DAN M. LEE, JUSTICE, FOR THE COURT:
Edward Earl Johnson was indicted, tried, and convicted of capital murder in the shooting death of J. T. Trest. Trest, the Town Marshall of Walnut Grove, was killed on June 2, 1979.
Sometime in the early morning hours of June 2, an intruder entered the home of Miss Sally Franklin, an elderly resident of Walnut Grove. A struggle ensued between the stranger and Miss Franklin, which was loud enough to wake a boarder in her home. The boarder called some neighbors to report the incident. At about the same time, another neighbor awoke to the sound of gun shots. This neighbor called the police.
After checking on Miss Franklin's condition, two of the neighbors found J. T. Trest about fifteen yards from the Franklin home, lying in front of his patrol car. An autopsy performed on Trest indicated that he had been shot first with a .25-caliber pistol found at the scene. Trest's .357 Magnum was missing, and one of Trest's wounds appeared to have been caused by a gun of similar caliber.
Johnson was questioned twice in connection with the crime - the second time after it was discovered that he had been seen with a .25-caliber pistol the week before the incident. After the second arrest, Johnson agreed to take a polygraph test; however, before taking it, he gave an oral, taped confession and a subsequent signed statement in which he admitted shooting Trest and told officers where Trest's gun could be found. Johnson was ultimately found guilty of capital murder and sentenced to death.
Johnson's conviction and sentence were affirmed by
this Court on direct appeal, Johnson v. State, 416 So. 2d 383 (Miss. 1982), and on error coram nobis, Johnson v. Thigpen, 449 So. 2d 1207 (Miss. 1984). The district court denied his petition for a writ of habeas corpus, Johnson v. Thigpen, 623 F. Supp. 1121 (S.D. Miss. 1985), and the court of appeals affirmed that decision, Johnson v. Thigpen, 806 F.2d 1243 (5th Cir. 1986), cert den. ___ U.S. ___, 107 S. Ct. 1618, 94 L.Ed.2d 802 (1987). As a result, Johnson's execution was set for May 20, 1987. On May 13, 1987, Johnson filed a Motion for Stay of Execution and a Motion for Post-Conviction Relief. These motions were denied by this Court on May 18, 1987. Having entered an Order denying those motions on Monday, May 18, 1987, we hereby adopt the body of that Order as the opinion of this Court, as follows:
1. IS JOHNSON CURRENTLY INCOMPETENT?
Johnson's first point alleges present insanity as a bar to his execution on grounds of cruel and unusual punishment. The point is predicated on the affidavits of a clinical psychologist and a psychiatrist. Having examined these affidavits, we find that Johnson has" failed to establish to a reasonable probability that he is presently insane. "Billiott v. State, 478 So. 2d 1043, 1045 (Miss. 1985) cert. denied, Billott v. Mississippi, 469 U.S. 1230, 105 S. Ct. 1232, 84 L.Ed.2d 369 (1986). Accordingly, we find that he falls short of the evidentiary showing required of a proponent of this claim. See Miss. Code Ann. 99-19-57 (b) (Supp. 1986); Ford v. Wainwright, 447 ___ U.S. ___, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986). (Although we overruled Johnson's Motion to Strike Counter-Affidavits, we do not find it necessary to consider them because he failed to make out a prima facie case of present insanity by his affidavits.) We hold, therefore, that Point 1 is without merit.
2. WAS JOHNSON'S CONFESSION TAKEN IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL?
This attack on the admissibility of Johnson's confession has not been raised in any of his previous state court pleadings nor has he shown sufficient legal" cause "to excuse his failure to timely raise the claim. Accordingly, this claim is procedurally barred. Evans v. Thigpen, 485 So. 2d 276, 282 (Miss.) cert. denied Evans v. Mississippi, ___ U.S. ___, 106 S. Ct. 2908, 90 L.Ed.2d 994 (1986); Irving v. State, 498 So. 2d 305, 308 (Miss. 1986). See also Murray v. Carrier, ___ U.S. ___, 106 S. Ct. 2639, 91 L.Ed.2d 397 (1986). Alternatively, were we to address
the merits of this claim, it is apparent from the record and our opinion on direct appeal that Johnson was not arrested pursuant to a warrant. Johnson v. State, 416 So. 2d 383, 385-6 (Miss. 1983).
3. DID THE TRIAL COURT EXCLUDE MITIGATING AND REBUTTAL EVIDENCE IN VIOLATION OF SKIPPER v. SOUTH CAROLINA?
This point is also raised for the first time in this particular context. Absent a showing of" cause "under Miss. Code Ann. 99-39-21, supra, a showing conspicuously absent from his Petition, this claim is procedurally barred under Evans and Irving. Moreover, we note that the facts of this claim were challenged in a somewhat different fashion on direct appeal to this Court. Therefore, the point is barred by our state rule prohibiting the successive litigation of facts ...