author: | ¡.THOMAS F. DALEY, Judge. hCANNELLA, J.,

text:
    Charla HARRELL v. MERISTAR HOTELS & RESORTS, INC. & American Protection Insurance Company.
    No. 04-CA-431.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.
    Rehearing Denied Nov. 10, 2004.

      Edmond R. Eberle, New Orleans, LA, for PlaintiffiAppellant.
    James F. Scott, III, Michael S. Guillory, APLC, Metairie, LA, for Defendants/Ap-pellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA, and THOMAS F. DALEY.
   | ¡.THOMAS F. DALEY, Judge.

Appellant, Charla Harrell, appeals the trial court’s judgment that granted defendant, Meristar Hotel & Resorts, Inc.’s, Motion for Involuntary Dismissal. She argues on appeal that the trial judge erred in granting this Motion because the defendant did not support its Motion with competent evidence as required by LSA-R.S. 23:1317. She further argues that her settlement of two unrelated tort suits against State Farm Mutual Insurance Company and Treasure Chest Casino did not violate LSA-R.S. 23:1101-1103 and should not operate to forfeit her right to further compensation. Charla Harrell also argues that the trial court erred in failing to award her penalties and/or attorney’s fees for violating certain provisions of the I ¡/Workers’ Compensation Act, and finally, the trial court erred in failing to rule on Charla Harrell’s Motion to Compel.

The record shows that Charla Harrell was employed as a room attendant at the Holiday Inn-Select in Kenner, Louisiana. Her duties were to clean the rooms after people checked out. On December 23, 2001, she hurt her shoulder while moving a piece of furniture. The accident was un-witnessed, but she reported it the next day when she was unable to move her arm. She was treated at the emergency room and eventually by Dr. Charles Johnson, an orthopedist that she picked from a list of doctors available through her employer’s workers’ compensation insurance. Dr. Johnson, through examination and an MRI, diagnosed Charla Harrell with a small tear in her rotator cuff, which he surgically repaired on May 3, 2002.

Charla Harrell saw Dr. Johnson a few times over the summer of 2002 and was also prescribed physical therapy. Dr. Johnson last saw Charla Harrell in his office on August 5, 2002, following a fall she sustained at the Treasure Chest Casino. The doctor’s notes from this visit indicate that she had not participated in all the prescribed physical therapy for her shoulder, and additionally she had missed several scheduled office visits. Dr. Johnson recommended a therapy provider who could furnish Charla Harrell transportation. He also scheduled an MRI to see if the fall caused additional injury to her shoulder.

The MRI was performed on August 26, 2002. According to Dr. Johnson’s records, Charla Harrell had an appointment scheduled on August 28, 2002 to go over the MRI results, but she did not show up. By a report dated August 31, 2002, Dr. Johnson discharged Charla Harrell from his care for non-compliance with her treatment program, specifically noting her failure to show up for the August 28, 2002 appointment in his office. His treatment notes show other previous instances of her failure to keep appointments and other acts of noncompliance, such as her failure to wear her sling right after her surgery, and her failure to attend physical | ¿therapy. His notes following his receipt of the results from the MRI indicated that he felt the fall at the casino did not rein-jure Charla Harrell’s shoulder. On September 9, 2002, by a fax report, Dr. Johnson indicated to the insurer that he felt Charla Harrell could return to full duty work, based upon his assessment of the MRI results.

Shortly thereafter, Charla Harrell’s medical and weekly benefits were discontinued. On December 10, 2002, Charla Harrell filed a Disputed Claim for Compensation. On November 10, 2003, defendants filed a Motion to Enforce Forfeiture Provision of LSA-R.S. 23:1202 and to Dismiss with Prejudice, which was denied. Trial was held on December 3, 2003. After Charla Harrell presented her case, defendants moved for an involuntary dismissal on several grounds, which motion was granted in open court. The trial judge stated that he found the claimant’s testimony incredible, but did not state upon which grounds he granted the Involuntary Dismissal. Claimant requested written reasons for judgment, which were never given. On December 17, 2003, Charla Harrell filed a Motion for New Trial, which was denied without hearing on December 18, 2003. This appeal followed.

It appears that the insurer moved for an Involuntary Dismissal on four grounds: first, that Charla Harrell failed to prove a work-related accident because it was un-witnessed and her supporting witnesses’ were contradictory; second, that she violated R.S. 23:1102 when she gave the workers’ compensation carrier no notice that she fell at the Casino, or was in the motor vehicle accident, and further failed to report either settlement; third, that she lied on two 1020 Forms when she reported having no income during a certain time period when she did receive the $1,800.00 settlement from Treasure Chest Casino; and fourth, that Charla Harrell was released to return to work by her treating physician, Dr. Johnson. It is unclear |fiupon which ground the trial court relied, since the only reason he stated for granting the motion was that he found Charla Harrell’s testimony incredible.

On appeal, Charla Harrell first argues that the defendants’ Motion for Involuntary Dismissal was not supported by competent evidence as per LSA-R.S. 23:1317, in as much as Dr. Johnson opined on August 31, 2002 that Charla Harrell could return to work, yet he had not examined her since August 5, 2002, and thus, had no knowledge of her “true” condition. She also argues that Dr. Johnson failed to follow up on whether Charla Harrell had received her physical therapy, and failed to evaluate her after the physical therapy, and failed to communicate to her the results of her August 26, 2002 MRI. Charla Harrell also notes that Dr. Johnson failed to discover why she did not appear in his office for the August 28, 2002 appointment; she suggests that she was not notified of this appointment.

Regarding competent evidence, LSA-R.S. 23:1317(A) states, in pertinent part:

The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself. The workers’ compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be.

This provision has been interpreted to mean evidence may be introduced that does not comply strictly with the technical rules of evidence:

Workers’ compensation judges are not strictly bound by the technical rules of evidence. La. R.S. 23:1317(A). The applicable statute only requires that all findings of fact be based upon “competent evidence.” Id. In other words, the OWC judge has the discretion to admit evidence that would otherwise be inadmissible under the Louisiana Code of Evidence. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 10 (La.3/4/98), 708 So.2d 375, 381. The legislative requirement that a hearing officer’s factual findings be based upon competent evidence is the safeguard that ensures that the factual findings are made on evidence that has some degree of reliability and | ^trustworthiness, notwithstanding that the evidence might fall outside of the technical rules for admissibility. Id.

Bolton v. B E & K Const., 2001-0486 (La.App. 1 Cir. 6/21/02), 822 So.2d 29.

Also, generally this provision has been interpreted to mean that workers’ compensation judges have the discretion to allow hearsay evidence, which is otherwise deemed “incompetent evidence,” in certain circumstances. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375.

Our review of Dr. Johnson’s testimony regarding his treatment of Charla Harrell and the facts surrounding his discharge of her shows that this evidence violated no technical rule of evidence, nor was it hearsay evidence. Thus, it was not incompetent evidence within the meaning of LSA-R.S. 23:1317. Charla Harrell’s argument really pertains to the weight or lack thereof she thinks the trial judge should have given it. Her argument is that Dr. Johnson discharged her 26 days after having last seen her, so therefore, his opinion that she was capable of returning to full duty work was not based on her “current” condition, and therefore, his opinion that she was medically ready for discharge should be given little weight. We note that Char-la Harrell did not present any medical evidence to contradict Dr. Johnson’s opinion at trial.

At the time Dr. Johnson first discharged Charla Harrell from his care, it was for non-compliance with her treatment program, which he supported with his notes of her entire course of treatment. He later supplemented that response to the insurance carrier by fax on September 9, 2002, after reviewing her August 26, 2002 MRI, by stating that the MRI did not show a new injury to her shoulder, though it did show residual effects from her surgery, and therefore, he believed that Charla Harrell was medically able to return to full duty work. Dr. Johnson explained that the residual effects that the MRI showed were normal for a postoperative patient at Charla Harrell’s point of recovery, but it did not mean she wasn’t ready, from a medical standpoint, to return to work. Dr. Johnson explained at trial that sometimes releasing patients provided them with the incentive they needed to actually go back to work. His implication was that she might have not felt she was ready to return to work yet, but medically he felt she was ready.

