source: Caselaw Access Project

author: EASLEY, Justice,

license: Public Domain

text:
    Joseph Daniel BURNS a/k/a “Jo Jo” Burns v. STATE of Mississippi.
    No. 2003-CA-00447-SCT.
    Supreme Court of Mississippi.
    June 24, 2004.
    Rehearing Denied Aug. 19, 2004.

      Michael Adelman, Hattiesburg, for Appellant.

      Office of the Attorney General by Judy T. Martin, Marvin L. White, Jr., for Appel-lee.
   EASLEY, Justice,

for the Court.

¶ 1. Joseph Daniel Burns’s (“Burns”) conviction of capital murder and death sentence were affirmed on direct appeal, Burns v. State, 729 So.2d 203 (Miss.1998), and certiorari was denied by the Supreme Court, Burns v. Mississippi, 527 U.S. 1041, 119 S.Ct. 2406, 144 L.Ed.2d 804 (1999), reh’g denied, Burns v. Mississippi, 527 U.S. 1059, 120 S.Ct. 26, 144 L.Ed.2d 830 (1999) (hereinafter “Bums /”). He timely filed a petition for post-conviction relief (PCR), and counsel was appointed per this Court’s order.

¶2. Finding that Burns made a sufficient showing of ineffective assistance of counsel during the sentencing phase, this Court granted in part the motion for leave to file a petition for PCR and ordered that Burns be allowed to pursue this claim before the Lee County Circuit Court. Burns v. State, 813 So.2d 668, 681-82 (2001) (hereinafter “Bums II ”). Specifically, the circuit court was to consider the failure to call, during sentencing, several witnesses who were willing to testify.

¶ 3. After recusals, this Court appointed the Honorable Frank Russell, a former judge and the judge who presided over Burns’s original trial, as special judge. Prior to the hearing, Burns filed a Motion to Proceed Ex Parte on Application for Funds for Expert Psychologist, which was denied. Following an evidentiary hearing the motion for post-conviction relief, the motion was denied resulting in this appeal. Burns raises the following issues:

I. WHETHER THE TRIAL COURT ERRED IN DENYING BURNS’S MOTION TO PROCEED EX PARTE ON APPLICATION FOR EXPERT PSYCHOLOGIST.

II. WHETHER THE TRIAL COURT ERRED IN DENYING PCR.

FACTS

¶ 4. Because the facts regarding Burns’s crime do not affect the instant appeal, they are not reproduced here. The Court previously provided a detailed account of those facts in both the opinions addressing Burns’s crimes. See Burns II, 813 So.2d at 670-72; Burns I, 729 So.2d at 208-11.

¶ 5. During the sentencing phase, Burns presented no witnesses or evidence to sustain an argument for mitigation. The transcript from this phase indicates that it was Burns’s decision not to call any witnesses, introduce any evidence or testify on his behalf. The trial court questioned Burns outside the presence of the jury and he acknowledged that he understood he had the right to testify and the right to call witnesses. See Burns II, 813 So.2d at 678.

1f 6. In granting a post-conviction eviden-tiary review, this Court stated:

Under the totality of the circumstances here, the Court finds that this issue should be presented to the trial court for a full hearing. Burns has made a sufficient allegation of ineffective assistance of counsel in the failure to put on any mitigating evidence when several witnesses were willing to testify for Burns at the sentencing phase. Although it is entirely possible that the decision not to present any mitigation witnesses was defensible as trial strategy, absent explanatory testimony, the Court finds that leave to file a motion for post-conviction relief should be granted on this claim.

Burns II, 813 So.2d at 679 (emphasis added).

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DENYING BURNS’S MOTION TO PROCEED EX PARTE ON APPLICATION FOR FUNDS FOR EXPERT PSYCHOLOGIST.

¶ 7. The order denying the motion was based on the trial court’s finding that it lacked jurisdiction, i.e. outside the scope of remand, the matter was res judicata and, in the alternative, that Burns failed to demonstrate any need for such an expert. We find that this issue is without merit.

¶ 8. First, we find that Burns’s motion for a psychologist expert was outside the scope on remand. This Court’s holding in Bums II plainly limited leave to file a petition for post-conviction relief in the circuit court on the issue of ineffective assistance of counsel during the sentencing phase. Burns, 813 So.2d at 681-82. Nevertheless, Burns cites Miss.Code Ann. § 99-39-17(1), which provides in part:

If the motion is not dismissed summarily, the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the motion.

Accordingly, Burns argues, the trial court could have granted the motion and erred in holding that it lacked jurisdiction. The State failed to addressed § 99-39-17 in its brief.

¶ 9. This Court has held on several occasions that the only issues properly considered are those issues for which the case was initially remanded. See Culberson v. State, 456 So.2d 697, 698 (Miss.1984) (“Under this Court’s order granting permission to file the Petition for Writ of Error Co-ram Nobis, the court at that time fully considered all reasons for requesting the petition and found that only one question could or should be considered by the trial court under the petition.”). See also Neal v. State, 687 So.2d 1180, 1182 (Miss.1996) (“This is an appeal from an evidentiary hearing [on the denial of the right to testify]; therefore, this issue [of jury instructions] is not properly before this Court and will not be discussed.”); Billiot v. State, 655 So.2d 1, 17 (Miss.1995) (Because “this case was remanded for the limited reason of determining present insanity,” the Court barred the issue regarding the constitutionality of the statute addressing insane, condemned prisoners).

¶ 10. Burns attempts to distinguish the holdings from Culberson, Neal and Billiot by arguing that in this instance, the need for an expert is directly related on remand. Burns contends that he needed an expert psychologist to assist both defense counsel and the trial court in determining the meaning of the affidavits and testimony regarding his social and psychological history, and that such an expert would show the scope of mitigating evidence that should have been developed and how trial counsel was ineffective by failing to develop a mitigating case.

¶ 11. Burns fails to address specifically what testimony or history that would require an expert on psychology to interpret. Likewise, Burns provides no authority to support his position that an expert on psychology was required to prove a claim for ineffective assistance of counsel.

¶ 12. According to Miss.Code Ann. § 99-39-17, it was within the trial court’s discretion whether to grant such a motion. Notwithstanding, considering in full the order denying the motion, it is clear that the trial court concluded that an expert in psychology would not assist in determining whether counsel was ineffective. Thus, the trial court believed the request to be both beyond the scope of review and unnecessary.

¶ 13. Second, we find that this issue is also barred as res judicata. This Court has considered this issue on two previous occasions. On direct appeal, this Court found that the trial court properly denied Burns’s request for a psychological expert. Burns I, 729 So.2d at 224. Later, in Bums II, this Court ruled that trial counsel was not ineffective in handling the request for a psychological expert. Burns II, 813 So.2d at 676 (“Burns still has not shown any reliable measure that his psychiatric condition then or now required attention or that the outcome of his trial was in any way affected. As the Court found in the direct appeal, there is still no indication that Burns suffers from any psychological condition.”). Despite Burns’s efforts to present this issue in a new context, we find that on several occasions the Court has considered the need for a psychological expert and declined to find such a need. This issue is without merit.

II. WHETHER THE TRIAL COURT FAILED TO GRANT POST-CONVICTION RELIEF.

¶ 14. The standard of review after an evidentiary hearing in post-conviction relief cases is well-settled: “We will not set aside such finding unless it is clearly erroneous. Put otherwise, we will not vacate such a finding unless, although there is evidence to support it, we are on the entire evidence left with the definite and firm conviction that a mistake has been made.” Meeks v. State, 781 So.2d 109, 111 (Miss.2001). “When reviewing an ineffective assistance of counsel claim, we will not set aside the finding of the lower court unless it is clearly erroneous.” State v. Pittman, 744 So.2d 781, 786 (Miss.1999).

¶ 15. Pursuant to Miss Code Ann. § 99-39-23(7), the prisoner must prove by a preponderance of the evidence that he is entitled to relief. Burns contends that considering the affidavits submitted and the testimony presented, he proved by a preponderance of the evidence that trial counsel’s performance was deficient and that he was prejudiced by the deficient performance. Thus, he submits that he satisfied the two prong standard for finding ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 16. The State counters arguing that trial counsel’s performance was not deficient and, even assuming arguendo that it was, Burns has demonstrated no resulting prejudice. We find that this issue is without merit.

¶ 17. Several witnesses testified on behalf of Burns during the review. Robin Filgo, a former employer, testified that if called as a witness during the sentencing phase he would have told the jury that Burns was an excellent, skilled worker and ask that the jury spare his life. Next, Jean Henry, Burns’s mother, provided testimony regarding his childhood and personal background. She discussed how Burns was only seven when she divorced his father and that to provide for the family she had to work both days and nights leaving Burns’s older sister responsible for much of his care. She further testified that Burns has two daughters and that his two brother are deceased. She attributed Burns’s crimes to her failures as a mother and pleaded that he be spared from execution. Both Henry and Dalana Green (Green), Burns’s sister, testified that they had little contact with trial counsel and were not informed that they could testify during the sentencing phase. Green attributed Burns’s criminal acts to his drug problem with methamphetamine.

¶ 18. Brandy Horn, a former girlfriend and mother of one of his daughters, testified that she asked not to be involved in the original trial and likely would have fled to avoid subpoena. She stated that she would like Burns to maintain his relationship with his daughter and that she would be available for potential resentencing proceedings. Horn further testified that Phillip Hale, Burns’s accomplice, served most often as the leader between him and Burns.

¶ 19. In addition to the testimony, the trial court had before it affidavits by three jurors from the original trial. They avowed that no information was presented during sentencing and that had such been presented, they would have considered any personal information presented prior to sentencing him to death.

¶ 20. The sole witness on behalf of the State was Mel Ellis III (Ellis), lead trial counsel. He testified that it was Burns’s decision not to call any witness during sentencing and that he acted accordingly. He admitted that he had limited contact with Henry and Green. He was unable to locate his case file for the trial court to consider. Ellis testified that he believed that if no witnesses were called, Burns likely would be sentenced to death. He testified that he informed Burns of this belief and that during sentencing, and a record was made before the trial court that it was Burns’s decision not to call any witnesses or present evidence of mitigation.

¶ 21. In rebuttal, Will Bristow, who served as defense co-counsel during trial, testified that he deferred to Ellis for all decisions regarding trial strategy.

