WALKER, PRESIDING JUSTICE, FOR THE COURT:
ON MOTION TO VACATE, OR TO SET ASIDE JUDGMENT AND SENTENCE
Michael Dale Leatherwood, pursuant to the" Mississippi Uniform Post-Conviction Collateral Relief Act ", Mississippi Code Annotated section 99-39-1 et seq., has filed in this Court a motion to vacate his conviction *fn1 for capital murder and the sentence of death now pending against him.
This Court has previously considered the conviction and sentence in Leatherwood v. State, 435 So.2d 645 (Miss. 1983), and affirmed the decision of the trial court. As noted by Leatherwood in his motion to vacate, the majority of his present claims were raised on direct appeal, not appealed, or not raised at the trial level. These claims are procedurally barred or res adjudicata and not subject to further review by this Court. Only Leatherwood's claim of ineffective
assistance of counsel remains to be considered by this Court.
Leatherwood contends he was deprived of his right under the Sixth and Fourteenth Amendments to the United States Constitution to effective assistance of counsel; that his counsel failed to investigate the law or supporting facts minimally necessary to represent him at trial and sentencing; and that his defense counsel ignored or failed to investigate potential defenses and then undertook no meaningful preparation for the sentencing phase.
Leatherwood specifically states several claims as to his defense counsel's ineffectiveness. These specific claims will be discussed in the order presented.
Leatherwood contends that if his defense counsel had investigated he would have uncovered at least fifteen substantial witnesses who could and would have provided favorable character evidence concerning Leatherwood. Leatherwood provided affidavits from these potential witnesses. The substance of these statements was that Leatherwood (1) was an excellent student with above average grades; (2) had a good reputation in school and was involved in high school activities; (3) was a reliable honest and conscientious employee who worked diligently at his after-school job; (4) participated in church and youth activities; (5) was never involved in any trouble in or out of school except for traffic tickets; (6) had a strong desire for approval and was easily influenced; and (7) was not viewed as violent or temperamental or as the type who would inflict harm. According to Leatherwood, these mitigation witnesses all live in Leatherwood's hometown of DeRidder, Louisiana and were willing to testify and could have been easily located by defense counsel.
Leatherwood contends that his counsel made no effort to explain to him or his parents the importance of having character witnesses at the sentencing hearing and his counsel's advice to plead guilty made Leatherwood's life dependent on the evidence presented at the sentencing trial.
Leatherwood also contends that his counsel made no effort to obtain his school, medical, or army records despite the fact that he had been in high school just five months prior to the killing and that the record would have been useful in mitigation against the death penalty.
Leatherwood's second claim is that defense counsel failed to investigate and present available psychological evidence.
During the sentencing trial it was apparent that defense counsel sought to demonstrate that Leatherwood was an inherently good person who had fallen under the domination of George David Tokman. Yet, Leatherwood contends, psychological evidence relevant to his chosen defense had been developed in Leatherwood's trial in Louisiana but his counsel made no effort to use this evidence or any other evidence to support this defense.
Leatherwood was tried in Louisiana for armed robbery and underwent a psychological evaluation performed by Dr. David Post, a clinical psychologist in DeRidder, Louisiana. Leatherwood contends that his Mississippi counsel knew of this evaluation and generally about the results of the evaluation through conversations with Leatherwood's parents. Leatherwood's Louisiana counsel had also informed defense counsel of Dr. Post and the substance of his testimony in the Louisiana court cases.
The psychological profile for Leatherwood was as follows: He was emotionally immature and dependent on the acceptance of others. Though intelligent, he could only succeed in a highly structured situation where goals are clearly defined. He is not creative enough to define his own goals and depends on others for direction. He is a follower who in stressful situations becomes overwhelmed and immobilized by emotional distress. His reaction to stress prevents him from using his intelligence to exhibit rational behavior in keeping with his usual standards and further exacerbates his tendency ...