Marlon Latodd Howell v. State of Mississippi
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2001-DP-01104-SCT
MARLON LATODD HOWELL a/k/a MARLON COX
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
3/30/2001
HON. R. KENNETH COLEMAN
UNION COUNTY CIRCUIT COURT
DUNCAN L. LOTT
OFFICE OF THE ATTORNEY GENERAL
BY: JUDY T. MARTIN
MARVIN L. WHITE, JR.
JOANNE M. McLEOD
JERROLYN M. OWENS
JAMES M. HOOD, III
CRIMINAL - DEATH PENALTY - DIRECT
APPEAL
AFFIRMED - 10/23/2003
EN BANC.
EASLEY, JUSTICE, FOR THE COURT:
PROCEDURAL HISTORY
¶1.
Marlon Latodd Howell (Howell) was indicted along with Curtis W. Lipsey (Lipsey) and
Adam Ray (Ray) for capital murder arising from the slaying and attempted robbery of Hugh
David Pernell (Pernell) in New Albany, Mississippi. Howell was tried and convicted of capital
murder in the Union County Circuit Court. The jury determined that Howell should suffer the
penalty of death by lethal injection. Howell's subsequent motion for a new trial was denied.
Howell perfected his appeal to this Court after being allowed to proceed in forma pauperis.
FACTS
¶2.
Pernell, a retired postal worker, worked as a newspaper carrier for the Tupelo Daily
Journal. On May 15, 2000, Pernell was delivering newspapers when he was flagged down by
another vehicle sometime after 5:00 a.m. Howell, Ray and Lipsey were in the other vehicle.
Howell approached Pernell's driver's side window and shot Pernell. Pernell's vehicle hit a
parked vehicle in a nearby driveway. Howell, Ray and Lipsey fled the scene.
¶3.
The murder occurred in front of the home of Charles Rice (Rice). At the time, Rice
was up watching television and getting ready for work. David Grisham (Chief Grisham), New
Albany Police Chief, investigated Pernell's murder and spoke with Rice. Rice had observed
the exchange. Rice testified that he looked out his window when he heard a horn blowing. He
observed the two vehicles stop in front of his house. Rice testified that a man got out of the
passenger's side of the rear vehicle and walked between the two vehicles up to the driver's side
of the front vehicle. A conversation ensued, and then the man pulled out a pistol and shot the
driver. The shooter then jumped back and got into the rear vehicle which had pulled up to
pickup the shooter. Rice testified that he called 911. Rice described the shooter as a young
black male, early twenties, clean cut, short hair, approximately six feet tall, light complexion.
Rice described the rear vehicle as a dark-colored, late model Oldsmobile based upon the
insignia in the middle of the tail lights. Later on May 15, 2000, Chief Grisham received an
anonymous telephone call suggesting that he question Lipsey. Chief Grisham left a message
for Lipsey to contact the police. Lipsey and Ray voluntarily went to the police station where
2
they were interviewed by Officers Tim Kent (Officer Kent) and Chief Grisham. Based on the
statements made by Lipsey and Ray, Chief Grisham began looking for Howell.
¶4.
Howell was arrested at approximately 7:30 p.m. on May 15, 2000, and questioned by
Officer Kent and Chief Grisham. Howell stated that he did not know anything about the
shooting. Howell claimed that he was in Corinth with a woman at the time of the murder.
¶5.
Brandon Shaw (Shaw) testified that on May 14, 2000, he rode around with Lipsey and
Ray. They picked up Howell. When Howell got into the vehicle, he stated that he needed
money to pay his probation officer.1 The four then drove to Tupelo. While stopped at a gas
station, Howell observed a man in the parking lot and stated "there goes an easy lick." After
returning to New Albany, Howell, Lipsey, Ray and Shaw sat around at Shaw's house for a few
hours talking. Shaw's brother, Quinton Shaw (Quinton), and his girlfriend, Andrea, were also
at the house but in a bedroom. Howell, Lipsey and Ray left together around 4:00 a.m. in Ray's
grandmother's car. They all returned together around 5:30 a.m.
¶6.
Marcus Powell (Powell), who lived in Blue Mountain, had arrived at Shaw's home
around 5:10 a.m. and had gone to sleep on the couch. Earlier that evening, Powell had used
Quinton's Chevy Lumina. On cross-examination, Powell testified that he was awakened by
Howell, Lipsey and Ray returning to Shaw's house. Powell saw them go back to Shaw's
bedroom. Howell was wearing a green shirt that evening, and he had a green shirt wrapped
around his hand when he returned to the house. Ray came back to the living room and sat down.
Powell never saw a gun.
1
At the sentencing phase of trial, Officer Nance testified that a probationer had to pay a $25 monthly
supervision fee and an extra $10 if a probationer fails a drug test.
3
¶7.
Shaw testified that his cousin, Ray, came back to his bedroom, knocked on the door and
stated that "Howell had shot somebody." Shaw came out of his bedroom and saw Howell in the
living room with a green shirt wrapped around his hand. Howell asked Shaw to drive him home.
Shaw asked his brother to borrow his Chevy Lumina to carry Howell home to Blue Mountain.
Powell also wanted a ride home to Blue Mountain.
¶8.
While Shaw went to borrow Quinton's car keys, Howell, Ray and Lipsey had already
gone outside. Howell still had the green shirt around his hand. Shaw testified that he carried
Powell home first and then dropped Howell off at his house.
¶9.
Shaw then dropped off Lipsey and Ray.2 When Shaw returned home, he discovered a gun
in his backyard. Shaw convinced Lipsey and Ray to go with him to the police later that day to
report what had happened. Officer Kent went behind Shaw's house and discovered a gun in the
weeds in the backyard. Shaw testified that the gun was lying on top of a bag in the bushes when
Officer Kent came to retrieve it.
