Havard v. State
| Docket Number: | 2003-DP-00457-SCT Linked Case(s): 2003-DP-00457-SCT |
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| Oral Argument: | 12-12-2005 | |
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| Supreme Court: | Opinion Link Opinion Date: 02-09-2006 Opinion Author: Carlson, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Death penalty direct appeal - Ineffective assistance of counsel - M.R.A.P. 22 - Closing argument - Victim impact testimony - Photograph - M.R.E. 403 - Jury deliberations - Heinous, atrocious, or cruel instruction - Sufficiency of indictment - Aggravators - Proportionality review Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Cobb, P.J., and Diaz, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL |
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| Trial Court: |
Date of Trial Judgment: 12-19-2002 Appealed from: Adams County Circuit Court Judge: Forrest Johnson Disposition: Havard was found guilty of capital murder was sentenced to death. District Attorney: Ronnie Lee Harper Case Number: 02-KR-0141-J |
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| Party Name: | Attorney Name: | |||
| Appellant: | Jeffrey Keith Havard |
ANDRE De GRUY, STACY P. FERRARO |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: MELANIE KATHRYN DOTSON |
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| Topic: | Death penalty direct appeal - Ineffective assistance of counsel - M.R.A.P. 22 - Closing argument - Victim impact testimony - Photograph - M.R.E. 403 - Jury deliberations - Heinous, atrocious, or cruel instruction - Sufficiency of indictment - Aggravators - Proportionality review |
| Summary of the Facts: | Jeffrey Havard was convicted of capital murder (murder during the commission of sexual battery) and sentenced to death. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Havard argues his representation was ineffective at several points during the trial. He argues that his trial counsel failed to ensure that juror number twenty-five was excused for cause because she was biased against him. Though the juror initially commented that she did not think she could be fair because of her niece’s experience, the voir dire examination did not end there, and the jurors were continually under oath to be truthful in their answers to all voir dire questions propounded by the trial judge and the attorneys. After this comment by the juror, counsel for both the State and the defendant, as well as the trial judge, continued to ask the potential jurors if any of them felt that they could not be fair in deciding the fate of the defendant in this type of case. Defense counsel did not sit idly by. The record reveals several instances of juror challenges where defense counsel struck for cause certain jurors who felt they could not be fair. Counsel for the State ensured through questioning that the jurors understood they were to notify the court and the attorneys if any existing problem would affect their ability to consider death as an appropriate sentence. The State, through counsel, also inquired if any juror thought he or she could not be fair or reasonable in deciding the issue of the defendant’s guilt. Defense counsel’s decision not to repeat these same questions does not rise to the level of ineffective assistance of counsel. Havard also argues that his trial attorneys were ineffective in failing to ask questions relating to the jurors’ qualifications to serve on a jury to decide a death sentence, i.e., failed to ask whether jurors would automatically vote for the death penalty. Havard, relying on an outside-the-record affidavit from juror number twenty-nine, asserts that the juror believed the death penalty was the only appropriate sentence in a murder trial. The current version M.R.A.P. 22 clearly states that only issues based on facts fully apparent from the record may be raised on direct appeal. However, the version controlling here is the former rule, as it was the rule in effect at the time of the trial. The rule then simply provided that issues normally reserved for post-conviction relief may also be raised on direct appeal; thus, this issue is not barred. The comment to the current Rule 22 also makes clear that failing to raise certain, though not all, issues on direct appeal in a case such as this will constitute a waiver, specifically when those issues are claims of ineffective assistance of counsel. In this case, Havard was represented at trial by counsel other than the current attorneys representing him on appeal. To avoid waiving these issues on post-conviction proceedings, Havard would be required under the current rule to raise them on this direct appeal. Under the former rule, the standard was more flexible and not restricted to certain types of issues. When appellate counsel is different from trial counsel, and when there is a perceived requirement under the rule to raise on direct appeal issues which are commonly reserved for post-conviction proceedings, consideration of supplemental documents on direct appeal in death penalty cases is proper. However, the utilization of