258 (Miss. 1994), and there is a strong presumption that
the attorneys’ decisions are reasonable and strategic.
Taylor v. State, 682 So.2d at 359, 363 (Miss. 1996). Juror
selection depends on strategic considerations. To overcome
the presumption of competence, Turner is required to produce
more than mere speculation of a Batson violation. Turner
makes no specific claim as to any individual juror and he
offers no specific questionable peremptory challenge
utilized by the State. We find that Turner has neither
shown that his attorneys were ineffective nor that he was
prejudiced as a result of a hypothetical deficiency. Once
again, he fails to satisfy either prong of the Strickland
test.

19. Turner cites Triplett v. State, 666 So.2d 1356
(Miss. 1995). In Triplett, the defendant was convicted of
manslaughter. On appeal, this Court determined that his
attorney had failed to investigate the evidence and was
unfamiliar with the State’s witnesses and the scene of the
crime, had failed to file a motion to suppress the
defendant’s statement, had failed to properly challenge
jurors for cause, had failed to submit an instruction
entailing the defense’s theory that the killing had been
accidental, and failed to make a Batson motion. In sum, the
Court found that the attorney had failed to perform “any act
basic to the defense of the accused.” Id. at 1361. The
Court concluded that the attorney was ineffective only
after “considering the totality of his performance”. Id. at
1363.

20. Triplett is clearly distinguishable. There,
the attorney was ill-prepared to go forward with trial and
the defendant was prejudiced by his attorney’s multiple
deficiencies. The Court there found a “marked failure of
counsel to fulfill his adversarial role” and under the
totality of the circumstances, Triplett had not been
afforded a fair trial. The failure to make a Batson motion
was only one factor considered in the overall failure of
the attorney to adequately represent his client. This Court
has previously distinguished Triplett. See Le v. State, 913
So.2d 913, 953 (Miss. 2005); Wilcher v. State, 863 So.2d
719, 741 (Miss. 2005). Triplett is narrowly applied to
cases alleging multiple instances of ineffective, deficient
conduct by an attorney.

21. In Smith v. State, this Court held that
“[j]ury selection is generally a matter of trial strategy,
and an attorney’s decision not to make a Batson challenge
does not amount to ineffective assistance of counsel absent
a showing of prejudice to the defendant.”(citing Burns v.
State, 813 So.2d 668, 676 (Miss. 2002)).

22. Turner has shown no prejudice resulting from
his attorneys’ decision not to make a Batson challenge,
even if we presume a basis existed for the exercise of such
a challenge.

III. Failure to raise severance of the indictment on
appeal.

23. Turner was charged in one indictment with two
separate capital murders. Turner was charged with the
murder of Eddie Brooks while he and his cohort attempted to
rob the first convenience store and with the murder of
Everett Curry during a robbery at the second convenience
store. Turner’s attorneys moved to sever the charges. The
motion to sever was overruled. Turner alleges that his
attorneys were ineffective in failing to appeal the trial
judge’s decision not to grant a severance.

24. Miss. Code Ann. § 99-7-2 provides that:

(1) Two (2) or more offenses which are triable in the
same court may be charged in the same indictment with a
separate count for each offense if: (a) the offenses are
based on the same act or transaction; or (b) the offenses
are based on two (2) or more acts or transactions
connected together or constituting parts of a common
scheme or plan.

(2) Where two (2) or more offenses are properly charged
in separate counts of a single indictment, all such
charges may be tried in a single proceeding.

Rule 7.07 of the Uniform Rules of Circuit and County Court
Practice contains similar provisions.

25. At the motion hearing, the State argued that
the two murders were part of a common scheme or plan. The
State argued that on the night of the murders, Turner and
Stewart decided to rob a store. They drove to the first
store and left after deciding that it was too crowded. They
drove straight to the second store which was only four miles
away. There, Turner murdered Eddie Brooks. When they
couldn’t get the cash register open, they went directly
back to the first store where Turner murdered Everette
Curry. The same guns, masks, vehicle, and modus operandi
were involved in the two murders, minutes apart.

