source: Caselaw Access Project

author: CARLSON, Justice, for the Court.

license: Public Domain

text:
    Milton L. McLENDON v. STATE of Mississippi.
    No. 2005-KM-01480-SCT.
    Supreme Court of Mississippi.
    Oct. 12, 2006.
    Rehearing Denied Jan. 18, 2007.

      V.W. Carmody, Jr., Jackson, Daniel P. Self, Jr., Meridian, attorneys for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before WALLER, P.J., EASLEY and CARLSON, JJ.
   CARLSON, Justice, for the Court.

¶ 1. The defendant in today’s case appeals from a judgment of conviction entered by the Wayne County Circuit Court after a trial de novo conducted pursuant to the defendant’s appeal to circuit court from the justice court DUI conviction. Finding no error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On the night of January 15, 2005, the Waynesboro Police Department (WPD) conducted a routine roadblock during which Milton L. McLendon was stopped and ultimately charged with driving under the influence, first offense (DUI). McLendon was tried before the Justice Court of Wayne County and convicted of DUI on February 24, 2005. McLendon appealed to the Circuit Court of Wayne County and received a trial de novo beginning on May 12, 2005, Judge Robert W. Bailey, presiding. McLendon had filed a Motion to Suppress Evidence or in the Alternative to Dismiss the Charge. Within this motion, McLendon contested the constitutionality of the roadblock, as well as lack of probable cause for his arrest. Inasmuch as the circuit court was sitting without a jury to hear McLen-don’s case, counsel for both the prosecution and the defendant agreed that the hearing on the motion and on the merits of the case could be conducted simultaneously. Since McLendon’s appeal is extremely fact-intensive, all relevant facts as developed at the circuit court trial will be discussed.

¶ 3. On January 15, 2005, the Assistant Chief of Police of the WPD, Leonard Frost, was the acting chief of police. As acting Chief of Police, Chief Frost issued verbal orders for roadblocks within the city limits of Waynesboro for the month of January. Since there were no written policies concerning roadblocks conducted by the WPD, Chief Frost put oral policies in place. The oral policies regarding roadblocks included:

1. The roadblock should be in a well lit area;
2. The location of the roadblock should be inside the city limits;
3. It should be where people can see law enforcement officers;
4. Law enforcement vehicles should have the blue lights on;
5. Law enforcement officials should wear vests;
6. There should be room for people to pull their vehicles off the road safely;
7. The time of the roadblock should be between 8:00 p.m. and 12:00 a.m.

¶ 4. The WPD often worked in conjunction with the Mississippi Highway Patrol (MHP) and the Wayne County Sheriffs Office (SO). All three law enforcement agencies were to work in concert in conducting these roadblocks. There were several common areas in the City of Waynesboro in which the WPD conducted roadblocks. One common area was on Highway 184 in front of the Western Siz-zlin restaurant.

¶ 5. According to the testimony of the various officers, on January 15, 2005, the WPD ordered a roadblock along one of the highways which traversed Waynesboro. The WPD officers, along with the MHP, decided to conduct the roadblock on Highway 184 in front of the Western Sizzlin. Chief Frost did not explicitly tell his officers at what point or what time to conduct this specific roadblock because such time and place was within the officers’ discretion. There were no logbooks kept, but the officers were required to indiscriminately stop every vehicle coming through the roadblock and check both the driver’s license and insurance card. Additionally, officers were instructed to pull over a vehicle if the smell of alcohol was detected or if the driver had an outstanding warrant. Generally, if everything checked out with a vehicle, and its driver, the stop was designed to take approximately one minute.

¶ 6. During the particular roadblock at issue in today’s case, several police vehicles were on both sides of the highway. The police vehicles had their flashing blue lights on and some of the officers were wearing reflective vests which had “police” on it. Every single vehicle which passed through the roadblock that night was stopped and if there were no violations, the drivers were sent on their way. On the other hand, if a violation were found or suspected, the driver was requested to pull his/her vehicle over into the Western Siz-zlin parking lot. Since the Western Sizzlin restaurant was closed during the operation of the roadblock, there was more than adequate space for vehicles to be pulled over for further investigation.

¶ 7. On the night in question, McLendon pulled up to the roadblock, and during the check of McLendon’s driver’s license, officers smelled what they suspected to be an intoxicating beverage on his breath; therefore, McLendon was requested to pull his vehicle into the Western Sizzlin parking lot. Once his vehicle had been safely driven off the highway and into the parking lot, the officers asked McLendon if his vehicle could be searched, and McLendon consented. McLendon then exited his vehicle.

¶ 8. After McLendon stepped out of his vehicle, state trooper Holt Ross approached McLendon and asked him if he had been drinking. McLendon told trooper Ross that he had been at the club earlier, where he had “a couple [of] drinks.” Thus, trooper Ross informed McLendon that he would like to perform a couple of field sobriety tests. Trooper Ross ran the HGN test and the one-leg stand test. Trooper Ross concluded that on the HGN test McLendon’s eyes showed distinct nystagmus. Additionally, trooper Ross observed that during the one-leg stand McLendon put his foot down twice while he was counting and instead of being able to keep his arms down by his side, McLendon kept them out from his side in order to keep his balance. Furthermore, trooper Ross gave McLendon a breathalyzer test to establish a breath-alcohol content. According to trooper Ross, the breathalyzer showed McLendon had a breath-alcohol content; therefore, trooper Ross took McLendon to the SO to run McLendon on the Intoxilyzer 5000 machine.

¶ 9. At the SO, trooper Ross informed McLendon that he had a right to refuse the intoxilyzer test. McLendon agreed to take the intoxilyzer test, but he failed to give a proper breath sample. Trooper Ross then informed McLendon that he had three minutes to satisfy the machine. If the machine was not satisfied within three minutes, McLendon’s results would be logged as test refusal.

¶ 10. Trooper Ross proceeded to show McLendon how easy it was to satisfy the machine, and McLendon stated he wanted to take the test again. Trooper Ross testified that McLendon provided a proper breath sample upon the second testing, and the results revealed a breath-alcohol content of 0.13%. Trooper Ross then arrested McLendon for DUI, first offense. However, having already noted in the logbook that McLendon had refused to take the test, trooper Ross never corrected the logbook to reflect the testing and test results. Therefore, it was never recorded in the logbook that McLendon actually had a breath-alcohol content of 0.13%. The only notation of the 0.13% breath-alcohol content appeared on the uniform traffic ticket issued to McLendon.

¶ 11. McLendon did not offer any evidence contrary to that offered by the prosecution, nor did McLendon otherwise attempt to rebut any of the officers’ testimony. At the conclusion of the trial on May 12, 2005, Judge Bailey took this case under advisement for a subsequent ruling, and on May 18, 2005, Judge Bailey entered a 13-page order, which included detailed findings of fact and conclusions of law. In the end, Judge Bailey found that the law enforcement officials had conducted a constitutional roadblock and that the officers had probable cause to arrest McLendon. Finally, Judge Bailey found McLendon guilty of DUI, First Offense and assessed a fine of $500 and court costs in the amount of $190.50.

¶ 12. On May 25, 2005, McLendon filed a motion for a judgment notwithstanding the verdict, or in the alternative a motion for a new trial. After a hearing on June 21, 2005, Judge Bailey denied these post-trial motions by an order entered on June 28, 2005. McLendon thereafter timely perfected his appeal to this Court.

DISCUSSION

¶ 13. Although McLendon and the State present various issues to us for discussion, we will re-state the issues here for clarity in discussion.

