Howard v. State


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Docket Number: 2003-DR-01881-SCT
Linked Case(s): 2003-DR-01881-SCT ; 2003-DR-01881-SCT

Supreme Court: Opinion Link
Opinion Date: 09-28-2006
Opinion Author: Waller, P.J.
Holding: PETITION FOR POST-CONVICTION RELIEF DENIED

Additional Case Information: Topic: Death penalty post-conviction relief - Prosecutorial misconduct - Ineffective assistance of counsel - Grand jury proceeding - Discovery motion - M.R.A.P. 22(c)(4)(ii) -Expert testimony - Heinous, atrocious and cruel aggravator - Defective indictment - Arson aggravator - Disproportionate sentence - Avoiding arrest aggravator - Other crimes’ evidence - Bite mark evidence
Judge(s) Concurring: Smith, C.J., Cobb, P.J., Carlson, Dickinson and Randolph, JJ.
Judge(s) Concurring Separately: Dickinson, J., Joined by Cobb, P.J.; Smith, C. J., Waller, P.J. Carlson and Randolph, JJ., Join In Part.
Non Participating Judge(s): Easley, J.
Concur in Part, Dissent in Part 1: Graves, J.
Concur in Part, Dissent in Part Joined By 1: Diaz, J.
Procedural History: Jury Trial
Nature of the Case: CIVIL - DEATH PENALTY - POSTCONVICTION

Trial Court: Date of Trial Judgment: 05-25-2000
Appealed from: Lowndes County Circuit Court
Judge: Lee J. Howard
Disposition: Eddie Lee Howard, Jr., was indicted on the charge of capital murder with the underlying felony of rape. He was found guilty and a jury sentenced him to death.
District Attorney: Forrest Allgood
Case Number: 92-400-CR1

Note: Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief filed by counsel for petitioner is denied.

  Party Name: Attorney Name:  
Appellant: Eddie Lee Howard, Jr.




MISSISSIPPI OFFICE OF CAPITAL POST-CONVICTION COUNSEL: ROBERT M. RYAN, LOUWLYNN VANZETTA WILLIAMS, WILLIAM J. CLAYTON



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JUDY T. MARTIN  

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Topic: Death penalty post-conviction relief - Prosecutorial misconduct - Ineffective assistance of counsel - Grand jury proceeding - Discovery motion - M.R.A.P. 22(c)(4)(ii) -Expert testimony - Heinous, atrocious and cruel aggravator - Defective indictment - Arson aggravator - Disproportionate sentence - Avoiding arrest aggravator - Other crimes’ evidence - Bite mark evidence

Summary of the Facts: Eddie Howard, Jr., was convicted of capital murder with the underlying felony of rape and sentenced to death. On appeal, the Supreme Court reversed the conviction and remanded the case for a new trial. Shortly before the second trial, the indictment was amended to charge Howard as a habitual offender. Howard was again convicted of capital murder with the underlying felony of rape and sentenced to death. On appeal, the Court affirmed the judgment of the circuit court. Howard has filed a petition for post-conviction collateral relief.