¶ 22. In his brief, Burns makes much of the fact that in the record made before the trial court did not reflect .that Ellis informed Burns of the likely consequences if he failed to present mitigation evidence during sentencing. The record made of the examination by the trial court only confirmed that it was Burns’s decision not to call any witnesses or present any evidence regarding mitigation. Burns’s argument presents the question of whether counsel was ineffective for failing to advise his client that the decision not to present any evidence of mitigation during sentencing likely will result in his being sentenced to death. Supporting his position that such a failure does render counsel ineffective, Burns cites on Silva v. Woodford, 279 F.3d 825 (9th Cir.2002). In the instant case, Ellis testified that because Burns was advised of such fact.

¶ 23. In Silva, the Ninth Circuit held, inter alia, that counsel’s decision to forgo further investigation into mitigating evidence in a capital case was unreasonable and therefore deficient under Strickland even though counsel had been directed by his client not to contact family members in investigating his background. Silva, 279 F.3d at 839-40. The court stated that “a lawyer who abandons investigation into mitigating evidence in a capital case at the direction of his client must at least have adequately informed his client of the potential consequences of that decision and must be assured that his client has made [an] ‘informed and knowing’ judgment.” Id. at 838.

¶24. In addition to the fact that Silva is not controlling authority, Silva is factually distinguishable from the instant matter. In Silva, the court found that counsel was not instructed to completely forgo all inquiry into Silva’s. Instead, Silva simply instructed counsel not to call his parents as witnesses. Thus, the court held, Silva’s instruction did not excuse counsel’s failure to investigate Silva’s background and failure to present the “raft of potentially compelling mitigating evidence.” Id. at 839-40. Likewise, counsel in Silva failed to hire an investigator despite the availability of funds to do so. Id. at 829. In the instant appeal, the record indicates that Burns instructed counsel not to present any witnesses or evidence during sentencing. Furthermore, unlike Silva, Burns’s trial counsel hired an investigator to assist in preparing its case.

¶25. Furthermore, Ellis’ testimony is uncontroverted that he counseled Burns on the likely result from his decision not to present any evidence in mitigation. Burns relies on the fact that Ellis is unable to locate his trial notes and the fact that his discussion with the judge did not address that without mitigation evidence he would likely receive the death penalty. Nevertheless, such facts are insufficient to rebut Ellis’ testimony. Thus, unlike Silva where the Ninth Circuit doubted whether the defendant made an informed and knowing judgment, there is uncontroverted evidence that Burns was counseled the consequences of his decision.

¶ 26. Burns also relies on Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), where the United States Supreme Court found that the defendant received ineffective assistance of counsel after counsel failed to investigate and present mitigating evidence of his background, including physical and sexual abuse committed by his mother, foster parents, and Job Corps supervisor, as well as evidence of mental retardation. See Wiggins, 123 S.Ct. at 2541-43. Wiggins’s trial counsel failed to make this investigation even though the State made funds available for this purpose.

¶27. Notwithstanding, the distinction that the facts involved in the instant appeal fail to rise to the level of those discussed in Wiggins, Wiggins is not applicable. The United States Supreme Court relied on the severity and the strength of the substantial mitigating evidence that counsel failed to discover and present. See id. Burns fails to point out any evidence suggesting severe circumstances similar to those considered in Wiggins, let alone possible sexual abuse or diminished mental capacities.

¶28. The case most on point is Dowthitt v. Johnson, 230 F.3d 733 (5th Cir.2000). Relying on findings from state ha-beas proceedings, the Fifth Circuit held that trial counsel’s failure to present mitigation evidence via family members during the sentencing phase of capital murder trial was not deficient where defendant did not want any of his family testifying on his behalf and counsel’s investigation was hindered by uncooperative potential witnesses. Id. at 748. “Counsel will not be deemed ineffective for following their client’s wishes, so long as the client made an informed decision.” Id. (citing Autry v. McKaskle, 727 F.2d 358, 361 (5th Cir.1984) (“By no measure can ... [the defendant] block his lawyer’s efforts and later claim the resulting performance was constitutionally deficient.”)).

¶ 29. Of additional relevance to the instant appeal, the Court in Dowthitt noted that trial counsel’s actions were reasonable trial strategy because their efforts to investigate Dowthitt’s background were thwarted by uncooperative potential witnesses. Id. at 749. Thus, applying the decision from Dowthitt, the performance of Burns’s trial counsel was reasonable considering both that he acted according to Burns’s instructions and that his efforts to investigate potential mitigation evidence were thwarted by uncooperative witnesses. See Clark v. Johnson, 227 F.3d 273, 284 (5th Cir.2000) (Counsel’s assistance was not deficient where counsel, at the direction of his client, failed to present any available mitigating evidence during the sentencing phase of capital murder trial.).

¶ 30. Though the record demonstrates that trial counsel’s performance, was not deficient according to the first prong of Strickland, the Burns is also unable to prove that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceedings would have been different. See Mohr v. State, 584 So.2d 426, 430 (Miss.1991).

¶ 31. In Williams v. Cain, 125 F.3d 269 (5th Cir.1997), the state court found that the defendant was not prejudiced by counsel’s failure to present the testimony of family and friends regarding the defendant’s troubled family history. Id. at 279-80. Such evidence would have opened the door for cross-examination regarding the defendant’s substance abuse, expulsion from school and discharge from his job. Id. at 279. Likewise, it would have had little mitigating effect against the evidence of the murder at issue in that case.

¶ 32. The Court finds that on review much of Burns’s argument centered on the mitigation evidence that counsel should have presented during sentencing. Summarized, the evidence and testimony presented during the evidentiary hearing regarding potential mitigation included: 1) Burns was a skilled electrician; 2)he was seven when his parents were divorced and subsequently his mother had to work during the day and night to support the family; 3) his older sister was responsible for much of his care; 4) his two brothers are deceased; 5) he has two daughters; 6) his accomplice may have been the leader; and 7) that his criminal problems stemmed from his drug use. Considering this, Burns to failed prove there was a reasonable probability that the outcome would have been different. See Lamb v. Johnson, 179 F.3d 352, 360 (5th Cir.1999) (“Similarly, Lamb cannot show that his proposed mitigating evidence of a non-violent- history and troubled family life raises more than a mere possibility of a different outcome, and not the required ‘reasonable probability.’ ”).

¶ 33. Of course had they testified, the State would have been allowed to rebut all mitigation evidence through cross-examination, introduction of rebuttal evidence or by argument. Turner v. State, 732 So.2d 937, 950 (Miss.1999); Bell v. State, 725 So.2d 836, 863 (Miss.1998); Davis v. State, 684 So.2d 643, 655 (Miss.1996).

¶ 34. Moreover, as for the affidavits executed by the jurors, they swear to the fact that they would have considered any mitigating evidence that would have been presented. We find that this' simply demonstrates that these jurors would have followed their instructions and confirms the presumption that jurors follow instructions given by the trial court. Williams v. State, 684 So.2d 1179, 1209 (Miss.1996).

¶ 35. The trial court did not err in denying post-conviction relief.

CONCLUSION

¶ 36. For the above reasons, the trial court’s denial of the Petition for Post-Conviction Relief is affirmed.

¶ 37. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.

      . Hale did not receive the death penalty.

      . To rebut Silva, the State simply notes the frequency at which the Ninth Circuit is reversed.

      . In Silva, the Court found that there was evidence of substantial and compelling mitigating evidence related to his childhood, mental illnesses, organic brain disorders, substance abuse, suicide attempt, prior psychiatric evaluations, and a federal resentencing report. Id. at 838-39 & 847.


author: COBB, Presiding Justice,

text:
    Blayde GRAYSON a/k/a Blayde N. Grayson a/k/a Blayde Nathniel Grayson a/k/a Blayde N. Amodeo v. STATE of Mississippi.
    No. 2002-DR-00588-SCT.
    Supreme Court of Mississippi.
    June 24, 2004.
    Rehearing Denied Aug. 19, 2004.

      Office of Capital Post-Conviction Counsel by Robert M. Ryan, attorney for appellant.
    Office of the Attorney General by Marvin L. White, Jr., Judy T. Martin, attorney for appellee.
   COBB, Presiding Justice,

for the Court.

¶ 1. Blayde Grayson was convicted in the George County Circuit Court of the crime of capital murder during the commission of a burglary and sentenced to death. Gray-son’s conviction and sentence were affirmed by this Court in Grayson v. State, 806 So.2d 241 (Miss.2001), cert. denied, 537 U.S. 973, 123 S.Ct. 466, 154 L.Ed.2d 329 (2002).

¶ 2. Now properly before this Court are Grayson’s Petition for Post-Conviction Relief and a subsequent Supplement/Amendment to Petition for Post Conviction Relief. The State filed its response in opposition to the petition and the supplemental amendment, arguing that the amended petition was filed after the statute of limitations had run, that all issues raised in the amended petition could have been raised prior to the expiration of the statute of limitations and thus are not properly before this Court. By order entered on March 6, 2003, this Court allowed Grayson to supplement his petition for post-conviction relief and the supplement/amendment was filed as a result.

¶ 3. Grayson’s initial petition, filed hastily to comport with this Court’s ruling in Puckett v. State, 834 So.2d 676 (Miss.2002), asserted six grounds for post-conviction relief: (1) purposeful unlawful delay in filing formal charges to obtain uncounseled confession; (2) unconstitutionally defective jury instructions; (3) sentence of death is constitutionally defective; (4) denial of right to effective counsel; (5) disproportionate sentence; and (6) cumulative error. In Grayson’s supplemental amendment, he asserts six additional grounds for relief, some of which are duplicative: (7) ineffective assistance of counsel; (8) sentencing verdict fails to reflect aggravating factors beyond a reasonable doubt; (9) death sentence cannot be meted out until time has been served for other offenses committed prior to the capital murder; (10) aggravating factors not included in the indictment; (11) the “avoiding lawful arrest” aggravator was inappropriate in this case and it was fundamental error to present to the sentencing jury; and (12) jury’s consideration of pecuniary gain and burglary as aggravators is error. Procedurally and on the merits, we find no error which warrants post-conviction relief for Grayson.