I. WHETHER THE ROADBLOCK WAS AN UNCONSTITUTIONAL seizure of McLendon

¶ 14. We first consider whether the trial court erred in denying McLendon’s motion to suppress evidence, or in the alternative to dismiss the DUI charge against McLendon. Our standard of review concerning a trial judge’s ruling on a motion to suppress evidence is clear. In Culp v. State, 933 So.2d 264 (Miss.2005), we stated:

When reviewing a trial court’s ruling on the admission or suppression of evidence, this Court must assess whether there was substantial credible evidence to support the trial court’s findings. The admission of evidence lies within the discretion of the trial court and will be reversed only if that discretion is abused.

Id. at 274 (citing Crawford v. State, 754 So.2d 1211, 1215 (Miss.2000); Magee v. State, 542 So.2d 228, 231 (Miss.1989)).

¶ 15. It is well-settled law that the Fourth Amendment of the United States Constitution “applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (quoting Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969)); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Additionally, the Fourth Amendment requires that such seizure be “reasonable.” Brown, 443 U.S. at 50, 99 S.Ct. 2637; United States v. Brignoni-Ponce, 422, U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Thus, in deciding whether the subject roadblock in today’s case was an unconstitutional seizure of McLendon in violation of the Fourth Amendment of the United States Constitution and Miss. Const, art. 3, § 23 1890, we must consider the required balancing test in determining the issue of reasonableness outlined in Brown. The balancing test outlined in Brown weighs “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown, 443 U.S. at 50-51, 99 S.Ct. 2637. See also Dale v. State, 785 So.2d 1102, 1104 (Miss.Ct.App.2001). In other words, “[t]he reasonableness of seizures that are less intrusive than a traditional arrest ... depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ ” Brown, 443 U.S. at 50, 99 S.Ct. 2637 (citing Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); United States v. Brignoni-Ponce, 422 U.S. at 878, 95 S.Ct. 2574).

¶ 16. In applying the balancing test, we must first consider the “gravity of the public concerns served by the seizure.” Brown, 443 U.S. at 50-51, 99 S.Ct. 2637; Dale, 785 So.2d at 1104. McLendon asserts that the underlying purpose of the roadblock violated his Fourth Amendment rights. McLendon argues that the purpose of the subject roadblock was to look for any violation of state law or any city ordinance. In addition, McLendon alleges WPD conducted several roadblocks for the sole purpose of gaining federal grant money. Thus, according to McLendon, the roadblock was impermissible because it served the interest of general crime control and not to enhance the legitimate government interest of public safety.

¶ 17. Although McLendon is correct in asserting that this Court will not uphold the validity of a roadblock if the justification for the seizure was based on the general interest of crime control, the purpose of the subject roadblock was not based on the general interest of crime control, but rather the roadblock was set up for the primary purpose of checking driver’s licenses and insurance cards. City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 454, 148 L.Ed.2d 333 (2000); Dale, 785 So.2d at 1105. Thus, public concerns were served by the subject roadblock and the ultimate seizure of McLendon.

¶ 18. In Briggs v. State, 741 So.2d 986, 989 (Miss.Ct.App.1999), the Court of Appeals addressed the constitutionality of a roadblock. Briggs was stopped at a routine roadblock, the purpose of which was to check for driver’s licenses and vehicle registration. Id. at 988. When an officer approached Briggs vehicle, the officer smelled alcohol. Id. As a consequence, Briggs was transported to the jail and administered an intoxilyzer test, which Briggs failed, and thereafter, Briggs was convicted of DUI, third offense. Id.

¶ 19. On appeal, Briggs contested the constitutionality of the roadblock. Id. at 989. The Court of Appeals explained that the State “arguably has an interest in ensuring that drivers of vehicles are properly licensed and that vehicles are properly registered and periodically inspected.” Id. Additionally, “it is the primary purpose which determines whether a roadblock is constitutional.” Edmond, 531 U.S. at 44, 121 S.Ct. 447; Dale, 785 So.2d at 1105. We agree with the reasoning of Briggs and adopt this holding of the Court of Appeals. Since the primary purpose of the WPD roadblock was to check for driver’s licenses and insurance cards, and since the primary purpose determines whether a roadblock is constitutional, we agree with the trial court that there was a public concern served by the seizure of McLendon.

¶ 20. We must also consider “the degree to which the seizure advances the public interest.” Brown, 443 U.S. at 50-51, 99 S.Ct. 2637; Dale, 785 So.2d at 1104. In Dale, just as in today’s case, the Court was required to apply the three-prong balancing test in Brown. Dale, 785 So.2d at 1104 (quoting Brown, 443 U.S. at 50-51, 99 S.Ct. 2637). With regard to the second prong of the balancing test, the Court of Appeals in Dale stated “[t]he procedure of stopping each driver is a very effective means of determining whether drivers are properly licensed. By doing so, many people are stopped, and each person’s license is examined. This is far more effective than the random stops the Supreme Court outlawed in the Prouse case.” Dale, 785 So.2d at 1106 (citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). Therefore, the Court of Appeals in Dale determined that a roadblock which stops every vehicle passing through the roadblock was not “random” and served “the government’s interest in making sure the people on the State’s roads are properly licensed.” Id. at 1106. We likewise adopt this holding of the Court of Appeals. Dale, 785 So.2d at 1106.

¶ 21. Based on the sound reasoning of Dale, McLendon’s argument that the subject roadblock should be considered random because several factors pertaining to the roadblock were solely within the officers’ discretion lacks merit. Although no written policies regarding the procedure for setting up a roadblock were in place, the WPD officers were permitted to choose the destination, time, and length of the roadblock; and no logbooks were kept detailing how many cars were stopped or given tickets. Dale to stands for the proposition that when every vehicle traveling through the roadblock is stopped, as opposed to a random stopping of only some vehicles, the officers’ discretion has been effectively removed, thus likewise removing as well any potential unconstitutionality of the subject roadblock. Dale, 785 So.2d at 1106. In today’s case, he was not the unfortunate victim of a random stop at the roadblock, but instead McLendon was stopped because the officers were consistently and indiscriminately stopping every vehicle coming through the roadblock.

¶ 22. Finally we must consider “the severity of the interference with [McLendon’s] individual liberty.” Brown, 443 U.S. at 50-51, 99 S.Ct. 2637; Dale, 785 So.2d at 1104. McLendon relies on Prouse to assert his argument that to permit a field officer to determine, at his discretion, the location, time, or duration of a sobriety checkpoint without any legitimate bases for that determination would be to sanction the kind of unconstrained and standardless discretion which the United States Supreme Court sought to proscribe in Prouse, 440 U.S. at 661, 99 S.Ct. 1391. However, Prouse can be distinguished from the case at bar. Prouse involved a “random” license stop. Id. at 650, 99 S.Ct. 1391. An on-duty patrolman arbitrarily decided to pull over the respondent in Prouse without observing any violation of the law or suspicious activity. Id. The patrolmen testified he merely decided to stop the driver and check the driver’s license and registration. Id. Not until the driver was already pulled over did the patrolman smell marijuana. Id.

¶ 23. The Supreme Court in Prouse held that “a random stop of a motorist in the absence of specific articulable facts which justify the stop by indicating a reasonable suspicion that a violation of the law has occurred is constitutionally impermissible and violative of the Fourth and Fourteenth Amendments to the United States Constitution.” Prouse, 440 U.S. at 651, 99 S.Ct. 1391 (quoting 382 A.2d 1359, 1364 (1978)). The Court also noted that “ ‘the issue of the legal validity of systematic, roadblock-type stops of a number of vehicles for license and vehicle registration check is not now before the Court.’ ” Prouse, 440 U.S. at 651, 99 S.Ct. 1391 (quoting 382 A.2d 1359, 1362 (1978)). In the instance case, McLendon was stopped during a systematic, stationary roadblock in which every vehicle passing through was stopped.

