author: EASLEY, Justice,

text:
    Kevin SCOTT v. STATE of Mississippi.
    No. 2004-DR-01290-SCT.
    Supreme Court of Mississippi.
    Oct. 5, 2006.

      James W. Craig, Jeane A. Thomas, attorneys for appellant.
    Office of the Attorney General by Marvin L. White, Jr., attorneys for appellee.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY AND STATEMENT OF THE FACTS

¶ 1. Kevin Scott (Scott) and Leroy Lynch confronted seventy-four-year-old Richard Lee in the carport of his home. When Lee’s wife, Lurline, heard voices, she opened the door of their home and shots were fired at her. She was able to slam the door and initiate a call to the police. Lee was shot, and Scott fled the scene in Lee’s car. Lee later died from his wounds. When he was caught, Scott confessed to the shooting, but he later recanted. Scott claimed that Lynch was the shooter, and he had fled in the car only after Lynch shot Lee.

¶ 2. Scott was charged with the capital murder of Lee, with the underlying felony of robbery. Scott was also charged with aggravated assault of Lurline. Scott was convicted of both charges and, after a separate sentencing hearing, was sentenced to death for the capital murder and ten years on the aggravated assault charge. This Court affirmed the conviction and sentence on direct appeal. Scott v. State, 878 So.2d 933 (Miss.2004). Scott now files this application for post-conviction relief in which he raises twelve claims for relief. We grant this application for post-conviction relief in part and deny it in part. The sole issue of whether Scott is mentally retardation is remanded to the trial court for an eviden-tiary hearing. All other issues raised by Scott on post-conviction relief are denied. Each issue raised by Scott is addressed.

ANALYSIS

I. Mental retardation

¶ 3. Scott argues that he is mentally retarded, and therefore, he should not be executed pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) and Chase v. State, 873 So.2d 1013 (Miss.2004). Scott asserts that he is entitled to a mental retardation evaluation by the trial court. Scott’s application is lengthy on the mental retardation issue, citing problems at and from birth, a family history of mental illness, years spent in special education, and numerous assessment and functioning tests. Scott includes two affidavits by experts, Dr. L. Mulry Tetlow and Dr. Marc Zimmerman, in his application on post-conviction relief which state that there is a reasonable basis to believe that upon further testing Scott would be found to be mentally retarded. Scott also includes affidavits from teachers, family, and friends on the subject of Scott’s deficiencies in adaptive functioning. In December, 2005, Scott was granted leave for an evaluation by Dr. Zimmerman. After a battery of tests, Dr. Zimmerman opined that Scott is mentally retarded as that term is defined by the American Association of Mental Retardation (AAMR) and the Diagnostic and Statistical Manual, fourth edition (DSM-IV-TR).

¶ 4. On direct appeal, this Court found that there was insufficient evidence in the record to remand for a hearing on the issue of mental retardation, or a Chase hearing. Chase v. State, 873 So.2d at 1028-29. In Scott, 878 So.2d at 948, this Court explained how Chase applied in this case:

In response to Atkins, we recently handed down Chase v. State, 873 So.2d 1013 (Miss.2004), in which we set forth the criteria and procedure to be used both in applying" for, and conducting, a hearing for a determination of mental retardation. For criminal defendants who file applications for post-conviction relief subsequent to Chase, a defendant must provide “an affidavit from at least one expert ... who opines, to a reasonable degree of certainty, that: (1) the defendant has a combined Intelligence Quotient (“IQ”) of 75 or below, and; (2) in the opinion of the expert, there is a reasonable basis to believe that, upon further testing, the defendant will be found to be mentally retarded, as defined [in the Chase opinion].” Id.

Scott, 878 So.2d at 948. In Chase, 873 So.2d at 1029, this Court held:

With the sole exception discussed below, no defendant may be granted a hearing on the issue of Eighth Amendment protection from execution, due to alleged mental retardation unless, prior to the expiration of the deadline set by the trial court for filing motions, the defendant shall have filed with the trial court a motion, seeking such hearing. The defendant must attach to the motion an affidavit from at least one expert, qualified as described above, who opines, to a reasonable degree of certainty, that: (1) the defendant has a combined Intelligence Quotient (“IQ”) of 75 or below, and; (2) in the opinion of the expert, there is a reasonable basis to believe that, upon further testing, the defendant will be found to be mentally retarded, as defined herein.

Chase, 873 So.2d at 1029. However, applying Chase in Scott’s direct appeal, this Court stated the following:

Thus, on the record before us, Scott has not established that he is entitled to an [sic] Chase hearing. However, should Scott provide the appropriate affidavit which complies with the requirements set forth in Chase as an attachment to an application for post conviction relief, pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. §§ 99-39-1 et seq., he could be entitled to a hearing as provided in Chase.

Scott, 878 So.2d at 948.

¶ 5. The State counters that while Scott has now presented such affidavits, it disputes the findings and methods of Dr. Zimmerman and points out the Dr. Zimmerman failed to administer the Minnesota Multiphasic Personality Inventory II (MMPI-II). Scott argues that the MMPI-II is not an appropriate test for individuals with mental retardation. Scott also notes in his rebuttal that Dr. Zimmerman has explained why the MMPI-II test would be of “questionable value” because Scott is unable to read beyond a third-grade level. However, this Court has not disregarded the MMPI-II test. The MMPI-II test is required prior to an adjudication on a claim of mental retardation pursuant to Atkins and Chase. See Jordan, 918 So.2d at 660; Chase, 873 So.2d at 1029.

¶ 6. We find that Scott’s post-conviction petition with its accompanying application provided the affidavits this Court deemed necessary to warrant a Chase hearing on the issue of mental retardation. Scott has provided the necessary information specified in Chase for a remand by this Court to the trial court for mental retardation hearing. However, prior to an adjudication on the mental retardation issue, Scott must obtain a MMPI-II test. Therefore, this issue should be remanded to the Bolivar County Circuit Court for a mental retardation hearing.

II. Prosecution’s conflict of interest

¶ 7. Brenda F. Mitchell, an assistant district attorney in Bolivar County, Mississippi, participated in Scott’s prosecution. Two and a half years prior to Scott’s capital murder trial, Mitchell worked as an attorney at North Mississippi Rural Legal Services. While employed with Legal services, Mitchell represented Scott at a hearing before an administrative law judge at the Social Security Administration. At the time of the social security hearing, Scott was 15-years old. He was declared mentally retarded and mentally disabled and awarded supplemental security income.

¶ 8. Scott asserts Mitchell’s participation in his prosecution was an impermissible conflict of interest where the criminal prosecution was substantially related to the prior civil suit and where Mitchell used confidential information gained through her prior representation of Scott. Gray v. State, 469 So.2d 1252, 1254 (Miss.1985); Sharplin v. State, 330 So.2d 591, 594 (Miss.1976).

¶ 9. Scott asserts the social security proceedings concerned his mental capacity, which was a central issue at his murder trial. Scott claims that as his attorney in the social security proceedings, Mitchell had access to his confidential flies, records, mental health evaluations, and medical reports, as well as, access to his mother, aunt, and other family members. Scott asserts Mitchell had an ongoing obligation to maintain the confidentiality of attorney-client privilege. Scott also points out that, as his advocate, Mitchell argued Scott suffered from mental retardation.

¶ 10. Scott asserts that the State cannot show that Mitchell had absolutely no participation in the case, divulged no confidential information, and notified the defense promptly of this conflict.

¶ 11. Scott argues this claim is properly raised for the first time in the petition for post-conviction relief where the conflict was first discovered by post-conviction counsel in April, 2005. Scott asserts the conflict entitles him to relief where this Court has ordered new trials in cases involving lesser sentences for such conflicts. See Gray, 469 So.2d at 1255; Sharplin, 330 So.2d at 596; Aldridge v. State, 583 So.2d 203 (Miss.1991). See also Wilkins v. Bowersox, 933 F.Supp. 1496 (W.D.Mo.1996), aff'd, 145 F.3d 1006 (8th Cir.1998). Lastly, Scott argues that the prosecution’s failure to disclose this conflict is a violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

¶ 12. The State argues this issue is procedurally barred pursuant to Miss.Code Ann. § 99-39-21(1) because it was not raised at trial or on direct appeal. The State asserts, too, that failure to move for Mitchell’s disqualification acts as waiver. The State notes there was testimony at trial regarding Scott’s testing for social security disability and argues Scott’s assertion that Mitchell’s involvement in the Social Security Administration proceeding is newly discovered is incredible.

¶ 13. The State argues that Scott has failed to show a substantial relationship between the two representations and has failed to show disclosure of confidential information. The State also points out that, at the time of Scott’s prosecution, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), had not been decided. As such, neither Mitchell nor the district attorney had any reason not to seek the death penalty based on mental retardation.

¶ 14. Miss.Code Ann. Section 99-39-21(1) provides:

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.

The record reflects that Scott did not raise this issue on his direct appeal and is now procedurally barred pursuant to Miss.Code Ann. Section 99-39-21(1). That being said, we will now examine the merits of the case.

