Havard v. State


<- Return to Search Results


Docket Number: 2011-KA-00247-SCT
Linked Case(s): 2011-KA-00247-SCT

Supreme Court: Opinion Link
Opinion Date: 05-10-2012
Opinion Author: Pierce, J.
Holding: Affirmed

Additional Case Information: Topic: Murder - Lindsay brief - Limiting instruction - Right to speedy trial - Right against self-incrimination - Change of venue - Ineffective assistance of counsel
Judge(s) Concurring: Waller, C.J., Carlson, P.J., Randolph, Kitchens, Chandler and King, JJ.
Concurs in Result Only: Dickinson, P.J., and Lamar, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 01-20-2011
Appealed from: George County Circuit Court
Judge: Dale Harkey
Disposition: Appellant was convicted of deliberate-design murder and sentenced to life.
Case Number: 2009-10,160(3)

  Party Name: Attorney Name:  
Appellant: Jonathan Dwight Havard a/k/a Jonathan Havard




W. DANIEL HINCHCLIFF LESLIE S. LEE



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS SCOTT STUART  

Synopsis provided by:

If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals
hand downs please contact Tammy Upton in the MLI Press office.

Topic: Murder - Lindsay brief - Limiting instruction - Right to speedy trial - Right against self-incrimination - Change of venue - Ineffective assistance of counsel

Summary of the Facts: Jonathan Havard was convicted of deliberate-design murder. He was sentenced to life imprisonment. He appeals.

Summary of Opinion Analysis: Issue 1: Lindsay brief Havard’s appellate counsel has filed a Lindsay brief and certified to the Court that he has followed the procedure required of him. Havard, however, has elected to submit pro se a brief for the Court’s consideration. Issue 2: Limiting instruction Havard argues that a limiting or cautionary instruction should have been given by the trial court sua sponte regarding the testimony of the victim’s grandmother and aunt, because their testimony was likely biased. Even though a defendant has a right to have jury instructions on all material issues presented in the pleadings or evidence, it remains the burden of trial counsel to raise and request any limiting or cautionary instruction. Failure to do so at trial will result in a procedural bar on appeal. In this case, the record is devoid of any attempt by defense counsel to object to the instructions or to request a limiting or cautionary instruction regarding testimony by family members of the victim. Issue 3: Right to speedy trial Havard argues that both his constitutional and statutory rights to a speedy trial were violated. Havard waived his statutory claim by failing to raise it with the trial court. The total time between arraignment and trial was 357 days. Three continuance orders were entered in the case at defense counsel’s request. The first order tolled the 270-day period prescribed by section 99-17-1 for 105 days; the second, for another 83 days; and the third, another 85 days, for a total of 273 days. When this total is deducted from the 357 days that elapsed between Havard’s arraignment and the beginning date of his trial, it is apparent that Havard was brought to trial well within the statutory limit. Because Havard did not first raise a speedy-trial claim with the trial court, the Court can decide the issue only if Havard has established a plain-error basis to justify appellate review. Havard merely claims that his defense was prejudiced by the 600 days that elapsed between his arrest and trial, because “witnesses were lost” and his “defense to the charges [was] diminished by the delay,” nothing more. This is not enough to show plain error. Issue 4: Right against self-incrimination Havard argues that the court erred by failing to notify him of his right to abstain from testifying prior to taking the stand. Prior to trial, Havard was read his Miranda rights three times and indicated by signature he understood those rights. At trial, defense counsel called Havard to the stand to testify on his own behalf. The record is devoid of any warning by the trial judge concerning Havard’s right against self-incrimination. Also absent from the record is any objection by defense counsel to the trial judge not advising Havard of his right not to testify prior to him taking the stand. The privilege against self-incrimination may be waived. Where a defendant -- like Havard in the present case -- is presumably equipped with competent counsel, waives his Miranda rights, and shows no hesitancy to take the stand, it cannot be said a trial court judge must provide more. Issue 5: Change of venue A motion for a change of venue must be made in writing and supported by the sworn affidavits of at least two credible individuals. Failure to adhere to the statutory guidelines or make the motion at trial constitutes a waiver. The record is devoid of any motion by Havard to request a change of venue or any affidavits to support his claim. Additionally, there is nothing during voir dire which would give the trial court cause to issue, sua sponte, a motion for change of venue. A defendant must show he or she cannot receive a fair and impartial trial in the county where the offense is charged. Havard failed to do so. Moreover, the record indicates the trial judge took steps to ensure that the jurors would harbor no bias. Issue 6: Ineffective assistance of counsel Generally, ineffective assistance claims are more appropriately brought during post-conviction relief proceedings. Where the record lacks sufficient evidence to adequately address the claim, the Court should deny relief, preserving the defendant’s right to argue the issue through a post-conviction-relief petition. Here, the record does not contain sufficient evidence for the Court to adequately address Havard’s claims.


Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court