¶ 24. McLendon further asserts the WPD officers, along with the MHP officers, were given unbridled discretion, and that there was no particular standard of setting up roadblocks. McLendon claims the roadblock site had not been determined by policy-making officials and no logbooks were kept concerning the operation of the roadblocks. However, McLen-don fails to recognize that while there were no written guidelines or set procedures in place, the officers stopped every single vehicle which came through the roadblock. Thus, there was no unbridled officer discretion since the officers did not choose who to stop and who not to stop. We also note that we have previously upheld the constitutionality of a roadblock where there were no set procedures or guidelines in place for the roadblocks. Drane v. State, 493 So.2d 294, 296-97 (Miss.1986). We held that by stopping every vehicle the officers’ ’’uncontrolled” discretion was removed. Id. Therefore, we unquestionably classify the subject roadblock in today’s case as routine and not “random.”

¶ 25. Accordingly, the intrusion did not severely interfere with McLendon’s individual liberty. For the reasons discussed, we conclude that the State’s interest in performing the subject roadblock on January 15, 2005, substantially outweighs the minimal intrusion on McLendon’s individual liberty. Thus McLendon’s “seizure” was not violative of the Fourth Amendment to the United States Constitution or Miss. Const, art. 3, § 23 (1890). For the reasons stated, we find McLendon’s assertion that the trial court erred in denying his motion to suppress evidence is without merit.

¶ 26. As to the alternative prayer for dismissal found in McLendon’s motion to suppress, we must consider the trial judge’s denial of McLendon’s request for a dismissal. We have recently reiterated our well-established standard of review of a trial court’s ruling on a motion to dismiss. In Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006), we stated:

When considering a motion to dismiss, this Court’s standard of review is de novo. “When considering a motion to dismiss, the allegations in the complaint must be taken as true and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234 (Miss.1999)(citing T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995)). This Court will not disturb the findings of the trial court unless they are manifestly wrong, clearly erroneous or an erroneous legal standard was applied. Bell v. City of Bay St. Louis, 467 So.2d 657, 661 (Miss.1985).

Id. at 1275. This de novo standard of review is likewise applicable to a defendant’s motion to dismiss in a criminal case. In adopting in toto our discussion concerning McLendon’s claim of trial court error in denying his motion to suppress evidence, we find that the trial court did not err in denying McLendon’s alternative prayer for dismissal. If we had found, consistent with McLendon’s assertion, that the subject road block was unconstitutional, thus suppressing all evidence seized as a result of the roadblock, we could have stated with reasonable certainty that McLendon’s motion to dismiss the DUI charge against him would have merit. However, inasmuch as we have found that the subject roadblock was not unconstitutional, it likewise logically follows that McLendon’s alternative motion to dismiss is unquestionably devoid of merit.

¶ 27. In sum, having found the two sub-parts of this issue to be without merit, we now find that the issue, in its entirety, is without merit.

II. WHETHER A PROPER FOUNDATION WAS LAID THUS PERMITTING THE STATE TO INTRODUCE THE RESULTS OF THE INTOXILYZER TEST

¶ 28. As with Issue I, since we are again reviewing a trial court’s ruling on the admissibility of evidence, we apply an abuse of discretion standard. Culp, 933 So.2d at 274. See also Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (Miss.2003); Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 448 (Miss.1997). Additionally, “[t]he discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence.” Beech, 691 So.2d at 448 (citing Johnston v. State, 567 So.2d 237, 238 (Miss.1990)). See Miss. R. Evid. 103(a).

¶ 29. McLendon asserts the State failed to provide sufficient evidence to properly lay the foundation for the results of the intoxilyzer test to be admitted into evidence. However, at trial McLendon made no objection to the operational checklist of the completed test being admitted into evidence. By failing to properly object to the admission of evidence at trial, McLendon did not preserve his claim that the trial court erred by improperly allowing the intoxilyzer results into evidence. Spicer v. State, 921 So.2d 292, 309 (Miss.2006) (citing Williams v. State, 684 So.2d 1179, 1203 (Miss.1996)). Despite McLendon’s waiver of this issue on appeal, we will, alternatively, address the merits of this issue.

¶ 30. McLendon asserts that trooper Ross should not have been allowed to testify with regards to the intoxilyzer results since he recorded the result as a test refusal in the logbook. McLendon contends that it was prejudicial error for the trial court to allow trooper Ross to testify that McLendon actually had a breath-alcohol content of 0.13% based on an un-logged intoxilyzer test. Even if McLendon were correct in asserting that the trial judge erred in allowing trooper Ross’s testimony (an error which we do not find), such error was harmless beyond a reasonable doubt. The State had already entered into evidence the printout from the completed test. Likewise, in the end, McLendon, himself, through counsel during the cross-examination of trooper Ross, offered Uniform Traffic Ticket No. 6-067326, which trooper Ross had issued to McLendon, and this ticket noted that McLendon registered 0.13%. Therefore, trooper Ross’s testimony specifically stating the result as being a breath-alcohol content of ,0.13% was not unfairly prejudicial to McLendon. See Palmer v. City of Oxford, 860 So.2d 1203, 1209-10 (Miss.2003).

¶ 31. Next, McLendon contends trooper Ross did not administer the intoxilyzer test in a scientifically acceptable manner. However, we again state that the trial judge cannot be put in error on a matter which was not presented to him for decision. Estate of Stevens v. Wetzel, 762 So.2d 293, 296 (Miss.2000); Parker v. Miss. Game & Fish Comm’n, 555 So.2d 725, 730 (Miss.1989); Cossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436, 446 (Miss.1989); Crenshaw v. State, 520 So.2d 131, 134-35 (Miss.1988); Ponder v. State, 335 So.2d 885 (Miss.1976); See also Harrison v. State, 534 So.2d 175, 181 (Miss.1988). Since he did not initially raise this issue in the trial court, McLen-don is procedurally barred from asserting the issue today. Procedural bar notwithstanding, even considering this issue on its merits, the totality of the record reveals no merit to this assertion. As correctly pointed out by the State in its brief, “[t]hat [Ross] may have failed to note the result of the second test in the log hardly suggests that the test itself was somehow invalidly administered. The logbook entries have nothing whatsoever to do with the reliability of the test itself.” We agree. The trial court committed no error in admitting this evidence.

¶ 32. In sum, we find this second issue to have no merit.

III. WHETHER THE CIRCUIT COURT ERRED BY DENYING McLENDON’S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT, AND/OR A NEW TRIAL

¶ 33. After a bench trial, the Wayne County Circuit Court entered a judgment finding McLendon guilty of DUI, First Offense. Thereafter, McLendon, through counsel, timely filed the customary j.n.o.v. motion, with an alternative request for a grant of a new trial in the event the trial court denied his j.n.o.v. motion. The trial court subsequently entered an order denying McLendon’s post-trial motions.

¶ 34. We recently addressed the difference between a motion for a judgment notwithstanding the verdict, as opposed to a motion for a new trial. While a motion for a judgment notwithstanding the verdict is considered with regards to the legal sufficiency of the evidence, a motion for a new trial delves into the overwhelming weight of the evidence. Bush v. State, 895 So.2d 836, 843 (Miss.2005). Therefore, McLendon’s motion for a judgment notwithstanding the verdict and McLendon’s motion for a new trial will be addressed separately with the proper application of the correct standard of review.