FACTS

¶ 4. A full recitation of the facts of this case is found in this Court’s opinion on direct appeal. Grayson v. State, 806 So.2d 241 (Miss.2001). In summary, Grayson was arrested for the stabbing death of a seventy-eight year old woman on May 5, 1996. At that time, Grayson was a fugitive from justice, having walked away for a restitution center in Jackson County several months earlier. Based on information obtained during interviews of the victim’s neighbors, Grayson was located in Florida, where he was also wanted by Florida law enforcement officials in connection with several armed robberies during the same month as the Mississippi murder. On May 17, 1996, the Escambia County, Florida, sheriff contacted Sheriff George Miller, of George County, Mississippi, and informed Miller that Grayson was in custody there and “wanting to talk with us.” Sheriff Miller and three other law enforcement officers drove to Florida that afternoon, arriving late in the night. Upon arrival, Sheriff Miller began interviewing Grayson, after he signed a waiver of his Miranda rights. A short time into the interview, Grayson said that he would rather not talk anymore until he talked to his lawyer. Sheriff Miller explained that the reason they came down was because they were told that Grayson wanted to talk to them, to which Grayson replied that he “didn’t mean to bring you fellows all the way down here for nothing ... but I need to talk to my lawyer about this-this is a situation.” The sheriff then asked Grayson “you have not been in George County, is that correct?” Grayson said “no, sir” and the sheriff asked “Have you got witnesses to that, is that correct?” ... to which Grayson responded “yes, sir.” Sheriff Miller basically conceded that Grayson had asked for a lawyer four times in approximately four minutes before the interview ended.

¶ 5. Grayson was transported back to George County that same night. Four days later, Grayson asked to speak with Sheriff Miller, at which time he gave a statement admitting that he was at the scene of the crime but that he did not rob or kill the victim, and naming the man who did the killing. Two days after that, Gray-son gave another statement, and agreed to take a polygraph test, which was done the next day. Grayson then admitted that he had killed the victim and later repeated his confession on videotape.

ANALYSIS

I. Did the delay in filing of a formal charge against Grayson violate his right to counsel and result in the State obtaining an un-counseled confession?

¶ 6. Grayson argues that the State delayed the filing of formal charges against him for the purpose of extracting a confession from him, in violation of his constitutional rights. He contends that because the confession should not have been admitted into evidence during his trial, his conviction and sentence should be vacated. The State responds that this claim is barred by the doctrine of res judicata and is procedurally barred from relitigation by Miss.Code Ann. § 99-39-21(3). We agree.

¶ 7. Grayson made virtually identical arguments during the trial court’s hearing of his motion to suppress his statements. He also made the same arguments on direct appeal, in which this Court found that the “trial court’s refusal to suppress the statement was not manifest error.” Grayson, 806 So.2d at 249. Moreover, this issue was one of two made in Grayson’s petition for writ of certiorari filed with the United States Supreme Court, which was denied. See Grayson v. Mississippi, 537 U.S. 973, 123 S.Ct. 466, 154 L.Ed.2d 329 (2002).

¶ 8. “Rephrasing direct appeal issues for post-conviction purposes will not defeat the procedural bar of res judicata. The Petitioner carries the burden of demonstrating that his claim is not procedurally barred.” Jackson v. State, 860 So.2d 653, 660-61 (Miss.2003) (quoting Lockett v. State, 614 So.2d 888, 893 (Miss.1992) (citations omitted)). This issue is procedurally barred and without merit.

II. and III. Were Grayson’s rights violated by the imposition of a sentence of death based on jury instructions which were constitutionally defective in light of Tison v. Arizona?

¶ 9. Grayson argues that Mississippi’s death penalty statutes are unconstitutional in that applying the death penalty to all defendants who are guilty of felony murder ignores the mental state and relative culpability of the defendant, and thus the death penalty is imposed in an unreasonable and inconsistent manner. He further contends that the jury instructions used in his trial and sentencing violated his Eighth and Fourteenth Amendment rights and were contrary to the holdings in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).

¶ 10. Grayson again raised the same arguments on direct appeal. This Court held that Miss.Code Ann. § 97-3-19(e), the portion of Mississippi’s death penalty statute which provides for the application of the statute to all defendants who are guilty of felony murder, is constitutional. Grayson, 806 So.2d at 251-52. This Court further held that Miss.Code Ann. § 99-19-10, which provides that a jury is to determine punishment in capital cases, and lists the aggravating and mitigating circumstances which are to be considered, is constitutional. Grayson, 806 So.2d at 252. See also Stevens v. State, 867 So.2d 219, 223 (Miss.2003). Accordingly, this issue is procedurally barred from consideration and cannot be relitigated in a post-conviction collateral relief action. Id.; Miss. Code Aim. § 99-39-21(3).

¶ 11. Notwithstanding the procedural bar, the record reveals that this issue is also without merit. In order to return a death sentence, the jury must find, beyond a reasonable doubt, at least one of the intent factors contained in Miss.Code Ann. § 99-19-101(7). In the present matter, the jury found all four factors beyond a reasonable doubt, including that Grayson “intended the killing of Minnie Smith take place.” In his present arguments, Gray-son completely ignores that finding. The jury’s finding that Grayson intended to kill Minnie Smith “is sufficient under both En-mund and Tison.” See Walker v. State, 863 So.2d 1, 26 (Miss.2003).

IV. and VII. Was Grayson denied his Sixth Amendment right to effective assistance of counsel within the meaning of Strickland v. Washington?

¶ 12. Ineffective assistance of counsel claims are governed by the following principles:

An ineffective assistance claim has two components: A petitioner must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, a petitioner must demonstrate that counsel’s representation “fell below an objective standard of reasonableness.” Id., at 688 104 S.Ct. 2052. We have declined to articulate specific guidelines for appropriate attorney conduct and instead have emphasized that “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Id.

Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Simmons v. State, 869 So.2d 995, 1000-01 (Miss.2004); Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984).

¶ 13. Grayson argues that his trial counsels’ performance was deficient in four areas. Grayson argues that his trial counsel: (a) failed to adequately investigate mitigation factors and interview potential mitigation witnesses; (b) did not submit physical evidence for DNA analysis; (c) failed to follow the procedures for obtaining a change of venue and his performance at the hearing was deficient; and (d) should have requested a continuance upon the denial of the motion for change of venue, and failure to do so was ineffective assistance of counsel. Grayson then asserts that counsels’ performance was so deficient that Grayson suffered prejudice and, but for those deficiencies, it is likely that the outcome would have been different.

a) failure to investigate and present mitigating evidence

¶ 14. Grayson argues that during the sentencing phase, counsel only called Grayson’s mother and grandmother to testify. He asserts that if counsel had conducted an adequate investigation, counsel would have found an abundance of mitigating evidence, which if presented to the jury, would have led to a different outcome. Grayson points specifically to the available, but unused, mitigating evidence testimony of Dr. Roy W. Deal, a consulting psychiatrist. Grayson contends that his “family background, mental health history, medical history, and numerous other areas relevant to mitigation should have been thoroughly investigated” by counsel and failure to do so amounted to ineffective assistance of counsel.

¶ 15. The record reveals that Grayson instructed his counsel not to oppose the death penalty, in the event of a guilty verdict. After the State rested during the guilt phase of the trial, counsel announced Grayson’s wishes to the trial court, outside the presence of the jury. The following colloquy is helpful in understanding what transpired in the trial court:

BY MR. ISHEE: At this time, Your Honor, before we go any further, since it is only about twenty-five minutes to five, we had discussed this matter in chambers earlier. In fact, we’ve discussed it several times during the week. Mr. Grayson has informed me that if in fact this matter — he is convicted during the sentencing phase tomorrow, he has instructed me that I am not to fight the death penalty during the sentence phase. Given the choice between death or life without possibility of parole, it is his option to choose the death penalty. And he does not want me to interfere in any way in that. Mr. Grayson has told me that several months ago and he has continued that position throughout my representation of him. Quite frankly, I thought prior to trial that he would change his mind. Once the trial began, he still maintained this position. I spoke with Your Honor about this. We had a conference in chambers about it. And the matter has still continued on. As of the break a little while ago, Mr. Bailey and I took Mr. Grayson and his mother into this room just off the courtroom, we discussed this matter at length. We explained all of his options for appeal. We explained all the options and all the possibilities for the outcome of a jury verdict. He has still informed us that it’s his wish that if he is convicted in the sentencing phase that we are to do nothing. Excuse me — if he is convicted in the guilt phase, we are to do nothing in the sentencing phase in the ivay of defending the death penalty. And he wishes to request the jury to impose the death penalty.
BY MR. HARKEY [District Attorney]: I’m not sure of exactly the extent of the command of Mr. Grayson to his attorneys. Would it include not putting witnesses on, presenting no testimony in mitigation of sentence; and, also, would it include argument of counsel, prohibiting his counsel from arguing one way or another?
BY MR. ISHEE: Your Honor, I have never even heard of something like this happening. I’ve talked to several other attorneys who have done more — many more death penalty cases than I have. They have not heard of anything like this. And I think that, as far as that goes, I’ll have to discuss that with Mr. Grayson as it progresses. I’m not going to just take this for granted. This is something that I’m going to have to take one step at a time as far as what he is going to allow me to do at the sentencing stage of the trial, if in fact it goes that far. But I would ask the Court to consider at least having another attorney confer with him tonight, to make sure that he does understand everything that I’ve explained to him and make sure that I and Mr. Bailey have not been derelict in our duties.
BY MR. HARKEY: The State has no objection, if that’s what they are asking for.

(emphasis added). The trial court and the attorneys then discussed the psychiatric report prepared for defense counsel by Dr. Roy W. Deal, and it was marked as an exhibit. The trial court questioned Gray-son regarding his decision, and Grayson confirmed everything counsel had stated. The trial court also asked Grayson’s family if they believed he understood the ramifications of his decision, and they said he did. The trial court appointed independent counsel, Robert Shepard, to confer with Grayson regarding his waiver of a defense to the death penalty and recessed the trial until the following morning. The following morning, after conferring with his mother, grandparents and Shepard, Grayson announced in chambers that he had a change of heart and wanted to fight the death penalty. That day, the defense rested, the jury was instructed, heard closing arguments, and returned a verdict finding Grayson guilty of capital murder.

¶ 16. The next morning additional discussion occurred regarding Grayson’s decision to allow his counsel to call only Gray-son’s mother and grandmother and make a closing argument in mitigation. Counsel Ishee advised the judge, in the presence of Grayson, that he would not put Grayson on the stand during the sentencing phase, but rather would call only Grayson’s mother and grandmother. His stated reason for that decision was that

I think if I attempted to have him do so, then he would probably make very incriminating statements in front of the jury which would probably tend to cause them to impose the death penalty. In fact, it’s my belief he may even ask the jury for the death penalty if I put him on the witness stand. - I’ve informed him of all of this and he’s informed me that he does not wish to testify. But he will allow me to go forward with a defense.