¶10.
Lipsey testified that he was with Howell when he shot Pernell. On the evening of May
14, 2000, Lipsey was with Shaw and Ray when they picked up Howell to go to Tupelo.
According to Lipsey, Howell indicated that he needed money to pay his probation officer.
While in Tupelo, Howell spotted a man outside at a payphone at a convenience store. Howell
stated that the man would be "a good lick."
¶11.
Lipsey further testified that after leaving Shaw's house, he was in the car with Ray and
Howell when Howell reached over and blinked the vehicle's lights at another vehicle trying to
make it stop. Howell got out of the vehicle trying to make the other vehicle stop. Howell then
2
Ray had returned his grandmother's car before they left for Blue Mountain.
4
went over to the other vehicle and began fighting with the man for about half a minute. Howell
pulled a gun and shot the man. Howell then jumped back into the vehicle and went back to
Shaw's house with Lipsey and Ray. Lipsey testified that Howell told them that the man sprayed
him in the face with mace, so he shot him.
¶12.
According to Lipsey, Howell woke Shaw when they got to Shaw's house. Lipsey
testified that he and Ray remained in the living room while Howell went to get Shaw. Shaw
carried Powell home first and then dropped off Howell. Lipsey saw Howell take a Wal-Mart
sack out of the vehicle and put the gun in the sack. Lipsey did not know what Howell did with
the gun.
¶13.
Lipsey testified that he went with Shaw and Ray to the police station later that day. He
made two statements to the police. For his participation in Pernell's murder, Lipsey pled guilty
to manslaughter and armed robbery, receiving a sentence of twenty years and ten years,
respectively, to run consecutively.
¶14.
Powell testified that on May 14, 2000, he initially arrived at Shaw's house around 8:00
p.m. Ray was already at Shaw's house when he arrived. Ray and Shaw left together to pick up
Howell and Lipsey. All four returned to Shaw's house. Powell testified that Howell stated that
he needed to pay his probation officer or he was going to be locked up. Shaw, Howell, Ray and
Lipsey all left Shaw's home around 11:00 p.m. Powell borrowed Quinton's vehicle to go to
Pontotoc.
¶15.
Powell returned to Shaw’s house in New Albany around 5:10 a.m. Powell was asleep
on the couch when Howell, Lipsey and Ray came back to Shaw's house. Ray sat on the couch
beside him. Howell went back to Shaw's bedroom. Powell testified that Shaw used Quinton's
5
vehicle to carry Howell and him home to Blue Mountain. Powell never saw Howell with a gun,
but Howell had a green shirt wrapped around his hand. Powell testified that it was the same
green shirt Howell had been wearing earlier. Powell was dropped off at his home first.
¶16.
Dr. Steven Hayne (Dr. Hayne), state pathologist, conducted the autopsy on Pernell's
body. Dr. Hayne testified that Pernell died from a gunshot wound. The bullet entered the chest
cavity and traveled from Pernell's front left side through the body on an essentially horizontal
plane without deviation up or down and then traveled from front to back at approximately 40
to 50 degrees. Once the bullet entered the chest cavity, it fractured the fourth left rib. The
bullet traveled through the left lung and the two chambers of the heart. After the bullet traveled
through the left ventricle and the left atrium, it went through the aorta. The bullet left the heart
and traveled from the aorta to enter the right lung. The bullet struck the 7th posterior right rib
on the right flank, fracturing that bone before it came to rest. ¶17.
The bullet caused
extensive internal bleeding. There were one and one half quarts of blood in the right chest
cavity, approximately one and one half quarts of blood in the left chest cavity, and one cup of
blood in the structure that holds the heart's pericardial sac. Dr. Hayne testified that blood
displacement of that magnitude would create irreversible shock that would cause death without
immediate medical intervention. Dr. Hayne estimated that irreversible shock would have
occurred within five to ten minutes.
¶18.
Dr. Hayne retrieved the bullet and transported it under a chain of custody to the
Mississippi State Crime Lab in Jackson to the firearms division for analysis. Dr. Hayne
concluded the manner of death to be homicide due to a gunshot wound. On cross-examination,
Dr. Hayne testified that there was no evidence of a struggle, lacerations, contusions or
6
scratches. However, on redirect, Dr. Hayne testified that he could not preclude the possibility
of a struggle, only that there was no evidence of a struggle.
¶19.
Starks Hathcock (Hathcock), a forensic scientist specializing in firearms identification
with the Mississippi Crime Lab, performed a ballistics examination on the gun recovered from
Shaw's residence, the bullet retrieved by Dr. Hayne, and the cartridge case recovered from the
crime scene. Hathcock fired and retrieved bullets fired from the Larcin .380 caliber handgun
recovered from Shaw's residence to compare to the bullet recovered from Pernell's body.
Hathcock examined the class characteristics and individual characteristics to that firearm.
Hathcock concluded that the .380 caliber handgun recovered and submitted to the crime lab
was the firearm that fired the bullet recovered from Pernell. To examine the recovered
cartridge case, Hathcock compared the cartridge case to the markings on the breach case of
the firearm. Hathcock found that the markings on the cartridge case bore class characteristics
consistent with the firearms, but he did not find specific characteristics consistent with that
firearm to positively include or exclude it as being fired from that gun.
¶20.
On appeal, Howell raises the following issues for consideration by this Court:
I.
Whether the trial court erred in denying a change of venue.
II.
Whether the trial court erred in denying Howell access to
county funds in order to employ an investigator, a jury
consul tant, a daily transcript, and additional counsel to
assist with his defense.
III.