affidavits is better served in the post-conviction relief proceedings allowable by statute. Having raised this issue with different counsel on direct appeal, Havard has preserved his right to raise this issue, supported by affidavits, in future post-conviction relief proceedings. While trial counsel did not ask whether jurors would automatically vote for the death penalty, the trial court did. The proper questions were asked by the court and counsel and were answered by the potential jurors. The trial judge questioned the jurors on their abilities or inabilities, both as a group and individually, to consider a death sentence. The trial judge also requested that the attorneys not be redundant in their voir dire examination. Defense counsel, having heard the questions and the responses from the venire, and having observed the jurors’ demeanor throughout the voir dire, was then free to choose not to repeat the questions. Havard also claims ineffective assistance of counsel in that his attorneys at trial developed a trial strategy and then did not investigate, secure expert assistance, offer any evidence in support of the theory, or request a jury instruction in support of the theory. Havard claims his trial counsel was ineffective for failing to secure a DNA expert to disprove the allegations of sexual battery. Havard’s counsel did however establish on cross-examination of crime lab biologist that no testing was done on Havard or the victim for DNA samples. Showing the absence of DNA evidence on either the victim or Havard would not absolve Havard of guilt of sexual battery. It is apparent from the record that defense counsel’s strategy was to attack the weakness of the State’s case, and such a defense strategy is not per se ineffective assistance of counsel. Havard claims his trial counsel was ineffective for failing to secure a pathologist to investigate the case and develop a defense strategy. Havard’s counsel did request an independent evaluation of the autopsy report based on counsel’s lack of medical training and need to develop a defense. The trial court denied the motion because counsel showed no basis for need when the pathologist who prepared the report was available. The trial court exercised its discretion in refusing defense counsel’s request for an independent evaluation, and there is no abuse of discretion in the trial court’s actions so as to deny Havard a fundamentally fair trial. Havard claims his trial counsel was ineffective for not including a lesser offense instruction on murder or manslaughter. The record raises serious doubts as to whether the evidence supported the giving of a non-capital murder instruction or a manslaughter instruction. Admittedly, had defense counsel submitted such lesser offense instructions, this action would not have been contrary to the defense theory that there was insufficient evidence for the jury to find that Havard was guilty of the underlying felony of sexual battery. However, this decision by Havard’s counsel was not outside the realm of appropriate trial strategy. Havard argues that he received ineffective assistance of counsel because his counsel only called two witnesses to offer testimony in mitigation and gave them virtually no preparation for trial. The failure to present a case in mitigation during the sentencing phase of a capital trial is not, per se, ineffective assistance of counsel. Havard’s trial counsel did bring forth and present some evidence to mitigate the sentence through the testimony of two witnesses. Given the testimony provided in mitigation and what it did show the jury about Havard’s life and tendencies, there was not a prejudicial deficiency in trial counsel’s performance. Havard argues he was denied effective assistance of counsel during the closing arguments of the sentencing phase of his trial, because trial counsel conceded the aggravating circumstance of the victim’s tender age and failed to argue mitigating circumstances. While trial counsel’s closing arguments at the sentencing phase of Havard’s trial, when viewed with the benefit of hindsight, could have been presented more forcibly, closing argument falls under the ambit of defense counsel’s trial strategy. Issue 2: Closing argument Havard argues that the prosecutor in closing argument made a suggestion that Havard had previously sexually assaulted the victim. Because trial counsel failed to object at trial, this issue is waived. In addition, the statements about that night’s alleged sexual battery were a permissible inference from the evidence the State had presented. Issue 3: Victim impact testimony Havard argues that the court erred in allowing the victim impact testimony the victim’s maternal grandmother which exceeded the bounds of allowable victim impact testimony. Victim impact evidence, if relevant, is admissible in the sentencing stage. The opinions of the victim’s family members as to the crimes and the defendant is permissible victim impact testimony. Here, the grandmother’s entire testimony, taken in context, was not designed to incite the jury. The vast majority of her testimony went straight to the