¶ 15. In Carr v. State, 873 So.2d 991, 997 (Miss.2004), this Court held:

The purpose of post-conviction proceedings is to bring forward facts to the trial court that were not known at the time of the judgment. Williams v. State, 669 So.2d 44, 52 (Miss.1996). The procedure is limited to those facts and matters which could not or should not have been brought at trial or on direct appeal. Id; Miss.Code Ann. §§ 99-39-1 to -29 (Rev. 2000 & Supp.2003). If newly discovered evidence would likely produce a different result or verdict and the proponent shows that the evidence was “discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative, or impeaching” then such evidence warrants a new trial. Ormond v. State, 599 So.2d 951, 962 (Miss.1992).

¶ 16. Further, in Carr, this Court held:

To succeed on a motion for a new trial based on newly discovered evidence, the petitioner must prove that new evidence has been discovered since the close of trial and that it could not have been discovered through due diligence before the trial began. Meeks v. State, 781 So.2d 109, 112 (Miss.2001) (citing Smith v. State, 492 So.2d 260, 263 (Miss.1986)). In addition, the petitioner must show that the newly discovered evidence will probably produce a different result or induce a different verdict, if a new trial is granted. Id. This requires a showing that the evidence is material and is not merely cumulative or impeaching. n3 Id.

867 So.2d at 203-04. Since Mitchell’s pri- or representation is not newly discovered information, this issue is not proper for post conviction relief. However, this Court will revisit this issue under an ineffective assistance of counsel argument which will be discussed in Issue TV of this opinion. Trial counsel knew of Mitchell’s representation and chose not to file a motion to disqualify Mitchell.

¶ 17. Scott claims that his new counsel on post-conviction relief learned of Mitchell’s representation of him on a social security matter. It is clear that Scott’s counsel at trial was aware of Mitchell’s representation at trial. An e-mail from Scott’s trial counsel, Raymond Wong, to post-conviction relief counsel indicated that his trial lawyer knew about Mitchell’s former representation of Scott. The e-mail stated:

Ms. Brenda Mitchell was with Rural Legal- Services at the time of Kevin Scott getting his disability check (SSI check— basis: learning disability) which was I believe 4 or 5 years before the murder of Richard Lee. At the time of trial, I was aware of the above fact but did not file any motion since she was neither the lead attorney nor assisting the State in prosecution of Scott’s case; I think the attorneys for the prosecution were Laurence Y. Mellen (DA) and Glenn Rossi (ADA).

(Emphasis added). Notwithstanding this information and as mentioned above, Scott also never filed a motion to disqualify Mitchell.

¶ 18. In addition, Scott cannot make a claim that this information is newly discovered evidence as it was known to Scott. Scott also had an expert testify and use the testing information performed for Social Security disability qualification during the sentencing phase of the trial.

¶ 19. Further, at the time of Scott’s 1998 trial, Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335, had yet to be decided, and therefore, there was no prohibition against execution of individuals that were mentally retarded. The prosecution had no reason at the time of Scott’s 1998 trial not to seek the death penalty since mental retardation had no impact on a prosecutor seeking the death penalty. This Court finds this issue to be procedurally barred and without merit.

III. Roper v. Simmons

¶ 20. Scott argues that at the time the murder was committed, he was six days past his eighteenth birthday. However, he argues that his level of maturity from a cognitive and behavioral standpoint was closer to that of a twelve-year old. Scott argues this is demonstrated through his school grades, Stanford Achievement Test scores, IQ tests and special education class assignment. Scott also points to the opinions of Drs. Tetlow and Zimmerman on his low functioning and cognitive level. He concludes that his death sentence is unconstitutional pursuant to Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

¶ 21. The State argues that Scott is not entitled to relief on this issue, noting that he was eighteen-years old at the time of the murder. The State also points out that this Court has strictly applied Roper with regard to age limitations and death sentences. See Jordan v. State, 918 So.2d 636, 656 (Miss.2005); Hodges v. State, 912 So.2d 730, 760 (Miss.2005).

¶ 22. In reality, this claim is an extension of Scott’s argument that he is mentally retarded as discussed in Issue I. Essentially, Scott is asking this Court to blend the Atkins and Roper opinions, where Atkins addresses the lesser culpability of a mentally retarded offender and Roper addresses the lesser culpability of a juvenile offender.

¶ 23. This Court in Jordan, held:

In considering death penalty cases via direct appeal and post-conviction relief proceedings, we apply the Constitution of the United States, the Constitution and laws of the State of Mississippi, and case law as handed down by the United States Supreme Court and this Court. Of course, we also look to federal court decisions from this State and federal and state court cases from our sister states for persuasive guidance. On this note, however, we unhesitatingly acknowledge the United States Supreme Court’s recent decision in Roper v. Simmons, 543 U.S. [sic], 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (March 1, 2005), where the Court in a 5-4 decision declared that death penalty imposition upon offenders who were under the age of 18 when the crimes were committed was violative of the Eighth and Fourteenth Amendments to our federal constitution. In reaching this conclusion, the sharply divided Court relied in part on national and international studies, covenants and treaties. Such reliance generated scathing dissents from Justice O’Connor and Justice Scalia, with Chief Justice Rehnquist and Justice Thomas joining Justice Scalia’s dissent. However, in our case today, we note that Jordan’s date of birth is December 25, 1976, and the date of these murders was October 5, 1995. Inasmuch as Jordan was 18 years of age- — and only 81 days away from his 19th birthday — at the time of the brutal murders of Tony Roberts and 2-year old Codera Bradley, we decline to rely on international laws, covenants and treaties in determining whether the death penalty is appropriate.

Jordan, 918 So.2d at 656. See also Hodges, 912 So.2d at 760 (Roper does not apply to the imposition of a death sentence where defendant was over eighteen, nor is the sentence in violation of the Eighth and Fourteenth Amendments).

¶ 24. The record is clear that Scott was six days past his eighteenth birthday at the time at the time of the crime. Therefore, he was over the age of eighteen albeit by a small margin of time. This Court has upheld death sentences when the defendant was over the age of eighteen at the time of the crime. Jordan, 918 So.2d at 656; Hodges, 912 So.2d at 760. Scott was undoubtedly over the age of eighteen at the time of his crimes; therefore, pursuant to Roper, the imposition of Scott’s death sentence is appropriate in this case. This issue is without merit.

IV. Ineffective Assistance of Counsel

¶ 25. Scott was represented at trial by Wong. On post-conviction relief, Scott is represented by James W. Craig and Jeane A. Thomas. Scott argues that Wong provided ineffective assistance of counsel on numerous occasions during the guilt and sentencing phases of his trial. In Davis v. State, 897 So.2d 960, 964-64 (Miss.2004), a post-conviction relief case, this Court set forth the standard of review for ineffective assistance of counsel.

The standard for determining if a defendant received effective assistance of counsel is well established. “The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must demonstrate that his attorney’s actions were deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 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.

For Scott to prevail on his claims of ineffective assistance, he is required to demonstrate that counsel’s performance was deficient and that the deficiency prejudiced the defense of the case. Strickland, 466 U.S. at 686,104 S.Ct. 2052.

a) failing to develop and present evidence of mental retardation and other mitigating evidence during the sentencing phase

¶ 26. Scott argues that Wong failed to undertake any investigation whatsoever for more than one year after accepting the case. He argues that Wong failed to hire a proper investigator and that Wong only spoke to one witness, Scott’s mother, regarding possible mitigation. Scott claims that Wong’s presentation of little or no mitigating evidence satisfied the first prong of Strickland. Doss v. State, 882 So.2d 176, 189 (Miss.2004); Burns v. State, 813 So.2d 668, 679 (Miss.2001); Davis v. State, 743 So.2d 326, 339 (Miss.1999).

¶ 27. Scott also argues that the prejudice prong of Strickland was met where the failure to conduct adequate investigation prevented the jury from hearing evidence of Scott’s mental retardation, other mental problems, learning disabilities, social interactions, lifestyle, and other mitigating problems. Scott’s application included affidavits from some of the jurors stating that had they known of these problems, it would have had an impact on their decision.

¶ 28. The State argues that, contrary to what Scott now alleges, his trial counsel did present testimony on mental retardation. Dr. Tetlow testified during the penalty phase. Further, the State asserts that Scott’s trial was pre-Atkins so there was no reason for counsel to investigate or present more evidence of mental retardation.

¶ 29. The record reflects that Wong presented evidence of Scott’s mental retardation to the jury in the sentencing phase of the trial. Dr. Tetlow, Scott’s expert, testified about Scott’s mental retardation and the various tests that indicated Scott’s I.Q. levels. Dr. Lott, the State’s expert, also testified about Scott’s retardation level and I.Q. The majority opinion in Scott’s direct appeal also discussed much of the testimony provided by these experts at trial, including Scott’s tests from 1992 used in his social security application. See Scott v. State, 878 So.2d at 946-48. Further, Scott’s mother was also questioned regarding Scott’s mental retardation. As previously discussed, in 1998 when this case was tried, Atkins had not been decided by the United States Supreme Court. We find that Scott’s trial counsel placed the issue of Scott’s mental retardation before the jury for purposes of mitigation. This issue is without merit.

b) failing to adequately prepare the defense expert

¶ 30. Similar to Issue IV(a) above, Scott argues that trial counsel failed to adequately prepare his expert, Dr. Tetlow, for trial by failing to provide relevant information for his evaluation of Scott. The State argues that Dr. Tetlow was a well-qualified and seasoned expert witness who has testified in a number of other cases. Dr. Tetlow was given full access to Scott for evaluation.

