Howell v. State
| Docket Number: | 2004-DR-00167-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 08-28-2008 Opinion Author: CARLSON, J. Holding: APPLICATION FOR POST-CONVICTION RELIEF IS DENIED IN PART AND GRANTED IN PART. |
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| Additional Case Information: |
Topic: Death penalty post-conviction - Disclosure of exculpatory information - M.R.E. 609 - Reliability of identification - Ineffective assistance of counsel - Recanting of testimony - Coerced statements - Evidentiary hearing - False testimony - Appellate counsel - Expert funds - Sufficiency of evidence - Closing argument - Probable cause for arrest - Change of venue - Mitigation evidence - Pre-trial lineup procedures - Exculpatory statements Judge(s) Concurring: SMITH, C.J., WALLER, P.J., RANDOLPH AND LAMAR, JJ. Dissenting Author : EASLEY, J., without separate written opinion. Concur in Part, Dissent in Part 1: DIAZ, P.J. with separate written opinion. Concur in Part, Dissent in Part Joined By 1: GRAVES AND DICKINSON, JJ. Procedural History: Jury Trial; PCR Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION |
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| Trial Court: |
Date of Trial Judgment: 03-30-2001 Appealed from: UNION COUNTY CIRCUIT COURT Judge: R. Kenneth Coleman Disposition: Marlon Latodd Howell was convicted by a Union County jury of killing Hugh David Pernell during an attempted robbery. The jury found Howell guilty of capital murder and then found that he should be sentenced to death. District Attorney: James M. Hood, III Case Number: UK-2000-82 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | MARLON LATODD HOWELL a/k/a MARLON COX |
WILLIAM O. RICHARDSON,
JIM WAIDE |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: JASON L. DAVIS, MARVIN L. WHITE, JR. |
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| Topic: | Death penalty post-conviction - Disclosure of exculpatory information - M.R.E. 609 - Reliability of identification - Ineffective assistance of counsel - Recanting of testimony - Coerced statements - Evidentiary hearing - False testimony - Appellate counsel - Expert funds - Sufficiency of evidence - Closing argument - Probable cause for arrest - Change of venue - Mitigation evidence - Pre-trial lineup procedures - Exculpatory statements |
| Summary of the Facts: | Marlon Howell was convicted of capital murder and was sentenced to death. His capital murder conviction and sentence of death were affirmed on appeal. Howell now seeks post-conviction relief. |
| Summary of Opinion Analysis: | Issue 1: Disclosure of exculpatory information Howell argues that the State withheld relevant information about one of its key witnesses which would have discredited his testimony against Howell at trial. The defense requested information concerning the criminal history of Howell and his co-defendants. It is well established that the State had the duty to turn over all exculpatory material relevant to Howell’s case. Both the trial court record and the post-conviction-proceedings record are devoid of any evidence indicating that the State withheld information that would have been about the witness’s criminal history. As to Howell’s claim that the State failed to disclose information helpful to the defense about the witness’s criminal background, Howell has failed to show that the State possessed the information or that the State suppressed that information. In addition, the witness’s felony conviction occurred in 1983, almost seventeen years before the victim was murdered. Whether impeachment of the witness concerning his seventeen-year old conviction for burglary would have been admissible is doubtful under M.R.E. 609. Howell also argues that the witness knew Howell prior to the killing and that his testimony to the contrary at trial was false. There is no evidence that the State had any knowledge that the witness might have “known of” Howell. There is no indication that the State failed to disclose any exculpatory information. Other than the somewhat vague claims that the witness “knew of” Howell, there is no substantial evidence that the witness testified untruthfully in his identification of Howell. Issue 2: Reliability of identification Howell argues that the witness’s identification of him was flawed because the lighting at the scene was poor. Issues related to the witness’s identification of the shooter are res judicata and are procedurally barred. These issues were explored at length at trial. Issue 3: Ineffective assistance of counsel Howell argues that his trial attorneys did not effectively represent him concerning the witness’s identification and testimony. While Howell’s attorneys did not specifically request information about the witness’s criminal history, they did request general discovery and all Brady exculpatory information. Defense counsel argued during closing that the witness’s identification was not reliable because he had never before seen Howell. Strategic decisions of trial counsel are presumed to be reasonable. Issue 4: Recanting of testimony The investigator for Howell’s post-conviction counsel procured an affidavit from the witness who identified Howell in which the witness recanted his trial testimony. Thereafter, the witness reaffirmed his trial testimony by a new affidavit. Howell argues that the witness’s recanted testimony entitles him to post-conviction relief and a new trial. As a general rule, recanted testimony is exceedingly unreliable, and is regarded with suspicion; and it is the right and duty of the court to deny a new trial where it is not satisfied that such testimony is true. Howell has shown that he is entitled to a post-conviction hearing on this issue. This issue can be resolved by the trial judge, who will have an opportunity not only to hear the witness’s testimony, but also to observe the witness’s demeanor as he is subjected to both direct examination and cross-examination. Issue 5: Coerced statements Howell argues that the State improperly coerced statements from Howell’s co-defendants. Issues related to the propriety of the interrogations or the admissibility of any statements provided by the co-defendants either were litigated at trial and on appeal or were capable of being raised in previous proceedings. In addition, the statements the co-defendants provided to law enforcement