The judge then confirmed with Grayson that he agreed with what his attorney had just said. Grayson’s mother and grandmother testified during the sentencing portion of the trial. They both described Grayson’s family background and the difficulties of his childhood, including physical abuse by a stepfather. They both discussed his mental health history, including a long battle with drug addiction, and his medical history. They also both described him as a non-violent person, who cared about the victim and would never hurt her.

¶ 17. Grayson’s current argument that his counsels’ performance was deficient because they failed to call any mitigation witnesses other than Grayson’s mother and grandmother rings hollow. In response, the State points out that counsel did all that they could, within the limitations placed on them by Grayson. The State further asserts that because counsel acted in accord with Grayson’s instructions which were contrary to advice of counsel, their performance was not deficient. Evidence regarding Grayson’s “family background, mental health history, medical history, and numerous other areas relevant to mitigation” was, in fact, presented during the sentencing trial during the testimony of both Grayson’s mother and grandmother.

¶ 18. In evaluating a virtually identical ineffective assistance of counsel claim, the Fifth Circuit held that counsel is not ineffective for failing to present any evidence at the punishment phase, pursuant to his client’s instructions, proclaiming that “ ‘Meaningful discussion with one’s client’ is one of the ‘cornerstones of effective assistance of counsel’ ” Clark v. Johnson, 227 F.3d 273, 283-84 (5th.Cir.2000) (quoting Martin v. Maggio, 711 F.2d 1273, 1280 (5th Cir.1983)). See also Dowthitt v. Johnson, 230 F.3d 733 (5th Cir.2000) (another Texas death penalty case in which the Fifth Circuit reached the same conclusion, stating that “[b]y no measure can ... [the defendant] block his lawyer’s efforts and later claim the resulting performance was constitutionally deficient.”).

¶ 19. The record in this matter is clear. Grayson was thoroughly advised by his two defense counsel, the trial court, and by independent counsel, Mr. Shepard, of the consequences of his decision. Grayson blocked his counsels’ efforts and cannot not claim deficient performance. Dowthitt, 230 F.3d at 748; Clark, 227 F.3d at 284. See also Williams v. State, 722 So.2d 447, 450 (Miss.1998).

¶ 20. Grayson additionally argues that counsel was ineffective in failing to perform an adequate investigation, pursuant to Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527. Grayson has failed to present any information regarding the extent of the investigation actually conducted by counsel, or what, if anything, an “adequate” investigation would have revealed. Grayson fails to include affidavits from his defense counsel regarding the extent of their investigation. Grayson does include affidavits from several family members, however, none of them state that counsel never questioned them. This case is clearly distinguishable from the facts in Wiggins. Wiggins’s background can only be described as horrific. He was starved, neglected, beaten, abused, and raped for most of his childhood, and he had a diminished mental capacity. Despite all of that, Wiggins had no criminal history prior to the murder. Wiggins, 123 S.Ct. at 2533, 2537. From the affidavits submitted by Grayson, his family lived with his stepfather, whose discipline was “excessive,” for several years. He also battled drug addiction since adolescence. Grayson also had several convictions, including at least one armed robbery, which was reduced in a plea bargain.

¶21. We conclude that Grayson “has not submitted sufficient evidence of a breach of the duty of counsel to investigate and present mitigation evidence as described by the United States Supreme Court in Wiggins v. Smith.” Simmons, 869 So.2d at 1004. We further conclude that counsels’ performance was not deficient pursuant to Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064-65.

b) failure to conduct DNA testing

¶ 22. Grayson next asserts that counsel was ineffective because they did not submit blood samples and the fingernail scrapings of the victim for DNA analysis. In his statements to law enforcement, Grayson implicated Jason Kilpatrick as the murderer. Grayson contends that had DNA testing been performed, it “might very well have linked Kilpatrick to the crime scene.” The State argues that it was sound trial strategy not to have DNA testing done. In his statements to police, Grayson admits to being at the victim’s home with Kilpatrick at the time of the crime. Even if DNA analysis revealed Kilpatrick’s involvement, it would not prove Grayson’s innocence. Additionally, pointing the finger at Kilpatrick, who was not called during trial, was one of the main defense strategies. By conducting DNA testing it may have removed the “empty chair” defense counsel was trying to fill with Kilpatrick.

¶ 23. Grayson has not shown that counsels’ failure to conduct DNA testing was deficient performance. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-54. Additionally, Grayson has not demonstrated a reasonable probability that the results of the guilt or sentencing phase of the trial would have been different had DNA testing been done. Walker v. State, 863 So.2d at 12-13 (citing Mohr v. State, 584 So.2d 426, 430 (Miss.1991)). Accordingly, Gray-son cannot show prejudice. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

c) motion for change of venue

¶ 24. Grayson argues that his counsel failed to follow the procedures for obtaining a change of venue and thus their performance at the hearing was deficient. The procedures for obtaining a change of venue are set forth in Miss.Code Ann. § 99-15-35, which states,

On satisfactory showing, in writing, sworn to by the prisoner, made to the court, or to the judge thereof in vacation, supported by the affidavits of two or more credible persons, that, by reason of prejudgment of the case, or grudge or ill will to the defendant in the public mind, he cannot have a fair and impartial trial in the county where the offense is charged to have been committed, the circuit court, or the judge thereof in vacation, may change the venue in any criminal case to a convenient county, upon such terms, as to the costs in the case, as may be proper.

Grayson argues that his counsels’ failure to submit any affidavits and their submission of only four newspaper articles constituted constitutional ineffective assistance of counsel. Grayson asserts that counsel failed to adequately present evidence during the hearing on the motion and the resulting denial of the motion prejudiced him.

¶ 25. The State correctly argues that the underlying merits of a claim relating to the denial of the motion for change of venue were addressed in Grayson’s direct appeal and were found to be without merit. Grayson, 806 So.2d at 250-51. “If the merits of the underlying issue have been considered and rejected on direct appeal, then the [petitioner] cannot show deficiency or prejudice in counsels]’ performance with regard to that issue.” Wiley v. State, 750 So.2d 1193, 1200 (Miss.1999).

¶ 26. Additionally, Grayson’s arguments are completely without merit. The record reveals that counsel canvassed the community, but no one would agree to sign an affidavit to support the motion for change of venue. Counsel entered into evidence four newspaper articles regarding the murder and Grayson’s arrest. The prosecution agreed to waive the requirements of § 99-15-35 and presented ten witnesses who were randomly selected from the jury pool. The witnesses all stated that neither the prosecution nor the defense had communicated with them regarding the purpose of their testimony. A few of the witnesses testified that they knew either Grayson or the victim. However, all except one testified that they believed Grayson could get a fair trial in George County. Finally, Grayson failed to attach affidavits of people claiming they would have helped with the motion and he has not presented any proof that there was available evidence or testimony not admitted by defense counsel during the hearing. Grayson has failed to show that counsels’ performance was deficient, or that he was prejudiced. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

d) failure to request continuance

¶27. Grayson argues that upon the denial of the motion for change of venue, counsel should have requested a continuance and failure to do so was ineffective assistance of counsel. Grayson asserts that without a continuance, “[t]here was no way to meaningfully assess the effect of the pre-trial publicity or any way to effectively rebut the testimony of the state witnesses that offered evidence at the evidentiary hearing.” However, Grayson has failed to even allege that there was any publicity in addition to the four newspaper articles submitted during the hearing. The record reveals that the hearing on the motion for change of venue was held on March 24, 1997. The four articles were all dated at least ten months prior to that and the trial did not begin until August 4, 1997. Again, Grayson fails to show that counsels’ performance was deficient. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065.

V. Is the sentence rendered against Grayson disproportionate and unconstitutional?

¶ 28. Grayson once again argues that he should be granted a new trial, or new sentencing hearing because the death penalty violates his Eighth Amendment rights, and is disproportionate, based on much the same argument as set forth in issues II and III supra: namely, that the death penalty for felony murder ignores the mental state and relative culpability of the defendant, and that others, convicted of murder during the commission of burglary or armed robbery have been sentenced to life in prison.

¶ 29. The State correctly points out that this issue was decided on direct appeal against Grayson. Grayson, 806 So.2d at 255. This Court noted the heinous nature of the crime and specifically held that the “imposition of the death penalty on Blayde Grayson is neither excessive nor disproportionate in comparison to his crime.” Id. This claim is procedurally barred and cannot be relitigated on post-conviction review. Miss.Code Ann. § 99-39-21(3); Walker v. State, 863 So.2d at 28-29 (citing Wiley v. State, 750 So.2d at 1200; Foster v. State, 687 So.2d 1124 (Miss.1996); Wiley v. State, 517 So.2d 1373, 1377 (Miss.1987)). In addition to the procedural bar, the United States Supreme Court and this Court have found this argument to be without merit. McCleskey v. Kemp, 481 U.S. 279, 306-07, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Walker, 863 So.2d at 28-30.

VIII. Is the sentencing jury verdict fatally flawed because the aggravating factors were not found beyond a reasonable doubt?

¶ 30. Grayson asserts that the jury’s verdict in the sentencing phase did not state that the aggravators were found beyond a reasonable doubt, and that it did not say that the sentence of death was a unanimous decision. Grayson argues that his sentence should be commuted to life in prison or he should receive a new sentencing trial due to the jury’s improper and inadequate verdict.