Whether the trial court erred in failing to quash the jury
panel.
IV.
Whether the trial court erred in finding that the State's use
of peremptory strikes did not violate Batson.
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V.
Whether the trial court erred in denying Howell's request
for individual sequestered voir dire.
VI.
Whether the trial court erred in limiting Howell's voir dire
examination.
VII.
Whether the trial court erred in admitting Rice's eyewitness
identification testimony.
VIII. Whether the trial court erred in admitting Howell's statement.
IX.
Whether the trial court erred in allowing witnesses to
testify as to statements that Howell made.
X.
Whether the trial court erred in allowing Shaw to testify as
to statements made by co-defendant, Ray.
XI.
Whether the trial court erred in refusing to allow Howell to
re-cross-examine Shaw after the State's re-direct
examination.
XII.
Whether the trial court erred in denying Howell's request
for a directed verdict.
XIII. Whether the trial court erred in granting the State's instruction S2, which referred to attempted robbery; and whether Mississippi
Code Annotated, Section 97-3-19 does not specifically enumerated
attempted robbery as an underlying offense for conviction of
capital murder.
XIV. Whether the trial court erred in granting the State's instruction S6 which did not instruct the jury on simple murder and
manslaughter; and whether the trial court erred in denying
Howell's instructions D-13 and D-18 on the crime of simple
murder and manslaughter.
XV.
Whether the trial court erred in denying instruction D-3 on
the weight of the evidence.
XVI. Whether the trial court erred in denying instruction D-8 on the
jury's consideration of testimony of a law enforcement officer.
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XVII.
Whether the trial court erred in denying instruction D-16 as
to cross-racial eyewitness identification.
XVIII.
Whether the trial court erred in denying Howell's motion
for a mistrial and renewed motion for change of venue based
upon a juror's father allegedly sitting on front row of
audience with victim's family.
XIX. Whether the trial court erred in allowing the district attorney, in
closing argument, to refer to Howell's failure to tell somebody
about his alibi defense or give details.
XX.
Whether the trial court erred in denying a twenty-four (24)
hour "cooling off" period before the jury considered
sentencing.
XXI. Whether the trial court erred in the sentencing phase by allowing
evidence of Howell's previous conviction for possession of
marijuana as an aggravating factor.
XXII.
Whether the trial court erred in the sentencing phase by
allowing evidence of fees due from Howell during his
probation as double use of the same robbery element and
pecuniary gain element in the guilt and sentencing phase.
XXIII.
Whether the trial court erred in the sentencing phase by
allowing the introduction of the indictment against Howell
on a charge of sale of controlled substance, marijuana.
XXIV.
Whether the trial court erred in granting sentencing
instruction S-2 because it allegedly removed the issue of
sympathy and mercy from consideration by the jury,
improperly listed aggravating factors of imprisonment and
pecuniary gain, and failed to instruct the jury on how to
properly weigh mitigating factor against aggravating facts
and define what mitigating and aggravating factors are.
XXV.
Whether the trial court erred in denying Howell's
sentencing instruction.
XXVI.
Whether the trial court erred in the sentencing phase by
allowing the district attorney to refer to the victim, Pernell,
9
his work, his loss, and what Pernell might say if he were
still alive.
XXVII.
Whether the trial court erred in denying Howell's post-trial
motion for a new trial.
XXVIII.
Whether the imposition of the death penalty is excessive or
disproportionate in this case.
DISCUSSION
I.
¶21.
Change of Venue
Howell contends that the trial court erred by denying his request for a change of venue.
Howell's motion was supported by six newspaper articles: (1) dated May 16, 2000, from the
Tupelo Daily Journal, which described the crime, victim, and community reaction, but did not
name Howell; (2) dated May 31, 2000, from the Tupelo Daily Journal, which reported on a
totally separate crime and briefly referred to this crime, but did not name Howell; (3) dated
May 17, 2000, from the Tupelo Daily Journal, which reported on the arraignment of the three
co-defendants and the details of the crime, contained pictures of the three co-defendants, and
stated that the court appearance was emotional for the victim's family and the defendants'
families; (4) dated May 17, 2000, from the Southern Sentinel, which reported the details of
the crime; (5) dated May 17, 2000, from the New Albany Gazette, which reported the details
of the crime and contained pictures of the victim and the three co-defendants and was re-run
on May 19, 2000; and (6) dated May 19, 2000, from the New Albany Gazette, which reported
on the details of the crime, funeral preparations, and community reaction.
¶22.
Additionally, Howell submitted seven identical brief affidavits, which stated that Howell
could not receive a fair and impartial trial in Union County. Howell also introduced a
10
videotape of a WTVA television newscast. Although Howell did not submit his own affidavit,
as statutorily required, the trial court allowed Howell to state in the record his desire for a
change of venue.
¶23.
The State called four witnesses to testify in response to Howell's motion: (1) Tom
Cooper (Cooper), Chancery Clerk of Union County; (2) Danny Barnes (Barnes), Second
District Supervisor of Union County; (3) Thomas Stanford (Stanford), retired Circuit Clerk of
Union County; and (4) Norman Treadway (Treadway), Fourth District Supervisor of Union
County. Each witness testified that Howell could receive a fair and impartial trial in Union
County.
¶24.
Specifically, Cooper testified that in his capacity as chancery clerk he dealt with a wide
assortment of people from all over Union County. Prior to becoming chancery clerk, Cooper
had worked at the Union Grocery Company and served as Mayor of New Albany. Cooper stated
that he considered himself to be fairly well informed as to what is happening in the county.
Cooper testified that until he was contacted about testifying, it had been several months since
he had heard anything about Howell's case. Cooper had not personally heard anybody threaten
Howell, express ill will towards Howell or prejudice towards his case.