¶ 31. The record reflects that Dr. Tet-low testified in the sentencing phase on the issue of Scott’s mental abilities. The direct appeal in this case set forth in great detail the evidence presented to the jury on the issue of Scott’s mental abilities. Scott, 878 So.2d at 945-48. Here, the jury heard evidence on the issue of mental retardation including Dr. Tattle’s opinion. This issue is without merit.

c) failing to investigate and discover Mitchell’s conflict

¶32. Scott argues that Wong’s failure to obtain evidence or records for mitigation resulted in his failure to discover Mitchell’s conflict. Alternatively, Scott argues that if Wong knew of this conflict, his failure to raise it at trial constitutes ineffective assistance of counsel.

¶ 33. This Court reviewed this claim in Issue II above and determined that no conflict existed. Scott claims that Wong was ineffective for failure to discover that Mitchell represented Scott in a prior social security proceeding. This is flat wrong, as demonstrated by the excerpt from Wong’s e-mail to post-conviction relief counsel discussed in Issue II. As stated in his e-mail, Wong clearly knew about Mitchell’s representation for the social security matter and did not raise the issue or choose not file a motion to disqualify. Wong may have chosen to not pursue this action for trial strategy reasons. Further, in 1998, Wong did not have the benefit of the Atkins and Chase decisions which were decided in 2002 and 2004, respectively. Both Dr. Tetlow and Dr. Lott referred to the 1992 test used for a social security application and testified about Scott’s I.Q. levels in regard to mental retardation- before the jury. This issue is without merit.

d) failing to adequately prepare for trial

¶ 34. As he did in Issue IV(a), Scott points to the ABA Guidelines and asserts that Wong failed to adequately prepare a defense. Scott asserts that Wong met with him only three times, twice before trial and once on the day of trial. Scott argues that those meetings were brief. He also claims that Wong called him as a witness without any advance preparation. He argues that such failure to prepare him for trial was ineffective.

¶ 35. The State notes that Wong is an experienced defense attorney and that his time sheets indicated that he spend adequate time interviewing Scott and preparing for trial. The State also asserts that Wong met with Scott on seven occasions.

¶ 36. The record reflects that Wong, Scott’s trial attorney met with him. Wong also worked on Scott’s trial more than 300 hours as evidenced in petition for payment submitted to the trial court. This issue is without merit.

e) presenting a de facto guilty plea in his opening remarks by informing the jury that the murder occurred during a robbery in which Scott participated

¶ 37. This argument goes to Wong’s opening statement in which he explains that the killing of Lee occurred during a robbery in which Scott participated. Scott argues that he in no way indicated that he wished to change his not guilty plea and that Wong’s stipulation to this element of the charge is the functional equivalent of a guilty plea.

¶ 38. On direct appeal, Scott raised this issue as a claim that the trial court should have sua sponte ordered a mistrial and as an almost indirect ineffective assistance of counsel claim. On the merits of the claim, this Court found no error, finding that the remarks were entirely consistent with the testimony provided by Scott on direct examination and with Scott’s theory of defense. " Scott, 878 So.2d at 953-57. The State argues that Scott cannot demonstrate' prejudice, as required by Strickland, where- this Court has already found the underlying claim to be without merit'.

¶ 39. We find that the merit of this claim has already been decided, therefore, Scott cannot satisfy the prejudice prong of Strickland on this sub-issue of the ineffective assistance claim. This issue is without merit.

f)failing to adequately develop and present evidence concerning the lack of a valid Miranda waiver

¶ 40. Scott had a suppression hearing for statements that he made to police while in their custody. Scott argues that his counsel, Wong, failed to inform the trial court of his mental retardation during a suppression hearing. Scott also argues that had Wong brought this information to the trial court’s attention, the statements would likely have been suppressed. However, the record reflects that Wong argued Scott’s alleged mental retardation to the trial court. The motion to suppress, filed with and heard by the trial court, stated in part:

10. The defendant suffers from mental retardation in which his I.Q. range is between 60-70 and due to this mental retardation such persons desire to please authorities ...

Wong also filed a number of notices of supplemental discoveries with the trial court which included witnesses, Scott’s Region One Mental Health Center Record, the Coahoma County High School records, and Dr. Tattle’s raw test data. The trial court made its ruling after all of this additional information was submitted to the trial court. Clearly, the issue of mental retardation was raised by Wong’s suppression motion heard by the trial court. This issue is without merit.

g) failing to strike jurors during voir dire

¶41. During voir dire, two jurors, Juror Nos. 58 and 59 indicated that they would automatically vote for the death penalty. Scott argues that Wong should have elicited additional voir dire testimony as to these two jurors and/or those jurors should have been stricken. Instead, when asked by the trial court to provide a list of all jurors who would automatically vote for the death penalty, Wong allowed the State to provide that list to the court. The State’s list did not include Jurors Nos. 58 and 59 and, therefore, Scott argues that these two were not subject to further voir dire questioning.

¶ 42. The record reflects that Wong did question Jurors Nos. 58 and 59. During voir dire, Wong questioned the jurors on the imposition of the death penalty. Initially, Jurors 58 and 59 indicated that they would vote for the death penalty. Juror 58 sat on the jury, and Juror No. 59 was an alternate. However, when questioned further by Wong, both indicated that they would consider mitigating evidence when determining whether to impose a life or death sentence. The record reflects Wong’s questioning as follows:

By Mr. Wong: Now, if you will remain standing, the next two questions are to you. If you don’t- understand, please raise your hand. Since you are for the death penalty, you are in the penalty phase for this capital murder, would you automatically vote for the death penalty? You would? That’s jurors No. 54, 55, 56, and 59. Then we have No. 58.
(JURORS No. 54, 55, 56, 58, AND 59 RAISE HANDS).
By Mr. Wong: Okay. This is the last question. You are in the penalty phase and you are a juror, would you consider mitigation evidence irrelevant in your decision to determine life or death in this trial? If you consider it irrelevant, raise your hand. Okay, Jurors No. 54, 55, 56, 58, 59, 62 did not raise their hands. Thank you.

Clearly, Wong inquired whether these jurors could consider mitigating evidence when considering whether to impose the death penalty. See Wilcher v. State, 863 So.2d 719, 768-69 (Miss.2008). This issue is without merit.

h) failing to competently prepare the appellate brief

¶ 43. Wong requested several extensions of time in which to file the appeal brief. He also obtained the help of another attorney, Karl Keys. Scott argues that Wong gave Keys insufficient time to prepare the appellate brief and that Wong filed a “draft” brief to avoid sanctions threatened by this Court.

¶ 44. The State points out that the brief was eighty-six pages and included twenty-five issues. Keys was involved as early as April, 2001, and sent a draft brief to Wong on November 20, 2002. The State also notes that Scott fails to point to a single claim that he contends should have been raised on appeal but was not.

¶ 45. In Scott’s direct appeal, this Court considered over twenty-five well-briefed issues by both the defense and prosecution. The appeal resulted in a lengthy seventy-five page opinion. The affidavit of Karl Keys stated that the brief was “inadequate”; however, there was no specific cite to any issue that was not raised on direct appeal that should have been an issue for this Court. There is no evidence that Wong did not prepare an adequate brief. This issue is without merit.

Y. Improper Aggravating Circumstance

¶ 46. The aggravating circumstance, that the capital offense was committed for the purpose of avoiding lawful arrest, was presented to the jury in connection with the facts that Scott and his accomplice left the scene of the murder. Scott argues that application of this aggravating circumstance was improper. He argues that fleeing the scene of the crime should not translate to the use of the aggravating circumstance of avoiding lawful arrest. Scott also argues that if the prosecution’s case was correct then Lurline, Lee’s wife, the one witness who remained alive could and did eventually testify against him. Scott concludes that applying the avoiding lawful arrest aggravating circumstance in this manner would allow it to be found in any circumstance where a defendant leaves the scene of the crime.

¶47. The State notes that this issue was raised on direct appeal and is therefore proeedurally barred pursuant to Miss. Code Ann. § 99-39-21(3). Miss.Code Ann. § 99-39-21(3) provides:

The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.

We agree. This issue is proeedurally barred. Scott, 878 So.2d at 979-81.

VI. Trial Court’s Failure to Accept the Jury’s Initial Verdict

¶ 48. At the end of the penalty phase, the jury deliberated and returned to inform the court that their verdict was not unanimous. After questioning and admonishing the jury to go back and try to reach a unanimous verdict, the jury returned with a death sentence. Scott argues that it was error for the trial court to convey to the jury that they must reach an unanimous verdict. Lowenfield v. Phelps, 484 U.S. 231, 236, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988).