¶ 31. The handwritten jury verdict reads as follows:

We, the jury, unanimously find the evidence beyond a reasonable doubt that the following facts existed at the time of the commission of the capital murder:
(1) That the Defendant actually killed Minnie Smith
(2) That the Defendant attempted to kill Minnie Smith
(3) That the Defendant intended the killing of Minnie Smith take place
(4) That the Defendant contemplated that lethal force would be used.
Next, we, the jury, unanimously find that the aggravating circumstances of:
(1) the capital offense was committed for pecuniary gain during the course of a burglary.
(2) the capital offense was especially heinous, atrocious, or cruel
(3) the capital offense was committed by a person under sentence of imprisonment
(4) the capital offense was committed for the purpose of avoiding or preventing a lawful arrest.
are sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances and we further find that the Defendant should suffer death.
s/Jerry D. Hudson FOREMAN OF THE JURY

Additionally, the record reveals that the jury was instructed regarding the burden of proof required to find an aggravating circumstance. Jury instruction S-2A states, in pertinent part:

Consider only the following elements of aggravation in determining whether the death penalty should be imposed:
(1) Whether the capital offense was committed for pecuniary gain during the course of a burglary;
(2) Whether the capital offense was especially heinous, atrocious, or cruel;
(3) Whether the capital offense was committed by a person under sentence of imprisonment;
(4) Whether the capital offense was committed for the purpose of avoiding or preventing a lawful arrest.
You must find, beyond a reasonable doubt, that one or more of the preceding aggravating circumstances existed in this case to return the death penalty. If none of these aggravating circumstances are found to exist, the death penalty may not be imposed, and you shall write the following verdict on a sheet of paper:

¶ 32. The State first argues that this issue is procedurally barred because it was not raised at trial or on direct appeal. Miss.Code Ann. § 99-39-21(1); Holland v. State, 705 So.2d 307, 352 (Miss.1997) (same claim barred from consideration); Foster, 687 So.2d at 1139-40. Without waiving that objection, the State argues that this Court has addressed this exact claim in Williams v. State, 684 So.2d 1179 (Miss.1996), where we stated:

This Court has held on numerous occasions that when a trial court instructs the jury, it is presumed the jurors follow the instructions of the court. See Crenshaw v. State, 520 So.2d 131 (Miss.1988); McFee v. State, 511 So.2d 130 (Miss.1987); Johnson v. State, 475 So.2d 1136 (Miss.1985).
Stated differently, courts assume that juries follow the instructions. Johnson v. State, 475 So.2d 1136, 1141 (Miss.1985). “Our law presumes the jury does as it is told.” Williams v. State, 512 So.2d 666, 671 (Miss.1987) (citations omitted). “To presume otherwise would be to render the jury system inoperable.” Johnson, 475 So.2d at 1142.
This Court must presume the jury did as it was instructed to do and that it found the existence of each of the three aggravating circumstances “beyond a reasonable doubt.” This Court agrees with the analogy made by the State concerning jury verdicts in cases less than capital. In such cases, the jury is instructed in writing they must find the defendant guilty of the crime charged beyond a reasonable doubt. The usual written verdict, however, reads as follows: “We, the jury, find the defendant guilty as charged.” There is no statutory or constitutional requirement for the jury to include in its verdict the words “beyond a reasonable doubt.”
Williams’ reliance upon Pinkton v. State, 481 So.2d 306 (Miss.1985), is misplaced. In Pinkton there was a total absence of a written finding of the intent factors required by Miss.Code Ann. § 99-19-101(7). The statute clearly stated that the jury “must” make a written finding that one or more of these circumstances existed before imposing the death sentence. No such finding was made. Pinkton is not viable authority for the “beyond a reasonable doubt” argument presented here.
When all of the jury instructions given by the court are read in harmony with the written verdict returned by the jury, it is clear the verdict of the jury resen-tencing Williams to death complies with the requirements of Miss.Code Ann. § 99-19-101 and Miss.Code Ann. § 99-19-103.

684 So.2d at 1208-09. See also Holland v. State, 705 So.2d at 352.

¶ 33. Grayson replies that Williams was decided before the U.S. Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). However, in a decision handed down on December 4, 2003, this Court has once again evaluated this exact issue. This Court stated:

We have already addressed this issue in Williams v. State, 684 So.2d 1179 (Miss.1996). There, we noted that there is no authority for the proposition that the jury must actually write the words “beyond a reasonable doubt” in its verdict. Id. at 1208. In addition, we presume that a jury will follow a trial court’s instructions and do as it is told. Id. at 1209. Crawford has given us no reason to believe that this jury departed from its instructions, and we find his claim without merit.

Crawford v. State, 867 So.2d 196, 206 (Miss.2003). Additionally, these cases are not in conflict with Apprendi and Ring. Those cases require that facts must be found by the jury “beyond a reasonable doubt.” Based on the record in this matter, this issue is without merit.

¶ 34. Finally, Grayson’s contention that “there is no indication that the decision was a unanimous one” is without merit. The transcript of the verdict during the sentencing phase clearly shows that the verdict was unanimous. The record reveals the following:

BY THE COURT: Would you hand your verdict to the clerk, please.
(The clerk retrieved the verdict and handed same to the Court.)
BY THE COURT: All right. The verdict appears to be in order and I’ll ask the clerk to read the verdict. Mr. Gray-son, would you please stand with your attorneys.
BY THE CLERK: We the jury unanimously find from the evidence beyond a reasonable doubt that the following facts exist at the time of the commission of the capital murder. (1) The fact that the defendant actually killed Minnie Smith; (2) that the defendant attempted to kill Minnie Smith; (3) that the defendant intending the lulling of Minnie Smith take place; that the defendant contemplated that lethal force would be used. Next, we the jury unanimously find that the aggravating circumstances of (1) the capital offense was committed for pecuniary gain during the course of a burglary; (2) the capital offense was especially atrocious or cruel; (3) the capital offense was committed by a person under sentence of imprisonment; (4) the capital offense committed for the purpose of avoiding or preventing a lawful arrest are significant to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances. And we further find that the defendant should suffer death. And the signature of the foreman.
BY THE COURT: Thank you. Mr. Ishee, do you or Mr. Grayson or Mr. Bailey have anything you want to say before I sentence Mr. Grayson?
BY MR. ISHEE: We would ask that the jury be polled, Your Honor.
BY THE COURT: All right. Ladies and gentlemen, just as we did yesterday, as I told you, whenever a jury comes out with a verdict, either side can request the jury be polled. The single question I have for each of you is, Is this your verdict? Your answer would be either yes or no.

The jurors were individually polled and all answered “yes.” The trial court and defense counsel noted that all twelve agreed that “this is their verdict.”

¶ 35. Grayson failed to object to the form of the verdict at the time of trial and on appeal and this claim is proeedurally barred from consideration. Additionally, this claim is without merit, and Grayson is not entitled to any relief.

IX.Is imposition of the death sentence prohibited until such time as Grayson has completed the original sentences meted out for offenses committed prior to the sentence imposed in this case?

¶ 36. Grayson makes the novel claim that he cannot be executed until he has fully served his two prior three-year sentences for grand larceny and receiving stolen property. Grayson relies on Miss.Code Ann. § 47-7-29, which states:

Any prisoner who commits a felony while at large upon parole or earned-release supervision and who is convicted and sentenced therefor shall be required to serve such sentence after the original sentence has been completed.

The State first argues that this claim was not raised at trial or on direct appeal and cannot be raised for the first time on post-conviction review. Miss.Code Ann. § 99-39-21(1); Foster, 687 So.2d at 1139-40.

¶ 37. Without waiving the procedural bar, the State asserts that the “records of the Mississippi Department of Corrections indicate that Grayson’s earlier sentences expired or were completed on March 19, 1997. Thus, Grayson has served his two concurrent sentences for grand larceny and receiving stolen property.” Accordingly, this issue is moot. The State further points out that a sentence of death becomes paramount to any other sentence imposed. A death sentenced inmate may be executed at such time as his appeals have been exhausted, no matter what additional sentence he may be under. This claim is both barred and without merit.

X. Where the aggravating factors elevating the charge to a capital offense were not included in Grayson’s indictment, must his death penalty be vacated?

¶38. Grayson argues that his death sentence must be vacated and a sentence of life imprisonment imposed because the aggravating circumstances were not set forth in the indictment. This issue was not raised at trial or on direct appeal and cannot be raised for the first time in post-conviction proceedings. Miss.Code Ann. § 99-39-21(1); Foster, 687 So.2d at 1139-40. This Court rejected the identical argument in Stevens v. State, 867 So.2d at 225-26. This issue is both barred and without merit.

XI. Is the “avoiding or preventing a lawful arrest” aggravating factor inappropriate in this case and thus is it fundamental error to present it to the sentencing jury for consideration for the imposition of a sentence of death?

¶ 39. Grayson argues that the aggravating circumstance of “avoiding or preventing a lawful arrest” was unsupported by the evidence and should not have been allowed. Grayson contends that his sentence should be vacated and remanded for a sentence of life imprisonment. The State argues that this issue was not raised at trial or on direct appeal and cannot be raised for the first time in post-conviction proceedings. Miss.Code Ann. § 99-39-21(1); Foster, 687 So.2d at 1139-40.

¶ 40. The record reveals that Grayson confessed to killing the victim on May 24, 1996. In that confession he admitted that the victim knew him and that he killed her because she could identify him. This Court has held:

Each case must be decided on its own peculiar facts. If there is evidence from which it may be reasonably inferred that a substantial reason for the killing was to conceal the identity of the killer or killers or to ‘cover their tracks’ so as to avoid apprehension and eventual arrest by authorities, then it is proper for the court to allow the jury to consider this aggravating circumstance.

Wiley v. State, 750 So.2d at 1206 (quoting Chase v. State, 645 So.2d 829, 858 (Miss.1994) (quoting Hansen v. State, 592 So.2d 114, 153 (Miss.1991))). It was proper for the trial court to allow the jury to consider this aggravating circumstance, and this issue is without merit.

XII. Did the trial court err in allowing the jury to consider pecuniary gain and burglary as aggravating circumstances?

¶ 41. Grayson argues that the trial court improperly doubled the aggravating circumstances that Grayson committed a capital offense for pecuniary gain during the course of a burglary. Grayson contends that his death sentence should be vacated and that he should receive a new sentencing hearing. The State points out that no claim regarding the granting of the aggravating circumstances was raised at trial or on direct appeal. The State contends that Grayson is barred from raising this claim for the first time on post-conviction review. Miss.Code Ann. § 99-39-21(1); Foster, 687 So.2d at 1139-40.

¶ 42. The jury was instructed in accordance with this Court’s holding in Simmons v. State, 805 So.2d 452 (Miss.2001). In that ease, Simmons argued that the jury was instructed with the non-existent statutory aggravator, “the capital offense was committed for pecuniary gain during the commission of a robbery.” Id. at 499. This Court rejected Simmons’ argument and held that “the use of robbery and pecuniary gain aggravators were, in essence, just one.” Id. (citing Turner v. State, 732 So.2d 937, 955 (Miss.1999)); see also Willie v. State, 585 So.2d 660 (Miss.1991). There was no doubling of the aggravating circumstances, and this issue is both barred and without merit.

VI. Was Grayson denied his constitutional rights due to the cumulative effect of the errors at his capital trial?

¶ 43. Grayson argues that the cumulative effect of the errors in his trial entitle him to post-conviction relief. This Court has recognized that several errors taken together may warrant reversal even though when taken separately they do not. Flowers v. State, 773 So.2d 309, 334 (Miss.2000). We have recently clarified and reaffirmed this principle in Byrom v. State, 863 So.2d 836, 847 (Miss.2004), in which we stated that “upon appellate review of cases in which we find .'.. any error which is not specifically found to be reversible in and of itself, we shall have the discretion to determine, on a case-by-case basis as to whether such error or errors ... may when considered cumulatively require reversal because of the resulting cumulative prejudicial effect.” However, none of the claims raised by Grayson in his original post-conviction application or in his supplemental application warrant such relief. This issue is without merit.