¶25.
Barnes testified that he had lived in Union County for thirty-six years and knew a lot of
people in the county both inside and outside of the second district. Before becoming a
supervisor, Barnes had served as a policeman, a deputy sheriff and a constable. As a member
of the Board of Supervisors, Barnes testified that he had continuous dealings with people in
the county and considered himself to be a well-informed resident of Union County. Barnes
did not recall any media coverage concerning Howell's case since the days immediately
11
following Pernell's death. Barnes did not believe that Pernell was well known within the
county outside of New Albany. He had not heard any ill will expressed toward Howell by
people in his district.
¶26.
On cross-examination, Barnes testified that after Pernell's murder had first occurred,
he had heard some comments within New Albany like "they shouldn't be given a trial." On
redirect, Barnes testified that he believed that because of his law enforcement experience,
people would be more likely to ask him about the case or talk to him about the case. However,
people in his district had not talked to him about the case. No one had expressed to him any
opinion about how this case should "turn out."
¶27.
Stanford testified, that as the former circuit clerk for Union County, he dealt with a
wide assortment of people and continued to stay in contact with people all over the county.
At the time of the incident, people were concerned about the case and there was news coverage.
However, several days following Pernell's death, there was very little news coverage. Stanford
had not seen any newspaper articles in the last month before trial or any recent news coverage.
Stanford also testified about his experience as circuit clerk and that the jury pool is selected
randomly from the county's list of registered voters.
¶28.
On cross-examination, Stanford testified that he had heard people express sympathy for
both the Pernell and Howell families. He knew Howell's father, Reverend James Howell (Rev.
Howell), and thought a lot of the family. Stanford heard that Howell was on probation for a
drug-related offense when the incident occurred, but he could not testify as to whether people
out in the county had heard about a drug conviction.
12
¶29.
Treadway testified that he had been a supervisor in the eastern part of Union County
since 1982. Initially there was some news coverage concerning Pernell's death, but Treadway
had not read anything about it in the last two months before trial. Treadway heard very little
mention of Pernell's death in his part of the county. As supervisor for nineteen years,
Treadway knew a lot of people in Union County. Treadway had not heard anyone express any
ill will toward Howell or prejudgment of the case.
¶30.
The decision to grant a venue change rests in the sound discretion of the trial judge.
Hoops v. State, 681 So.2d 521, 526 (Miss. 1996); Johnson v. State, 476 So.2d 1195, 1208
(Miss. 1985); Winters v. State, 473 So.2d 452, 457 (Miss. 1985); Cabello v. State, 471 So.2d
332, 339 (Miss. 1985). This Court will not disturb the ruling of the trial court where the sound
discretion of the trial judge in denying a change of venue was not abused. Burrell v. State, 613
So.2d 1186, 1190 (Miss. 1993); Harris v. State, 537 So.2d 1325, 1328 (Miss. 1989); White
v. State, 495 So.2d 1346, 1349 (Miss. 1986).
¶31.
In Davis v. State, 767 So.2d 986, 993 (Miss. 2000), this Court held that “[a] motion for
change of venue ‘must be in writing and supported by affidavits of two or more credible
persons showing that the defendant cannot receive an impartial and fair trial in that particular
county because of prejudgment of the case or grudge or ill will to the defendant in the mind
of the public.’” (citing Hoops, 681 So.2d at 526).
¶32.
The right to a fair trial by an impartial jury is guaranteed by both the federal and state
constitutions. Johnson, 476 So.2d at 1208 (citing U.S. Const. Amend. VI and Miss. Const. art.
3, § 26)). “The accused has a right to a change of venue when it is doubtful that an impartial
13
jury can be obtained.” Davis, 767 So.2d at 993 (citing White, 495 So.2d at 1348). “[U]pon
proper application, there arises a presumption that such sentiment exists; and, the state then
bears the burden of rebutting that presumption.” Johnson, 476 So.2d at 1211.
¶33.
This Court enumerated “certain elements which, when present would serve as an
indicator to the trial court as to when the presumption is irrebutable.” White, 495 So.2d at
1349. The elements are as follows:
(1)
(2)
(3)
capital cases based on considerations of a heightened standard of review;
crowds threatening violence toward the accused;
an inordinate amount of media coverage, particularly in cases of
(a)
serious crimes against influential families;
(b)
serious crimes against public officials;
(c)
serial crimes;
(d)
crimes committed by a black defendant upon a white victim;
(e)
where there is an inexperienced trial counsel.
Id.; Davis, 767 So.2d at 993-94; Baldwin v. State, 732 So.2d 236, 241 (Miss. 1999); Burrell,
613 So.2d at 1189-90.
¶34.
In the case sub judice, Howell filed a motion for a change of venue accompanied by
seven affidavits. He claims that the “alleged murder [of Pernell] evokes great passion and
prejudice in this community." Howell's motion contended that a jury empaneled in a case of
an assaultive crime by blacks against whites in Union County, a largely rural, small county with
a majority white population, would follow a "long tradition" of convicting "on almost any
evidence to serve as a deterrent to blacks." Howell's motion stated that the people of a largely
rural county such as Union County would "naturally have fears and apprehensions of murder
cases." The trial court conducted a hearing on Howell's motion for change of venue. Howell
14
testified at the change of venue hearing that he thought that he could not receive a fair trial in
Union County.
¶35.