26. The requirements for multiple counts in a
single indictment were discussed at length by this Court in
Eakes v. State, 665 So.2d 852 (Miss. 1995). There, the
Court held that:

When a multi-count indictment has been returned and the
defendant requests severance, a hearing should be held on
the issue. Corley v. State, 584 So.2d 769, 772 (Miss.
1991). `The State bears the burden of a prima facie
showing that the offenses are within the language of
Miss. Code Ann. § 99-7-2 (1994), which allows
multi-count indictments.’ Corley, 584 So.2d at 772. If
this burden is met by the State, the defense `may rebut by
showing that the offenses were separate and distinct acts
or transactions.’ Id. The trial court should consider the
time period between the offenses, whether evidence
proving each offense would be admissible to prove the
other counts, and whether the offenses are interwoven. Id.
`If this procedure is followed, this Court will give
deference to the trial court’s findings on review,
employing the abuse of discretion standard.’ Corley, 584
So.2d at 772.

Eakes, 665 So.2d at 861. See also McCarty v. State, 554
So.2d 909, 915-16 (Miss. 1989).

27. At the hearing, the defense argued that the
two incidents were separate. The State maintained that the
murders were part of the same scheme. The murders took
place during the execution of Turner and Stewart’s common
plan to commit robberies. The time frame involved was
approximately twenty minutes. Much of the evidence at trial
related to both crimes. Clearly, the two murders were
interwoven. The trial court did not abuse its discretion in
its decision not to sever the counts. Accordingly, the
attorneys’ failure to raise that issue on appeal is of no
consequence.

28. Turner’s reliance on Flowers v. State, 773
So.2d 309 (Miss. 2003) is misplaced. There, this Court’s
reversal was based not on the failure to sever multiple
counts, but rather on the State’s introduction of evidence
of other murders, while trying the defendant on a single
indictment.

IV. Failure to raise on appeal the question of whether the
district attorney’s closing argument amounted to an
improper comment on the defendant’s failure to testify and
call witnesses.

29. Turner called no witnesses during the guilt
phase of the trial. In closing argument, Turner’s attorney
argued that the case boiled down to the credibility of
Stewart. Turner also argued that the State should have
called more witnesses, including people who were at the
second store during the Curry killing. During his closing
argument, the District Attorney responded:

We put on 17 witnesses. On one hand the Defense counsel
says we shouldn’t have put on but one. On the other hand,
they say we should have put on more. We put on the
witnesses that we thought y’all needed to hear to make
your decision. We could have probably put on forty
witnesses, but why? We wanted to make sure that you had
the facts that you needed to have. And one thing I want
to make sure that y’all understand; both sides have the
right to subpoena witnesses, and you can bet if there was
anything that was inconsistent, they would have put these
other witnesses on. They had the right to do that.

At that time, the defense objected, asserting that the
prosecutor’s argument amounted to a comment on the
defendant’s failure to testify and impinged on the
defendant’s right to remain silent. The trial judge
overruled the objection and instructed the District Attorney
to stick to the evidence. Turner claims that the
prosecutor’s statement was an improper comment on Turner’s
decision not to testify. Turner maintains that this issue
should have been raised on direct appeal and that his
attorney on appeal was ineffective for failing to raise that
claim.

30. Turner cites Griffin v. California, 380 U.S.
609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), Griffin v.
State, 557 So.2d 542 (Miss. 1990), and other cases which
hold that a defendant’s Fifth Amendment right against
self-incrimination is violated if the prosecutor makes a
comment about or alludes to the defendant’s failure to
testify at trial. This Court has repeatedly held that
attorneys on both sides are allowed wide latitude in their
closing arguments and that there is an obvious difference
between a comment on the defendant’s failure to testify and
a comment on defendant’s failure to put on a credible
defense. Underwood v. State, 919 So.2d 931, 939-40 (Miss.
2005) (citing Howell v. State, 860 So.2d 704, 751-52 (Miss.
2003). The prosecutor’s comment here was a fair response to
the defense’s claim that the State failed to call some
witnesses who could have been helpful to the jury. As in
Underwood, the argument did not specifically mention the
defendant or refer to his failure to testify. As the
closing argument was not improper, the appellate attorney
was not required to raise that issue on appeal. We find
that the attorney was not ineffective in failing to raise
this issue on direct appeal.