CONCLUSION

¶44. After a thorough review of the entire trial, and as previously discussed under the individual propositions above, we conclude that no reversible error was committed in the trial of this case. Gray-son is not entitled to any relief on this claim. The Petition for PosNConviction Relief and the Supplement/Amendment to Petition for PosWConviction Relief filed by Blayde Grayson are denied.

¶ 45. LEAVE TO SEEK POST-CONVICTION RELIEF DENIED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.

      . Although Grayson’s petition only refers to "counsel,” Grayson was actually represented by two attorneys during his trial: David M. Ishee of Pascagoula was lead counsel and William T. Bailey, Sr. of Lucedale was co-counsel. David Ishee also represented Gray-son in his direct appeal.

      . The record includes numerous references by counsel to conversations they had with Dr. Deal, various family members, and their efforts to prove that Jason Kilpatrick was actually the murderer.

      . In LaFevers v. Gibson, 182 F.3d 705, 722 (10th Cir.1999), the petitioner argued that his counsel was ineffective for failing to request DNA testing. The Tenth Circuit noted that, despite petitioner's assertions, the DNA testing could not prove that he was not at the crime scene or that he was not involved in the murder. At most it could prove that he was not the one who bled in the house.

      . In its response, the State points out that post-conviction counsel has not requested DNA testing be done and does not contend that it has been conducted and it exonerates Grayson. In his reply, Grayson "requests] that test samples of tissue, fluid or other potential DNA bearing evidence in the hands of the State be made available to Grayson for examination testing by an independent laboratory. Grayson further requests funds be made available for such examination and testing.” Grayson's request will not be considered as it is not properly before this Court. M.R.A.P. 22 provides the procedure for requesting expenses such as this. If Grayson wants the funds for such examination and testing, he should file a proper motion pursuant to M.R.A.P. 22.

      . "The record reflects, however, that only one juror (who knew the victim personally) believed that Grayson would be unable to get a fair trial while another admitted to hearing pro-death penalty comments in connection with the case. Most of the witnesses were unable to recall details of the crime, and none were able to recall significant details of any media coverage of the crime.” Grayson, 806 So.2d at 250-51.


author: WALLER, Presiding Justice,

text:
    ASSOCIATION OF TRIAL LAWYERS ASSURANCE, a Mutual Risk Retention Group v. Martin TSAI.
    No. 2002-CA-01659-SCT.
    Supreme Court of Mississippi.
    Aug. 5, 2004.

      Robert C. Galloway, Gulfport, Erin M. McCloskey, Ronald L. Ohren, attorneys for appellant.
    William Carl Miller, Biloxi, attorney for appellee.
   WALLER, Presiding Justice,

for the Court.

¶ 1. Martin Tsai, a judgment creditor of Woodrow Cook, sought to garnish an insurance policy issued to Cook by the Association of Trial Lawyers Assurance (“ATLA”). In its defense, ATLA contended that, because the policy was an indemnity policy, it did not have the duty to defend Cook in the garnishment action and that a prior arbitration proceeding between it and Cook was binding. Tsai argued that, because the policy provided that ATLA had a duty to defend Cook, ATLA breached the contract, and, therefore, it was estopped from raising any defense concerning coverage.

¶ 2. The arbitrator agreed with ATLA and determined that the policy did not afford coverage. The circuit court reversed the arbitrator’s findings, held that the policy did contain a duty to defend and that ATLA breached that duty, and entered judgment in favor of Tsai. Both parties appeal. We find that, applying Illinois law and under the policy provisions, ATLA had a duty to defend and a duty to indemnify. We affirm.

FACTS

¶ 3. Martin Tsai filed suit against Viceroy Tai USA, Inc., and Woodrow Daniel Cook, alleging that (1) while Cook was an associate attorney in the law firm Page, Mannino, Dickenson & McDermott (“Page Mannino”), Cook represented Tsai in the contract for the sale and purchase of the Pine Island Golf Course, in Ocean Springs, Mississippi; (2) Cook encouraged him to pursue the purchase of the golf course and to secure financing for the transaction through Southtrust Bank; (3) Through his representation of Tsai, Cook gained special knowledge of Tsai’s finances; (4) Cook continued to assure Tsai that Southtrust would grant the loan, prompting Tsai to invest more funds into the project; (5) The deal never finalized because Southtrust refused to go forward with the loan; (6) Cook breached his duty to act solely for Tsai’s interest and not to disclose Tsai’s confidences to third parties; (7) Cook used his special knowledge of Tsai’s financial situation and (a) told Southtrust that Tsai was involved in a dispute concerning other properties purchased by Tsai and disputes involving the operation of other golf courses; (b) informed Viceroy of Tsai’s financial problems and Viceroy then used that information against Tsai’s interest; and (c) represented Viceroy against Tsai’s interest; and (8) Cook’s conduct continued after he left Page Mannino and joined Beard, Raines and Cook.

¶ 4. Cook notified his insurer, ATLA, of the Tsai lawsuit on November 22, 1996. ATLA sent a reservation of rights letter to Cook on March 5, 1997, reserving its right to deny coverage as well as its right to seek arbitration. ATLA noted that the policy had a retroactive date exclusion of January 31, 1996. On March 5, 1997, ATLA sent a detailed reservation of rights letter to Cook, once again reserving its rights as to the retroactive date policy exclusion and its right to seek arbitration pursuant to the policy.

¶ 5. Almost two years later, based in part on the policy’s retroactive date exclusion, ATLA declined coverage for the Tsai lawsuit. ATLA once again reserved its right to seek arbitration.

¶ 6. The parties settled. Page Mannino paid Tsai $350,000, and Tsai and Cook entered into an settlement agreement wherein Cook’s claims against ATLA were assigned to Tsai. Tsai and Cook also stipulated to the entry of a consent judgment in the amount of $1,000,000 and agreed that the judgment would not be enrolled.

¶ 7. After Tsai served ATLA with a writ of garnishment based on the consent judgment, ATLA demanded arbitration with Cook. Although he was notified of the arbitration proceedings, Cook did not participate in the arbitration proceedings. The arbitrator ruled that the policy afforded no coverage for Tsai’s lawsuit.

¶ 8. After a bench trial, the circuit court held that the substantive issues were to be determined applying Illinois law, but that the procedural issues of the garnishment actions were controlled by Mississippi law. It noted that the burden of proving that the garnishee is liable is on the plaintiff and that the case turned on three issues: whether ATLA had a duty to defend, whether it breached that duty, and whether it is estopped from asserting a policy defense.

¶ 9. The circuit court found the policy language to be ambiguous:

While the policy states in section IV(6)(e) that it does not have a right or duty to defend a suit against its insured, after that initial statement, all language lends itself to ATLA’s virtually complete control of all aspects of the defense. The insured under this policy is at ATLA’s mercy as to their choice of defense counsel and the overall management of the defense.

The circuit court stated that the “ambiguity is rightfully resolved in favor of the insured, thus placing a definite duty to defend upon ATLA,” and concluded that ATLA had breached its duty when it initially defended the suit under a reservation of rights and when it dropped the defense two years into the litigation without having a judicial determination of its coverage issues.

¶ 10. The circuit court found that the amount of the settlement ($1,000,000) was reasonable in light of the allegations in part because ATLA offered no evidence that would challenge or refute the judgment’s reasonableness.

¶ 11. Finally, the circuit court set off the $350,000 paid by Page Mannino and the defense costs advanced by ATLA ($28,179.57), bringing the total amount of the judgment to $621,820.43. Aggrieved by the circuit court’s judgment, both ATLA and Tsai appeal.

STANDARD OF REVIEW

¶ 12. A circuit judge sitting without a jury is accorded the same deference with regard to his findings of fact as a chancellor, and his findings are safe on appeal if they are supported by substantial, credible, and reasonable evidence. Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000). Questions of law are reviewed de novo. Consolidated Pipe & Supply Co. v. Colter, 735 So.2d 958, 961 (Miss.1999).

APPLICABLE LAW

¶ 13. We agree with the circuit court that this case is governed by Illinois substantive law and Mississippi procedural law because the insurance policy in question was issued in Illinois, and this case involves questions of interpretation of the policy. See Boardman v. United Services Auto. Ass’n, 470 So.2d 1024, 1034 (Miss.1985).

DISCUSSION

WHETHER TSAI WAS BOUND BY THE ARBITRATOR’S DETERMINATION THAT THE ATLA POLICY AFFORDED NO COVERAGE TO COOK WITH RESPECT TO THE TSAI LAWSUIT.

¶ 14. ATLA first argues that Tsai was a judgment creditor and had only the same rights that Cook had. As a general rule, “the rights of a judgment creditor to recover from a garnishee depend upon the subsisting rights between the judgment debtor and the garnishee, and a garnishee’s liability to the judgment creditor is measured by the former’s liability to the defendant.” 30 Am.Jur.2d Executions and Enforcement of Judgment § 653, at 429 (2000). A judgment creditor’s rights are derived from and no greater than the insured’s rights, and if the insured did not comply with the terms of the policy the judgment creditor had no rights to the policy. Courtney v. Stapp, 232 Miss. 752, 758, 100 So.2d 606, 608 (1958); see also Parker v. Standard S.S. Owner’s Protection & Indemnity Ass’n Ltd., 1993 WL 557902 * 3 (N.D.Miss.1993) (assignee takes it with whatever limitations it had in the hands of the assignor); Schuler v. Murphy, 91 Miss. 518, 44 So. 810 (1907) (judgment creditor stands in the same position as the judgment debtor). We therefore agree with ATLA that Tsai did not have any rights greater than those afforded to Cook.