Summary of Opinion Analysis: Issue 1: Prosecutorial misconduct Howard argues that he was denied a fair trial due to prosecutorial misconduct, because numerous State actors have intentionally, knowingly, and deliberately concealed, withheld, and refused to produce exculpatory and material evidence. Howard argues that the existence of exculpatory DNA evidence and the test results were concealed. However, there has never been any DNA testing in this case even though Howard was recently given the opportunity to seek DNA testing. In addition, the trial transcript clearly shows that Howard’s counsel was aware of the biological evidence which had been collected and sent to the crime lab. Howard also argues that the State failed to disclose the existence of alternative suspects. However, the discovery certificates show that the information regarding these alternative suspects was disclosed to Howard and his attorneys prior to trial. Howard also argues that the existence of two rolls of unprocessed 35 mm film was concealed by the State. It appears that the existence of this film was disclosed to Howard and his counsel before trial. In addition, a careful comparison of the photographs admitted at trial with the “new” photographs from the unprocessed film reveals that almost all of the “new” photographs are cumulative. Issue 2: Ineffective assistance of counsel Howard argues that he was denied constitutionally effective assistance of counsel. He first argues that his trial counsel were ineffective in failing to pursue a change of venue. However, Howard has not offered any proof that he did not receive a fair and impartial trial in the county where the offense was charged. Howard argues that his trial counsel failed to conduct an adequate investigation into the guilt phase of the trial. However, Howard cannot prove that counsels’ failure to discover alleged coerced perjured testimony was deficient performance. Howard argues that his trial counsel rendered ineffective assistance of counsel by failing to investigate his alibi defense and by failing to present this defense at trial. However, the affidavits and statements Howard offers do not actually provide him with an alibi for the crime. Howard argues that his trial counsel neglected to voir dire an expert as to his qualifications to render expert opinion testimony and further neglected to cross-examine him following direct examination by the State. Counsels’ decisions regarding the examination of the expert were trial strategy. Howard argues that his trial counsel failed to present expert testimony to rebut the testimony of the expert on bite-mark evidence. While the failure to call an expert witness was deficient performance, Howard has not proven prejudice to his defense. In order for Howard to show that the result of the proceeding would have been different, he must offer an affidavit from an expert witness who rebuts the State’s expert testimony. Howard has offered numerous expert affidavits and other documents which attack the expert, his testimony, and bite mark evidence in general. Thus, Howard has not proven prejudice to his defense. Howard argues that his counsel failed to conduct any investigation of his background for mitigation purposes. If Howard’s family had testified that Howard was a great person and had never been violent, then the State could have presented evidence to the jury regarding Howard’s convictions for assault with intent to ravish and assault with intent to ravish and rape. It appears that Howard’s counsel did all they could within the limitations placed on them by Howard. Howard argues that his trial and appellate counsel rendered constitutionally ineffective assistance in failing to challenge the use of the “avoiding arrest” aggravating circumstance. Because the underlying claims are without merit, Howard cannot show the requisite deficient performance and resulting prejudice. Howard argues that the prosecutor’s comment that Howard might escape if sentenced to prison for life denied him a fair trial and his trial counsels’ failure to object to the comment constituted constitutionally ineffective assistance of counsel. The prosecutor’s comment was not of such a character or substance that Howard’s right to a fair trial was compromised. Howard argues that trial counsel and appellate counsel were ineffective in the failure to challenge the use of the arson aggravator. Because the underlying claims are without merit, Howard cannot show the requisite deficient performance and resulting prejudice. Issue 3: Grand jury proceeding Howard argues that he was denied his fundamental right to a fundamentally fair grand jury proceeding, because exculpatory evidence was also concealed from the grand jury. Howard has failed to prove that the State has concealed any evidence, let alone exculpatory evidence. Issue 4: Discovery motion Howard argues that the court erred in denying his motion to depose several witnesses and that his due process and equal protection rights were violated. Discovery in capital post-conviction proceedings is governed by M.R.A.P. 22. Pursuant to M.R.A.P. 22(c)(4)(ii), Howard had to file a motion with the circuit court seeking the discovery. The motion had to indicate the purpose of the discovery and that such discovery is not frivolous. Howard had to show that the discovery is likely to be helpful in the investigation, preparation or presentation of specific issues which are proper for post-conviction relief. Howard failed to show that the discovery was not frivolous and that the discovery would help in the preparation of specific post-conviction relief issues. Issue 5: Expert testimony Howard consented to have Dr. Curtis take molds of Howard’s teeth. At trial, after testifying to his background and qualifications, Dr. Curtis was accepted as an expert in the field of dentistry, without objection from defense counsel. Howard now argues that it was prejudicial to allow the expert testimony of Dr. Curtis. This argument could have been raised at trial and/or on direct appeal and is procedurally barred. In addition, Howard does not offer the affidavit of an expert witness who opines that Dr. Curtis was not qualified as an expert in the field of dentistry. Issue 6: Heinous, atrocious and cruel aggravator Howard argues that the facts of this case fail to provide a sufficient basis for the giving of the especially heinous, atrocious or cruel aggravating circumstance and that the jury instruction regarding this aggravating circumstance was unconstitutionally vague and over broad. Howard’s argument regarding the sufficiency of the evidence is procedurally barred by the doctrine of res judicata. In addition, the record reveals that the evidence was sufficient to support this aggravating circumstance, including the fact that the victim was beaten, strangled, raped, stabbed, and then left to die in her home which was set on fire. The identical instruction used in this case was approved by the Court in another case. Issue 7: Defective indictment Howard argues that his indictment was fatally defective because the aggravating circumstances were not included in the indictment. This issue was capable of being raised on direct appeal and is procedurally barred. In addition, this argument has been considered by the Court and consistently rejected. Issue 8: Arson aggravator Howard argues that it was reversible error to instruct the jury regarding the aggravating circumstance that the murder was committed during the commission of arson. This issue is procedurally barred. Issue 9: Disproportionate sentence Howard argues that his death sentence is excessive in relation to the crime for which it was imposed. On direct appeal, the Court found that compared to other cases, the sentence of death here is not excessive or disproportionate. Issue 10: Avoiding arrest aggravator Howard argues that the use of the avoiding or preventing a lawful arrest or effecting an escape from custody aggravator was inappropriate to his case. There was sufficient evidence at trial to support this aggravating circumstance. Issue 11: Other crimes’ evidence Howard argues that the court erred in denying Howard’s motion for a mistrial when the District Attorney mentioned that Howard had previously been in the penitentiary. This issue is barred by the doctrine of res judicata. Issue 12: Bite mark testimony Howard argues that the court erred by admitting Dr. West’s bite mark testimony because it was not reliable. This argument was considered and rejected on direct appeal. Howard also argues that the use of bite mark evidence is inherently unreliable. The cases cited by Howard hold that it is impermissibly suggestive to show an eye witness a photograph of the defendant only. Identification of the defendant by an eyewitness to a crime is distinguishable from an expert witness’ conclusion, based upon scientific analysis, that a defendant inflicted a particular injury.


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