Havard v. State


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Docket Number: 2006-DR-01161-SCT
Linked Case(s): 2006-DR-01161-SCT

Supreme Court: Opinion Link
Opinion Date: 05-22-2008
Opinion Author: Carlson, J.
Holding: PETITION FOR POST-CONVICTION RELIEF DENIED.

Additional Case Information: Topic: Post-conviction death penalty - Ineffective assistance of counsel - M.R.E. 606(b) - Prosecutorial misconduct - Victim impact testimony - Response to jury - Limiting instruction - Right to jury trial - Aggravating circumstances - Competency of trial counsel
Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Dickinson, Randolph and Lamar, JJ.
Dissenting Author : Diaz, P.J., without separate written opinion.
Concurs in Result Only: Graves, J.
Procedural History: PCR
Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION

Trial Court: Date of Trial Judgment: 12-19-2002
Appealed from: Adams County Circuit Court
Judge: Forrest Johnson
Disposition: Jeffrey Keith Havard was found guilty of capital murder (murder during the commission of sexual battery) of six-month-old Chloe Britt. The same jury also found that Havard should suffer the penalty of death. Consistent with the jury verdict, the Adams County Circuit Court imposed the death sentence upon Havard. His conviction and sentence were affirmed by this Court on direct appeal. Havard’s motion for rehearing subsequently was denied.
District Attorney: Ronnie Lee Harper
Case Number: 02-KR-0141-J

  Party Name: Attorney Name:  
Appellant: Jeffrey Keith Havard




MISSISSIPPI OFFICE OF CAPITAL POST CONVICTION COUNSEL BY: ROBERT M. RYAN, THOMAS C. LEVIDIOTIS, LOUWLYNN VANZETTA WILLIAMS



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: PAT McNAMARA, MARVIN L. WHITE, JR.  

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Topic: Post-conviction death penalty - Ineffective assistance of counsel - M.R.E. 606(b) - Prosecutorial misconduct - Victim impact testimony - Response to jury - Limiting instruction - Right to jury trial - Aggravating circumstances - Competency of trial counsel

Summary of the Facts: Jeffrey Havard was found guilty of capital murder (murder during the commission of sexual battery). He was sentenced to death. His conviction and sentence were affirmed on direct appeal. Havard has now filed an Application For Leave to Proceed in the Trial Court and Motion for Other Relief.

Summary of Opinion Analysis: Issue 1: Ineffective assistance of counsel Havard argues that he received ineffective assistance of counsel, because trial counsel failed to secure expert assistance to develop evidence to support the defense’s theory of the case; trial counsel failed to research case law supporting their defense theory in order to obtain relief during trial in the form of an appropriate expert witness and/or preserve the trial court’s denial of an expert for direct appeal; and trial counsel, having adopted the theory that no sexual battery occurred, failed to seek a jury instruction to support the theory. The only difference in the instant issue as it is presented here in post-conviction proceedings and its presentation on direct appeal is that the affidavits and reports of Dr. James Lauridson (submitted by Havard to offer the possibility of disproving, through the use of DNA testing, the state’s theory that sexual battery had occurred) are now properly before the Court. Even if counsel had successfully procured an independent DNA expert and that expert had testified that Havard’s DNA was not present on the rape kit samples taken from the victim, that does not exonerate Havard of the sexual battery charge. The absence of Havard’s DNA does not exclude his use of “any object” in the definition of sexual penetration under section 97-3-97. Dr. Lauridson’s affidavit does not lend support to Havard’s claim. Nothing in his affidavit is related to the presence or absence of Havard’s DNA on the rape kit samples taken from the victim. Havard also argues that his trial counsel were ineffective for failing to include a lesser offense instruction. Havard does not present anything other than the record that was before the Court on direct appeal. Therefore, this sub-issue is procedurally barred by the doctrine of res judicata. Havard argues that trial counsel failed to investigate, develop, and present mitigation evidence. The affidavits presented in this post-conviction proceeding contain information that is cumulative of the testimony given at trial. The affidavit of an investigator hired to investigate mitigation evidence is telling of counsels’ effort to investigate. Counsel called two witnesses who gave intelligent and specific mitigation testimony. Not calling witnesses who will testify negatively for a client or who will testify to matters cumulative in nature is not deficient performance by counsel. Havard argues that his counsel were ineffective by impermissibly failing to ask “reverse-Witherspoon” questions, whether the jurors would automatically vote for the death penalty. On direct appeal, the Court refused to consider the affidavit of one of the jurors. This affidavit does not meet the exception to M.R.E. 606(b). In addition, it does not offer merit to Havard’s claim but simply shows that the juror supports the death penalty. Havard argues that he was denied effective assistance of counsel during closing argument of the sentencing phase of the trial, because his counsel conceded the aggravating circumstance of the victim’s tender age and failed to argue mitigating circumstances. This issue is procedurally barred by the doctrine of res judicata. Issue 2: Prosecutorial misconduct Havard argued on direct appeal that the prosecutor’s comments during closing argument suggested to the jury that Havard had previously sexually assaulted the victim and amounted to prosecutorial misconduct. He has failed to demonstrate a novel claim or a sudden reversal of law relative to this issue which would exempt it from the procedural bar of res judicata. Issue 3: Victim-impact testimony Havard argues that the testimony of the victim’s maternal grandmother was highly prejudicial and exceeded the bounds of allowable victim-impact testimony. This issue was discussed in depth on direct appeal and decided adversely to Havard. It is procedurally barred by the doctrine of res judicata. Issue 4: Response to jury Havard argues, as before, that the trial court’s response to the jury deliberation at the sentencing phase made a life sentence less feasible in the minds of the jurors. Havard’s claim is procedurally barred. Issue 5: Limiting instruction Havard argues that the trial court’s limiting instruction of especially heinous, atrocious, or cruel aggravating circumstances violated his constitutional rights because it was unconstitutionally vague. Havard’s claim is procedurally barred. Issue 6: Right to jury trial Havard argues that he has been denied his constitutional rights to notice and jury trial guarantees under the Sixth Amendment to the United States Constitution. The issue is barred. Issue 7: Aggravating circumstances Because Havard does not present a novel claim or a sudden reversal of relevant law, this issue is barred by res judicata. Issue 8: Competency of trial counsel Havard argues that one of his defense attorneys was incompetent to pursue legal relief on Havard’s behalf and that the attorney was intoxicated during Havard’s trial. By Havard’s own admission, he knew and believed his counsel to use drugs. Any concerns Havard may have had regarding his counsel’s drug use was certainly capable of being raised at trial or on direct appeal, and the issue is procedurally barred. In addition, his assertion that the attorney was intoxicated during his trial is speculation at best and without merit.


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