Charla Harrell did not provide the trial court with any medical evidence to counter Dr. Johnson’s opinion that she was discharged initially for non-compliance with her treatment program, but that she was also later discharged because he felt that she was medically ready to return to work. Her argument that Dr. Johnson’s opinion that she was medically ready to be discharged is not competent evidence is without merit.

The testimony of the physical therapist from Century 2, Maria Kay, showed that Charla Harrell failed to keep several appointments, being absent from home when the transportation came to pick her up. She also testified that Charla Harrell was not performing the at-home exercised prescribed by the therapist, and on several visits, was sleepy or did not make the appropriate effort in her treatment.

Charla Harrell argues that Dr. Johnson did not bother to find out if she had received or completed her physical therapy and also did not inquire as to why she did not keep her August 28, 2002 appointment with him. Compliance with her treatment program was Charla Harrell’s responsibility, as it was also her responsibility to keep her doctor’s appointments and attend physical therapy as part of that plan. It was not Dr. Johnson’s responsibility to make sure she did these things. The workers’ compensation system does not impose these paternalistic requirements upon health care providers. It is true that Dr. Johnson did not reevaluate Charla Harrell after she completed her physical therapy in September of R20Q2. Charla Harrell made no requests at the time she completed her physical therapy to see another doctor. The record shows that Charla Harrell did not see another doctor for her shoulder, except for an emergency room visit in September of 2003.

Charla Harrell argues next that she did not violate R.S. 23:1101-1103 for several reasons. First, she argues that the settlement with the Casino was made in December of 2002, four months after defendants terminated her benefits based upon Dr. Johnson’s release. She notes that she did tell Dr. Johnson about the slip and fall at the casino, which showed she had no intention of committing any fraud. (His notes confirm this, as does the fact he ordered the August 26, 2002 MRI to see if there was any re-injury to her shoulder.) She also argues that she notified “Michelle” at Kemper Insurance, the workers’ compensation carrier, of the slip and fall at the Casino, while she was still treating with Dr. Johnson.

Plaintiff also argues that she settled her accident with State Farm on July 31, 2003, well after her termination of benefits and further that this accident was not shown to have aggravated her condition.

There is no indication that these two settlements were the reason the trial court granted the involuntary dismissal. We decline to find that Charla Harrell violated R.S. 23:1101-1103 by accepting these two settlements. She did notify Dr. Johnson of the incident and also attempted to notify “Michelle” at Kemper. Defendant argues that it was fraudulent for Charla Harrell to claim that the casino incident injured her shoulder by accepting the settlement, when the MRI showed no new injury. The records from that incident show that her shoulder was swollen after she fell at the casino, so while there may have been no new internal injury or 19aggravation to the rotator cuff as shown in the subsequent MRI, some objective though very temporary injury was noted. Defendant did pay for the MRI that Dr. Johnson ordered as a result of the slip and fall, but since Charla Harrell was discharged from his care three days later, did not pay for any treatment allegedly necessitated by the casino incident. While she received physical therapy following the casino incident, it was the therapy originally prescribed for the shoulder surgery and the record does not indicate that any additional therapy was requested or required because of the casino incident. The trial court did not order Charla Harrell to pay restitution of the MRI costs, and the defendant did not appeal that issue.

Charla Harrell argues next that the trial court failed to award her penalties and/or attorney’s fees for several alleged violations of the Act. First, she argues that defendant failed to timely respond to her requests for all medical reports, and alleges that there were some reports of Dr. Johnson to the insurance company that she never received. Defense counsel did not address this Assignment of Error in its brief. Defense counsel admitted at trial that he did not timely respond to several of these requests, but that she eventually received all the requested information that he had in his file. Charla Harrell fails, on appeal, to show how she was prejudiced by the defense’s admittedly untimely response.

Next, Charla Harrell argues that defendants terminated her benefits knowing that the full duty release by Dr. Johnson was inconsistent with the other medical information it had from Dr. Johnson, the MRI, and the physical therapists, thus subjecting defendants to reasonable attorney’s fees under LSA-R.S. 23:1201.2. As outlined previously in this opinion, Dr. . Johnson testified live at trial that Charla Harrell was medically able to return to work, and this evidence was not rebutted by Charla Harrell with any other medical evidence. Absent some medical testimony |10refuting Dr. Johnson’s release to return to work we can not conclude that the trial judge erred.

Charla Harrell argues that she has requested additional medical care and physical therapy and defendants have refused to furnish the same. Defendants, however, are not obligated to furnish further care when Charla Harrell’s treating physician has released her to full-duty work and she has not rebutted those findings.

Charla Harrell also argues that on March 13, 2003, in an interrogatory (No. 13), she chose Dr. John B. Cazale IV as her treating physician, but defendant has never recognized this choice and has ignored this, which subjects defendant to a $2,000.00 penalty and reasonable attorney’s fees under R.S. 23:1203 and 1201. We note that Dr. Johnson was Charla Harrell’s treating physician of choice. The record shows clearly that Charla Harrell selected him herself from a list of physicians available under the available insurance. Charla Harrell received what she was entitled to under the laws of workers’ compensation.

Charla Harrell argues next that the trial court erred in failing to render rulings on her Motion to Compel. This relates to defense counsel’s admittedly untimely response to certain discovery requests, as noted above. By the time of the hearing, though, defense counsel argued that he had responded to plaintiffs discovery requests with all the requested information that he had access to. Charla Harrell fails to show that she was ultimately prejudiced in any way for this admittedly untimely response.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

CANNELLA, J., dissents with reasons.

hCANNELLA, J.,

dissents with reasons.

I respectfully dissent from the majority opinion, affirming the dismissal of the Plaintiffs case on the defense motion for involuntary dismissal. Upon review of the record before us, I find no evidence refuting the Plaintiffs claim that her compensation payments were improperly terminated because she had not yet completely recovered from her work related injury. Therefore, in my view, the dismissal was erroneous at this juncture of the case.

The Plaintiff claims to have been injured in a work related accident on December 23, 2001. The Plaintiff was treated by Dr. Charles Johnson, underwent tests, surgery and physical therapy, the payment for which was made by her employer’s worker’s compensation insurer. The Plaintiff was also paid weekly worker’s compensation benefits. Following her last visit to Dr. Johnson’s office, on August 5, 2002, Dr. Johnson prescribed additional physical therapy for the Plaintiff. Dr. Johnson changed the physical therapist to one who provided transportation, because the Plaintiff was having trouble attending physical therapy due to transportation problems. Dr. Johnson also scheduled another MRI for the Plaintiff. The Plaintiff was scheduled by the doctor’s office for a follow up visit on August 28, 2002. The Plaintiff did not go to the doctor’s office for that appointment. The testimony at trial indicates that she had not been informed of the appointment. Nevertheless, Dr. Johnson appears to have been angered by the fact | ¿that she did not attend the appointment as reflected in his notes following that appointment:

At this point, due to the patient’s noncompliance, both with physical therapy and in my office, I am discharging her from my care. I will not be making return appointments for her unless I am specifically contacted by the adjuster. I am also putting in a charge for this visit.

On September 8, 2002, the employer’s insurer faxed a questionnaire to Dr. Johnson asking him if the patient could return to work without restrictions. Without again examining or speaking to the patient or consulting with the physical therapist to which she had been sent by the doctor on her last visit, Dr. Johnson answered the insurer’s question affirmatively. On September 18, 2002, the insurer notified the Plaintiff that her worker’s compensation benefits were being terminated.