A. Motion for a Judgment Notwithstanding the Verdict

¶ 35. “The standard of review for a post-trial motion is abuse of discretion.” Dilworth v. State, 909 So.2d 731, 736 (Miss.2005) (citing Howell v. State, 860 So.2d 704, 764 (Miss.2003)). We have consistently reiterated that a motion for a judgment notwithstanding the verdict turns on whether the verdict was based on the legal sufficiency of the evidence. Bush, 895 So.2d at 843. In Bush, we explained that when determining whether the evidence is sufficient to support a conviction, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’ ” Bush, 895 So.2d at 843 (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). The evidence is insufficient to sustain a conviction where it fails to meet this test. Bush, 895 So.2d at 843. Therefore, the applicable question is whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Dilworth, 909 So.2d at 736 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The reviewing court is not required “to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Id. (Emphasis in original).

¶ 36. Furthermore, the proper remedy is for us to reverse and render only when the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty.” Dilworth, 909 So.2d at 736; Edwards v. State, 469 So.2d 68, 70 (Miss.1985). On the other hand, the evidence is deemed sufficient when the facts and inferences considered reveal a result in which “reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense.” Dilworth, 909 So.2d at 736.

¶ 37. Having set forth the standard under which a trial court proceeds in ruling on a j.n.o.v. motion, we now review the trial court’s denial of the j.n.o.v. motion by considering the evidence, as well as all reasonable inferences which may be drawn from the evidence, in the light most favorable to the State. In doing so, we unhesitatingly find that there was legally sufficient evidence for the trial court to find McLendon guilty of DUI, First Offense. This DUI charge against McLendon required the State to present evidence showing that McLendon violated Miss.Code Ann. § 63-11-30 (Rev.2004). Section 63-11-30(1) states in pertinent part “[i]t is unlawful for any person to drive or otherwise operate a vehicle within this state who is under the influence of an intoxicating liquor.” Thus, pursuant to the clear language of the statute, in order to find McLendon guilty of DUI First Offense, the State was required to prove beyond a reasonable doubt (1) that McLendon was operating a motor vehicle, and (2) McLendon was under the influence of intoxicating liquor. Miss.Code Ann. § 63-11-30(1) (Rev.2004). See McCool v. State, 930 So.2d 465, 467 (Miss.Ct.App.2006).

¶ 38. The State introduced into evidence the testimony of two officers who identified McLendon as driving a motor vehicle. McLendon was traveling down Highway 184 in the City of Waynesboro. McLendon approached a routine roadblock operated by the WPD where he was detained by WPD Officer Macy Torrey and MHP state trooper Holt Ross. It is undisputed that McLendon was driving a motor vehicle on the night of January 15, 2005.

¶ 39. While it is undisputed that McLendon was operating a motor vehicle, McLendon asserts that the State failed to make out its case since the State lacked sufficient admissible proof of McLendon’s intoxication. We have already determined that the trial court was not in error for considering the testimony of trooper Ross as well as the printout from the completed intoxilyzer test and the uniform traffic ticket, which established that McLendon had a breath-alcohol content of 0.13%. Additionally, officer Torrey testified that the field sobriety test was given on the basis of the smell of the intoxicating beverage on McLendon’s breath. In viewing the evidence in the light most favorable to the verdict, we find that the State proved beyond a reasonable doubt each element of the DUI charge. Thus, we find that the trial court did not err in denying McLen-don’s motion for a judgment notwithstanding the verdict. This sub-issue is without merit.

B. Motion for a New Trial

¶ 40. By contrast, a motion for a new trial requires “ ‘[a] greater quantum of evidence favoring the State.’ ” Dilworth, 909 So.2d at 737 (quoting Pharr v. State, 465 So.2d 294, 302 (Miss.1984)). Under this standard, reversal is warranted if the lower court abused its discretion in denying the motion for a new trial. Dilworth, 909 So.2d at 737 (citing Howell, 860 So.2d at 764; Edwards, 800 So.2d at 464; Sheffield v. State, 749 So.2d 123, 127 (Miss.1999)). Accordingly, we defer to the discretion of the trial judge, and “[w]e will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Reversal according to the above stated standard, unlike reversal based on insufficient evidence, does not imply that acquittal was the only proper verdict. Bush, 895 So.2d at 844. Instead the standard proposes that, as the “thirteenth juror,” the Court simply disagrees with the jury’s resolution of the conflicting testimony — a difference of opinion tantamount to one among the jurors themselves. Id. This being said, the power to grant a new trial should be invoked only in exceptional cases where the evidence preponderates heavily against the verdict. Id. (citing Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (Miss.2000)).

¶ 41. Sitting as the hypothetical “thirteenth juror”, we do not conclude that an unconscionable injustice occurred based on the evidence presented. Although trooper Ross admittedly failed to properly log McLendon’s intoxilyzer test results, there is nothing in the record to dispute the State’s evidence. What does appear in the record is trooper Ross’s testimony, McLendon’s intoxilyzer test, and the uniform traffic ticket revealing that McLen-don registered a breath-alcohol content of 0.13%. Viewing all the evidence in the light most favorable to the verdict, we find the trial court did not err in its denial of McLendon’s motion for a new trial. Stated differently, we are unquestionably compelled to find from the record that, as a matter of well-established law, the judgment of guilty rendered by the trial judge is not so contrary to the overwhelming weight of the evidence that we would be sanctioning an unconscionable injustice by allowing the judgment of guilty to stand. Therefore, the judgment of guilty as entered by the trial court is well beyond our authority to disturb. Bush, 895 So.2d at 844. We thus conclude that since the trial court did not abuse its discretion in denying McLendon’s motion for a new trial, this sub-issue is likewise devoid of merit.

¶ 42. In sum, this issue, both as to the trial court’s denial of the j.n.o.v. motion and the new trial motion, is wholly without merit.

CONCLUSION

¶ 43. We find that the trial court committed no error in (1) finding the subject roadblock to be constitutionally permissible; (2) admitting into evidence the results of the intoxilyzer test; and, (3) denying the motion for a judgment notwithstanding the verdict, or alternatively, for a new trial. We thus affirm the Wayne County Circuit Court’s judgment.

¶ 44. CONVICTION OF DUI FIRST OFFENSE AND A PAYMENT OF A FINE OF $500.00 PLUS COURT COSTS OF $190.50, FOR A TOTAL OF $690.50, AFFIRMED.

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

      . The record reveals that the Western Sizzlin was sometimes referred to as either the Western Inn, the Western Sizzler, or “the steak house.” Likewise, the record reveals that Highway 184 was sometimes referred to as Highway 84.

      . The term “police vehicle(s)” will be used for all law enforcement agency vehicles involved in the roadblock, regardless of whether the vehicle belonged to the Waynesboro Police Department or the Mississippi Highway Patrol.

      . HGN is an acronym for Horizontal Gaze Nystagmus. HGN is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side. A test was developed by researchers as a means of evaluating measures of an autonomic reaction to central nervous system depressants (such as alcohol). Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement (visited October 9, 2006), http://www.nhtsa.dot.gov/people/injury/ enforce/nystagmus/ hgntxt.html.

      . The one-leg stand test, if successfully performed, will result in the person being tested to remain balanced on one leg, with arms down by his/her side, while counting to a certain number.

      . Nystagmus is defined as "an involuntary rapid movement of the eyeball, usually from side to side.” Webster's New World Dictionary 933 (3rd College Ed.1988).

      . Miss.Code Ann. § 63-11-5(2) (Rev.2004), provides for an automatic 90-day driver’s license suspension upon a first offender's refusal to submit to the test.

      . Miss.Code Ann. § 63 — 11—30(l)(c) (Rev. 2004) provides that it is unlawful for a driver of a motor vehicle to operate such vehicle when the driver "has an alcohol concentration of eight-one hundredths percent (.08%) or more.” This portion of the statute applies to those persons who are above the legal age for the purchase of alcohol.