¶ 49. Scott argues that it was late evening on a Friday where the jury had been sequestered for the entire trial. He includes affidavits from jurors stating they felt pressured by other jurors to change their votes and/or that they were concerned they would be sequestered all weekend otherwise. Scott argues the trial court was required as a matter of law to sentence him to life in prison after the jury returned with its initial verdict. Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).

¶ 50. The State argues that this issue was raised on direct appeal and is now proeedurally barred pursuant to Miss.Code Ann. § 99-39-21(3). We agree. This issue is proeedurally barred. Scott, 878 So.2d at 985-89; Miss.Code Ann. § 99-39-21(3) (“The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal”).

VII. Jury Instructions

¶ 51. Scott raises a number of issues concerning the jury instructions provided at his trial, as follows:

a) lesser-included offense instruction

¶ 52. Scott asserts that the jury should have been given a lesser-included offense instruction where the evidence supported a lesser-included offense of murder rather than capital murder. This issue was raised on direct appeal and is now proeedurally barred.

b) jury should have been instructed on the weight it should afford the interrogational statements

¶ 53. Scott asserts that the jury should have been instructed of its right to assess the credibility of the statements made to police after his arrest. This issue was raised on direct appeal and is procedurally barred.

c) jury should have been instructed on the credibility of eyewitnesses

¶ 54. Lurline, Lee’s wife, identified Scott as the one who shot her husband. Scott argues that his identification was based on allegedly seeing him for only a few seconds the day of the incident. Additionally, Scott notes that this is a cross-racial identification and should be viewed with skepticism. This issue was raised on direct appeal and is proeedurally barred.

d) the jury should have been instructed that failing to stop Leroy Lynch from killing Lee is not murder

¶ 55. Scott asserts that failing to give an instruction that guilt by association alone does not indicate a criminal act was error. This issue was raised on direct appeal and is proeedurally barred.

e) the sentencing instructions do not sufficiently define mitigation

¶ 56. Scott argues that Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001), requires a jury be given instructions on the standard of proof for mitigation. He argues the instruction provided this jury fails to state precisely what is meant by mitigation evidence. This issue was raised on direct appeal and is proeedurally barred.

VIII. Erroneous Striking of Prospective Jurors

¶ 57. Scott argues that the trial court impermissibly struck a prospective juror, Juror No. 49, who stated that she could conform her conduct with the law. Scott also argues that the trial court failed to strike prospective jurors, Jurors No. 58 and 59, who stated that they could not conform their conduct to the law.

¶ 58. Prospective Juror No. 49 was struck by the trial court for cause because she indicated to defense counsel that she was opposed to the death penalty. Scott argues that the trial court had a duty to ask questions and to explore the depths of the juror’s convictions as to the death penalty. Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 83 L.Ed.2d 841(1985). This issue is proeedurally barred for failure to raise the issue at trial or on direct appeal. Miss.Code Ann. § 99-39-21(1). Turning to the merits, Juror No. 49 clearly indicated that she could not vote for the death penalty in any event; and therefore, her ability to follow the law and instructions of the court was substantially impaired. There was no error in excluding this juror.

¶ 59. Further, Scott argues that Jurors Nos. 58 and 59 stated they would automatically return a verdict of death. Scott argues that these two jurors should have been excused or that the trial court should have made a detail inquiry into whether these jurors would follow the law. Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). This issue is procedurally barred for failure to raise the issue at trial or on direct appeal. Miss.Code Ann. § 99-39-21(1).

¶ 60. Turning to the merits, this issue was previously discussed in Issue IV(g), one of these prospective jurors actually sat on the jury and the other was an alternate. Again, defense counsel questioned these jurors further, asking if they would consider mitigating evidence and both said that they would. Scott now argues that the trial court had a responsibility to further question and, possibly, excuse these two jurors. He argues that failure to do so resulted in an inadequate voir dire. Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992); Witherspoon, 391 U.S. at 519, 88 S.Ct. 1770. As to Jurors Nos. 58 and 59, there were follow up questions which indicated that these jurors could and would consider mitigating evidence in their sentencing decision, discussed in Issue IV(g). Therefore, the trial court was not .required to strike these jurors. This issue is without merit.

IX. Improper Miranda Waiver

¶ 61. On the day of his arrest, Scott made two statements to law enforcement, one at 4:45 p.m. and another at 7:05 p.m. Portions of both interrogations were recorded, and both were transcribed. According to the transcript of the 4:45 p.m. statement, when Scott is asked if he understood his rights responded, “How long will a lawyer take ... you give?” In response, the officer again asked if Scott understood his rights. Scott responded, “yes.” In the 4:45 p.m. statement, Scott denied any involvement in Lee’s murder. The defense filed a motion to suppress both statements on the basis that they were involuntarily given. Scott asserted that, after being read his rights during the first interrogation, he asked for an attorney and was ignored.

¶ 62. At the hearing of that motion, the trial court asked to listen to the tape recording of Scott’s 4:45 p.m. statement. After listening several times, the trial court determined that it could not understand what Scott said and, subsequently, held that Scott did not make a demand for an attorney.

¶ 63. Scott argues that he invoked his right to counsel following the reading of his Miranda rights, but that his request for an attorney was ignored. He argues that it was unreasonable for the police officer to continuing questioning him after he had requested an attorney. Furthermore, Scott argues that because he is mentally retarded he was unable to understand the meaning of his constitutional rights and the consequences associated with a waiver.

¶ 64. The State asserts that this claim was not raised on direct appeal and is now procedurally barred pursuant to Miss.Code Ann. § 99-39-21(1). Without waiving the procedural bar, the State argues that Scott is not entitled to relief on this claim where he has provided no record to support his claim.

¶ 65. We find that the issue is procedurally barred for failure to raise it on direct appeal. Without waiving the procedural bar, we will briefly examine the merits of Scott’s argument. Scott had a suppression hearing for statements that he made to police while in their custody. Scott argues that his counsel, Wong, failed to inform the trial court of his mental retardation during the suppression hearing. Scott also argues that had Wong brought this information to the trial court’s attention, the statements would likely have been suppressed.

¶ 66. However, the record reflects that Wong argued Scott’s alleged mental retardation to the trial court. The motion to suppress, filed with and heard by the trial court, stated in part:

10. The defendant suffers from mental retardation in which his I.Q. range is between 60-70 and due to this mental retardation such persons desire to please authorities ...

In addition, the motion referenced Scott’s alleged failure to voluntarily waive his rights. The motion also stated in part:

11. The statements made to law enforcement officers while Kevin Scott was I custody were not ‘the product of an essentially free and unconstrained choice by its maker.’ [citation omitted] Because the statements were not made voluntarily, admission of the statements at trial would violate the defendant’s right to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution.

Wong also filed a number of notices of supplemental discoveries with the trial court which included witnesses, Scott’s Region One Mental Health Center Record, the Coahoma County High School records, and Dr. Tattle’s raw test data. This additional information was provided to the trial court prior to the ruling. This issue is procedurally barred and without merit.

X. Prosecution Error

¶ 67. This claim goes to the prosecutor’s closing argument in which he made references to scripture and to “the Almighty.” Scott argues that this Court has held that the prosecution may not request the jury to return a particular verdict for any reason other than the law and the evidence. Griffin v. State, 557 So.2d 542 (Miss.1990); Williams v. State, 522 So.2d 201, 209 (Miss.1988); West v. State, 468 So.2d 1048 (Miss.1985); Fulgham v. State, 386 So.2d 1099 (Miss.1980).

¶ 68. The State asserts that this claim is procedurally barred pursuant Miss.Code Ann. § 99-39-21(3) where it was addressed on direct appeal. We agree. Since this issue was raised on direct appeal, it is procedurally barred.

XI. Race

¶ 69. Scott argues that Mississippi’s death penalty scheme is unconstitutional because it operates on the basis of race. He cites statistics which indicate that black defendants charged with killing white victims are 800% more likely to receive the death penalty. The State argues that this issue was raised on direct appeal and is now procedurally barred pursuant to Miss.Code Ann. § 99-39-21(3). We agree. Since this issue was raised on direct appeal, it is procedurally barred.

XII. Cumulative Errors

¶ 70. In Foster v. State, 639 So.2d 1263, 1303 (Miss.1994), this Court held “[a]s previously discussed under the individual propositions, no reversible error was committed in the trial of this case. We find no ‘near errors’ in either phase of this trial, so we find no cumulative error.” In Gray v. State, 887 So.2d 158, 172-73 (Miss.2004), a post-conviction case, this Court held:

Next, Gray argues generieally that the alleged preceding errors, taken as a whole, deprived him of a fair trial. This Court has previously held that “where there is ‘no reversible error’ in any part, ... there is no reversible error to the whole.” Byrom v. State, 863 So.2d 836, 847 (Miss.2003) (quoting McFee v. State, 511 So.2d 130, 136 (Miss.1987)). Since Gray has not yet 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. This issue is without merit.

Gray, 887 So.2d at 172-73.