The Plaintiff filed a Disputed Claim for Compensation arguing that her benefits were wrongfully terminated because she had not reached full recovery, she still had pain and lack of mobility in her shoulder and was not capable of returning to work. The Plaintiff testified in accord with her position that she remained in severe pain and with limited mobility and her husband corroborated her testimony. The physical therapist testified that the reported subjective pain was 10 out of 10, or most severe, and on the mobility test the Plaintiff scored only a 3 out of 5. With only this evidence in the record, the worker’s compensation judge granted the defense motion for involuntary dismissal. In my view this was manifestly erroneous.

The only evidence in the record, other than Dr. Johnson’s conclusions, was that the Plaintiff was still in severe pain, had mobility limitations and was not capable of returning to her duties as a hotel room cleaning person. Dr. Johnson’s conclusion that the Plaintiff could return to work without restrictions was based on Rthe Plaintiffs missed appointment and not on an examination of the patient. The last time the doctor examined the patient he found that she was in need of further physical therapy. Then, without a follow up examination, he changed his diagnosis, because of a missed visit, to conclude that the patient could return to work. In my view, the doctor’s conclusion, internally inconsistent, contradicted by his own opinion following the last examination, and with no factual basis, was insufficient to supply the evidence for the involuntary dismissal of the Plaintiffs case. The defendant bears the burden of proof. While the Plaintiffs sporadic attendance at physical therapy and a missed doctor’s appointment may, with the proper proof, supply grounds to reduce her benefits on that basis, evidence of a missed doctor’s appointment, which may well have not been her fault, does not suffice to rebut the Plaintiffs case in chief and justify an involuntary dismissal. In my view, the ruling granting the involuntary dismissal should be reversed and the case remanded for the remainder of the trial on the merits.

      . Defendants also include Meristar’s workers’ compensation insurer, American Protection Insurance Company, and will be referred to collectively as "defendant.”

      . The testimony of the physical therapist at trial shows that Harrell had several no-shows at physical therapy or was not available when her ride came to get her, and additionally had at least one appointment where she was falling asleep during therapy or not making an effort. The therapist did testify that two of the three therapy goals were close to being met by the time therapy ended: Harrell partially increased her range of motion and strength, but progress was not made in her level of pain, which the therapist noted was incapable of being measured objectively, unlike the first two goals.


source: Caselaw Access Project

author: GRAVES, Justice,

license: Public Domain

text:
    Willie Jerome MANNING v. STATE of Mississippi.
    No. 2000-DR-01078-SCT.
    Supreme Court of Mississippi.
    May 6, 2004.

      Office of Capital Post Conviction Counsel, by David Voisin Robert Ryan, attorney for appellant.
    Office of the Attorney General, by Marvin L. White, Jr., attorney for appellee.
   GRAVES, Justice,

for the Court.

¶ 1. In 1994, in the Circuit Court of Oktibbeha County, Willie Jerome Manning was convicted of the capital murder of Alberta Jordan and Emmoline Jimmerson who were killed during the commission of a robbery. On July 25,1996, Manning was sentenced to death in each case. On March 31, 1999, this Court affirmed Manning’s convictions and sentences on all grounds except a Batson issue. That issue was remanded to the circuit court and the circuit judge found valid race-neutral reasons for the State’s two peremptory strikes. See Manning v. State, 735 So.2d 323 (Miss.1999). On June 29, 2000, this Court affirmed the circuit court’s judgment on the Batson issue. See Manning v. State, 765 So.2d 516 (Miss.2000) The motion for rehearing was denied on September 7, 2000, and the United States Supreme Court denied Manning’s petition for writ of certiorari on March 5, 2001. Manning v. Mississippi, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 142 (2001).

¶ 2. After denial of the petition for writ of certiorari, this Court, in accordance with Jackson v. State, 732 So.2d 187 (Miss.1999), remanded the matter to the Circuit Court of Oktibbeha County for appointment of post-conviction counsel. The Office of Capital Post Conviction Counsel (OCPCC) was ordered to inform the trial court of who it had selected as counsel for Manning, on or before December 15, 2000. Following prolonged disputes regarding Manning’s appointed representation, David Voisin, with the OCPCC, filed the application for leave to proceed in the trial court with post-conviction pleadings on January 23, 2002.

FACTUAL BACKGROUND

¶ 3. On the evening of January 18, 1993, Emmoline Jimmerson and Alberta Jordan were found dead in their Brooksville Gardens apartment. Police found no signs of forced entry, and the apartment was not ransacked. Both women had been beaten about the head, and their throats were slashed. In the investigation of the murders, police interviewed many of the residents of Brooksville Gardens. Certain residents told the police that they had seen someone running up the hill behind the victims’ apartment, and another resident said that she saw as many as three men enter the victims’ apartment and later saw them running up the hill and climbing into a car. One of those men was identified as Joe Arthur “Jo Jo” Robinson, a neighbor of the victims. Several other residents told police that they suspected that Jo Jo was somehow involved.

¶ 4. Over a year later, Herbert Ashford and Kevin Lucious (both serving time or facing charges) were approached by the police and made statements implicating Willie Jerome Manning in the murders of the two elderly women. At this time, Manning was already a suspect in another murder ease involving two Mississippi State University students (See Manning v. State No.2001-DR-00230). At trial the State called Ashford, Lucious, and Larry Harris. All three testified to having seen Manning in Brooksville Gardens near the time of the murders.

ANALYSIS

¶ 5. In his Petition for Post-Conviction Relief, Manning raises sixteen claims which we have combined into fifteen for clarity. Manning raises a number of separate claims of ineffective assistance by his trial and appellate counsel. He also includes ineffective assistance claims in many of his claims that the State knowingly presented false testimony and/or created a false impression of the evidence, and failed to disclose materials that Manning characterizes as exculpatory. In his charges against the State, Manning alternatively asserts that his trial counsel was ineffective for failing to properly investigate the facts surrounding testimony of certain witnesses, failing to discover certain materials and documents in possession of the police department, failing to discover and interview witnesses, and failing to obtain and adequately use impeachment evidence.

A. The State knowingly presented false and perjured testimony from Kevin Lucious identifying Petitioner as forcing his way into the victims’ apartment.

¶ 6. Manning argues that Kevin Lucious’s testimony was false and that the State knowingly presented false evidence. Lucious stated that from the apartment he shared with his girlfriend, which is across the street from the apartment then occupied by the victims, he saw Manning force his way into the victims’ apartment. However, Lucious did not live in the apartment across the street from the victims at the time they were murdered. According to Likeesha Jones Harris’s affidavit, she and Lucious moved into apartment 11E after the homicides. Manning also provided the affidavit of Teresa Bush, which states that Lucious and Likeesha Jones did not live in Brooksville Gardens at the time of the murders.

¶ 7. Furthermore, Manning asserts that the State knew that Lucious did not live in Brooksville Gardens at the time of the crimes. Oktibbeha County Sheriff Dolph Bryan was informed by Likeesha’s grandmother that Likeesha and Lucious were not living in apartment 11E at the time and a police officer’s notes from the days following the murders indicate that apartment 11E was vacant at the time.

¶ 8. Manning asserts that the U.S. Supreme Court has held that a State’s knowing use of or its failure to correct false testimony or its presentation of evidence which creates a materially false impression of the evidence violates a defendant’s right to due process. See Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). Manning argues that he is entitled to a new trial.

¶ 9. The State’s response is that this issue, as well as all of Manning’s non-ineffective assistance claims, are procedurally barred from collateral review by the doctrine of waiver pursuant to Miss.Code Ann. § 99-39-21(1) because such claims could have been raised on direct appeal and that Manning fails to demonstrate cause or actual prejudice for not raising the claim. The State asserts that Manning had a meaningful opportunity to raise these objections, defenses, claims, questions, issues, or errors at trial and/or on direct appeal but failed to do so.