      . Indeed, WPD Chief Frost testified, inter alia, that "[w]hat we do is, we get grant money down to do seat belts, DUIs. And we advise the officers we need to do these checkpoints, you know, write tickets, stuff like that. And once they do that, you know, do it in a well-lit area, whatever tickets they write or whatever incidents happened, they have to put a detailed report on my desk. And we put that in a file so when we send it off to Jackson, to let them know we have done what we supposed to do.”


text:
    Stephen Elliot POWERS v. STATE of Mississippi.
    No. 2003-DR-02810-SCT.
    Supreme Court of Mississippi.
    Oct. 19, 2006.
    Rehearing Denied Jan. 18, 2007.

      Office of Capital Post-Conviction Counsel by Louwlynn Vanzetta Williams, Robert M. Ryan, William J. Clayton, attorneys for appellant.
    Office of the Attorney General by Marvin L. White, Jr., attorney for appellee.
   CARLSON, Justice, for the Court.

¶ 1. Stephen Elliot Powers was charged with the 1998 murder and attempted rape (capital murder) of Elizabeth Lafferty. Powers was represented at trial by retained counsel. At the conclusion of the trial, Powers was convicted and sentenced to death by lethal injection. This Court affirmed both the conviction and sentence on direct appeal. Powers v. State, 883 So.2d 20 (Miss.2003), cert. denied, 543 U.S. 1155, 125 S.Ct. 1297, 161 L.Ed.2d 121 (2005). Pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, Powers now requests of this Court leave to seek post-conviction relief in the trial court. Miss Code Ann. § 99-39-27 (Supp.2006). See also Miss.Code Ann. § 99-39-7 (Supp.2006). Finding his application to be without merit, we deny Powers leave to seek post-conviction relief.

FACTS AND PRIOR COURT PROCEEDINGS

¶ 2. We glean certain relevant facts from this Court’s opinion concerning Powers’s direct appeal:

On the afternoon of June 13,1998, Elizabeth Lafferty was introduced to Powers and his nephew, “Junior” or “Jay” Otis, Jr. by a mutual friend, Eddie Barnes. The four decided to cook out and drink beer at Lafferty’s home. Later, Otis and Barnes left the Lafferty home, leaving Powers and Lafferty alone. Lafferty’s body was discovered at approximately 1:00 a.m. the next morning in the hallway. Lafferty had been shot five times, three at a point-blank range in the back of the head, once under the chin, and once in the temple. The State’s experts were unable to determine the order in which the shots occurred. The bullets came from a .22 caliber gun.

Powers, 883 So.2d at 24. Lafferty’s body was discovered in her home in the early morning hours of June 14, 1998. Her body was in the hallway with her legs pulled apart at a 90-degree angle, and her body was nude from the waist down, except for her “wadded up” shorts around her left ankle. Her feet had been locked in place in opposite doorways of the hall. There were wounds on her arms and right leg consistent with defensive posturing. Id.

¶ 3. Police obtained a search warrant for Powers’s apartment and subsequently arrested him. After waiving his Miranda rights, Powers led police to the murder weapon and then confessed to killing Laf-ferty, although he denied any sexual contact. The jury found Powers guilty of murder and further found that the killing was done intentionally during the commission of an attempted rape. The jury likewise found that the crime was especially heinous, atrocious or cruel. Id. at 25. Powers was thereafter sentenced to death by lethal injection. This Court affirmed the conviction and sentence on direct appeal. Id. at 37.

DISCUSSION

¶ 4. In his direct appeal, Powers’s raised two primary issues — (1) whether the evidence of the underlying felony of attempted rape was sufficient to support the capital murder charge; and, (2) whether his trial counsel rendered ineffective assis-tanee. In the latter issue, Powers asserted that he received ineffective assistance from his trial counsel as to (a) the hearing on the motion to suppress Powers’s confession; (b) the jury selection process; (c) the presentation of a coherent defense; (d) the failure to have the capital murder charge reduced to that of non-capitaj (simple) murder or manslaughter; (e); the failure to submit lesser-included offense or lesser-offense jury instructions; and, (f) the sentencing phase, due to (i) the failure to investigate and develop mitigation evidence, (ii) an inadequate closing argument to the jury, and, (iii) the failure to object to the State’s two aggravating circumstances submitted via jury instructions.

¶ 5. In today’s petition seeking post-con-vietion relief (PCR motion), Powers, through the Mississippi Office of Capital Posl^Conviction Counsel, submits eight issues (with the first issue containing three sub-parts) which he deems to be sufficient to undergird his PCR motion. The issues are restated for the sake of discussion as being (1) denial of effective assistance of trial counsel due to trial counsel’s failure to (a) obtain expert assistance, (b) challenge the State’s exercise of peremptory challenges on African-American jurors, and (c) investigate and present mitigating evidence; (2) inapplicability of procedural bars and res judicata to his PCR claims; (3) inadequate notice of the specific offenses for which he was being charged; (4) subjection to the “death-row phenomenon;” (5) denial of the right to trial by an impartial jury; (6) the cumulative effect of errors committed during the trial; (7) insufficient evidence to support the capital murder charge; and, (8) the disproportionate imposition of the death penalty.

I. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

¶ 6. “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. 2062, 2064, 80 L.Ed.2d 674, 692-93 (1984). A claimant must demonstrate that counsel’s performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

¶ 7. Defense counsel is presumed competent. Hughes v. State, 892 So.2d 203, 208 (Miss.2004) (citing Bell v. State, 879 So.2d 423, 431 (Miss.2004)). But even if professional error is shown, a reviewing court must determine whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Mohr v. State, 584 So.2d 426, 430 (Miss.1991) (citing Handley v. State, 574 So.2d 671 (Miss.1990)) (other citations omitted). In a death penalty case, the ultimate inquiry 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 2069, 80 L.Ed.2d at 698.

¶ 8. The claim of ineffective assistance of counsel was raised by Powers on direct appeal and, after a thorough discussion by this Court, found to be without merit. Powers, 883 So.2d at 27-36. Powers now raises additional instances of alleged professional error by trial counsel which were not presented on direct appeal. These additional issues were capable of presentation on direct appeal; therefore, collateral review of the issue as a whole is procedurally barred by the post-conviction relief statute. Miss.Code Ann. § 99-39-21. Procedural bar notwithstanding, we proceed to alternatively discuss these three claims of ineffective assistance of trial counsel.

A. Failure to Obtain Expert Assistance.

¶ 9. With regard to the claim that counsel failed to obtain expert assistance, “[t]his Court weighs on a case by case basis whether the denial of expert assistance for an accused is prejudicial to the assurance of a fair trial and will grant relief only where the accused demonstrates that the trial court’s abuse of discretion is so egregious as to deny him due process and where his trial was thereby rendered fundamentally unfair.” Weatherspoon v. State, 732 So.2d 158, 160 (Miss.1999).