¶ 71. In Nixon v. State, 641 So.2d 751, 755-56 (Miss.1994), a post-conviction relief case, this Court considered the issue of cumulative error. This. Court held:

This Court is now asked to determine whether the cumulative effect of any discovered errors or “near-errors” constituted a violation of Nixon’s right to a fair trial. See, e.g., Stringer v. State, 500 So.2d 928, 946 (Miss.1986) (death sentence vacated in view of numerous “near-errors” which violated defendant’s right to a fair trial). Nixon raised this issue on direct appeal. Nixon v. State, 533 So.2d 1078, 1102 (Miss.1987), cert den. 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989). This Court has again examined the record and determined that Nixon received a fair trial-albeit not a perfect one. See Sand v. State, 467 So.2d 907, 911 (Miss.1985) (“Although this defendant did not receive a perfect trial, it was a fair trial.”); see also Stringer, 500 So.2d at 947 (“There has never been a perfect trial.” (R.N. Lee, P.J., dissenting)).
In sum, this Court holds that the contention presented through this issue is devoid of merit.

Nixon, 641 So.2d at 755-56.

¶ 72. Scott raises a cumulative error claim on post-conviction relief. Scott also raised the issue of cumulative error in his direct appeal. Scott, 878 So.2d at 997-98. This Court found no cumulative error in Scott’s direct appeal to merit reversal of the conviction or sentence. Id. To the extent that any issues raised by Scott on post-conviction relief are the same as those raised in his direct appeal, this Court, finds that these issues are procedurally barred. Byrom v. State, 927 So.2d 709, 729 (Miss.2006). As to the new issues raised on post-conviction relief by Scott and previously addressed by this Court in this opinion, Scott has failed to demonstrate any error with these new claims. Gray, 887 So.2d at 172-73; Nixon, 641 So.2d at 755-56. This issue is without merit.

CONCLUSION

¶ 73. For the foregoing reasons, the petition for post-conviction relief is granted in part and denied in part. This Court grants Scott’s petition for post conviction relief on the sole issue of mental retardation and remands this issue to the Circuit Court of Bolivar County to conduct an evidentiary hearing on the mental retardation issue pursuant to the guidelines expressed by this Court in Chase. The petition is denied as to all other issues raised in Scott’s petition for post-conviction relief.

¶ 74. PETITION FOR POST-CONVICTION RELIEF IS GRANTED IN PART AND DENIED IN PART.

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

      . Scott alleges that Mitchell participated in the case from indictment in 1996, through the end of trial in October 1998. Her participation included, but was not limited to, responding to defense motions, submitting discovery disclosures, conducting direct examination of witnesses at trial and delivering closing argument.

      . Scott points out in his rebuttal that while the 1992 Region One Mental Health Center report was a part of the evidence at trial, Mitchell’s representation of Scott (documents related to the SSA proceedings) were not part of the record at trial.

      . See also Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), where the U.S. Supreme Court found ineffective assistance where the attorney failed to properly investigate and presented only a pre-sentenc-ing report and social services records.

      . ABA Guidelines for Appointment and Performance of Defense Counsel in Death Penalty Cases, Section 11.4.1 and 11.4.2. See also Wiggins v. Smith, 539 U.S. at 524, 123 S.Ct. 2527.

      . These two jurors were previously discussed in Issue IV(g). That issue also had excerpts from the voir dire wherein the defense counsel questioned these prospective jurors.

      . As noted above, the transcript of the hearing held on April 30, 1998, includes the trial court's finding on whether Scott invoked his right to counsel. A copy of this transcript is included as Exhibit 1 to Scott’s rebuttal.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    John B. HERRING, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-02318-COA.
    Court of Appeals of Mississippi.
    Jan. 31, 2006.
    Rehearing Denied June 27, 2006.
    Certiorari Denied Oct. 5, 2006.
    David L. Walker, attorney for appellant.
    Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. John B. Herring was convicted of conspiracy to commit armed robbery and was sentenced to serve five years in the custody of the Mississippi Department of Corrections. He was also convicted of robbery with a deadly weapon and sentenced to serve twenty years, with ten suspended, in the custody of the Mississippi Department of Corrections. On appeal, Herring claims that the trial judge erred in admitting the testimony of Randall Kirkpatrick and that the verdict was against the overwhelming weight of the evidence. We find no error and affirm.

FACTS

¶ 2. On the night of September 7, 2003, just after the store closed at 10:00 p.m., an armed man entered and robbed Kaye’s Food Market in Senatobia. The only people in the store at the time of the robbery were the store’s assistant manager, John Herring, and the bookkeeper, Lynn Cummings.

¶ 3. Cummings testified that a man entered through the front door, with his face covered and carrying a handgun. The man was later identified as Rashad Frank. Frank grabbed Cummings’ arm and demanded that she give him the money from the safe. Cummings began yelling for Herring to come and open the safe.

¶ 4. Frank ordered Cummings to lie face down on the floor outside the office door, and he and Herring entered the office. Herring opened the safe and put the money into several bags. Frank asked to be let out the rear door of the store. Frank then followed Herring and Cummings to the rear of the store. He ordered Cummings to the floor while the door was unlocked and then fled from the building. Herring locked the front door, and Cummings called the police.

¶ 5. A short time later, Frank and Derrick Loveberry were stopped by the Sena-tobia Police. The pair were arrested after officers found a Kaye’s smock, a black hood, a black do-rag, and a black jacket on the backseat of the car.

¶ 6. Herring was later indicted on the charges of conspiracy to commit armed robbery and robbery with a deadly weapon. At trial, both Frank and Loveberry testified that the robbery had been Herring’s idea. Frank and Loveberry both pled guilty to the charges of conspiracy to commit armed robbery and robbery with a deadly weapon. The jury found Herring guilty, and the trial judge denied his motion for a new trial or, in the alternative, a judgement notwithstanding the verdict.

ANALYSIS

I. Whether the trial court erred by overruling the defense’s objection to Randall Kirkpatrick’s testimony.

¶ 7. Under this Court’s standard of review, the admissibility of evidence rests within the trial court’s discretion. Jefferson v. State, 818 So.2d 1099, 1104(¶ 6) (Miss.2002). Unless his or her judicial discretion is abused, this Court will not reverse his or her ruling. Id. “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” M.R.E. 103(a).

¶ 8. Herring argues that the trial court erred by admitting the testimony of Randall Kirkpatrick. The portion of Kirkpatrick’s testimony that was at issue related to Frank’s view of the safe from where he was standing. We find that the admission of this testimony did not affect the right of Herring to a fundamentally fair trial.

¶ 9. Herring cites Ratliff v. State, 879 So.2d 1062 (Miss.Ct.App.2004), as analogous to his case. In Ratliff, the witness gave a commentary of the events as they occurred on the video surveillance. None of the testimony was based on first hand knowledge of the events, but was merely a narrative of the events as they occurred. Id. at 1065. The supreme court held that “considering the totality of the evidence before the court, the error was, at best, harmless.” Id.

¶ 10. Randall Kirkpatrick was the manager of Kaye’s Food Market at the time of the robbery. Kirkpatrick testified that from where the robber was positioned he could not see the contents of the safe. Herring objected on the grounds that the question called for speculation as to what the robber saw. As the store’s manager, Kirkpatrick should have first hand knowledge of the store and the view from different points within the store. Mississippi Rule of Evidence 701(a) states that testimony of lay witnesses must be limited to those opinions or inferences which are rationally based on the perception of the witness. Kirkpatrick was personally familiar with the store’s layout and the office so his testimony was rationally based on his own knowledge and perception. In addition to Kirkpatrick’s testimony, Rash-ad Frank testified that he could not see inside the safe from where he stood. Accordingly, we find no reversible error in the admission of Kirkpatrick’s testimony.

II. Whether the verdict is against the overwhelming weight of the evidence.

¶ 11. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Flowers v. State, 601 So.2d 828, 833 (Miss.1992). Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. Id.

¶ 12. At trial, the jury heard testimony from fourteen witnesses, including Herring and his two co-defendants. The testimony of one credible witness is sufficient to sustain a conviction. Williams v. State, 512 So.2d 666, 670 (Miss.1987). Herring argues that the testimony of the co-defendants could not clearly establish that Herring was involved in the crime beyond a reasonable doubt.

¶ 13. However, the jury heard testimony that there were phone calls between Frank and Herring the day before and the day of the robbery. The records of these calls were introduced into evidence. Additionally, the jury viewed the video from the surveillance camera and was able to judge the defendant’s demeanor.

¶ 14. This Court must accept as true the evidence which supports the verdict. Walker v. State, 881 So.2d 820, 831 (¶ 32)(Miss.2004). Hence, giving the State the benefit of all favorable inferences that may reasonably be drawn from the evidence, we find that ample evidence supports the guilty verdict. Accordingly, we find no merit to the errors cited by the Appellant and affirm.

¶ 15. THE JUDGMENT OF THE TATE COUNTY CIRCUIT COURT OF CONVICTION OF COUNT ONE CONSPIRACY TO COMMIT ARMED ROBBERY AND SENTENCE OF FIVE YEARS, AND COUNT TWO CONVICTION OF ROBBERY WITH A DEADLY WEAPON AND SENTENCE OF TWENTY YEARS, WITH TEN YEARS SUSPENDED, TO RUN CONCURRENTLY WITH SENTENCE IN COUNT ONE, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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


text:
    Tracy Darnell MOORE, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-00275-COA.
    Court of Appeals of Mississippi.
    Jan. 31, 2006.
    Certiorari Denied Oct. 5, 2006.