officers, which they claim were coerced, were never entered into evidence at trial and thus, there is no prejudice to Howell. Issue 6: Evidentiary hearing Howell argues that his two co-defendants have changed their stories and now swear that they do not know who killed the victim and that this entitles him to an evidentiary hearing. The claims of the co-defendants that they do not know who killed the victim are contradicted not only by their initial statements to police and, in the case of one of them, by trial testimony, but also by their guilty pleas. Thus, Howell is not entitled to any relief. Issue 7: False testimony Howell argues that the State improperly coerced statements from three witnesses. Two of the witnesses did not testify at trial. The current statement of the remaining witness is highly suspect and Howell has not made a sufficient showing that an evidentiary hearing concerning his testimony is necessary. Issue 8: Appellate counsel Howell argues that, although his attorneys at trial and on appeal raised issues related to a lesser-offense instruction, they failed to raise a federal claim along with those issues. In showing that his attorneys failed to raise a federal issue which would have been reviewable in the Supreme Court or other federal courts, Howell has made a facial showing that counsel’s performance was deficient. However, under Mississippi law and the evidence presented at trial, Howell was not entitled to a lesser-offense instruction. Thus, his attorneys were not ineffective. Issue 9: Expert funds Howell argues that his attorneys should have sought money from the state in order to retain defense experts who would have been able to testify about lighting and defense perception, fingerprint analysis, and firearms ballistics. On direct appeal, the Court found that since Howell did not proceed as an indigent or have the trial court declare him to be an indigent, there is no authority to require the State to fund his request for defense expenses. The finding in the direct appeal that Howell had not been declared to be indigent is incorrect. The fact remains, however, that in order to be entitled to state-funded experts, Howell was required to show an actual, specific need for those experts. Howell has not made such a showing. Issue 10: Sufficiency of evidence Howell argues that the State had no fingerprints, no DNA, no fibers, no ballistics, no confession, no property in his possession that was linked to the victim, or any other conclusive, objective evidence that linked Howell to the murder and that many of the witnesses against Howell have recanted. Howell’s guilt has been affixed by a jury and affirmed on appeal. Two eyewitnesses testified that Howell was the shooter. The murder weapon was found where Howell previously had been. A statement that “Howell shot a man” was deemed an adoptive admission of guilt and was heard by the jury. Even with the recantations and the new affidavits, the jury’s verdict is supported by the evidence. Issue 11: Closing argument Howell argues that the district attorney improperly inflamed the jury by referring to him with the nickname “Chiefa” during closing argument. The claim of improper closing argument is procedurally barred. First, no contemporary objection was made. Second, this issue could have been raised in the direct appeal. In addition, the prosecutor was within reasonable closing argument in referring to Howell by his admitted nickname. Issue 12: Probable cause for arrest Howell argues that his arrest was illegal and that the comments and the lineup which stemmed from it should have been suppressed. This matter was raised at the trial court level and was discussed in Howell’s direct appeal. Thus, it is procedurally barred. In addition, there is no indication that the officers who arrested or questioned Howell exhibited any bad faith in relying on the warrant. As the arrest was legal, there was no deficiency on the part of Howell’s attorneys. Issue 13: Change of venue Howell argues that his attorney failed to adequately investigate and present the motion to transfer venue. Howell’s attorney filed a motion to change venue and supported that motion with numerous affidavits and all known relevant press documentation. The attorney adequately briefed and argued the motion. The mere fact that the motion to transfer venue was not granted does not lead to a finding of ineffective assistance of counsel. Issue 14: Mitigation evidence Howell argues that the trial attorneys were ineffective with regard to presenting mitigation evidence. Howell has offered no substantial mitigation evidence which his attorneys failed to present; therefore, Howell’s claim of ineffective assistance of counsel in developing and presenting mitigation evidence is without merit. Issue 15: Pre-trial lineup procedures Howell argues that the State misrepresented his representation by counsel at the lineup. Howell presents the affidavit of Regan Russell, who states that he was not present at the lineup and did not represent Howell at that point in time. Howell also submits an affidavit from Tom McDonough, who swears that he never represented Howell in this case and was not present at the lineup. Howell’s trial attorney did file a motion to suppress the lineup in which he alleged that Howell was not represented at the lineup. Howell’s attorney apparently made no effort to confirm whether Russell had been present at the lineup or not. He presented no evidence in support of his argument that Howell had not been not represented at that critical stage. In light of the affidavits from Russell and McDonough, these issues have merit, and an evidentiary hearing is required on these combined issues of whether Howell’s attorney was ineffective at the lineup stage. Issue 16: Exculpatory statements Howell argues that a witness’s subsequent statements to prosecutors were exculpatory and were not disclosed to the defense in violation of Brady and the discovery rules. This issue has merit and thus must be resolved by way of an evidentiary hearing to determine the validity of the witness’s present claims. Howell also argues that his attorneys were ineffective in failing to investigate the claims of this witness and to call her to testify at trial. Howell is entitled to an evidentiary hearing on this claim. |
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