¶ 10. The State called Dr. Stephen Hayne, a forensic pathologist, who testified that Lafferty suffered defensive wounds on both arms as well as her right leg. Powers now contends that trial counsel was ineffective for not countering that testimony with an expert of his own. Powers offers the affidavit of a forensic dentist, Dr. Michael Bowers, who asserts that the positioning of the victim’s body was “staged” by the perpetrator for some reason other than attempted rape. According to his affidavit, Dr. Bowers is a dentist with a private practice in Ventura, California. He is also a licensed attorney in California, a Board Forensic Odontologist and a certified senior crime scene analyst. Likewise, Dr. Bowers has been the Deputy Medical Examiner for the Ventura County Coroner’s Office since 1988. He has also testified as an expert in the field of forensic dentistry in several states and additionally, he has published articles and textbooks on forensic dental evidence. Dr. Bowers stated via his affidavit that he had reviewed the entire testimony of .various law enforcement officials and Dr. Hayne relating to this case, that he had reviewed the crime scene video and autopsy video, and, that he had studied Mississippi’s “attempt” statute, Miss.Code Ann. § 97-1-7 (Rev.2000). In his affidavit, Dr. Bowers likewise stated:

4. The forensic testimony in this case is silent regarding any post mortem proof of attempted rape inflicted on or in the murder victim.
5. The crime scene photos and video presented to the court in this case does not present sufficient or convincing forensic evidence to support the charge of attempted rape in the commission of a murder.
6. The location and positioning of the body are strong signs that the positioning was “staged” for reasons other than attempted rape. The positioning of the legs and panties are surely shocking, even to experienced investigators but the perpetrator’s intent is open to multiple interpretations. The absence of autopsy findings of sexual activity on or in the decedent’s body clearly makes the State’s theory of “attempted rape” only a hypothesis which can’t be tested scientifically. The alternative intent of the perpetrator such as “staging” exists is an equally viable explanation.
7. The lack of physical findings regarding an attempt to rape makes the positioning of the body as just seen in the photographs insufficient to determine with medical certainty that an attempted rape was committed.

¶ 11. As to expert testimony, we now apply the Daubert test. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Jones v. State, 918 So.2d 1220, 1226-27 (Miss.2005), in addressing the issue of admissibility of expert testimony, we stated, inter alia:

Our current [Miss. R. Evid.] Rule 702, which is now identical to Fed.R.Evid. 702, states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The comment to this amended rule clearly reveals this Court’s effort to address the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Thus, after years of applying the Frye standard on the issue of the admissibility of expert testimony, we now apply the Daubert standard. See, e.g., Hughes v. State, 892 So.2d 203, 210 (Miss.2004) (fn. 1); Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 60 (Miss.2004); Janssen Pharmaceutica, Inc. v. Armond, 866 So.2d 1092, 1103 (Miss.2004) (Graves, J., specially concurring); Mississippi Transp. Com’n v. McLemore, 863 So.2d 31, 35-40 (Miss.2003); McGowen v. State, 859 So.2d 320, 340-41 (Miss.2003).

In McLemore, we acknowledged that under the Frye standard:

“[I]t is not necessary that one offering to testify as an expert be infallible or possess the highest degree of skill; it is sufficient if that person possesses peculiar knowledge or information regarding the relevant subject matter which is not likely to be possessed by a layman.”
863 So.2d at 36 (citing Kansas City S. Ry. v. Johnson, 798 So.2d 374, 382 (Miss.2001) (quoting Hooten v. State, 492 So.2d 948 (Miss.1986))).

Jones, 918 So.2d at 1226-27.

¶ 12. In applying Daubert to the facts and circumstances peculiar to the case sub judice, such a conclusion by Dr. Bowers that the positioning of Lafferty’s body was somehow “staged” is speculative at best, and such testimony does not counter the State’s evidence by way of Dr. Hayne, the forensic pathologist who performed the autopsy, who testified that the victim suffered defensive wounds. It is highly doubtful that any expert testimony regarding the positioning of the body would have likely resulted in a different verdict. After all, the victim was found nude from the waist down with her shorts and underwear bunched at one ankle, as well as with five gunshot wounds to her head.

¶ 13. Having found this issue to be procedurally barred, we likewise now find, alternatively, upon a discussion of this issue, that this issue has no merit.

B. Failure to Challenge Peremptory Strikes.

¶ 14. Powers argues that Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), is an intervening decision which excepts presentation of this issue from the procedural bar. In Miller-El, the United States Supreme Court found that potential jurors had been excluded on the basis of race despite the prosecution’s announcement of race-neutral reasons at trial. With regard to a jury with only one African-American, the Supreme Court held, “Happenstance is unlikely to produce this disparity.” 125 S.Ct. at 2325, 162 L.Ed.2d at 214 (citing Miller-El v. Cockrell, 537 U.S. 322, 342, 123 S.Ct. 1029, 154 L.Ed.2d 931).

¶ 15. While the decision in Miller-El stands for the proposition that it is possible for potential jurors to be excluded on the basis of race despite the presentation of a race-neutral reason for the exercise of a peremptory strike, it does not change the basic holding of Batson that the use of peremptory strikes based upon race is prohibited. Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69, 88 (1986). Powers’s trial jury unquestionably had only one African-American juror; however, this Court on direct appeal specifically held that, from the totality of the record on this issue, there was no viable Batson claim to be raised by trial counsel and that it was “inconceivable how counsel could have been ineffective, and thus Powers’s case prejudiced by failure to raise such a challenge.” Powers, 883 So.2d at 31. This issue is procedurally barred from reconsideration in that the holding of Miller-El does not constitute an intervening case whose import would have changed the outcome of Powers’s trial. Alternatively, in considering the merits of this issue, we find this issue to still be without merit.

C. Failure to Present Mitigating Evidence.

¶ 16. This issue was specifically presented and rejected on direct appeal, Powers, 883 So.2d at 34-36, and is now procedurally barred from collateral review. “The record reflects that trial counsel personally interviewed family members and friends of Powers, the girlfriend of Powers’s brother, the officers involved, Dr. West, Powers’s mother, and Powers.” Id. at 35. In discussing this issue, we acknowledged trial counsel’s efforts at investigating and developing evidence of mitigating factors but concluded that “there was very little to be found relative to these factors.” Id. Recognizing that the jury had before it undisputed evidence that Lafferty had been shot five times in the head at close range, this Court held:

Trial counsel was not ineffective because he chose to pursue the path of mercy instead of rehashing the information produced during the guilt phase, producing unsupportive family members, emphasizing evidence of a drinking problem, and utilizing testimony of his drinking friends.

Id. at 35. This issue is procedurally barred, and alternatively, it is still without merit.

II. PROCEDURAL BARS.

¶ 17. Powers argues that the legal landscape of death penalty appeals has changed and that the new guidelines for defense counsel in capital post-conviction cases illustrates that his trial counsel was somehow not qualified to represent him such that he should be allowed to present claims not previously made, or to again present claims previously decided. There is, however, no constitutional right to errorless counsel. Jordan v. State, 918 So.2d 636, 647 (Miss.2005) (citing Davis v. State, 743 So.2d 326, 334 (Miss.1999)). See also Foster v. State, 687 So.2d 1124, 1130 (Miss.1996); Mohr v. State, 584 So.2d 426, 430 (Miss.1991); Cabello v. State, 524 So.2d 313, 315 (Miss.1988). The right to effective counsel simply affords the right to have competent counsel. Jordan, 918 So.2d at 647.

¶ 18. Powers also argues that his claims which are otherwise subject to a procedural bar should nonetheless be entertained “no matter how egregious the violation of Mississippi’s procedural rules” and despite his opportunity to raise them previously. This claim is not supported by any relevant federal or state authority and is without merit. The procedural bars of waiver, different theories, and res judicata as well as the exceptions thereto contained in Miss.Code Ann. § 99 — 39—21(1)—(5) are clearly applicable to death penalty post-conviction relief applications. The petitioner carries the burden of demonstrating that his claim is not procedurally barred. Miss.Code Ann. § 99-39-21(6). An alleged error should be reviewed, in spite of any procedural bar, only where the claim has not previously been litigated or where an appellate court has reversed itself on an issue previously submitted. Such is not the case here and the issue is therefore without merit. See, e.g., Foster v. State, 687 So.2d 1124, 1129, (Miss.1996). There is thus no change in our treatment of procedural bars and res judicata such as to allow Powers to somehow avoid these prohibitions to raise certain issues.