      James A. Williams, attorney for appellant.
    Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.
   GRIFFIS, J.,

for the Court.

¶ 1. Tracy Darnell Moore was convicted in the Lauderdale County Circuit Court of the crimes of kidnapping and robbery by use of a deadly weapon. For the kidnapping charge, Moore was sentenced to twenty-five years imprisonment plus payment of $8,000 restitution. For the armed robbery charge, Moore was sentenced to thirty years imprisonment. The sentences were to run concurrently. Moore’s motion for judgment notwithstanding the verdict or a new trial was denied, and Moore appealed. Finding no error, we affirm.

FACTS

¶ 2. On the morning of January 10, 2002, two masked gunmen broke into Ralph and Elizabeth Morgan’s home, bound the Morgans with duct tape, and proceeded to take the couple’s money, rings, and property, while repeatedly threatening to kill the couple throughout the roughly forty-five minute ordeal. After the men left the home, the Morgans phoned the police, who arrived approximately fifteen minutes later. During an investigation of the Morgans’ property, police found a cellular phone dropped near a barbed wire fence, which they quickly traced to Tracy Darnell Moore.

¶ 3. A grand jury initially indicted Moore on November 15, 2002, for the offenses of kidnapping and armed robbery. Moore, represented by appointed counsel, entered into a plea bargain with the State, in which he agreed to a plea of guilty to armed robbery and to testify truthfully against his co-defendant, whom he had identified as Lee Amerson, in return for a reduced sentence of fifteen years in the custody of the Mississippi Department of Corrections (“MDOC”) for the armed robbery charge and nolle prosequi of the kidnapping charge. As a result of his plea agreement, the circuit court convicted Moore of armed robbery and sentenced him to fifteen years imprisonment on February 12, 2003, with credit for jail time served, and ordered payment of $248.50 in court costs and a $1,000 fine.

¶ 4. During Amerson’s trial in April 2003, Moore refused to testify, despite his earlier plea agreement with the State. Consequently, the circuit court held Moore in criminal contempt and sentenced him to a thirty day fixed sentence and a fine of one hundred dollars. At the conclusion of the trial, Amerson was acquitted.

¶ 5. As a result of Moore’s refusal to testify, the State moved to revoke Moore’s plea bargain, vacate the armed robbery sentence, and reinstate the kidnapping charge. The circuit court granted the State’s motion on April 29, 2003, and the grand jury again indicted Moore for kidnapping and armed robbery on August 1, 2003. Moore moved to dismiss on the grounds that the circuit court’s April 29, 2003 order granting the State’s motions was entered after the term of court had ended, and thus exceeded the court’s authority. Moore’s motion to dismiss additionally alleged that re-indictment on the charges constituted a violation of double jeopardy. The circuit court denied Moore’s motion, and Moore was tried and found guilty of kidnapping and armed robbery.

¶ 6. Aggrieved by the trial court’s rulings, Moore asserts the following on appeal: (1) that he was subjected to double jeopardy and denied due process of law for his re-indictment and conviction on the charges and that such conviction was additionally outside of the circuit court’s authority because it was entered outside of the term in which the original sentence was entered; (2) that he was subjected to double jeopardy and denied due process of law through multiple punishments for the same crime when he was sentenced to criminal contempt for refusal to testify; (3) that he was subjected to double jeopardy and denied due process of law through being convicted of both kidnapping and armed robbery when the charges arose from the same incident; (4) that he should be granted a new trial because of a jury instruction that varied from the indictment and allowed instructions involving accomplice liability as well as containing an assumption of fact that the crime was committed; (5) that he was denied fundamental fairness and due process of law by reason of prosecutorial vindictiveness; (6) that he was denied his right to silence as a result of the State’s statements during closing argument; and (7) that he was denied effective assistance of counsel.

ISSUES AND ANALYSIS

I. Whether Moore was subjected to double jeopardy and denied due process of law when re-indicted and convicted on kidnapping and armed robbery charges and whether the circuit court had authority to enter a new sentence outside of the term in which the original sentence was entered.

a. Double jeopardy as to re-indictment and conviction

¶ 7. Moore’s plea bargain with the State entitled him to a reduced sentence on a guilty plea of armed robbery and a nolle prosequi on the kidnapping charge in exchange for his testimony against Amer-son. Moore refused to testify, thereby breaching the plea agreement with the State. See United States v. Castaneda, 162 F.3d 832, 836 (6th Cir.1998) (“If the pleadings show no factual dispute, ... the court may determine breach as a matter of law”). Moore contends that the State subjected him to double jeopardy and denied him due process of law when the State then re-indicted and convicted him outside the term of court at which the original armed robbery sentence was entered.

¶ 8. “[T]he Double Jeopardy Clause ... does not relieve a defendant from the consequences of his voluntary choice.” Ricketts v. Adamson, 488 U.S. 1, 11, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987) (quoting United States v. Scott, 437 U.S. 82, 99, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978)). In Ricketts, the defendant’s plea agreement with the State included in its terms that the charges would be automatically reinstated upon the defendant’s breach by a refusal to testify. Id. at 9, 107 S.Ct. 2680. Breach of that agreement returned the parties in that case to the status quo ante, so that in effect, the defendant had “no double jeopardy defense to waive.” Id. at 10, 107 S.Ct. 2680.

¶ 9. A plea agreement is contractual in nature. Wright v. McAdory, 536 So.2d 897, 901 (Miss.1988). When a defendant breaches a plea agreement, the agreement is “terminated as if it never existed and the State of Mississippi retains all powers of prosecution....” State v. Danley, 573 So.2d 691, 694 (Miss.1990) (“Danley II”) (quoting Danley v. State, 540 So.2d 619, 621 (Miss.1988)). Moore’s voluntary refusal to testify against Amer-son constituted a material breach of the plea bargain. As a result of this breach, the parties were returned to the status quo ante, and Moore had no double jeopardy defense available concerning re-indictment and conviction on the charges. “[A]n agreement specifying that charges may be reinstated given certain circumstances is ... equivalent to an agreement waiving a double jeopardy defense.” Ricketts, 483 U.S. at 10, 107 S.Ct. 2680. The transcript of Moore’s February 12, 2003 guilty plea hearing clearly shows that Moore was aware that the State would seek to invalidate his plea and reinstate the charges if he failed to testify truthfully against Am-erson.

¶ 10. As to reinstatement of the kidnapping charge, it is fully within the State’s authority to “re-indict an accused for the same offense after an order of nolle prose-qui has been entered.” State v. Shumpert, 723 So.2d 1162, 1165(¶ 13) (Miss.1998). We therefore find no double jeopardy violations as to the re-indictment and conviction on the kidnapping and armed robbery charges.

b. Authority of circuit court to vacate original plea and sentence on armed robbery count

¶ 11. Moore further contends that the action to vacate the plea and sentence on the armed robbery count was null and void, because it was filed outside the term of the court in which the sentence was originally entered. Moore cites us to Harrigill v. State, 403 So.2d 867, 868-69 (Miss.1981), where the Mississippi Supreme Court stated that “once a ease has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment.” Furthermore, Moore argues that “a circuit court cannot rule on motions which are not pending at the end of the term of court when sentencing was imposed.” Presley v. State, 792 So.2d 950, 954(¶ 19) (Miss.2001). Hence, Moore contends that because the motion to vacate the plea and sentence was not pending at the end of the term of court, the judgment of the circuit court vacating the armed robbery sentence is void and we should reinstate the February 12, 2003 sentence of fifteen years imprisonment and $1,000 fine.

¶ 12. As discussed above, Moore materially breached his plea bargain agreement. Moore obtained the benefit of a plea bargain based solely on his promise to testify truthfully against Amerson, his co-defendant. However, the question was not whether Moore testified to the approval of the prosecutors but was that he refused to testify at all. Indeed, Moore unequivocally and materially breached the plea bargain agreement when he failed to testify.

¶ 13. A breached plea bargain agreement is “terminated as if it never existed and the State of Mississippi retains all powers of prosecution.” Danley II, 573 So.2d at 694; Danley v. State, 540 So.2d 619, 621 (Miss.1988) (“Danley I ”) (emphasis added). The supreme court has thoroughly discussed the law as it relates to a breach of a plea bargain agreement in Danley I and Danley II. Danley and the district attorney agreed to a plea bargain. Id. at 621. The terms of the plea bargain were similar to the plea colloquy here. Id. Danley agreed to testify truthfully and agreed that if he did not then the State could prosecute him fully. Id. The district attorney believed that Danley lied during his testimony and determined that he would prosecute Danley for murder instead of manslaughter. Id. The court held:

The United States Supreme Court has held that the process of plea bargaining is to be encouraged if properly administered. “When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427, 432-433 (1971). Santobello also stressed the requirement of fairness in plea negotiations. “When a plea bargain is made and a guilty plea entered thereon, the promises of the prosecutor are part of the inducement of the plea ...” Gamble v. State, 95 Nev. 904, 604 P.2d 335, 337 (1979).
Therefore, the prosecution is held to “the most meticulous standards of both promise and performance,” Correale v. United States, 479 F.2d 944, 947 (1st. Cir.1973), in an effort to ensure that the defendant’s rights are scrupulously honored.