¶ 10. We find that the State offers nothing in support of this position. There is no assertion that Manning or his attorneys were aware of any of these issues. The State cites Broim v. State, 798 So.2d 481 (Miss.2001), where this Court held that in a death penalty case claims made in post-conviction collateral review were procedurally barred by the doctrine of waiver because the petitioner either failed to object at trial or raise the issue on direct appeal. We find that case distinguishable where Brown took issue with evidence that was known at the time of his trial. On Brown’s claim that the State coerced false testimony from a witness, this Court noted, “[t]he record reflects that the defense was fully aware of the existence of all of Coleman Jones’ statements and their inconsistencies.” Id. at 491. Brown’s claims of improper argument by the prosecution, testimony of prior bad acts and the prosecution’s improperly attesting to the veracity of its witnesses during closing argument, are all claims that were known to Brown at the time of his trial and/or direct appeal. Those claims were properly refused as procedurally barred because they could all have been resolved on the face of the record.

¶ 11. As to Manning’s claims of false testimony by Kevin Lucious, included in his petition for post-conviction relief is the affidavit of Richard Burdine, Manning’s trial counsel. Burdine attests that he never saw, nor knew of the existence of materials that were in the possession of the Starkville Police Department. Included in these materials were handwritten notes by police officers who conducted a door-to-door canvas of the Brooksville Garden apartments that indicated that apartment HE was vacant at the time of the murders, corroborating the affidavits of Harris, Lucious’s girlfriend, and of Mildred Jones, Harris’s grandmother, attesting that Harris and Lucious did not live in Brooksville Gardens at the time of the murders.

¶ 12. Manning supports his pleadings with affidavits and records regarding the inability to have these grounds heard on the merits at trial or direct appeal and asserts that where a petitioner shows cause and actual prejudice, this Court may grant relief from the waiver. See Miss. Code Ann. § 99-39-21(1). Furthermore, errors affecting fundamental constitutional rights may be excepted from procedural bars. See Luckett v. State, 582 So.2d 428, 430 (Miss.1991). We find that Manning has alleged such facts that demonstrate his claims are not procedurally barred, and we will grant his petition to seek post-conviction relief as to this issue.

B. The State coerced Kevin Lucious into providing false testimony.

¶ 13. Manning presents an affidavit of Kevin Lucious in which he recants his testimony that he saw Manning enter the victims’ apartment and that he heard Manning talk about the murders. Lucious now testifies that Sheriff Bryan and David Lindley of the Starkville Police Department came to Lucious while he was incarcerated in St. Louis County, Missouri, and threatened him with prosecution in Mississippi for those murders if he did not sign the statement. Manning incorporates by reference the discussion in part A above and asserts that the State presented false testimony or at least coerced a witness into providing false evidence. Given the importance of Lucious’s testimony and the fact that there are indications that the testimony was false, Manning argues that he is entitled to a new trial.

¶ 14. We now find that Manning should be allowed to seek post-conviction relief pleadings as to Kevin Lucious’s testimony. Lucious claims that he was coerced into testifying against Manning with the threat that he might be charged with the murders. When an important witness to a crime recanted his testimony and offered a reason for having given false testimony at trial, the defendant/petitioner is entitled to an evidentiary hearing to determine whether the witness lied at trial or on his affidavit. See Hardiman v. State, 789 So.2d 814 (Miss.Ct.App.2001).

C. The State knowingly presented false testimony of Herbert Ashford.

¶ 15. At trial, Herbert Ashford testified that he saw Manning the day the victims were killed. Ashford testified that he was living in Building 8 in the Brooks-ville Gardens. He also testified that two weeks after the murders, he overheard a conversation between Willie Manning, Kevin Lucious, and Marshon Manning, Willie’s brother, in which Willie Manning allegedly said that “he should have did more than he did to the ladies.”

¶ 16. In his petition for post-conviction relief, Manning presents the affidavit of Kevin Lucious, who now denies ever having a conversation with Manning about harming the murder victims and the affidavit of Marshon Manning who denies that his brother ever discussed the murders with him. Manning also includes the affidavit of Teresa Bush, Herbert Ashford’s girlfriend, with whom Ashford lived at the time. Bush states that she had known Manning for eight years and that she did not see him at Brooksville Gardens on the day of the crime.

¶ 17. We find no allegation that Teresa Bush or Marshon Manning were unavailable during the trial, nor any allegation or evidence that defense counsel was unable to interview either witness. Furthermore, we find nothing from Ashford, himself, recanting his testimony. This issue is not fully supported by Manning, and there is no supporting evidence to suggest that this issue could not have been raised on direct appeal. Therefore, we find that this claim is procedurally barred.

D. Petitioner was denied constitutional rights by the State’s knowing presentation of false evidence concerning threats made to and deals made with Kevin Lucious.

¶ 18. Manning argues that Lucious received substantial benefit from testifying against Manning and that the State’s threat to prosecute Lucious if he did not testify against Manning was never disclosed even though defense counsel attempted to cross-examine Lucious about negotiations and deals with the State. In his affidavit, Lucious states that he testified against Manning only because he was afraid of being charged with the murders. He asserts that the District Attorney convinced him that he would be charged with the murders if he did not sign the statements. Lucious also states that the statements purported by the State to be his own, were already prepared and were presented to him by Sheriff Dolph Bryan on the Sheriffs second visit to see Lucious in the St. Louis, Missouri, county jail.

¶ 19. Manning asserts that had the jury known that Lucious was testifying solely to avoid prosecution that fact would have had a substantial impact on the outcome of his trial. Manning also asserts that at trial Lucious denied that he had been offered a “deal” in exchange for his testimony, and that the State failed to correct the false impression that Lucious gave the incriminating statements of his own volition.

¶ 20. Manning fails to demonstrate any benefits that Lucious received in Missouri, where he was incarcerated,' in exchange for his testimony in Mississippi. We find that it is not enough to speculate that Lucious received the “substantial benefit of not having to face double murder charges and the death penalty in Mississippi,” where there is no indication, save his own fear of it, that Lucious would have been charged with the crime. This issue is without merit.

E. Petitioner was denied constitutional rights by the State’s knowing presentation of false evidence or failure to correct a false impression of the evidence regarding a shoe print found in the victims’ apartment; In the alternative, Petitioner’s constitutional rights were violated by the suppression of exculpatory information concerning the shoe print.

¶ 21. Manning asserts that according to Stanley Sisk, a crime scene specialist who investigated the crime, a shoe print in blood was found on a rug in the victims’ apartment. When questioned about the shoe print, Sisk testified that the print was insufficient for comparison purposes. What he failed to mention is that although the print could not be used for comparison, the examiner was able to measure the print and found that it was a size 8. This fact was never disclosed to Manning’s defense counsel. Manning argues that this evidence was critical since Manning wears a size 10 or larger shoe and thus could not have left the bloody print in the victims’ apartment. The report indicating the shoe size is included in Manning’s petition as Exhibit 16, and the affidavit of Richard Burdine, Manning’s trial counsel, stating that this report was never disclosed.

¶ 22. The State has a duty to disclose exculpatory material. The U.S. Supreme Court has held that the “suppression of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment ...” Favorable evidence includes items that are either directly exculpatory or can be used for impeachment purpose. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The Eleventh Circuit has set forth a four-prong test to determine whether a 'Brady violation has occurred mandating a new trial.

To establish a Brady violation a defendant must prove the following: (1) that the government possessed evidence favorable to the defendant (including impeachment evidence); (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.

United States v. Spagnoulo, 960 F.2d 990, 994 (11th Cir.1992), citing United States v. Meros, 866 F.2d 1304, 1308 (11th Cir.1989).

¶ 23. In this case, Manning demonstrates by including a copy, that the shoe-print report, indicating the likely size of the shoe existed and was known to the prosecution. Manning includes the defense attorney’s affidavit stating that despite seeking discovery of all exculpatory evidence, this report was not disclosed. Furthermore, evidence that a shoe-print not matching Manning’s shoe size was found at the scene of the crime presents a reasonable probability that the outcome of the proceedings would have been different. We find that Manning should be allowed to proceed in the trial court on this issue.