V. Presentation of the lesser-included offense issue on
appeal.

31. At trial, the defense offered jury
instructions on the lesser-included offense of simple
murder. The State objected on the basis that there was no
evidentiary basis for a finding of simple murder on either
count. The trial court refused the instruction. On direct
appeal, Turner argued that the trial court erred in refusing
a simple murder instruction. This Court considered that
issue and analyzed the criteria for giving a
lesser-included offense instruction. The Court found that:

no error was committed by the trial judge in denying the
lesser included offense charge of simple murder. The facts
from the record simply do not support that theory of the
case. The testimony of Stewart — the same testimony
Turner relies upon as the basis of his argument for the
lesser included offense of simple murder instruction
— clearly details how the intent and purpose of
Turner in the early morning hours of December 13, 1995,
was to rob a store.This testimony from Stewart as to
intent was uncontradicted by any other testimony.
Therefore, taking this uncontradicted testimony as true,
it was Turner’s specific intent throughout the events of
those early morning hours, up to and including the times
of both murders, to commit armed robbery.

Turner, 732 So.2d at 949.

32. Turner argues that his attorney was
ineffective in failing to argue in the appellant’s reply
brief that Stewart’s testimony was subject to extensive
cross-examination and that the testimony was not
uncontradicted. Whether Turner was entitled to a
lesser-included offense instruction has been addressed and
is now barred from further consideration. Miss. Code Ann.
§ 99-39-21(2); Lockett v. State, 614 So.2d 888, 893
(Miss. 1992).

33. Turner now asserts that this Court would have
reached a different result if his attorney had properly
addressed it in the reply brief. The claim, in essence, is
that the attorney should have argued in the reply brief
that Stewart was cross-examined extensively and that his
testimony was not “uncontradicted.” We find this claim to be
without merit.

34. This plea relies on a false presumption, i.e.,
this Court failed to fully review Stewart’s testimony,
including his cross-examination. All testimony was reviewed
in detail. No contradictions were found then, and, after a
second review, we again find that Stewart’s testimony was
uncontradicted. Turner alludes to no specific testimony
where Stewart said anything other than that he and Turner
planned to rob a store with rifles, and that Curry and
Stewart were murdered in furtherance of that armed robbery
plan. No lesser included offense instruction was warranted.
No amount of argument could change that fact.

VI. Evidence of mitigation.

35. Turner claims that his attorneys failed to
present an adequate case in the mitigation phase of his
trial. The defense called four witnesses. The petitioner
claims that several more witnesses should have been called;
and that the witnesses who did testify should have been
better prepared.

36. Generally, an attorney’s decision to call
certain witnesses and ask certain questions “falls within
the ambit of trial strategy and cannot give rise to an
ineffective assistance of counsel claim.” Bell v. State,
879 So.2d 423, 434 (Miss. 2004) (quoting Jackson v. State,
815 So.2d 1196, 1200 (Miss. 2002)). There is no absolute
requirement to put on mitigation witnesses, and 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). The fact that an attorney’s strategic choices did
not result in a good outcome is not in and of itself
definitive evidence of ineffective assistance of counsel.
“The Sixth Amendment guarantees reasonable competence, not
perfect advocacy judged with the benefit of hindsight.”
Yarborough v. Gentry, 540 U.S. 1, 124 S.Ct. 1, 4, 157
L.Ed.2d 1 (2003) (collecting cases).

