Stephen Elliot Powers v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-DR-02810-SCT

STEPHEN ELLIOT POWERS

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 12/15/2000
TRIAL JUDGE: HON. RICHARD W. McKENZIE
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION
COUNSEL
BY: LOUWLYNN VANZETTA WILLIAMS
ROBERT M. RYAN
WILLIAM J. CLAYTON
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: MARVIN L. WHITE, JR.
DISTRICT ATTORNEY: E. LINDSEY CARTER
NATURE OF THE CASE: CIVIL - DEATH PENALTY - POST
CONVICTION
DISPOSITION: APPLICATION FOR LEAVE TO FILE MOTION
FOR POST-CONVICTION RELIEF, DENIED -
10/19/2006

MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

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

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to killing Lafferty, 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 assistance. 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-capital (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-conviction relief (PCR motion), Powers, through the

Mississippi Office of Capital Post-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

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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. 2052, 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).

¶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

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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 re-weighs 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. § 99-39-21.1

1
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

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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).

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.

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¶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

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 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).

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 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. Cockrell, 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

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procedural bar.2 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

2
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....”

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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. Ths 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)

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(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

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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.

¶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 Apprendi decision. The Supreme

Court decided it could not:

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 [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. 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. 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.

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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

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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

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894, 924 (Miss. 1999) (citing Sand v. State, 467 So.2d 907, 911 (Miss. 1985)). This issue

is without merit.

VII. 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.

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§ 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.

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