F. The State knowingly presented false testimony concerning witness identification of Petitioner at Brooksville Gardens on the day of the homicides in violation of his Sixth, Eighth, ,. and Fourteenth Amendments rights guaranteed by the federal constitution as well as analogous provisions of the Mississippi Constitution.

¶ 24. Another witness, Larry Harris, testified that he saw Manning at Manning’s stepfather’s apartment, Building 13, in Brooksville Gardens on thé day of the murders. However, Kelvin Bishop, Manning’s stepfather, did not live in Building 13 on January 18, 1993. On that date, Bishop was living with his mother, and a review of police notes taken during the door-to-door canvas indicate that neither Bishop nor his girlfriend, Betty Robinson, lived in Building 18 at the time of the murders. Manning asserts that Harris was called to testify even though the State knew that Harris was mistaken or making false statements. Manning also notes that the only other witnesses who saw Manning in Brooksville Gardens on the day of the murder, testified that they saw him between 2:00 and 4:00 p.m., at least three hours before the murders took place. Also, significantly that Harris and Ashford both testified that they saw Manning with other people in the early evening of January 18, 1993, and yet the State did not present any of those other witnesses.

¶ 25. Manning notes that “in adjudicating a claim involving the use of false testimony, the ‘any reasonable likelihood’ standard has been applied to determine materiality. Under that standard, ‘[a] new trial is required if the false testimony could have ... in any reasonable likelihood affected the judgment of the jury.” Barrientes v. Johnson, 221 F.3d 741, 756 (5th Cir.2000) (citing Napue v. Illinois, 360 U.S. at 271, 79 S.Ct. 1173; Giglio v. United States, 405 U.S. at 153-54, 92 S.Ct. 763); see also United States v. MMR Corp., 954 F.2d 1040 (5th Cir.1992) (“[I]f the government used false testimony and knew or should have known of its falsity, a new trial must be held if there was any reasonable likelihood that the false testimony affected the judgment of the jury,”).

¶ 26. In this instance, we find that Manning makes only assertions that testimony as to Manning’s presence in Brooksville Gardens, at certain hours of the day, was false, and that such assertions are not sufficient to support post-conviction relief on this issue.

G. Petitioner was denied his constitutional rights by the State’s failure to disclose exculpatory information concerning Jo Jo Robinson.

¶ 27. Manning asserts that in the early stages of the investigation, several residents of Brooksville Gardens reported having witnessed suspicious activity. There were several neighbors who reported that they believed that Jo Jo Robinson, who lived in the same building as the victims, was involved in the murders. Nettie Mae Thompson, who lived just behind the victims’ apartment, told police that at the time of the crime she saw three young black males running behind the victims’ building and that she heard one of them say “Jo, why did you do that.” She observed one man running around the side of the building in which she lived and her son later found a knife with blood on it in that location. Her son gave the knife to the police. She also reports that she saw other evidence that Jo Jo Robinson was involved, including what could have been Robinson’s attempt to “clean up” after the murders.

¶ 28. While law enforcement had information implicating another suspect, they did not disclose this to defense counsel. Manning argues that reviewing courts have found failure to disclose evidence implicating other suspects is a violation of the Brady rule. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Smith v. Secretary of N.M. Dep’t of Corrections, 50 F.3d 801 (10th Cir.1995); Jimenez v. State, 112 Nev. 610, 918 P.2d 687 (1996). Manning asserts that because the State failed to disclose exculpatory evidence, he is entitled to post-conviction relief.

¶ 29. In Brady, the U.S. Supreme Court established the principle that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. However, the Supreme Court has since held that not all failures to disclose exculpatory evidence constitute reversible error. Kyles v. Whitley, 514 U.S. at 434, 115 S.Ct. 1555. Rather, the question is whether there is a “reasonable probability” that the verdict would have been different but for governmental evi-dentiary suppression which “undermines confidence in the outcome of the trial.” Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (citing United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

¶ 30. Manning is granted permission to proceed with post-conviction pleadings on the issues of whether the State presented false testimony, failed to provide mandated exculpatory evidence and whether Manning’s trial counsel and direct appeal counsel were ineffective for failing to properly investigate and adequately defend.

H. Petitioner was denied his constitutional rights by the State’s failure to disclose exculpatory information about Herbert Ashford.

¶ 31. On this ground, Manning repeats portions of the some of the facts and assertions above. He asserts that the State failed to disclose that on numerous occasions, early in the investigation, Herbert Ashford said that he did not know anything about the murders and never mentioned Willie Manning. Manning again references the affidavit of Teresa Bush who lived with Ashford at the time and states that Ashford never mentioned Manning as having anything to do with the murders. Manning argues that disclosure of Ashford’s prior denials and the fact that Bush never heard him mention Manning’s involvement would have undercut Ash-ford’s credibility. Reviewing courts have reversed convictions where the State suppressed significant impeachment evidence. See, e.g., United States v. Pelullo, 105 F.3d 117 (3d Cir.1997); Jean v. Rice, 945 F.2d 82 (4th Cir.1991); Jimenez v. State, 112 Nev. 610, 918 P.2d 687 (1996).

¶ 32. We find that Manning fails to support this claim with anything more than assertions which are not sufficient to warrant post-conviction relief.

I. Petitioner was denied his constitutional rights by the State’s failure to disclose additional exculpatory information.

¶ 33. Manning asserts that the material above indicates that the State suppressed exculpatory evidence. Other suppressed material includes most of the notes taken on the door-to-door canvas conducted in Brooksville Gardens following the murders, including statements of other neighbors implicating Jo Jo Robinson and details regarding many of the assertions discussed above. Manning argues that the materiality of some of the information included in these undisclosed notes is evident. The notes include the glaring fact that the State’s key witness (Lucious) could not have testified truthfully where it is shown that he didn’t live in Brooksville Gardens until after the murders. Also included is information that could have been used to impeach Herbert Ashford and David Lindley and information that Jo Jo Robinson may have been involved in the murders.

¶ 34. Manning argues that U.S. Supreme Court precedent instructs the State that its knowing use of or its failure to correct false testimony or its presentation of evidence which creates a materially false impression of the evidence, violates a defendant’s right to due process. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). The U.S. Supreme Court has held that when the reliability of a given witness may well be determinative of guilt or innocence, non-disclosure of evidence affecting credibility, constitute a violation of due process. Giglio v. United States, 405 U.S. at 154, 92 S.Ct. 763.

¶ 35. We find that Manning should be allowed to seek post-conviction relief on the question of whether the State knowingly suppressed exculpatory evidence.

J. In the alternative to grounds A through I, Manning asserts that he was denied the effective assistance of counsel at trial and on appeal.

¶ 36. Manning asserts that even through due diligence, trial counsel could not have been expected to discover the false or suppressed evidence. However, if the Court concludes that trial counsel should have ascertained the facts, then Manning argues that he is due post-conviction relief due to counsel’s ineffectiveness. Manning asserts that trial counsel was ineffective for:

1. Failure to use information to impeach and discredit Lucious and law enforcement. In her affidavit, Kevin Lucious’s girlfriend, Likeesha Jones Harris, states that she was shocked when she read an account of Lucious’s testimony in the newspaper and that she contacted Manning’s attorney (Mark Williamson). However, Williamson did not call her to rebut Lucious’s testimony, nor did he conduct additional investigation as to whether Lucious lived in apartment 11E at the time of the murders. Similarly, defense counsel was ineffective for not discovering the notes on the door-to-door canvas of the apartment complex in order to use that information to discredit Lucious.
2. Failure to impeach Larry Harris. If defense counsel had information that Manning’s stepfather did not live in Brooksville Gardens as the time of the crime, they could have used it to discredit Larry Harris’s testimony that he saw Manning near the time of the attacks. If counsel had impeached Harris (along with Lucious and Ashford), the State would have had no witness who could have placed Manning near the victims at the time of their deaths.
3. Shoe print. If counsel had been provided the Footwear Case Notes, then they would have been obliged to elicit testimony that the crime lab determined the shoe to be a size 8 and that their client wore a 10-101/2.
4. Teresa Bush. Bush’s name was disclosed to defense counsel in the context of the door-to-door interviews and counsel could conceivably have located her. Bush was living with Herbert Ash-ford and could have shed unfavorable light on Ashford’s testimony that Manning was the perpetrator.
5. Investigating Jo Jo Robinson and other suspects. At least three witnesses informed law enforcement that they saw individuals coming from the victims’ apartment about the time of the murders. None of those witnesses identified Manning, but at least two of the witnesses identified Jo Jo Robinson. Margaret Diane Coleman stated that on the evening of the murder she saw Jo Jo Robinson, Keith Robinson and Bullet Johnson in the victims’ apartment. She later saw the three going up the hill behind the victims’ apartment. Another witness reported to police that she saw three men running from the building, and still another witness stated that she had seen a dark colored car and that one of the men running from the victims’ apartment got into the car. She also described what this man was wearing. Another witness stated that she saw the three men running from the apartment and that she heard one refer to the other as “Jo.” This witness noted that she would have been willing to talk to Manning’s lawyers but that no one ever contacted her. Jo Jo Robinson’s own sister refutes Jo Jo’s alibi for that night and instead stated that shortly before the bodies were discovered, Jo Jo ran into the apartment and went into the bathroom. The failure to discredit the State’s key witnesses, failure to make a reasonable investigation and failure to make use of evidence have all been found to constitute ineffective assistance of counsel. See, e.g., Steinkuehler v. Meschner, 176 F.3d 441 (8th Cir.1999); State v. Dillard, 338 Ark. 571, 998 S.W.2d 750 (1999); Commonwealth v. Allison, 424 Pa.Super. 341, 622 A.2d 950 (1993). Pauling v. State, 331 S.C. 606, 503 S.E.2d 468 (1998).

¶ 37. The State argues that these issues could have and should have been raised on direct appeal and, therefore, this claim is barred by waiver. Furthermore, the State contends that Manning has neither .demonstrated cause or actual prejudice sufficient to excuse the waiver.

¶ 38. The standard for determining if a defendant received effective assistance of counsel is well settled. “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must demonstrate that his counsel’s performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687., 104 S.Ct. 2052 “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984), citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052. The focus of the inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Id.

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

Stringer, 454 So.2d at 477, citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Defense counsel is presumed competent. Washington v. State, 620 So.2d 966 (Miss.1993).

¶39. Then, to determine the second prong of prejudice to the defense, the standard is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991). This means a “probability sufficient to undermine the confidence in the outcome.” Id. The question here is:

whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death.

Strickland, 466 U.S. at 695, 104 S.Ct. at 2068. There is no constitutional right then to errorless counsel. Mohr v. State, 584 So.2d at 430 (right to effective counsel does not entitle defendant to have an attorney who makes no mistakes at trial; defendant just has right to have competent counsel). Cabello v. State, 524 So.2d 313, 315 (Miss.1988). If the post-conviction application fails on either of the Strickland prongs, the proceedings end. Mohr v. State, 584 So.2d at 430; Neal v. State, 525 So.2d at 1281.

¶ 40. We find that Manning has set forth sufficient evidence to undermine confidence in the outcome of the trial. While some of the errors that Manning alleges are based on information that was not discoverable (or easily) discoverable at the time, his petition presents sufficient material to question the performance of Manning’s trial counsel and his appellate counsel in this case. Therefore, we grant him leave to seek post-conviction relief on this ground.

K. Petitioner was denied effective assistance of counsel due to trial counsel’s failure to call Petitioner’s brother to deny that the conversations about which Lucious testified ever took place.

¶ 41. At trial Kevin Lucious claimed to have participated in conversations in which Willie Manning implicated himself in the deaths of the victims. Lu-cious also testified that Manning’s brother, Marshon Manning, was present during the conversation. Defense counsel did not call Marshon to rebut Lucious’s testimony. In fact, defense counsel never spoke to Mar-shon. In his affidavit, Marshon denies that any conversations involving his brother and Luscious ever took place. Reviewing courts have found trial counsel to have been ineffective when trial counsel failed to interview a potential witness. See, e.g., Washington v. Smith, 219 F.3d 620 (7th Cir.2000); Lord v. Wood, 184 F.3d 1083 (9th Cir.1999); Holsomback v. White, 133 F.3d 1382 (11th Cir.1998).

¶ 42. The State asserts that Manning is barred by the doctrine of waiver because Manning’s two appellate lawyers have not been assailed in post-conviction pleadings. Even if Marshon’s testimony has the potential for impeaching the testimony of Lucious, it would have failed to establish to a reasonable probability the outcome of the trial or the proceedings would have been different.

¶ 43. We hold that this issue should be considered in the evidentiary hearing and a determination made by the trial court.

L. Manning also asserts that he was denied his constitutional rights due to the cumulative errors in the culpability phase and the penalty phase of the trial.

¶ 44. This Court may reverse a conviction and/or sentence based upon the cumulative effect of errors that do not independently require a reversal. Jenkins v. State, 607 So.2d 1171, 1183-84 (Miss.1992); Hansen v. State, 592 So.2d 114, 153 (Miss.1991). “It is true that in capital cases, although no error, standing alone, requires reversal, the aggregate effect of various errors may create an atmosphere of bias, passion and prejudice that they effectively deny the defendant a fundamentally fair trial.” Conner v. State, 632 So.2d 1239, 1278 (Miss.1993) (citing Woodward v. State, 533 So.2d 418, 432 (Miss.1988)).

¶ 45. Manning asserts that while each of the errors above warrant reversal, when all of the errors are taken together, the combined prejudicial effect requires reversal. Randall v. State, 806 So.2d 185 (Miss. 2001) (citing Williams v. State, 445 So.2d 798, 810 (Miss.1984)). Manning also asserts that -with respect to allegations of counsel’s ineffectiveness and Brady violations, it is imperative that the Court consider the cumulative impact of the specific errors. Williams v. Taylor, 529 U.S. 862, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

¶ 46. The State contends that no error in part translates into no error to the whole and asserts that there is no reversal error in any part. Consequently, there is no reversible error as to the whole.

¶ 47. We find that Manning has demonstrated sufficient evidence .of cumulative errors to warrant an evidentiary hearing.

M. At the penalty phase, Petitioner was denied his constitutional rights due to the trial court’s repeated statements to the jurors that they were not to rely on sympathy; In the alternative, trial counsel was ineffective for not objecting to the trial court’s mistaken and prejudicial statements concerning sympathy.

¶48. Manning asserts that this Court has.held that “a jury may not be instructed to disregard, in toto, sympathy.” King v. State, 784 So.2d 884, 889 (Miss.2001). During voir dire, the District Attorney remarked repeatedly that the jurors should not let sympathy enter into their verdict. During the penalty phase, Instruction C.01 instructed the jury not to be swayed by sympathy. The trial court repeated the anti-sympathy message. In King, this Court expressed concern about there being an “undue emphasis of the anti-sympathy admonition so as not to fetter unduly reasoned consideration of factors offered as mitigating.” Id. Manning argues that King is an intervening decision which entitles him to a new sentencing hearing because the trial court and prosecutor repeatedly stressed that sympathy was to play no part in its deliberations.

¶ 49. Manning argues, in the alternative, if the Court concludes that King is not an intervening decision, then trial counsel was ineffective for not objecting to the prejudicial comments by the trial court and prosecutor, as well as the sentencing instructions.

¶ 50. The State argues that King does not qualify as an intervening decision and that the precedent that a jury may not be instructed to disregard, in toto, sympathy in a capital case has been around since 1988. See Pinkney v. State, 538 So.2d 329, 351 (Miss.1988). The State also argues that this does not qualify as an ineffective assistance of counsel claim where Manning’s appellate lawyers did not raise this issue on direct appeal. The State also argues that the message to the jury was not so egregious as to cause any concern that sympathy would have “no” part, as opposed to “some” part, in the jury’s deliberations during the penalty phase.