¶ 15. ATLA contends that Tsai was equitably estopped from pursuing his garnishment claims against ATLA because Tsai was bound by arbitration which began and ended unfavorably for Tsai some twenty months after ATLA’s declination of coverage and only after ATLA had received a writ of garnishment. Under Illinois law, the insurer’s duty to defend under a liability insurance policy is so fundamental an obligation that a breach of that duty constitutes a repudiation of the contract. Chandler v. Doherty, 299 Ill.App.3d 797, 234 Ill.Dec. 294, 702 N.E.2d 634 (1998) (citing Kinnan v. Charles B. Hurst Co., 317 Ill. 251, 257, 148 N.E. 12 (1925)). Additionally, it is well-settled that an insured contracts for and has a right to expect two separate and distinct duties from an insurer: (1) the duty to defend him if a claim is made against him; and (2) the duty to indemnify him if he is found legally liable for the occurrence of the covered risk. Chandler, 234 Ill.Dec. 294, 702 N.E.2d at 637 (citing Conway v. Country Cas. Ins. Co., 92 Ill.2d 388, 65 Ill.Dec. 934, 442 N.E.2d 245, 247 (1982)). In this context, a liability insurer’s breach of its duty to defend and un justifiable refusal to do so combined with its failure to file a declaratory action to determine its obligations before trial of the original tort action precludes the insurer from asserting a policy defense. Id. at 639 (citing Murphy v. Urso, 88 Ill.2d 444, 58 Ill.Dec. 828, 430 N.E.2d 1079, 1082 (1981) & Thornton v. Paul, 74 Ill.2d 132, 23 Ill.Dec. 541, 384 N.E.2d 335, 340 (1978)). The Supreme Court of Illinois has held that the aforementioned rule is likewise applicable where the insurer’s duty is to indemnify. Waste Manage ment, Inc. v. Int’l Surplus Lines Ins. Co., 144 Ill.2d 178, 161 Ill.Dec. 774, 579 N.E.2d 322, 335 (1991). Thus, whether Tsai is bound by the arbitration ruling depends on whether a duty to defend existed.

¶ 16. Any doubts about potential coverage and the duty to defend are to be resolved in favor of the insured. Chandler, 234 Ill.Dec. 294, 702 N.E.2d at 638 (citing West Bend Mut. Ins. Co. v. Sundance Homes, Inc., 238 Ill.App.3d 335, 179 Ill.Dec. 494, 606 N.E.2d 326, 328 (1992)). Additionally, if an insurance policy is clear and unambiguous, a trial court should apply its provisions as written. Am. States Ins. Co. v. Action Fire Equip., Inc., 157 Ill.App.3d 34, 109 Ill.Dec. 258, 509 N.E.2d 1097 (1987). A court should give effect to the intent of the parties as expressed in the contract using the plain and ordinary meaning of the words in'the policy. Weeks v. Aetna Ins. Co., 150 Ill.App.3d 90, 103 Ill.Dec. 328, 501 N.E.2d 349, 352 (1986). A policy provision is ambiguous only if it is subject to more than one reasonable interpretation. United States Fid. & Guar. Co. v. Wilkin Insulation Co., 144 Ill.2d 64, 161 Ill.Dec. 280, 578 N.E.2d 926 (1991). A liability insurer’s duty to defend arises when the insured tenders defense of a suit against him that alleges facts which, when taken as true, raise the potential for coverage occurring during the effective policy period. Chandler, 234 Ill.Dec. 294, 702 N.E.2d at 638 (citing West Bend Mut. Ins. Co. v. Sundance Homes, Inc., 179 Ill.Dec. 494, 606 N.E.2d at 328). It is the law of the State of Illinois that in determining whether it has a duty to defend a suit, an insurer is limited to comparing the bare allegations of the complaint with the face of the policy of insurance. Id.

¶ 17. Where an insurer has a duty to defend, it has the right to assume control of the litigation. The standard duty to defend policy is one in which the insurer selects counsel and assumes control of the defense, paying all fees and costs directly. Goodheart-Willcox Co. v. First Nat’l Ins. Co. of Am., Inc., 2001 WL 501194 (N.D.Ill.2001). Although ATLA argues that the policy did not contain a duty to defend and expressly disavowed any duty to defend, the language in the clause was so oppressive, ambiguous, and contradictory that it bordered on the unconscionable if enforced according to ATLA’s liking. It is reasonable to infer that the applicable clause was a blatant attempt by ATLA to disclaim a duty to defend while retaining all control over any claims brought. This attempt by ATLA created the ambiguity referred to by the circuit court.

¶ 18. The clause which ATLA contends constitutes an express disavowal of the duty to defend confers the following rights on ATLA: (1) advance approval of counsel; (2) the right to fire the insured’s counsel; (3) the right to be fully informed of said defense; (4) the unconditional right to direct, approve, or withhold approval of any settlements; and (5) the right “to select counsel to defend in such claim, suit or proceeding” where the insured has failed to defend or select counsel approved or directed by the Company. In essence, ATLA has drafted clauses expressly disavowing a duty -to defend while still retaining the right to defend as it pleases where it does not approve of the insured’s choice of counsel, handling of the defense, or after it has amassed enough information to satisfy itself that it is in its best interest to deny a claim. ATLA seemingly contradicts itself by asserting that an insurer has a duty to defend where it has the right to control the litigation but then claiming that the substantial rights afforded ATLA and the specific language allowing them to “defend in such claim, suit, or proceeding” in the aforementioned clause does not give rise to a duty to defend or amount to a near total control of the defense by ATLA. ATLA did in fact approve counsel, made its reservations of rights, and paid all the fees and costs of the defense directly. The ambiguity of this clause enabled the ATLA to act as defender at whim. ATLA wanted the benefit of defending the case according to its liking when it suited its interests but also wanted to disclaim a duty to defend when it decided to go forward with arbitration after it was presented with a writ of garnishment without ever seeking a declaratory judgment or requesting a stay of the case pending arbitration. By its drafting of the policy and its actions subsequent to the presentment of a writ of garnishment, ATLA wanted to have its proverbial cake and eat it too.

¶ 19. After timely notice of the claim from Cook on November 22, 1996, ATLA’s counsel responded with a letter dated December 11, 1996, in which Cook was advised that no coverage determination had yet been made. ATLA counsel requested additional information to develop his coverage opinion. Notwithstanding this letter, ATLA assumed the defense of the case on March 5, 1997, reserving its rights to contest coverage and setting forth specific policy provisions which it contended could result in a denial of coverage. , Nearly two years after it had assumed the duty of paying for Cook’s defense costs, ATLA denied coverage and abandoned its insured. Once ATLA assumed the defense of the case, it did not do what Illinois law commanded it to do; that is, either: (1) defend the case until its conclusion, reserving its right to contest its duty to pay any potential judgment or settlement; or (2) file a declaratory judgment action wherein it could have sought relief from the burdens of its obligations to Cook. State Farm Fire & Cas. Co. v. Martin, 186 Ill.2d 367, 238 Ill.Dec. 126, 710 N.E.2d 1228, 1231 (1999) (quoting Clemmons v. Travelers Ins. Co., 88 Ill.2d 469, 58 Ill.Dec. 853, 430 N.E.2d 1104, 1107 (1981)). It is the thus clear, under Illinois law, the insurer cannot simply abandon its insured. Employers Ins. of Wausau v. Ehlco Liquidating Trust, 186 Ill.2d 127, 237 Ill.Dec. 82, 708 N.E.2d 1122, 1135 (1999). Even where no duty to defend is found, ATLA’s duty to indemnify remained and also required the insurer to file a declaratory judgment action wherein it could have sought relief from the burdens of its obligations to Cook. ATLA did not do this nor did it ask for a stay of Tsai’s action pending arbitration. ATLA retained control over nearly every aspect of Cook’s defense, even retaining the right “to defend in such claim, suit, or proceeding,” paid all costs of the defense, made reservations of rights, remained intimately involved in the litigation until enough information was gathered to deny coverage, and then denied coverage at its own behest without seeking approval of this determination by a court of law as required whether they had a duty to defend or a duty to indemnify. Accordingly, Illinois law precludes ATLA from asserting a policy defense such as an arbitration clause where it has failed to either defend the action to its conclusion or seek a declaratory judgment. Finally, when the circuit court approved the writ of garnishment against ATLA, the company did an end-run around the court’s authority by initiating arbitration two years after declining coverage then attempted to make it binding on Tsai because Tsai “stands in the shoes” of Cook. Indeed, Tsai “stands ih the shoes” of Cook and as such Cook’s claims that ATLA had a duty to defend or at least a duty to indemnify, breached its duties, and should be estopped from asserting a policy defense may be imputed to Tsai.

¶ 20. Given the facts of this case, ATLA had a duty to defend, and at the very least had a duty to indemnify, and therefore was required to: (1) defend the case to conclusion, reserving its right to contest its duty to pay potential judgments or settlements; or (2) file a declaratory judgment wherein it could have sought relief from the burdens of its obligations to Cook. Because ATLA failed to do so, it is now estopped from arguing that the arbitration decision is binding.

¶ 21. Because this issue is dispositive, we will not address the other issues raised by ATLA in its direct appeal and by Tsai in his cross-appeal.

CONCLUSION

¶ 22. We find that ATLA had a duty to defend and a duty to indemnify. We therefore affirm the judgment of the Jackson County Circuit Court.

¶ 23. AFFIRMED ON DIRECT APPEAL AND CROSS-APPEAL.

SMITH, C.J., COBB, P.J., CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, DICKINSON AND RANDOLPH, JJ., NOT PARTICIPATING.

      . Viceroy has been dismissed from this action and is not a party to this appeal.

      . Section IV(6)(e) provides as follows:
      The Company shall not have the right nor shall it be called upon to assume charge of the defense of any claim made or suit brought or proceeding instituted against an INSURED, but the INSURED shall act in good faith in defending against any such claim, suit or proceeding, keeping the Company fully informed as to the conduct of such defense. In addition, the Company shall have the right and be given the opportunity to approve in advance counsel selected by the INSURED to defend in any such claim, suit or proceeding and to require the INSURED to revoke such counsel's appointment. In considering whether counsel selected by the INSURED should be approved, or whether such approval should be revoked, the Company may take into account all factors which it deems to be relevant, including counsel’s projected and actual fees and whether counsel has been cooperative in keeping the Company fully informed with respect to the claim in question or other claims....


text:
    Raymond Helton FRILEY, Jr. v. STATE of Mississippi.
    No. 2002-CT-00041-SCT.
    Supreme Court of Mississippi.
    Aug. 5, 2004.

      Jane Cleland O’Mara, Brandon, attorney for appellant.
    Office of the Attorney General by Deirdre McCrory, attorney for appellee.
   ON WRIT OF CERTIORARI

WALLER, Presiding Justice,

for the Court.