37. Further, this Court has held that:

Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how
unlikely the effort would be to assist the defendant at
sentencing. Nor does Strickland require defense counsel
to present mitigating evidence at sentencing in every
case. Both conclusions would interfere with the
“constitutionally protected independence of counsel” at
the heart of Strickland, 466 U.S. at 689, 104 S. Ct. 2052,
80 L. Ed. 2d 674. We base our conclusion on the much more
limited principle that “strategic choices made after less
than complete investigation are reasonable” only to the
extent that “reasonable professional judgments support the
limitations on investigation.” Id., at 690-691, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. A decision not
to investigate thus “must be directly assessed for
reasonableness in all the circumstances.” Id. at 691, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. Wiggins, 539
U.S. at 533, 123 S. Ct. 2527. Under Wiggins, counsel may
make strategic decisions to introduce, pursue or ignore
certain evidence, but these decisions may amount to
ineffective assistance if made based on an inadequate or
unreasonable investigation.

Byrom v. State, 927 So.2d 709, 716-17 (Miss. 2006).

38. Of the witnesses the defense called in the
penalty phase, three were family members who testified
about the difficult childhood Turner had experienced. Their
testimony included the following: (1) Turner’s father was
killed in an accident when Turner was twelve years old; (2)
Turner’s mother drank excessively; (3) and (4) she and her
second husband physically and verbally mistreated Turner
and his brother, and neglected them badly; (5) Turner’s
suicide attempts; (6) his disfigurement caused by shooting
himself in the jaw; (7) Turner had been institutionalized
for psychiatric problems on several occasions without
benefit; (8) Turner had been a loving child; (9) he had made
good grades; and (10) he had always been kind and
respectful to family members.

39. Finally, the defense called Dr. Rodrigo
Galvez, a psychiatrist. Dr. Galvez testified that he had
reviewed Turner’s voluminous psychiatric records and
concluded that Turner had been involuntarily committed to
psychiatric hospitals on three occasions. He was diagnosed
as suffering from major depression, borderline personality
disorder and substance abuse problems. Prozac was
prescribed for the depression, but Dr. Galvez testified
that the personality disorder had never been treated. Dr.
Galvez attributed Turner’s problems to Turner’s parents and
to society in general. Dr. Galvez opined that as a result of
Turner’s raising and his psychiatric problems, Turner was
left with inadequate “moral brakes” to control his
behavior. Coupled with alcohol and drug use, the lack of
“brakes” led Turner into serious crimes. Dr. Galvez
testified that, in his opinion, Turner never got the
psychiatric care that he really needed.

40. Turner asserts that defense counsel failed to
perform more than a cursory investigation of Turner’s
background prior to presenting the mitigation case.
However, the record reveals that the defense interviewed
numerous witnesses and reviewed Turner’s extensive medical
and psychiatric files. We find no evidence that defense
counsel’s pre-trial investigation was insufficient.

41. Turner has submitted affidavits from numerous
family members who did not testify at trial. Much of the
proposed testimony in those affidavits is repetitive of
what was presented to the jury. The jury received testimony
about Turner’s mother’s alcohol problems and the abuse
suffered by Turner as a child. Further testimony about
Turner’s difficult childhood, his suicide attempts, his
disfigurement, or the death of his father would only have
been cumulative. We find that the lawyers were well within
their discretion not to call these additional witnesses.

42. After a review of the remaining non-cumulative
testimony, we find that Turner has failed to show any
deficiency in his attorneys’ performance. Claims that
additional witnesses should have been called are
disfavored. See Leatherwood v State, 473 So.2d 964, 970
(Miss. 1985). The record reveals that the attorneys
interviewed many family members in addition to those called
at trial. Those who were deemed to be the most effective
witnesses by counsel were called and testified for Turner.
The decision not to call the remaining witnesses falls
within the range of trial strategy, and we find that the
attorneys were not ineffective in making that choice.