¶ 51. This Court has stated that “the jury cannot be instructed to disregard sympathy altogether.” Evans v. State, 725 So.2d 613, 691 (Miss.1997). However, they may be cautioned against being swayed by such considerations. Woodward v. State, 843 So.2d 1, 20 (Miss.2003); Flowers v. State, 842 So.2d 531, 563 (Miss.2003). This Court has held that where no objection was made at trial, the issue is procedurally barred by the provisions of Miss.Code Ann. § 99-39-21(1). Woodward v. State, 843 So.2d at 20. Furthermore, where the petitioner fails to show actual prejudice, this constitutes a waiver and he is procedurally barred from raising this issue. Id. citing Wiley v. State, 750 So.2d 1193, 1209 (Miss.1999). We agree that King is not an intervening decision where it has long been established that a jury cannot be instructed to disregard, in toto, sympathy in a capital case. Furthermore, because Manning failed to object at trial and fails now to demonstrate that he was prejudiced by the District Attorney’s remarks, we find that he is proeedurally barred from raising the issue now.

N. Petitioner was denied his constitutional rights due to the defense counsel’s failure to develop and present evidence in mitigation of punishment.

¶ 52. Manning asserts that trial counsel had a duty to unearth all relevant mitigating evidence and to conduct a thorough investigation into the range of possible mitigating evidence. The record indicates that trial counsel failed to interview witnesses who had knowledge of Manning’s family and were willing to cooperate with defense counsel. Manning notes also that there are letters in the file from Mark Williamson (defense counsel) to Richard Burdine (co-counsel) suggesting witnesses for the mitigation portion of the penalty phase of trial. Those witnesses were apparently never contacted. Furthermore, Manning includes affidavits from an attorney in Louisiana and an investigator which declare there to be valuable mitigating evidence that was never presented at trial. Failing to do so, Manning argues, is evidence of trial counsel’s deficient performance and satisfies both prongs of Strickland.

¶ 53. The State argues that this claim was raised and litigated on direct appeal and is now barred by the doctrine of res judicata.

¶ 54. We agree with the State. This claim was raised on direct appeal, and the Court found that Manning failed to show prejudice related to the trial counsel’s failure to call other witnesses. Furthermore, the Court noted that “additional character witnesses would not have, with any reasonable probability, tipped the balance between mitigators and aggrava-tors.” Manning v. State, 726 So.2d at 1170. Therefore, this claim is procedurally barred where this Court has already addressed its merits.

O. Petitioner was denied his constitutional right by the State’s reliance on an invalid statutory aggravating circumstance; his unconstitutionally obtained prior murder convictions.

¶ 55. Manning asserts that the prosecution relied, in part, on the statutory aggravating circumstance that “the defendant was previously convicted of another capital offense or felony involving the use or threat of violence to the person.” Miss. Code Ann. § 99-19-101(5)(b). Specifically, Manning’s conviction for the murders of Jon SticMer and Tiffany Miller. Manning v. State, 726 So.2d 1152 (Miss.1998). The jury found the existence of this statutory aggravating circumstance beyond a reasonable doubt. Manning argues that the conviction in the Steckler/Miller murders was unconstitutionally obtained and notes that he has filed a petition for post-conviction relief and incorporates by specific reference the grounds and allegations attacking the validity of his conviction. Manning v. State, Oktibbeha County Cir. Ct. No.2001-0144-CV, Supreme Court No. 2001-DR-00230-SCT. Manning asserts that if the Supreme Court ultimately reverses his conviction in that case, then he is, at a minimum, entitled to a new sentencing proceeding in this second case. Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988).

¶ 56. The State argues that Manning’s claim has already been decided and rejected on direct appeal. We agree.

¶ 57. This Court has previously rejected Manning’s claim that his conviction in the murder of two Starkville students was unconstitutional. Manning v. State, 735 So.2d 323, 351 (Miss.1999). Manning’s petition is denied as to this issue.

CONCLUSION

¶ 58. We grant Manning leave to seek post-conviction relief at an evidentiary hearing in the trial court on the issues of whether the State withheld exculpatory evidence, whether the State presented false evidence and whether Manning was denied effective assistance of counsel both at trial and on appeal.

¶ 59. We deny Manning’s petition in all other respects.

¶ 60. APPLICATION FOR LEAVE TO SEEK POST-CONVICTION RELIEF, GRANTED IN PART AND DENIED IN PART.

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

      . Harris also states that she contacted Manning's trial counsel on more than one occasion, after the culpability phase and before the sentencing phase, explaining that Kevin Lucious's testimony was false.


author: COBB, Presiding Justice,

text:
    Michael GREEN v. STATE of Mississippi.
    No. 2001-CT-00870-SCT.
    Supreme Court of Mississippi.
    June 24, 2004.

      Thomas M. Fortner, Virginia Watkins, Jackson, attorneys for appellant.
    Office of The Attorney General by Jean Smith Vaughn, attorney for appellee.
   ON WRIT OF CERTIORARI

COBB, Presiding Justice,

for the Court.

¶ 1. On writ of certiorari, we review the Court of Appeals’ decision affirming the trial court’s refusal to give Michael Green a jury instruction on a lesser, non-included offense. Concluding that the trial court, and subsequently the Court of Appeals, erred in refusing Green’s jury instruction, we now reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2. On or about November 3, 1999, Michael Green was arrested for selling cocaine to an undercover City of Jackson police officer. He was indicted, tried, convicted, and sentenced for sale of cocaine, as a habitual offender, to serve thirty years without the possibility of parole or early release. On direct appeal, Green raised several procedural issues, including a speedy trial claim, admissibility of evidence claims and error in refusal of a proposed jury instruction. Finding no error, the Court of Appeals affirmed. Green v. State, 856 So.2d 396 (Miss.Ct.App.2003). On certiorari review, we address only the issue of whether the trial court erred in refusing the lesser, non-included offense jury instruction requested by Green. We conclude that Green was entitled to have that instruction given, and we reverse and remand on that issue. We find no error by the trial court as to all other issues raised in the petition for writ of certiorari.

ANALYSIS

¶ 3. This Court has held that the standard of review for jury instructions is as follows:

[T]he instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case. However, the trial judge may properly refuse the requested instructions if they are found to incorrectly state the law; to repeat a theory fairly covered in another instruction; or to be without proper foundation in the evidence of the case.

Howell v. State, 860 So.2d 704, 761 (Miss.2003); Thomas v. State, 818 So.2d 335, 349 (Miss.2002) (quoting Humphrey v. State, 759 So.2d 368, 380 (Miss.2000)).

¶ 4. Green asserts that the trial court erred in refusing to grant his proffered instruction which would have allowed the jury to consider the lesser non-included offense of sale of a substance falsely represented as a controlled substance. The proposed jury instruction, read as follows:

The Court instructs the jury that if you find from the evidence that the State has failed to prove, beyond a reasonable doubt any one of the elements of the crime of Sale of Cocaine within 1000 Feet of a City Owned Park, then you may consider whether Michael Green is guilty of the crime of Sale of a Substance Falsely Represented as a Controlled Substance. If you find from the evidence beyond a reasonable doubt that (1) Michael Green (2) willfully and unlawfully; (3) sold; (4) a substance falsely represented to be a controlled substance, to wit: cocaine; then you should find: Michael Green guilty of Sale of Substance Falsely Represented as a Controlled Substance.