III. AGGRAVATING FACTORS NOT CHARGED IN THE INDICTMENT.

¶ 19. Powers argues that his death sentence must be vacated because the aggravating circumstances which charged capital murder were not included in the indictment. This issue could have been raised on direct appeal and is thus now procedurally barred from consideration.

¶ 20. Powers cites to the rulings of the United States Supreme Court 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), in which the Court held unconstitutional a sentencing scheme where a judge rather than a jury determined whether there were aggravating circumstances present to warrant imposition of enhanced punishment.

¶ 21. Apprendi was charged with firing shots into the home of an African-American family in New Jersey. He pleaded guilty to possession of a firearm for an unlawful purpose and, after the judge accepted the guilty pleas, the prosecutor moved for an enhanced sentence on the basis that it was a hate crime. Apprendi argued that he was entitled to have the finding on enhancement decided by a jury. The U.S. Supreme Court held, “Other than the fact of a prior conviction, any fact that increases the penalty for- a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

¶ 22. In 2002, the U.S. Supreme Court decided Ring v. Arizona. Ring addressed the issue of whether the Arizona capital sentencing process as upheld in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), in which the jury decided guilt and the judge made findings on aggravating factors, could survive the Ap-prendi decision. The Supreme Court decided it could not:

[W]e overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U.S., at 647-649, 110 S.Ct. 3047. Because Arizona’s enumerated aggravating factors operate as “the functional equivalent of an element of a greater offense,” Apprendi, 530 U.S. at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury.

Ring, 536 U.S. at 609,122 S.Ct. 2428. The Court specifically noted, “Ring’s claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him.” Id. at 597 n. 4, 122 S.Ct. 2428. Ring did not contend that his indictment was constitutionally defective as does Powers.

¶ 23. As a practical matter our circuit and county court rules provide that an indictment shall be “a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06. A defendant is thus not entitled to formal notice in the indictment of the aggravating circumstances to be employed by the prosecution inasmuch as a capital murder indictment puts a defendant on sufficient notice that the statutory aggravating factors will be used against him. Smith v. State, 729 So.2d 1191, 1224 (Miss.1998) (citing Williams v. State, 445 So.2d 798, 804-05 (Miss.1984)).

We believe that the fact that our capital murder statute lists and defines to some degree the possible aggravating circumstances surely refutes the appellant’s contention that he had inadequate notice. Anytime an individual is charged with murder, he is put on notice that the death penalty may result. And, our death penalty statute clearly states the only aggravating circumstances which may be relied upon by the prosecution in seeking the ultimate punishment.

Smith, 729 So.2d at 1224 (quoting Williams, 445 So.2d at 804-805). This Court has consistently found this issue (failure to charge the aggravating factors in the indictment) to be without merit. Havard v. State, 928 So.2d 771, 800-01 (Miss.2006); Knox v. State, 901 So.2d 1257, 1269 (Miss.2005); Berry v. State, 882 So.2d 157, 172 (Miss.2004). Once again, in today’s case, we find this issue to be without merit.

IV. THE EIGHTH AMENDMENT AND THE DEATH ROW PHENOMENON.

¶ 24. Powers argues, without the benefit of authority, that he has suffered cruel and unusual punishment simply by being placed on death row. A claim based on the Eighth Amendment could have been raised on direct appeal and is now be procedurally barred from further consideration. Powers claims to be languishing in fear of his execution and the uncertainty of when it will be carried out. Powers cites to the writings of existentialist author Albert Camus. Powers argues that his execution some eight years after the offense will serve no purpose. This Court has considered and rejected this argument before. Wilcher v. State, 863 So.2d 776, 834 (Miss.2003); Russell v. State, 849 So.2d 95, 144-45 (Miss.2003); Jordan v. State, 786 So.2d 987, 1028 (Miss.2001). This issue is thus without merit.

V. FAIR AND IMPARTIAL JURY.

¶ 25. This issue could have been raised on direct appeal and is thus procedurally barred from further consideration. Procedural bar notwithstanding, this issue has no merit. Powers claims that during the course of deliberations, juror Kevin Cuevas made it known that he was personally acquainted with the victim because she had delivered packages to his door. Powers claims bias on the part of the juror because he purportedly told another juror that the victim had an outgoing personality. The record reflects, however, that Cuevas stated during voir dire that he was an acquaintance of the victim, Elizabeth Lafferty. Powers cannot now claim surprise or any other prejudice to his defense. Therefore, this issue likewise has no merit.

VI.CUMULATIVE ERROR.

¶ 26. Powers argues generically that the alleged preceding errors, taken as a whole, deprived him of a fair trial. Because Powers has not shown any actual error by the trial court, there can be no cumulative effect and no adverse impact upon his constitutional right to fair trial. Stated differently, we clarified our review of perceived cumulative error in death penalty cases in Byrom v. State, 863 So.2d 836, 847 (Miss.2003). In Byrom, we stated:

What we wish to clarify here today is that upon appellate review of cases in which we find harmless error or 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, although not reversible when standing alone, may when considered cumulatively require reversal because of the resulting cumulative prejudicial effect. That having been said, for the reasons herein stated, we find that errors as may appear in the record before us in today’s case, are individually harmless beyond a reasonable doubt, and when taken cumulatively, the effect of all errors committed during the trial did not deprive Michelle Byrom of a fundamentally fair and impartial trial.

Id. at 847, ¶ 13. Applying the Byrom criteria to Powers’s case, we find that, while errors may have been committed, these errors “are individually harmless beyond a reasonable doubt, and when taken cumulatively, the effect of all errors committed during [Powers’s] trial did not deprive [Powers] of a fundamentally fair and impartial trial.” Id. Additionally, “[a] criminal defendant is not entitled to a perfect trial, only a fair trial.” McGilberry v. State, 741 So.2d 894, 924 (Miss.1999) (citing Sand v. State, 467 So.2d 907, 911 (Miss.1985)). This issue is without merit.

VIL INSUFFICIENT EVIDENCE OF ATTEMPTED RAPE.

¶ 27. This issue was thoroughly discussed on direct appeal and this Court found that the State had presented sufficient evidence of an attempted rape. Powers, 883 So.2d at 25-27. This issue is thus procedurally barred;, however, procedural bar notwithstanding, we will briefly discuss this issue. The offense of attempted rape requires proof of three elements: “[1] an intent to commit rape; [2] a direct ineffectual act done toward its commission; and, [3] the failure to consummate its commission.” Powers, 883 So.2d at 26-27 (citing Ross v. State, 601 So.2d 872, 874 (Miss.1992); Pruitt v. State, 528 So.2d 828, 830 (Miss.1988)). In Powers, we held that “based upon all the direct evidence, and especially the physical evidence at the crime scene as depicted, inter alia, by the color photographs of the victim, the jury could reasonably find that an attempted rape occurred.” Id. at 27. Notwithstanding the fact that this issue is procedurally barred, having alternatively addressed the merits of this issue, we find the issue to be without merit.

VIII. DEATH SENTENCE DISPROPORTIONATE TO THE OFFENSE.

¶ 28. We thoroughly addressed the proportionality issue on direct appeal, and this issue is thus procedurally barred. Once again, procedural bar notwithstanding, we proceed here to briefly discuss this issue. On direct appeal, this Court conducted a proportionality review as required by the Eighth Amendment to the United States Constitution and Miss. Code Ann. § 99-19-105(3) (Rev.2000). In so doing, we specifically found that “there is no evidence supporting a finding that [Powers’s] death sentence was imposed under the influence of passion, prejudice or any other arbitrary factor” and that the evidence supported the finding that all the statutory aggravating circumstances were present and had been proven beyond a reasonable doubt. This Court has already concluded that Powers’s death sentence was not disproportionate or excessive relative to the offense or to those sentences imposed in other similar cases. Powers, 883 So.2d at 36-37. Consequently, the issue is now procedurally barred from collateral review. Miss.Code Ann. § 99-39-21(3). However, notwithstanding the procedural bar, this issue is likewise wholly devoid of merit.

