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JOHN BUFORD IRVING, III v. STATE OF MISSISSIPPI

DECEMBER 14, 1983

JOHN BUFORD IRVING, III
v.
STATE OF MISSISSIPPI



ON PETITION FOR REHEARING

EN BANC

DAN M. LEE, JUSTICE, FOR THE COURT:

This matter is presented to us in the form of a petition for rehearing of an opinion rendered by this Court wherein we affirmed John Buford Irving's sentence of death, for his role in the capital murder of store owner, Gambrell Ray. Following Irving's first trial both his conviction and death .sentence were affirmed by this Court in Irving v. State, 361 So. 2d 1350 (Miss. 1978). Subsequently Irving's death penalty was vacated by the United States District Court for the Northern District of Mississippi because that court concluded that Irving had received ineffective assistance of counsel. The District court's opinion did not vacate the jury's finding of guilt. Therefore, Irving was retried solely on the second phase of the bifurcated trial, the sentencing phase. A new jury was selected and Irving again received the death penalty. This Court affirmed that sentence of death in an opinion handed down August 24, 1983. It is from that affirmance that Irving now brings this petition for rehearing.

 The first point raised by Irving in his petition is that our opinion was based on a false factual assumption because it stated that the facts pertinent to the decision could be found in the original Irving opinion which the District Court vacated as to the death sentence. Irving states

 that because he did not testify in the first trial and did in the second, reference to the facts as stated in the first opinion creates an incomplete factual situation. This point is not well taken as reference to our opinion reveals that we did consider Irving's testimony in the second trial in which he denied firing the fatal shot and instead placed the blame for that shot on his accomplice, Keith Givhan. Our opinion plainly held:

 We are of the opinion this argument is predicated on the erroneous assumption that the jury was bound to accept the impeached and contradicted testimony of appellant's cousin, Keith Givhan, that it was Givhan and not Irving who shot Gambrell Ray. Noting first that the jury was entitled to reject such testimony, we again state that the issue of guilt was res judicata. Therefore, we are of the opinion that appellant is in no position to raise Enmund.

 Therefore it cannot be said that our opinion ignored Irving's testimony or was based on a false factual assumption.

 Irving next argues that our opinion misconstrues the quantum of proof required to sustain a verdict of death. He again argues that the opinion failed to consider his testimony that he was not responsible for firing the fatal shot. He also argues that the opinion neglects the "fact" that the victim, Ray, was advancing towards him. As these were matters for the jury's determination, and the jury's decision was certainly not contrary to the overwhelming weight of the evidence, this Court will not disturb their finding as they were free to accept or reject in whole or in part any of the testimony presented. Because our opinion fully addressed the circumstances of the murder and found that the jury was warranted in imposing the death penalty, this matter is res judicata and may not now be relitigated.

 Irving's next argument is that the verdict of the jury was contrary to the law as to verdicts in capital cases. Here he argues that the jury's failure to enumerate what mitigating factors were involved in the killing renders their decision void. This contention was not assigned as error or presented on direct appeal. The issue may not now be raised for the first time on a petition for rehearing and it is procedurally barred. Edwards v. Thigpen, 433 So. 2d 906 (Miss. 1983); Wheat v. Thigpen, 431 So. 2d 486 (Miss. 1983).

 Irving next argues that he was denied due process

 because of actions of the trial court in (1) failing to quash the jury panel, (2) limiting the defense voir dire of the jury panel, (3) limiting voir dire specifically of venireman Patterson and Givhan, (4) limiting voir dire on the issue of the death penalty, (5) allowing the district attorney to seek a commitment from members of the jury venire and other improper communications, (6) sustaining of an objection to the defense's voir dire, (7) refusal to grant change of venue, (8) allowing an anti-defendant sentiment to pervade the proceedings. None of these contentions were presented or argued to the court on direct appeal, therefore they may not be presented for the first time in this petition for rehearing and are thereby procedurally barred. Edwards, supra; Wheat, supra.

 Irving's next argument is that he received ineffective assistance of counsel in six different areas:

 1. Failure to poll the jury

 2. Failure to insure ...


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