¶ 5. The issue now before the Court arises from two tiers of error. At trial, Green testified that he sold the undercover agent “fake” cocaine rather than a rock of crack cocaine. He testified that he was threatened with arrest on an unrelated, minor offense unless he helped narcotics agents set up a drug buy for an undercover agent. Aware that arrest for even a minor offense would cause him to have his probation revoked, Green’s testimony was that he agreed to help the narcotics agents. According to Green, rather than keeping his end of the bargain with the narcotics agents, he duped the agents by selling them a piece of wax mixed with baking soda, made to resemble crack cocaine. In addition to his own testimony, Green presented as evidence the video made by the undercover narcotics agent at the time that he made the purchase from Green. Immediately following the drug buy, the undercover agent is heard to say that Green sold him “bunk,” a slang word used to describe fake cocaine.

¶ 6. In keeping with his theory of the case, Green wanted to instruct the jury that it could find him guilty of the offense of selling “fake” cocaine, pursuant to Miss. Code Ann. § 41-29-146(1) (Supp.2003). That statute provides in pertinent part:

(1) It shall be unlawful for any person to sell, produce, manufacture, or possess with the intent to sell, produce, manufacture, distribute or dispense any substance which is falsely represented to be a controlled substance or which is falsely represented to be a counterfeit substance. ...

Id.

¶ 7. When the trial court refused the instruction, defense counsel objected, arguing that Green was entitled to a “lesser included offense” instruction. The trial court refused the instruction noting that falsely representing a substance to be a controlled substance is not a lesser-included offense of the offense of sale of a controlled substance. We agree, but that does not resolve the issue before us. As stated above, it is clear on its face that Green’s requested instruction was, in fact, a lesser, non-included offense instruction, to which Green was entitled.

¶ 8. On appeal Green raised numerous issues, using again the incorrect terminology that the trial court erred in refusing his proffered “lesser-included offense” instruction. The Court of Appeals affirmed the trial court holding that falsely representing a substance to be a controlled substance is not a lesser included offense of the offense of sale of a controlled substance.

¶ 9. Only when he filed his motion for rehearing in the Court of Appeals did Green finally realize his error and make a clear distinction between “lesser included” and “lesser, non-included” offenses. However, the Court of Appeals then held that Green had failed to preserve the jury instruction issue for appellate review because he failed to accurately argue his objection in the trial court.

¶ 10. We do not agree that Green failed to preserve the issue for appeal. Green did timely object at trial to the refusal of his jury instruction. It is undisputed that the refused jury instruction D-7 was, in fact, a lesser non-included offense instruction. The fact that counsel did not argue his point as precisely as he could have does not warrant depriving Green the opportunity to have the jury instructed on his theory of the case. Furthermore, there is a long line of cases which affirm the tenet that the refusal of instructions offered by the defendant need not be objected to in order to preserve the issue for appeal. Precedent makes it clear that an issue involving the refusal of a requested jury instruction is procedurally preserved by the mere tendering of the instruction, suggesting that it is correct and asking the court to submit it to a jury. Edwards v. State, 737 So.2d 275, 310 (Miss.1999). This in and of itself affords counsel opposite fair notice of the party’s position and the court an opportunity to pass upon the matter. Duplantis v. State, 708 So.2d 1327, 1340 (Miss.1998). When an instruction is refused, there is no reason why we should thereafter require an objection to the refusal unless we are to place a value upon redundancy and nonsense. Carmichael v. Agur Realty Co., 574 So.2d 603, 613 (Miss.1990).

¶ 11. We now consider whether the trial court erred in refusing to grant the lesser non-included offense instruction. Again we emphasize that it is always important to clearly delineate the difference between a lesser non-included offense and a lesser included offense. A lesser included offense requires that the elements of the greater offense contain the elements of the lesser offense. In Sanders v. State, 479 So.2d 1097 (Miss.1985), this Court held:

... 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 lesser included offense. Also, there must be some evidence to support the lesser included offense. See: 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); and Presley v. State, 321 So.2d 309 (Miss.1975).

Sanders, 479 So.2d at 1108. Green clearly was not entitled to a lesser-included offense jury instruction.

¶ 12. On the other hand, a lesser non-included offense applies where there is evidentiary support that a defendant is guilty of a lesser charge arising from the same nucleus of operative facts. Mease v. State, 539 So.2d 1324, 1329 (Miss.1989). In its modified opinion on motion for rehearing, the Court of Appeals recognized that Green asserted that he was entitled to a lesser non-included offense instruction.

On rehearing, Green now argues that his point actually included the related doctrine of lesser, non-included offense instructions. This doctrine is of fairly recent origin. In the case that created it, [Griffin v. State ] the Court noted among the reasons for allowing an instruction on an offense that is not included within the charged offense but which arose out of the same operative facts, was “the enormous disparity in maximum punishments” in the two potential offenses....

Green v. State, 856 So.2d at 404. This Court has held that where there is an evidentiary basis for such, a criminal defendant is entitled to have the jury instructed regarding any offense carrying a lesser punishment arising out of a common nucleus of operative fact with the scenario giving rise to the charge laid in the indictment. Mease v. State, 539 So.2d at 1329. See also Griffin v. State, 533 So.2d 444 (Miss.1988) (Griffin is the seminal case on lesser non-included offense instructions).

¶ 13. The granting of instructions should err on the side of inclusion rather than exclusion. Taylor v. State, 577 So.2d 381, 383-84 (Miss.1991). In fact, proposed instructions should generally be granted if they are correct statements of law, are supported by the evidence, and are not repetitious. In the present case, there is nothing in the record to indicate that the proposed lesser non-included offense instruction was an incorrect statement of law or that it was repetitious. As noted above, jury instructions are to be read together as a whole, with no one instruction to be read alone or taken out of context. We find that the instructions given in Green’s case do not individually, or when read as a whole, instruct the jury on the matter of a lesser non-included offense.

¶ 14. Acknowledging that the jury was not instructed on the lesser non-included offense, we now turn to the question of whether there was sufficient evidence to support the granting of such an instruction. This Court has held that in deciding “whether there is sufficient evidence that an issue be submitted to the jury, we must consider all of the evidence in the light most favorable to the party requesting the instruction ... That party must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Jones v. State, 798 So.2d 1241, 1254 (Miss.2001) (quoting Jackson v. State, 551 So.2d 132, 146 (Miss.1989)).

¶ 15. Here, Green testified that he sold the undercover narcotics agent fake cocaine. He also offered the video tape of the transaction in which the undercover narcotics agent is heard to say that he thinks the substance that Green sold him is “bunk” or fake cocaine. In McCollum v. State, 757 So.2d 982, 984 (Miss.2000), this Court held that where a party offers evidence sufficient that a rational jury might find for him on the particular issue, that party as of right is entitled to have the court instruct the jury on that issue and submit the issue to the jury for its decision. See, e.g., Monroe v. State, 515 So.2d 860, 863 (Miss.1987); Armstead v. State, 503 So.2d 281, 285 (Miss.1987); Lee v. State, 469 So.2d 1225, 1230-31 (Miss.1985). Green’s testimony and the videotaped remarks of the narcotics officer were sufficient to entitle Green to have the court instruct the jury on his theory of the case and the issue of the lesser non-included offense. Thus, the trial court erred in refusing the instruction, and the Court of Appeals erred in affirming that refusal.

CONCLUSION

¶ 16. Viewing the evidence before us in the light most favorable to Green and in keeping with the principle that a defendant is entitled to have the jury instructed as to his theory of the case where there is an evidentiary basis for such, we find that the trial court erred in refusing the lesser non-included offense jury instruction. Therefore, we reverse the judgments of the trial court and the Court of Appeals, and we remand for a new trial consistent with this opinion.

¶ 17. REVERSED AND REMANDED.

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

      . Green testified that it is common practice for drug dealers to sell fake cocaine to unknowing buyers and that he obtained the fake rock from a local dealer known for selling just such counterfeits.

      . At all times prior to Green’s motion for rehearing in the Court of Appeals, he erroneously referred to his proffered jury instruction as a lesser included offense instruction. This incorrect terminology led to some misapprehension within the Court of Appeals opinion. The instruction that Green proposed was clearly, on its face, a lesser non-included offense instruction. For clarity, throughout our opinion we will refer to it as such.