The State then had the burden of rebutting the presumption. See Johnson, 476 So.2d
at 1211. In support of its position, the State called the four witnesses, Cooper, Barnes,
Stanford and Treadway, to testify. None of the State's witnesses testified to having any
knowledge of any grudge or ill will toward Howell, threats against Howell or prejudgments of
the case. Within the last months prior to trial, none of the State's witnesses had heard any
publicity about the case. The State rested and Howell offered no additional evidence to support
his position. The trial court withheld ruling on the change of venue motion until it could
review a tape of a newscast and transcript of the newscast prepared by WTVA offered by the
defense and the affidavits filed to support Howell's motion. In denying Howell's motion for
change of venue, the trial court stated, "having considered the affidavits and exhibits filed on
behalf of the defendant and the testimony presented the [c]ourt finds that the State has
overcome the presumption raised by the filing of the affidavits seeking change of venue...."
¶36.
Given the facts surrounding this issue, we find that Howell did not demonstrate an abuse
of discretion by the trial court’s denial of the motion for change of venue. There was no
evidence offered of any threatened violence towards Howell, nor an inordinate amount of
media coverage. The testimony of the State's witnesses demonstrated that Howell could
receive a fair trial. Upon the conclusion of testimony from the State's witnesses, Howell
offered no additional evidence to rebut the State’s witnesses and support his motion.
¶37.
Finally, Howell did not present any evidence that he could not or did not receive a fair
trial from twelve jurors who heard his case. Because a large number of the venire panel had
15
read about the case in the newspaper, the trial judge questioned the entire panel to determine
whether anyone had formed or expressed an opinion concerning the guilt or innocence of
Howell based on anything they may have read, heard or seen in the media. The trial court
informed the venire panel that if they had not already responded to the trial court's prior
questions concerning media coverage, they must respond at that time if anything they had read,
heard or seen would affect their decision. The trial court informed the panel that their
responses were being made under oath. No venire member responded that they had formed or
expressed an opinion as to Howell's guilt. No venire member expressed that they had any
personal knowledge of the case or had been pressured by anyone on how to vote. “The linchpin
is whether the venire members stated that they could be fair and impartial jurors if chosen.”
Simon v. State, 688 So.2d 791, 803 (Miss. 1997). Based on the evidence in the record, we
find that the trial court did not abuse its discretion in denying the motion for change of venue.
Accordingly, this issue is without merit.
II.
¶38.
Failure to Grant Howell County Funds For His Defense
Howell contends that the trial court erred in denying funds for his defense to hire: (1)
an investigator; (2) a jury consultant; (3) limited daily transcripts; (4) additional counsel; and
(5) additional psychiatric evaluation. At trial, Howell did not proceed as a pauper and
accordingly he did not have court-appointed counsel. Howell's attorney was retained and chose
to handle the case on a pro bono basis as a favor to Howell's father.
A. Investigator
¶39.
Terry Cox (Cox) conducted an investigation on Howell's behalf. Rev. Howell testified
that Cox was employed and compensated from donations received from friends. Cox testified
16
that his investigation was limited due to available funds. Howell's family was having trouble
paying for his services. Cox had primarily been able to interview the State's witnesses, but he
was not able to conduct any investigation into any possible mitigating issues. The trial court
denied Howell's motion for funds for an investigator. The trial court stated that:
The court is of the opinion that there has not been any showing that the
defendant has been or is being denied a fair opportunity to present [its] defense
based on what the court has before it.
This issue is without merit.
B. Jury Consultant
¶40.
Howell further contends that the trial court erred in denying his request for a jury
consultant. Rev. Howell testified that he did not have the funds available to hire a jury
consultant to help pick Howell's jury. As pastor of Bethlehem Baptist Church in Tippah County
for approximately twenty years, Rev. Howell did not have much contact with people outside
of his church. Furthermore, Howell's attorney asked the trial court to take notice that he was
not from Union County; and therefore, he would not be familiar with a venire panel drawn from
Union County. On cross-examination, Rev. Howell testified that he had a lot of relatives in
Union County, grew up in New Albany and also graduated from a school in New Albany.
Howell testified that besides the nine years that he lived in Starkville he had lived in New
Albany until 1998. The trial court denied Howell's motion for a jury consultant.
¶41.
This Court has stated:
[T]he Fifth Circuit has recently held that the right of an indigent to a courtappointed psychiatric expert does not extend to a right to a jury-selection
expert. Moore v. Johnson, 225 F.3d 495, 503 (5th Cir. 2000). There, the court
noted that a "defendant cannot expect the state to provide him a mostsophisticated defense; rather, he is entitled to 'access to the raw materials
17
integral to the to the building of an effective defense.'" Moore, 225 F.3d at 503
(citing Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d
53(1985)).
Grayson v. State, 806 So.2d 241, 255 (Miss. 2001) (emphasis added).
¶42.
This Court has further analyzed an indigent's right to defense expenses to hire experts,
stating:
An indigent's right to defense expenses is "conditioned upon a showing that
such expenses are needed to prepare and present an adequate defense." Ruffin
v. State, 447 So.2d 113, 18 (Miss. 1984). Concrete reasons for requiring an
expert must be provided by the accused. Hansen v. State, 592 So.2d 114, 125
(Miss. 1991).
In determining whether a defendant was denied a fair trial because of failure to
appoint or allow funds for an expert, some of the factors to consider are whether
and to what degree the defendant had access to the State's experts, whether the
defendant had the opportunity to cross-examine those experts, and lack of
prejudice or incompetence of the State's experts. Fisher v. City of Eupora, 587
So.2d 878, 883 (Miss. 1991). We have also considered to what extent the
State's case depends upon the State's expert, Tubbs v. State, 402 So.2d 830, 836
(Miss. 1981), and the risk of inaccuracy in resolving the issue for which the
expert is requested. Johnson v. State, 529 So.2d 577, 592 (Miss. 1988).
Green v. State, 631 So.2d 167, 171-72 (Miss. 1994).
¶43.
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.