¶ 1. Raymond Helton Friley, Jr., was acquitted of sexual battery and convicted of child molestation and sentenced to serve fifteen years in prison. In a decision dated June 24, 2003, the judgment of the circuit court was reversed and rendered by the Mississippi Court of Appeals with seven judges concurring and three dissenting. Friley v. State, 856 So.2d 654 (Miss.Ct.App.2003). After denial of the State’s motion for rehearing, we granted the State’s petition for writ of certiorari.

FACTS

¶ 2. Nine-year-old Christy Malone was swimming at her grandmother’s pool when she encountered Friley, who was servicing the pool. According to Christy, Friley cornered her, placed a plastic bag in front of her face, put his hand in the bottom of her swimsuit, and inserted his finger into her vagina. Christy testified that Friley also “took his other hand and put it inside his pants, ... moving his hand around.” The assault lasted between five and ten minutes. Afterwards, Friley grabbed her and told her not to tell anyone what had occurred.

¶ 3. In the years since the assault, Christy has had nightmares and anxiety attacks. Five years later Christy mentioned the incident to a friend at school. The friend contacted Christy’s mother and told her about the assault. The authorities were contacted, and Friley was identified as the assailant. Christy positively identified Friley as the person who had assaulted her.

¶ 4. Friley was indicted by the grand jury in Warren County for sexual battery without consent. The indictment alleged, in pertinent part, that Friley “willfully, unlawfully and feloniously engaged in sexual penetration as defined in Miss.Code 1972, Sec. 97-3-97, with [Christy, without her consent], in violation of Miss.Code 1972, Ann. Sec. 97 — 3—95(a)....” A jury found Friley guilty of molestation.

¶ 5. On appeal, the Court of Appeals held that the circuit court erred in finding that the crime of molestation under Miss. Code Ann. § 97-5-23 (Rev.2000) is a lesser-included offense of sexual battery. Friley, 856 So.2d at 656. Since Friley was acquitted of the only crime for which he was indicted, the Court of Appeals reversed and rendered the judgment of the circuit court.

DISCUSSION

¶ 6. The circuit court instructed the jury to find Friley guilty of molestation as a lesser-included offense of sexual battery “if the State has failed to prove any one or more of the essential elements of the crime of sexual battery.” On appeal, Friley argued that molestation is not a lesser-included offense of sexual battery, and the circuit court erred in giving the instruction. Friley further argued that he was not indicted for the crime of molestation and he was acquitted of the only crime for which he had been indicted.

¶ 7. On appeal the State first argued that Friley failed to preserve any objection regarding the instruction and was procedurally barred from raising it on appeal. The State alternatively argued that molestation is a lesser-included offense of sexual battery and that there was sufficient evidence to convict Friley of molestation.

I. WHETHER FRILEY’S ARGUMENT ABOUT THE LESSER-INCLUDED OFFENSE JURY INSTRUCTION IS PROCEDURALLY BARRED.

¶ 8. The State argues that Friley failed to preserve an objection regarding instruction S-2 for appeal. The record reveals that the following colloquy occurred regarding instruction S-2:

BY MR. DUGGINS: Judge, there was nothing brought out about another crime whatsoever. I’m going to object to this one.
BY THE COURT: Well, I’m almost afraid not to give it Watkins but give me your objections. Recent cases from the Supreme Court basically say that the Court should give some — I have to give certain instructions and I feel this is one of those that I should give.
BY MR. DUGGINS: That you should give?
BY THE COURT: As a lesser included offense since we do — I’m just going from what you — well, I’m just going from the Defendant’s version as given by Detective Brown. That is what the told Detective Brown that in his version there was never any penetration. He does remember touching her.
BY MR. DUGGINS: Okay.
BY THE COURT: I’m going to give it.

¶ 9. The State contends that (1) Friley’s attorney objected to S-2 solely on the ground that there was an insufficient evi-dentiary basis for the instruction; (2) the circuit court gave its reasoning for giving the instruction and asked Friley’s attorney to state his objections; and (3) by saying “okay,” defense counsel thereby acquiesced in the granting of the instruction.

¶ 10. Presiding Judge Southwick, in a concurring opinion, pointed out that “[tjhere is ambiguity in what occurred.” Friley, 856 So.2d at 656 (Southwick, P.J., concurring). Judge Southwick reasoned that when defense counsel said “okay,” he may have been indicating that he understood the trial judge’s ruling, was not necessarily agreeing with him, and recognized that further argument was unnecessary: “There was definitely an objection. The objection was clear that counsel believed the new offense had not earlier been part of the case, ... which is effectively stating that the new crime was not included in the indicted offense.” Id. at 657.

¶ 11. We find that the objection made by Friley’s trial counsel, although not artfully stated, was sufficient to preserve this issue for appeal.

II. WHETHER MOLESTATION IS A LESSER-INCLUDED OFFENSE OF SEXUAL BATTERY.

¶ 12. The State next argues that molestation is a Iesser-included offense of sexual battery, and that the Court of Appeals erred in reversing Friley’s conviction. For the reasons discussed below, we find that molestation may be a Iesser-included offense to some types of sexual battery.

¶ 13. A jury may convict an accused of a Iesser-included offense on trial of any indictment. Miss.Code Ann. § 99-19-5 (Rev.2000); Hailey v. State, 537 So.2d 411, 414 (Miss.1988). The test for determining whether one offense is a Iesser-included offense of another is:

Whether applied for the benefit of the state or defense, in order to authorize such instruction the more serious offense must include all the elements of the lesser offense, that is, it is impossible to commit the greater offense without at the same time committing the Iesser-included offense. Also, there must be some evidence to support the Iesser-included offense.

Sanders v. State, 479 So.2d 1097, 1108 (Miss.1985) (citing Lee v. State, 469 So.2d 1225 (Miss.1985); Ruffin v. State, 444 So.2d 839 (Miss.1984); Lambert v. State, 462 So.2d 308 (Miss.1984); Colburn v. State, 431 So.2d 1111 (Miss.1983); Presley v. State, 321 So.2d 309 (Miss.1975)).

¶ 14. The record shows that Friley was indicted for the sexual battery without Christy’s consent and in violation of § 97-3-95(l)(a). At the time of the crime, the sexual battery statute provided that “A person is guilty of sexual battery if he or she engages in sexual penetration with ... [ajnother person without his or her consent ... or [a] child under the age of fourteen (14) years.” Miss.Code Ann. § 97-3-95 (Supp.1993). For purposes of this statute, “sexual penetration” was, and continues to be, defined as “any penetration of the genital or anal openings of another person’s body by any part of a person’s body....” Miss.Code Ann. § 97-3-97 (Supp.1993). The molestation statute, in effect at the time of the crime, stated in pertinent part that it is a felony for

[a]ny person above the age of eighteen years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious sexual desires, [to] handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of fourteen (14) years, with or without the child’s consent, ...

Miss.Code Ann. § 97-5-23(1) (Supp.1995).

¶ 15. Friley was indicted for sexual battery, which requires penetration. He was convicted of molestation, which requires touching. A plain reading of the statutes shows that sexual battery (penetration) includes molestation (touching). It is impossible to penetrate without touching.

¶ 16. We draw a reasonable inference from the circumstances that Friley’s actions were done with the purpose of gratifying his lust, and Christy was under the age of 14 at the time of the incident. The molestation statute requires a showing of intent in that the State must prove that a defendant’s actions were done “with ... purpose.” The sexual battery statute requires no such showing of intent — the State must show only that the act was committed. We find, however, that, by his very acts of grabbing Christy, touching her genital area, and touching himself, he was gratifying his lust. There is absolutely no other reason why Friley would have performed these acts. It is well settled that intent can be inferred from a defendant’s actions. See, e.g., Moody v. State, 841 So.2d 1067, 1092-93 (Miss.2003).

¶ 17. Accordingly, we find that, under these particular circumstances, molestation is a lesser-included offense of sexual battery and the Court of Appeals erred when it reversed Friley’s conviction.

CONCLUSION

¶ 18. Where penetration has been achieved by touching a child under the age of 14, molestation is a lesser-included offense of sexual battery. We therefore reverse the Court of Appeals’ judgment and reinstate and affirm the circuit court’s judgment.

¶ 19. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE CONVICTION OF SEXUAL MOLESTATION AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.

SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J., NOT PARTICIPATING.

      . "A petition for writ of certiorari is not a direct appeal from a judgment of the lower court.” Cohen v. State, 732 So.2d 867, 871 (Miss.1998). "Absent a constitutional or statutory ban, there is no prohibition on the State’s filing of a petition for writ of certiora-ri.” Id. As in Cohen, Friley does not stand acquitted; therefore, Miss.Code Ann. § 99-35-103 does not limit the State’s right to file this petition for writ of certiorari.

      . A pseudonym.

      . The citation to the statute in the indictment contains a typographical error. The correct citation is § 97-3-95(l)(a) (Supp.1993).

      . The terms “molestation” and "fondling” are used interchangeably by the parties and the Court of Appeals. Both the Court of Appeals majority and dissent note that, regardless of the term used, Miss.Code Ann. § 97-5-23, the statute at issue, has also been called the "gratification of lust” statute and the “unlawful touching" statute. We will use the term "molestation” since that is the term the jury used in its handwritten verdict.

      . The majority did not address this issue.

      . This is a matter of first impression. We have held that molestation is not a Iesser-included offense to forcible rape. Hailey v. State, 537 So.2d 411 (Miss.1988); see also Hopkins v. State, 639 So.2d 1247 (Miss.1993); Thompson v. State, 468 So.2d 852 (Miss.1985) (conviction of sexual battery of a child reversed because insufficient proof of penetration; remanded for grand jury to consider re-indictment under molestation statute). (Smith, J., dissenting) (elements of sexual battery and molestation analogous to arguments regarding rape and molestation in Hailey). Contra Brady v. State, 722 So.2d 151, 159-61 (Miss.Ct.App.1998).

      . This version of the statute was effective from and after July 1, 1993. It was amended in 1998, effective July 1, 1998, which is the current version. The 1998 amendment rewrote paragraph (c) and added paragraph (d) in subsection (1) and changed "of fourteen (14) but less than eighteen (18) years” to "under the age of eighteen (18) years” in subsection (2). At the time of the crime, a person convicted of sexual battery for the first time was to be sentenced for a period of not more than thirty years in prison. Miss.Code Ann. § 97-3-101 (Supp.1995). The penalty statute was amended in 1998 and 1999.

      . This version of the statute was effective from and after July 1, 1995. It was amended in 1998, effective July 1, 1998, which is the current version. The 1998 amendment changed subsection (1) to "child under the age of sixteen (16) years” from fourteen (14) years.