relationships between her family members and the impact losing the victim had on them, all part of permissible testimony under our case law. In addition, requests by a family member for the jury to sentence the defendant to death can constitute harmless error when any prejudice that did result from the statements was mitigated by the trial court’s jury instructions not to be swayed by passion, prejudice or sympathy. Issue 4: Photograph Havard argues that the court improperly overruled an objection by defense counsel to the State’s introduction into evidence of a photograph of the victim taken during her lifetime. Havard argues that such evidence should be subjected to an M.R.E. 403 balancing test. Although the record does not reveal that the trial court performed a Rule 403 balancing test, a judge’s failure to place Rule 403's magic words into the record does not necessarily create the presumption that the judge failed to consider Rule 403's requirements, nor does it automatically render the trial judge’s decision on admissibility to be error, much less reversible error. Here, the photograph was not intended to inflame the jury, but rather to identify the victim. This purpose of identity falls under the categories of admissible photographs. Therefore, any such error committed by the judge in failing to perform a Rule 403 balancing test is harmless beyond a reasonable doubt. Issue 5: Jury deliberations Havard argues that the judge answered a question submitted by the jury during the sentencing phase in a way that left open the possibility in the jurors’ minds that if Havard had not been sentenced to death, he could possibly, at some point in the future, be released from incarceration on parole, thus making the option of a life sentence less feasible for the jury. However, the statement by the trial judge was as general as possible, and there is absolutely no reason to believe the jury made its ultimate decision on the sentence based on this statement to the jury by the trial judge. Issue 6: Heinous, atrocious, or cruel instruction One of the court’s sentencing instruction defined what constituted a heinous, atrocious, or cruel capital offense and instructed the jury that it may consider such, if found, an aggravating circumstance. Havard argues that the instruction is unconstitutionally vague. The Mississippi Supreme Court has repeatedly held that the ‘especially heinous, atrocious or cruel’ provision of section 99-19-101(5)(h) is not so vague and overbroad as to violate the United States Constitution. Issue 7: Sufficiency of indictment Havard argues that the indictment failed to charge all the elements necessary to impose the death penalty under Mississippi law, specifically that it lacked an aggravating factor and a mens rea element. Havard’s claim that a jury must find at least one aggravating factor and a mens rea element in a sentencing hearing conflicts with the definition of capital murder being a crime punishable by death. In addition, Havard is mistaken about the mens rea requirement. Under section 99-19-101(7), a jury may only find that the defendant actually killed, and does not need a true mens rea. Also, sufficient evidence was presented at trial for a jury to find that aggravating circumstances existed. Issue 8: Aggravators Havard argues that the court erred because the jury was instructed concerning two aggravators: the capital offense was committed while defendant was engaged in the commission of, or an attempt to commit, sexual battery, and the capital offense was especially heinous, atrocious or cruel. He argues that the two aggravating circumstances could not be submitted together to the jury. The test for determining when aggravating factors impermissibly overlap and are duplicative is whether one aggravating factor necessarily subsumes the other, not whether certain evidence is relevant to both aggravators. Of the two aggravators on which Havard focuses, one does not necessarily subsume the other. The jury could have found from the evidence that Havard was engaged in the commission of sexual battery while committing the acts on the victim which led to her death. Additionally, the jury could have found this crime to meet the HAC standard because of factors other than the sexual battery, such as the relationship between Havard and the victim’s mother or the victim’s age. Issue 9: Proportionality review There are numerous cases where a defendant convicted of capital murder received a jury sentence utilizing the aggravating circumstances under sections 99-19-101(5)(d) and (h). Many of these juries, though not all, have imposed the death sentence for this offense. Havard was convicted of killing his girlfriend’s six-month old daughter during the commission of sexual battery upon her. The non-fatal injuries, sexual and non-sexual, which the jury found Havard inflicted upon the victim were horrific. When considering these cases, along with the nature of the crime, we unhesitatingly find that the sentence in this case is therefore not disproportionate to other cases of this type. |
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