Furthermore, based on this Court's holdings in Grayson and Green, Howell's argument that his
father's lack of contact with Union County required a jury consultant is unpersuasive. This
issue is without merit.
C. Limited Daily Transcripts
18
¶44.
Howell requested that the trial court make the county responsible for providing the
defense with a copy of daily transcripts of the testimony of co-defendants, Ray and Lipsey, and
the testimony of secondary witnesses, Shaw, Powell and Rice. The trial court stated:
The Court is not going to order that the county pay for it [daily transcripts]. But
if you want to make some arrangements with Mrs. Fair [the court reporter] that
is between you and your client and Mrs. Fair.
¶45.
Howell was not precluded by the trial court from obtaining the daily transcripts nor did
Howell demonstrate that he had been denied access to daily transcripts by the court reporter.
Furthermore, Howell offers this Court no authority which requires the State to furnish a
criminal defendant with daily transcripts. We find no manifest injustice or any abuse of
discretion in the trial court's denial of Howell's request for daily transcripts. See Ruffin v.
State, 481 So.2d 312, 314-15 (Miss. 1985) (trial court did not abuse its discretion in denying
an indigent defendant with a transcript of the prior trial which ended in mistrial).
D. Additional Counsel
¶46.
Howell also requested that the State furnish additional counsel to assist Howell's
retained counsel in handling his case. Before denying Howell's request for additional counsel,
the trial court requested supporting authority. Howell offered no authority to the trial court,
nor does Howell offer any authority on appeal. The trial court ruled:
I think you [defense counsel] are very good but, I don't know of any authority this
court would have to appoint somebody. So I'm going to deny your motion.
¶47.
Furthermore, the record reflects that a second attorney, Jak Smith, assisted in Howell's
case at various stages: voir dire, jury selection, arguments involving evidentiary matters,
19
questioning of witness, arguments on jury instructions and closing arguments. Jak Smith is
also listed in Howell's certificate of interested persons as attorney for the defendant/appellant.
¶48.
We find that the trial court did not err by refusing to furnish Howell a court-appointed
attorney to assist his retained counsel. The constitution does not require the appointment of
two attorneys in a case where the death penalty is involved. In Bell v. Watkins, 692 F.2d 999,
1009 (5th Cir. 1982), the court stated that "[a]lthough Mississippi courts may customarily
appoint two lawyers in a capital case, the constitution dictates no such requirement." This
assignment of error is without merit.
E. Additional Psychiatric Examination
¶49.
Finally, Howell claims that the trial court erred in not allowing funding for additional
psychiatric examination. Howell had already received, by agreement between the parties, a
psychiatric examination from Dr. Louis Masseur (Dr. Masseur). Howell relies on Dr.
Masseur's comment in his notes that Howell suffered slight distortion of reality as to the facts.
Howell introduced a copy of Dr. Masseur's handwritten notes indicating what he would charge
for an additional hour on the mitigating factors. The trial court ruled that based on what it had
seen and heard, further funding for additional psychiatric examination was not warranted.
¶50.
Howell cites Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1984),
in support of his position. In Ake the United States Supreme Court determined that "when a
defendant demonstrates to the trial judge that his sanity at the time of the offenses to be a
significant factor at trial, the State must, at a minimum, assure the defendant access to a
competent psychiatrist who will conduct an appropriate examination and assist in evaluation,
preparation and presentation of the defense." 105 S. Ct. at 1096.
20
¶51.
We find that Howell's reliance on Ake is misplaced as he did not raise an insanity
defense at trial. See Cole v. State, 666 So.2d 767, 781 (Miss. 1995). In Cole, the defendant's
post-conviction relief appeal from the affirmance of his conviction and death sentence relied
upon Ake contending that he had been deprived due process and equal protection, as well as,
his Fifth, Sixth and Eighth Amendment rights. This Court determined that since sanity was not
an issue, Cole was not entitled to additional mental examination.
¶52.
This Court has considered a similar argument raised by an indigent defendant and held:
A defendant is not entitled to a psychological expert where he has not
raised insanity as a defense or where the State does not plan to submit
psychological evidence against the defendant. Ladner v. State, 584 So.2d 743,
757 (Miss. 1991); Nixon v. State, 533 So.2d 1078, 1096 (Miss. 1987). As we
have stated, "[w]here a defendant offers no more 'than undeveloped assertions
that the requested assistance would be beneficial,' no trial court is under an
obligation to provide him with fishing equipment." Griffin v. State, 557 So.2d
542, 550 (Miss. 1990) (quoting Caldwell v. Mississippi, 472 U.S. 320, 323 n.
1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985)).
Bishop did not raise an insanity defense; he offered no facts which would
show that there was a need to develop mitigating evidence based on
psychological problems; and he underwent a thorough psychological evaluation
performed at the State Hospital which produced not mitigating evidence.
We therefore find, that Bishop was not entitled to a psychological expert
for the purpose of developing mitigating evidence.
Bishop v. State, 812 So.2d 934, 939-40 (Miss. 2002).
¶53.
As Howell did not proceed as an indigent or raise insanity as a defense, we find that the
trial court did not err in denying his request for additional psychiatric examinations. This
assignment of error is without merit.
III.
¶54.
Jury Panel Selection
Howell raises two arguments on appeal as to the selection process involved in
composing the jury wheel used to draw Howell's prospective jurors. The circuit clerk testified
21
that at the time of Howell's jury draw, the jury wheel consisted of 1,195 prospective jurors.