Id. at 622.

¶ 14. In Danley II, the court considered the possible preclusive effect of double jeopardy and held:

Notably, the United States Supreme Court recently decided a double jeopardy case which could be deemed disposi-tive of the case sub judice. See Ricketts v. Adamson, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). Ricketts involved the 1976 assassination of a reporter for the Arizona Republic newspaper. A police investigation led to the arrest of John Harvey Adamson. Shortly after his trial for first-degree murder commenced, Adamson and the prosecutor struck a bargain. Pursuant to the bargain, Adamson would be allowed to plead guilty to a lesser offense in exchange for his “truthful” testimony against his accomplices. The bargain also provided that “[sjhould [Adamson] refuse to testify or should he at any time testify untruthfully ... then this entire [bargain] is null and void and the original charge will be automatically reinstated.” The trial court accepted the plea bargain, and Adamson pled guilty to the lesser offenses. Adamson then refused to testify against his accomplices and, as a consequence of the breach, the prosecutor reinstated the first-degree murder charge. Adamson appealed the reinstatement to the U.S. Supreme Court. The Supreme Court rejected Adamson’s complaint and concluded that the Double Jeopardy Clause does not protect a defendant who seeks to benefit from the consequences of a voluntary breach of a plea bargain. 483 U.S. at 10-12, 107 S.Ct. at 2686, 97 L.Ed.2d at 12-13 (The defendant’s “breach of the agreement would restore the parties to their original positions and he could be prosecuted for first-degree murder ... and the Double Jeopardy Clause does not relieve him from the consequences of that choice.”) (citing United States v. Scott, 437 U.S. 82, 98-99, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65, 79 (1978)).

Danley II, 573 So.2d at 694-95. In Dan-ley II, the court concluded that the plea bargain should be “terminated as if it never existed and the State of Mississippi retains all powers of prosecution” requires that we hold that Moore may not escape his rightful sentence because the term of court had ended. Id. at 695.

¶ 15. Moore argues that the decisions in Harrigill and Presley require us to conclude that the judgment that vacated the guilty plea and sentence for armed robbery is void, because the motion was not pending at the end of the court term. We disagree.

¶ 16. In Harrigill, the supreme court did state that “once a case has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment.” Harrigill, 403 So.2d at 868-69. However, the court also recognized that “[a] court does have inherent power to correct judgments obtained through fraud, accident or mistake.” Id. at 869.

¶ 17. Harrigill was convicted of the crime of obtaining money under false pretenses. Miss.Code Ann. § 97-19-39 (Supp.2005). He was sentenced to serve three years and pay a $50,000 fíne. Harrigill, 403 So.2d at 868. The supreme court affirmed his conviction. Harrigill v. State, 381 So.2d 619 (Miss.1980). Harrigill then filed, in the circuit court, a “Motion to Modify Original Confinement Order to Exclude Imprisonment Upon Basis of Criminal Fine.” Harrigill, 403 So.2d at 868. He argued that the circuit court should change or alter his sentence to remove the fíne as the basis for his continued incarceration, because he was financially unable to pay the fine. Id. He claimed that his inability to pay the fine prevented him from being released on parole. Id. The circuit court denied the motion. Id. The supreme court determined that his sentence could not be amended or modified by the trial court. Id.

¶ 18. The Harrigill court reasoned:

In Denton v. Maples, 394 So.2d 895 (Miss.1981), we announced what we thought was already manifest: once a case has been appealed from the circuit court to this Court, the circuit court loses jurisdiction to amend or modify its sentence. If the case is affirmed, the lower court is issued a mandate to perform purely ministerial acts in carrying out the original sentence. There is no authority in the circuit court, or indeed this Court, following the issuance of a mandate affirming the case, to modify a judgment and sentence theretofore imposed. In the absence of some statute authorizing such modification, and presently there is none, once a case has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment.
When a criminal case has been completed and the term of court ends, unless the circuit court has deferred sentence, or placed the defendant upon a suspended sentence and retained jurisdiction for this specific purpose as authorized by statute, the power of the circuit court to alter or amend its sentence is terminated. If the case is duly appealed to this Court, this Court has appellate jurisdiction to either affirm, reverse and remand, or reverse and render the judgment the lower court should have rendered. It is only when the case is remanded for a new trial that the circuit court is again invested with discretionary authority with reference to that particular case.
This holding, of course, is without prejudice to any department of the Executive Branch of our State Government making whatever decision it deems appropriate and lawful in the case of the defendant, and also without prejudice to the defendant’s asserting any statutory or constitutional right by original petition in an appropriate legal forum. A court does have inherent power to correct judgments obtained through fraud, accident or mistake, which is renewable through a writ of error coram nobis. However, this is not such a case. See McNeeley v. Blain, 255 So.2d 923, 925 (Miss.1971); City of Starkville v. Thompson, 243 So.2d 54, 55 (Miss.1971); Corry v. Buddendorff, 98 Miss. 98, 54 So. 84 (1911).

Id. at 868-69 (emphasis added).

¶ 19. In Denton v. Maples, Circuit Court Judge Darwin M. Maples entered an order that suspended the sentence of Sue Denton. Denton v. Maples, 394 So.2d 895, 897 (Miss.1981). Denton was convicted of aggravated assault with a deadly weapon on January 27, 1976. Id. at 896. She was sentenced to serve eighteen years. Id. After post-trial motions, the conviction was appealed to the supreme court. Id. at 896-97. On August 10, 1977, the supreme court affirmed the conviction and sentence. Judge Maples’s order came after the supreme court decided the appeal. Id. at 897. The supreme court determined that there was no authority for the circuit court to suspend a previously imposed sentence. Id. The sole issue was whether the circuit court could “alter,” i.e. suspend, a sentence after the supreme court had decided the case. Id. The question of whether the circuit court could “vacate” a sentence was simply not addressed.

¶ 20. In Harrigill, the supreme court noted that “[a] court does have inherent power to correct judgments obtained through fraud, accident or mistake,.... ” Harrigill, 403 So.2d at 869. In fact, one of the cases cited by the court in Harrigill held:

In conclusion, it should be noted that the circuit court has the inherent power to correct judgments obtained in that court through fraud, accident or mistake. Any court should have the authority and right to correct a judgment obtained through fraud which vitiates any contract, and in the case at bar the accident or mistake could have been rectified by the filing of a petition for writ of error coram nobis.

City of Starkville v. Thompson, 243 So.2d 54, 55 (Miss.1971).

¶21. Here, Moore’s appeal considers this exact principle. Under his plea bargain agreement, Moore agreed to testify against Lee Amerson. At the hearing, the following exchange occurred:

Court: Now, Paragraph 7(a) of your petition has been checked, which states that you have reached a plea bargain agreement with the District Attorney’s office. According to Paragraph 7(a), you will be sentenced to serve 15 years with the Mississippi Department of Corrections. Like I said earlier, that would be served day-to-day, without any type of early release consideration. You would be ordered to pay court costs in the amount of $247.50, and you would owe a $1,000 appearance bond fee. You have also requested and the court will allow you to participate in the alcohol and drug treatment program, the long program, while an inmate with MDOC. Count I of the indictment, which is the kidnaping count, that will be dismissed by separate order. Now is that your understanding of the full and complete plea bargain agreement that you have reached with the State in your case and your understanding of how it works?
Moore: Yes, Sir.
Court: Mr. Stephenson [defense counsel], is that your understanding?
Stephenson: Yes Sir.
Court: Mr. Angero, representing the State?
Angero: Yes, sir. And, obviously, with the way you see the petition there, we are expecting that he will give truthful testimony in relation to his co-defendant, if and when his case comes to trial.
Court: Do you understand that?
Moore: Yes, Sir.
Angero: In other words, Judge, if he pleads guilty today, he gets his deal and goes and starts serving his time, and we call him back. That statement he has given under oath right here is attached and what he said in his [guilty] plea petition, when we call him back, we expect that this is what he is going to testify to. We expect that that is what he swears the truth is. If he should change his mind about that and if he should start to give what we consider to be perjured testimony, then we reserve the right to come back to you and ask that this court invalidate the plea and take him to trial.
Stephenson: Judge, I don’t know whether they can really do it that way. They can get him for perjury, obviously-
Angero: Yes, we can. That’s part of the plea bargain, Judge. It happens that way. That’s the only way we can deal with it.
Court: Mr. Stephenson, is part of the plea bargain agreement that he testify truthfully in line with his statement?
Stephenson: Yes, sir.
Court: You understand that Mr. Moore?
Moore: Yes, sir.
Angero: Judge, to be perfectly honest with you, I don’t expect that it will be a problem, because Mr. Moore told the police the truth when they asked him originally. I mean, when he cooperated with the police. I just wanted to make sure, you know, that something doesn’t happen between now and the time we get Mr. Amerson to trial.