CONCLUSION

¶ 29. For the reasons stated, the application of Stephen Elliott Powers for leave to file a motion for post-conviction relief in the Circuit Court of Forrest County is denied.

¶ 30. APPLICATION FOR LEAVE TO FILE MOTION FOR POST-CONVICTION RELIEF, DENIED.

SMITH, C.J., WALLER AND COBB, P JJ., EASLEY, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION.

      . This statute states, in its entirety:
      (1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact' or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.
      (2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this article upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and actual prejudice.
      (3) The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.
      (4) The term "cause” as used in this section shall be defined and limited to those cases where the legal foundation upon which the claim for relief is based could not have been discovered with reasonable diligence at the time of trial or direct appeal.
      (5) The term "actual prejudice” as used in this section shall be defined and limited to those errors which would have actually adversely affected the ultimate outcome of the conviction or sentence.
      (6) The burden is upon the prisoner to allege in his motion such facts as are necessary to demonstrate that his claims are not procedurally barred under this section.
      Miss.Code Ann. § 99-39-21.

      . Miss.Code Ann. § 99-39-27(9) (Supp.2006) states, in pertinent part that excepted from a procedural bar or res judicata prohibition "are those cases in which the prisoner can demonstrate either that there has been intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence. ...”


author: LEE, P.J., for the court.

text:
    James C. PEARSON, Sr. a/k/a James Clarence Pearson, a/k/a “Johnny”, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CA-00752-COA.
    Court of Appeals of Mississippi.
    July 18, 2006.
    Rehearing Denied Jan. 2, 2007.
    Robert Lofton Gray, Flowood, David Randall Wade, Jackson, attorneys for appellant.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before LEE, P.J., SOUTHWICK and ISHEE, JJ.
   LEE, P.J., for the court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On August 27, 2001, James C. Pearson, Sr., pled guilty in the Clarke County Circuit Court to one count of sexual battery. The trial court entered orders of nolle prosequi regarding two other counts of sexual battery and one count of possession of marijuana. Pearson was sentenced to thirty years, with twenty years suspended, ten years to serve in the custody of the Mississippi Department of Corrections, and five years’ post-release supervision.

¶ 2. On July 24, 2004, Pearson filed a motion for post-convietion relief and a motion to expand the record. Pearson claimed that his guilty plea was entered into involuntarily. Pearson also argued that he should be examined by a physician to determine whether his guilty plea was knowingly and intelligently entered. In a thorough order, the trial court denied Pearson’s motion for post-conviction relief as well as the motion to expand the record.

¶ 3. Pearson now appeals to this Court asserting the following issues: (1) the trial court erred in denying his motion for post-conviction relief; (2) the trial court erred in denying his motion to expand the record as he has a right of access to a physician to obtain evidence in support of his motion for post-conviction relief; and (3) he is entitled to an evidentiary hearing.

STANDARD OF REVIEW

¶ 4. The standard of review for a denial of a post-conviction motion is well-stated. The findings of the trial court must be clearly erroneous in order to overturn a lower court’s denial of a post-conviction relief motion. McClinton v. State, 799 So.2d 123,126(¶ 4) (Miss.Ct.App.2001).

DISCUSSION

I. DID THE TRIAL COURT ERR IN DENYING PEARSON’S MOTION FOR POST-CONVICTION RELIEF?

¶ 5. In his first issue, Pearson argues that the trial court erred in denying his motion for post-conviction relief. Specifically, Pearson claims that the trial court erred in finding evidence in the record that contradicted his allegations in his motion! Pearson contends that his post-traumatic stress disorder and the medicátion he was taking for this condition impaired his ability to voluntarily enter a guilty plea.

¶ 6. A plea is considered “voluntary and intelligent” if the defendant knows the elements of the charge against him, understands the charge’s relation to him, what effect the plea will have, and what sentence the plea may bring. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). Furthermore, solemn declarations in court carry a strong presumption of verity. Gable v. State, 748 So.2d 703, 706(¶ 11) (Miss.1999).

¶ 7. During the plea colloquy the trial court asked Pearson the following:

BY THE COURT: All right. At the time that these offenses took place, were you under the influence of drugs, alcohol, beer, wine, whiskey, pills or any other type of intoxicants?
BY DEFENDANT PEARSON: Yes, sir.
BY THE COURT: What were you under the influence of?
BY DEFENDANT PEARSON: Well, I had been drinking.
BY THE COURT: Alcohol.
BY DEFENDANT PEARSON: Yes, sir. Marijuana and I got prescription medicine, prescribed medicine.
■* * * *
BY THE COURT: Are either of you under the influence of anything right now?
BY DEFENDANT PEARSON: No, sir.
# ❖ * *
BY THE COURT: Do you claim to have ever suffered from any mental disease or disorder? Mr. Pearson, you have been to the VA hospital for post-traumatic stress disorder; is that correct?
BY DEFENDANT PEARSON: Yes, sir.
BY THE COURT: And that’s what you take prescribed medication for?
BY DEFENDANT PEARSON: Yes, sir.

¶ 8. In his opinion denying Pearson’s motion for post-conviction relief, the trial judge found that, although Pearson was taking medication for post-traumatic stress syndrome, at no time did Pearson indicate that this medication altered his ability to understand the consequences of pleading guilty. The trial judge noted that during the entire plea colloquy he did not suspect that Pearson was incompetent, but, to the contrary, found Pearson to be lucid. The trial judge further stated that Pearson included a list of medications that he had been prescribed at the time of the plea hearing; however, Pearson did not include an affidavit from his doctor or any other medical evidence to support his claim that either a mental defect or drugs affected the voluntariness of his plea. We can find no error in the trial judge’s decision to deny Pearson’s motion; thus, this issue is without merit.

II. DID THE TRIAL COURT ERR IN DENYING PEARSON’S MOTION TO EXPAND THE RECORD?

¶ 9. In his second issue on appeal, Pearson argues that he has a right of access to a physician in order to obtain evidence to support his motion for post-conviction relief. However, in his brief, Pearson cites to no law in support of his argument. The only cases Pearson cites relate to a criminal indigent defendant’s right of access to a competent physician if issues raised before or during trial involve the defendant’s mental status. That is not the case here. Furthermore, Pearson acknowledges that the right he claims was violated is not clearly established in Mississippi jurisprudence; thus, this Court should clearly establish that right. We are disinclined to do so in this case; thus, we find this issue to be without merit.

III. IS PEARSON ENTITLED TO AN EVIDENTIARY HEARING?

¶ 10. In his final issue on appeal, Pearson contends that he is entitled to an evidentiary hearing in order to prove that his guilty plea was inv'oluntary. However, Pearson has no evidence to support this contention, merely stating that allowing him access to a physician may show that his guilty plea was involuntary. Unsupported allegations in the pleadings are insufficient to require an evidentiary -hearing. McCuiston v. State, 758 So.2d 1082, 1085(¶ 9) (Miss.Ct.App.2000). This issue is without merit. .

¶ 11. THE JUDGMENT OF THE CLARKE COUNTY CIRCUIT COURT DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. * ROBERTS, J., NOT PARTICIPATING.

      . Pearson’s guilty plea hearing was conducted simultaneously with another defendant. We are not including the other defendant’s responses to the questions.