The jury wheel had originally consisted of the names of 3,000 qualified electors selected from
the roughly 16,200 qualified electors in Union County. Each time a jury panel was selected,
the circuit clerk removed those names from the wheel and they were not available for selection
at the next draw. Howell contends that the trial court erred by not quashing the jury panel
because he was denied a jury from a "fair cross section of the community." However, Howell
admits that the circuit clerk followed the procedure dictated in Miss. Code Ann. §§ 13-5-10
& -12 (Rev. 2002). Therefore, we find that the circuit clerk clearly complied with the dictates
of Miss. Code Ann. §§ 13-5-10 and 13-5-12. This issue is without merit.
¶55.
Howell next contends that prohibiting the selection of jurors under the age of 21 years
old pursuant to Miss. Code Ann. § 13-5-1 (Rev. 2002) constitutes intentional discrimination
against persons who are 18 to 20 years old.
¶56.
This Court has repeatedly rejected this argument.
This Court has previously considered the exclusion of persons under age 21
from jury service and has consistently held that the exclusion does not violate
the state or federal constitution. Turner v. State, 573 So.2d 657, 666 (Miss.
1990), rev'd on other grounds; Irving v. State, 498 So.2d 305, 319 (Miss.
1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987);
Fermo v. State, 370 So.2d 930, 934 (Miss. 1979); Joyce v. State, 327 So.2d
255, 261 (Miss. 1976); Johnson v. State, 260 So.2d 436, 437 (Miss. 1972).
Milano v. State, 790 So.2d 179, 188 (Miss. 2001). See Jordan v. State, 786 So.2d 987, 1024
(Miss. 2001). Therefore, we find that this argument is also without merit. The circuit clerk
properly followed the statutes of this State in drawing and selecting Howell's jury.
IV.
Batson
22
¶57.
Howell contends that the trial court erred by allowing the State to exercise its
peremptory challenges on two black members of the venire, namely Juror 34 (High) and Juror
68 (Wade). The record reflects that the State exercised a total of 12 peremptory challenges,
11 on the jury panel and 1 on the alternates. The jury was selected, and the trial court recessed
for lunch.
¶58.
Howell did not raise a contemporaneous objection to the State's use of its two
peremptory challenges as to Juror 34 and 68. However, the record indicates that, prior to
resuming court and empaneling the jury, Howell's counsel requested "that the State provide
race neutral reasons for disqualifications of two jurors (Jurors 34 and Juror 68) underBatson."
The record reflects the following exchange occurred:
State:
The Court:
The Court:
State:
Your Honor. I don't know if they made out a prima facia case of
racial discrimination. Nevertheless without waiving our
argument. I would state as our reason to first of all there are only
three African American remaining on the entire panel. I
exercised 12 strikes, two of which were of African American.
First strike that I exercised was on juror number 34. He was a
black male Lavorigia High, [J]unior. Mr. High has had several
arrests here actually on his jury questionnaire he has had a recent
public drunk and he is the Highs and the Fosters are related. He
didn't state anything about being related. That is information that
I have gathered from some of the law enforcement. And the main
reason is when I left here two weeks ago from the 60 motions
that we went through some woman ran into me. It happened in
front of Mr. High's house. Mr. High's brother came out and he
was first one out there. Mr. High was out there and I believe they
saw the wreck but when I sent the officers over there the brother
stayed outside and you can see him inside the screen and he
wouldn't tell them that he saw it. So that is our reasons for having
striken him.
Let me hear you on your next one. The other one was.
Number 68.
Anthony Wade. Anthony Wade is an African American. Who put
down on his jury questionnaire that he had never been arrested for
23
The Court:
¶59.
a crime when I have right here warrants that were issued for
receiving stolen property out of Lee County where he was
arrested. Yes, here is a copy of his arrest record of Anthony
Wade in Lee County for receiving stolen property. There were
some guns in that case arose out of stolen here in Union County
that wound up in the possession of Anthony Wade and he did not
state that he had been arrested. And I have the arrest record here
available. You can make it a part of this record so therefore we
believe that he was not forth coming in his jury questionnaire and
that his criminal activity would prevent him from being a fair and
impartial juror. And that was our main reason for striking him but
also I assume defense counsel would have striken him because he
testified that if the county coroner Mark Golden testified he
would follow his testimony.
All right. The court is satisfied of the race neutral reasons even
though I don't think there has been any pattern of racial
discrimination. But I think it would be sufficient. Anything else
before we go now.
A reversal will only occur if the factual findings of the trial judge appear to be “clearly
erroneous or against the overwhelming weight of the evidence.” Tanner v. State, 764 So.2d
385, 393 (Miss. 2000) (citing Stewart v. State, 662 So.2d 552, 558 (Miss. 1995)); Davis v.
State, 551 So.2d 165, 171 (Miss. 1989). “On appellate review, the trial court's determinations
under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), are accorded
great deference because they are based, in a large part, on credibility.” Coleman v. State, 697
So.2d 777, 785 (Miss. 1997) (citing Lockett v. State, 517 So.2d 1346, 1349 (Miss. 1987)).
The term “great deference" has been defined in the Batson context as meaning an insulation
from appellate reversal any trial findings which are not clearly erroneous. Lockett v. State, 517
So.2d at 1349.
¶60.
In Batson, the United States Supreme Court held that a peremptory challenge cannot
be used to exclude venire-persons from jury service based on their race. Batson v. Kentucky,
24
476 U.S. 89, 106 S.Ct.1712, 90 L.Ed.2d 69 (1986). A peremptory challenge based on race
constitutes a violation of equal protection. Id. at 98.
¶61.
The necessary steps to resolve a peremptory challenge based upon Batson are cited in
Stewart v. State, 662 So.2d 552, 557-58 (Miss. 1995), as follows:
1.
2.
3.
The party objecting to the peremptory challenge must first make a prima
facie showing that race was the criteria for the exercise of the
peremptory challenge.