43. Under the totality of the circumstances here,
the Court finds that Turner has not shown that the
attorneys were ineffective.

VII. Failure to object to allegations of prior bad acts
brought out in cross-examination of mitigation witnesses.

44. Turner argues that his attorneys were
ineffective in the presentation of the mitigation case by
“opening the door” to evidence of prior instances of bad
conduct. The State cross-examined Turner’s mitigation
witnesses, who had testified that Turner had been a good
child, by inquiring whether they knew that Turner had
assaulted his mother and stepfather. On direct appeal, this
Court found that Turner placed his character into evidence
by calling witnesses who testified that he had been a good
child. The Court found that the State was entitled to rebut
that testimony by presenting evidence that Turner was the
abuser and not the abused, at least on a couple of
occasions. Turner, 732 So.2d at 950.

45. Turner maintains that his attorneys could have
presented the evidence of abuse without opening the door to
the prior bad acts testimony. He cites Woodward v. State,
635 So.2d 805 (Miss. 1993). In Woodward, the Court found
that the defendant’s attorneys had been ineffective in
their presentation of the mitigation case. The defense
called a psychiatrist to testify about Woodward’s mental
illness. Out of fear that they would open the door to
damaging character evidence, the defense limited the
psychiatrist’s testimony to the results of mental testing.
The psychiatrist was not allowed to provide critical
information about Woodward’s history which apparently
contributed to his mental problems which had been revealed
in the psychiatrist’s examination of Woodward. The Court
held that counsel had improperly limited the testimony and
that Woodward had been prejudiced as a result.

46. Turner claims that Woodward is
indistinguishable. We find otherwise. Woodward holds that
the attorneys who called the psychiatrist should have
allowed him to give a complete picture of the results of
his examination of the defendant including critical
background history. That failure, coupled with an
inadequate closing argument that failed to address the
statutory mitigating factors, amounted to ineffective
assistance. Here, there is no allegation that Turner’s
general background was not provided to the jury. The
defense called the family members and Dr. Galvez who
testified extensively about Turner’s history. Further,
there is no claim involving inadequate closing argument.

47. Turner argues that counsel could have put on
the good character evidence without risking
cross-examination about the bad character proof. He offers
no authority to explain how counsel could have accomplished
that. On one hand, Turner claims that his attorneys should
have put on more character evidence witnesses, yet on the
other, he argues that his attorneys were ineffective in
failing to limit character evidence, so as to preclude
opening the door to the bad acts questioning. We find no
evidence in the record that counsel were ineffective in
their presentation of the case in mitigation.

VIII. Failure to move for a mistrial when the district
attorney questioned mitigation witnesses about alleged bad
conduct of the defendant.

48. Turner maintains that his attorneys should
have requested a mistrial when the district attorney asked
defense witnesses if they were aware of allegations that
Turner had beaten his mother and threatened his stepfather.
Turner argues that the questioning was improper in that the
State never offered proof that the damaging allegations were
true. He claims that counsel were ineffective in failing to
cite Flowers v. State, 773 So.2d 309 (Miss. 2000). The
State points out that the Flowers decision was handed down
after Turner’s case was decided by this Court. Citing
Flowers, therefore, would have been impossible.

49. We again note that this Court dealt with the
same issue on direct appeal. The Court found that Turner
had put his character into play by introducing evidence
that he was a good and normal child. The Court found that
the State was authorized to rebut that testimony with
evidence of bad conduct. Turner, 732 So.2d at 950. As the
Court has already found that the questions were
permissible, Turner cannot show that his attorneys were
ineffective in failing to seek a mistrial on that issue.