¶ 22. Under the authority of Danley I and II, Moore’s plea bargain sentence was “terminated as if it never existed and the State of Mississippi retains all powers of prosecution,” when he refused to testify, and the State acted properly. In addition, under Harrigill and Presley, we conclude that Moore committed a fraud, and the circuit court has the “inherent power to correct judgments obtained in that court through fraud.” Accordingly, we find no merit to this issue.

II. Whether Moore was subjected to double jeopardy and denied due process of law through multiple punishments for the same crime when he was sentenced to criminal contempt for refusal to testify-

¶ 23. The circuit court sentenced Moore to criminal contempt for refusal to testify in Amerson’s trial. Because his failure to testify constituted a material breach of the plea agreement, the State reinstated the kidnapping charge, for which Moore was subsequently convicted and sentenced to twenty-five years imprisonment. Moore contends that the kidnapping conviction and sentence constituted a second punishment for his refusal to testify, thus subjecting him to double jeopardy. To support this proposition, Moore cites Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), in which a defendant was sentenced to criminal contempt for a fixed thirty day period for a refusal to testify before a grand jury, and was later re-indicted for refusal to testify as to the same matter. In Menna, the United States Supreme Court held that multiple sentences for the defendant’s refusal to testify subjected the defendant to double jeopardy. Id. Such is clearly not the case here. This case is distinguishable from Menna in that, in Menna, the defendant was punished twice for refusal to testify, whereas here, Moore was punished once for refusal to testify against Amerson and once for the separate and distinct crime of kidnapping the Morgans. We therefore find this argument to be completely without merit.

III. Whether Moore was subjected to double jeopardy and denied due process of law through being convicted of both kidnapping and armed robbery when the charges arose from the same incident.

¶ 24. Moore next contends that the armed robbery factual proof leaves no facts upon which kidnapping may be proven. Under Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), “the test to be applied to determine whether there are two [distinct statutory] offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” “If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975). “Temporal proximity does not generate a judicial union of separate and distinct criminal acts, nor does the presence of a common nucleus of operative facts.” Moore v. State, 617 So.2d 272, 274 (Miss.1993) (citations omitted).

¶ 25. Mississippi Code Annotated § 97-3-53 (Rev.2002) defines kidnapping, in pertinent part, as occurring when “[a]ny person who ... without lawful authority forcibly seizefs] and confinefe] any other person, or ... inveigle[s] or kidnap[s] any other person with intent to cause such person to be secretly confined or imprisoned against his or her will.”

¶ 26. Armed robbery (“robbery by use of a deadly weapon”) occurs when a person “feloniously take[s] from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by exhibition of a deadly weapon.” Miss. Code Ann. § 97-3-79 (Rev.2002).

¶ 27. These offenses are clearly separate and distinct, with each requiring proof of additional facts the other does not. Kidnapping, for example, requires proof of “intent to cause such person to be secretly confined or imprisoned against their will,” whereas armed robbery does not. Armed robbery requires the taking of personal property of another; kidnapping does not. These crimes are separate and distinct regardless of their temporal overlap or their arising from a common nucleus of operative facts. Moore’s argument here is without merit.

IV. Whether Moore should be granted a new trial because of a jury instruction that varied from the indictment and allowed instructions involving accomplice liability and whether the instruction contained an assumption of fact that the crime was committed.

¶ 28. “Errors based on the granting of an instruction will not be considered on appeal unless specific objections stating the grounds are made in trial court.” Oates v. State, 421 So.2d 1025, 1030 (Miss.1982). Moore did not object to the jury instructions on these grounds at trial, and is thus proeedurally barred from raising the issue on appeal.

Y. Whether Moore was denied fundamental fairness and due process of law by reason of prosecu-torial vindictiveness.

¶ 29. Moore contends that the circuit court vindictively sentenced him to double the sentence he would have received under his plea agreement because of his refusal to testify against Amerson and Amerson’s subsequent acquittal. Moore claims that the purpose of the trial was to expose him to a jury sentence of life imprisonment and that when the jury did not sentence him to life, the sentencing evidence and argument was that he should serve the time Amerson would have served if not acquitted. Moore points to the following statements of the assistant district attorney during the sentencing phase of the trial as evincing an improperly vindictive motive: “Mr. Moore took it upon himself to see that [Amerson] wasn’t punished. And because of that, Judge, if he wants to take full responsibility, that’s fine. But we expect that he will get full responsibility for it because of that action.”

¶ 30. “[F]or an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’ ” Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 32-33 n. 20, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973)). “But in the ‘give- and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.” Id. “[W]hen a greater sentence is imposed after trial than was imposed after a prior guilty plea, the increase in sentence is not more likely than not attributable to the vindictiveness on the part of the sentencing judge.” Alabama v. Smith, 490 U.S. 794, 801, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (emphasis added). “Even when the same judge imposes both sentences, the relevant sentencing information available to the judge after the plea will usually be considerably less than that available after a trial.” Id. Where there is a “reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority,” there is a presumption of prosecutorial vindictiveness. Id. at 799, 109 S.Ct. 2201. However, when no such likelihood exists, it is the defendant’s burden to prove actual vindictiveness. Id. at 799-800, 109 S.Ct. 2201; see also United States v. Molina-Iguado, 894 F.2d 1452, 1453-54 (5th Cir.1990) (holding that defendant has burden of proof by preponderance of evidence).

¶ 31. There is no reasonable likelihood of vindictiveness on the part of the prosecutor or sentencing judge apparent in this case, and thus no presumption of vindictiveness is created. The statements by the assistant district attorney which Moore points to as evincing an improperly vindictive motive merely note the consequences of Moore’s breach of the plea agreement by refusing to testify against Amerson. Moore was free to accept the plea bargain and testify against Amerson according to its terms, and thus receive lesser punishment for the crimes with which he was charged. Instead, Moore chose to reject compliance with the plea bargain by refusing to testify against Amerson. It is the opinion of this Court that the statements by the assistant district attorney merely note the consequences of Moore’s breach and evince no improperly vindictive motive. We therefore find that Moore failed to meet his burden of proof and that this argument is without merit.

VI. Whether Moore was denied his right to silence as a result of the State’s statements during closing argument.

¶32. Moore argues that statements by the assistant district attorney during closing argument amount to an indirect comment on Moore’s right to remain silent by not testifying during his trial. Because Moore failed to object to the statements at trial, he is procedurally barred from asserting such grounds on appeal. See Thorson v. State, 895 So.2d 85, 112(¶ 64) (Miss.2004).

VII. Whether Moore was denied effective assistance of counsel at trial.

¶ 33. Moore contends that the public defender failed to provide meaningful representation at trial. To support this argument, Moore points to his trial counsel’s failure to object to leading questions, failure to object to jury instructions containing assumptions of fact, failure to effectively cross-examine, failure to adequately investigate his case, failure to call witnesses, and numerous other grounds.

¶ 34. The merits of an ineffective assistance of counsel claim on direct appeal should be addressed only when “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make a finding without consideration of the findings of fact of the trial judge.” Colenburg v. State, 735 So.2d 1099, 1101(¶5) (Miss.Ct.App.1999). If this Court does not reverse on other grounds and is unable to conclude that the defendant received ineffective assistance of counsel, it should affirm “without prejudice to the defendant’s right to raise the ineffective assistance of counsel issue via appropriate post-conviction proceedings.” Id. Review on direct appeal of an ineffective assistance of counsel claim is confined strictly to the record. Id. at 1102(116). The Mississippi Supreme Court has adopted the test for ineffective assistance of counsel announced by the United States Supreme Court, in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Alexander v. State, 605 So.2d 1170, 1173 (Miss.1992). The Strickland test requires the defendant to prove that, considering the totality of the circumstances, (1) trial counsel’s performance was deficient, and (2) defendant was prejudiced as a result. Colenburg, 735 So.2d at 1103(¶ 9). “The defendant must show that but for his attorney’s errors, there is a reasonable probability that he would have received a different result in the trial court.” Id. “A strong but rebuttable presumption, that counsel’s performance falls within the wide range of reasonable professional assistance, exists.” Id. “Scrutiny of counsel’s performance by this Court must be deferential.” Id.; see also Ahmad v. State, 603 So.2d 843, 848 (Miss.1992) (discussing scope of review on appeal for counsel’s performance).

¶ 35. We find that Moore’s trial counsel was not ineffective based on the record in this case. Any errors Moore’s trial counsel may have committed in this case were not prejudicial to Moore’s defense so as to create a reasonable probability of a different outcome in the absence of such errors. We therefore find this argument to be without merit.

¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF COUNT I KIDNAPPING AND THE SENTENCE OF TWENTY-FIVE YEARS, AND COUNT II ARMED ROB-EERY AND THE SENTENCE OF THIRTY YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, COUNTS I AND II TO RUN CONCURRENTLY TO EACH OTHER, AND ORDER TO PAY RESTITUTION OF $8,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDER-DALE COUNTY.

LEE AND MYERS, P.JJ., CHANDLER, BARNES AND ISHEE, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. KING, C.J., SOUTHWICK AND ROBERTS, JJ., NOT PARTICIPATING.

      . Moore also contends on appeal that his testimony under the plea bargain was made impossible or impracticable because of threats by Amerson against his life and family, but there is nothing in the record to support this proposition.