IX. The death sentence imposed by the jury was based in
part on facts not specifically found by the jury.

50. The State chose to present to the jury one
aggravating factor justifying the death penalty. The State
asked the jury to return a sentence of death if it found
that the murders were committed for pecuniary gain and if
the aggravating factors outweighed the evidence in
mitigation. The State did not ask that the jury be
instructed on other statutory aggravating factor. However,
the State did argue in its closing statement in the penalty
phase that the killings were “brutal and gruesome”. Turner
argues that the State’s argument about the brutality of the
crime allowed the jury to return its verdict on evidence
outside the pecuniary gain aggravating factor. Turner
claims that the sentencing was therefore based on proof
outside that found by the jury and that the sentence must
be voided under the United States Supreme Court’s decisions
in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct 2348, 147
L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122
S.Ct. 2428, 153 L.Ed.2d 556 (2002); and Blakeley v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004). Turner’s direct appeal was decided in 1999 before
the decisions in Apprendi, Ring and Blakeley were handed
down. The State argues that no federal court has applied
Apprendi and its progeny retroactively. We conclude that
Apprendi, Ring and Blakely do not apply here.

51. Turner also claims that the State’s arguments
about the brutality of the offense were prohibited by
various Mississippi decisions. See Walker v. State, 740
So.2d 873 (Miss. 1999); Balfour v. State, 598 So.2d 731
(Miss. 1992). This issue was decided on direct appeal. The
Court determined that the State was entitled to “present
the detailed circumstances of the murder committed by the
defendant” and that the State could “argue these facts and
draw inferences from the facts in order to prove that
Turner actually killed, attempted to kill, intended the
killing take place or that deadly force was contemplated.”
Turner, 732 So.2d at 955-56. Accordingly, this issue is
without merit.

X. Proportionality review in the direct appeal.

52. Turner claims that this Court’s review of the
proportionality of the death sentence on direct appeal was
inadequate. He claims that few other Mississippi death
penalty cases involve circumstances in which the jury was
asked to find only one statutory aggravating factor. Miss.
Code Ann. § 99-19-105(3) requires this Court to
review the proportionality of each death sentence before
that sentence can be affirmed. In the direct appeal, this
Court conducted the statutorily mandated proportionality
review and found as follows:

It does not appear that Turner’s death sentence was
imposed under the influence of passion, prejudice or any
other arbitrary factor. Neither does it appear, upon
comparison to other factually similar cases where the
death sentence was imposed, that the sentence of death is
disproportionate in this case. Having given
individualized consideration to Turner and the crimes in
the present case, this Court concludes that there is
nothing about Turner or his crimes that would make the
death penalty excessive or disproportionate in this case.

Turner, 732 So.2d at 956. To the extent that Turner asks
this Court to analyze the proportionality of the sentence
of death again, the Court finds that that issue has already
been decided and is procedurally barred. In post-conviction
relief proceedings, “[t]he doctrine of res judicata shall
apply to all issues, both factual and legal, decided at
trial and on direct appeal.” Miss. Code Ann. §
99-39-21. Notwithstanding the procedural bar, the Court
once again finds that the sentence imposed is not
disproportionate. In his course of robbing two stores,
Turner killed two men without provocation. Both men were
shot in the head at close range during robberies. The
jury’s finding that the murders were done for pecuniary
gain is unequivocal. A jury, properly instructed after
hearing the evidence, freely determined that Turner’s
punishment should be death. A review of relevant Supreme
Court decisions in other capital cases confirms that the
punishment here is proportionate.

CONCLUSION

53. Turner murdered Eddie Brooks and Everett Curry
during the course of two robberies. After considering the
evidence against him and the competing mitigating and
aggravating factors, a jury determined that he should be
put to death. The Court finds no error requiring alteration
of that judgment. Turner is twice guilty of capital murder.
He has not demonstrated any deficient performance by his
trial or appellate attorneys. The Court finds that Turner
is not entitled to seek post-conviction relief. Therefore,
Turner’s request for post-conviction relief is denied.

54. THE PETITION FOR POST-CONVICTION RELIEF AND
THE PRO SE PETITION FOR POST-CONVICTION RELIEF ARE DENIED.

SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, DIAZ, CARLSON,
GRAVES AND DICKINSON, JJ., CONCUR.