If this initial showing is successful, the party desiring to exercise the
challenge has the burden to offer a race-neutral explanation for striking
the potential juror.
The trial court must then determine whether the objecting party has met
their burden to prove there has been purposeful discrimination in the
exercise of peremptory challenges.
To establish the first prong, a prima facie case under Batson, the objecting party must show
(1) that he/she is a member of a "cognizable racial group," (2) the prosecutor has exercised
peremptory challenges toward the elimination of prospective jurors of his race, and (3) the
facts and circumstances raised an inference that the prosecutor used his peremptory challenges
for the purpose of striking minorities. Conerly v. State, 544 So.2d 1370, 1376-77 (Miss.
1989).
¶62.
In the case sub judice, a review of the record demonstrates that the State provided race
neutral reasons for striking juror 34 and 68. Great deference is afforded to a trial court's
ruling. Therefore, this issue is without merit.
V.
¶63.
Individual Sequestered Voir Dire
Howell contends the trial court erred in denying his request to conduct individual
sequestered voir dire of prospective jury members who had read articles or seen information
about the case on television. Howell wanted to question these prospective jurors as to their
25
knowledge of any facts concerning the "alleged" robbery and Howell's previous drug conviction
that appeared in newspaper articles. The trial court concluded that Howell's counsel had
questioned the prospective jurors 13, 85, 88, 106, 126, 127, 146 and 153 at issue, who
indicated they had heard about the case.
¶64.
Howell's counsel had generally questioned them as to whether they would have to hear
strong evidence to contradict what they had seen or heard. The trial court took a recess. In
chambers, Howell's counsel requested individual sequestered voir dire. The trial court ruled
that Howell's counsel could ask more narrow questions in general voir dire in order to elicit
the information.
¶65.
Furthermore, each juror had completed juror questionnaires which asked questions to
determine if they had ever heard of Marlon Howell or his family; Adam Ray or his family; and
Curtis Lipsey or his family. The questionnaires asked the jurors to "[p]lease explain what you
know about" each of these individuals. Therefore, each juror had been individually questioned
as to any prior knowledge of Howell.
¶66.
More importantly, the record further reflects that prospective jurors 13, 85, 88, 106,
126, 127, 146 and 153 in question did not end up serving on the jury. Jurors 13, 88 and 126
were excused for cause at Howell's request. At the time of the request for individual
sequestered voir dire, juror 106 had already been excused from the panel. After the request,
the parties agreed to strike juror 85. Jury selection did not reach jurors 127, 146 and 153.
They did not serve on the jury or as alternates, and they were never tendered for possible
service on the jury.
26
¶67.
This Court has held that voir dire "is conducted under the supervision of the court, and
a great deal must, of necessity, be left to its sound discretion." Ballenger v. State, 667 So.2d
1242, 1250 (Miss. 1995) (citing Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222,
2230, 119 L.Ed.2d 492 (1992), citing Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017,
1020, 47 L.Ed.2d 258 (1976)) (quoting Connors v. United States, 158 U.S. 408, 413, 15 S.Ct.
951, 953, 39 L.Ed. 1033 (1895)). See also Foster v. State, 639 So.2d 1263, 1274 (Miss.
1994). This Court has stated that the trial court should take a substantial role in conducting
Witherspoon voir dire of the venire panel in capital cases. Ballenger v. State, 667 So.2d at
1250; see Hansen v. State, 592 So.2d 128-29; Lockett v. State, 517 So.2d at 1335.
¶68.
Rule 3.05 of the Uniform Circuit and County Court Rules addresses voir dire
examination of jurors:
In the voir dire examination of jurors, the attorney will question the entire venire
only on matters not inquired into by the court. Individual jurors may be
examined only when proper to inquire as to answers given or for other good
cause allowed by the court. No hypothetical questions requiring any juror to
pledge a particular verdict will be asked. Attorneys will not offer an opinion on
the law. The court may set a reasonable time limit for voir dire.
¶69.
"A jury selection procedure which gives the defendant 'a fair opportunity to ask
questions of individual jurors which may enable the defendant to determine his right to
challenge that juror' is proper." McLemore v. State, 669 So.2d 19, 25 (Miss. 1996) (quoting
Peters v. State, 314 So.2d 724, 728 (Miss. 1975)).
¶70.
"The trial court has broad discretion in passing upon the extent and propriety of
questions addressed to prospective jurors." Stevens v. State, 806 So.2d 1031, 1062 (Miss.
27
2001). See also McGilberry v. State, 741 So.2d 894, 912 (Miss. 1999); Davis v. State, 684
So.2d 643, 651-52 (Miss. 1996); Jones v. State, 381 So.2d 983, 990 (Miss. 1980).
¶71.
We find nothing in the record that supports Howell's contention that the trial court
erred by denying his request to conduct individual sequestered voir dire. None of the
prospective jurors whom Howell sought to individually voir dire actually served on the jury that
was seated. Finally, Howell presents no evidence of any harm or prejudice which resulted
because of the denial for individual voir dire. See Stevens, 806 So.2d at 1054. This issue is
without merit.
VI.
¶72.
Voir Dire Examination
During voir dire, Howell sought to question jurors as to whether or not they had ever
seen or heard of police officers "puffing up" or giving untrue testimony about the facts of a
case. The State objected to this line of questioning which was sustained by the trial court. The
"puffed testimony" question was proposed to Juror 153 (Whiteside). The question posed by
the defense did not involve the facts of the case sub judice.
¶73.
Next, Howell questioned Juror 98 (Nobles) about his feelings against the death penalty
and the type of cases in which he might vote for the death penalty. The State objected to the
question, and it was sustained by the trial court. Howell finally questioned the jurors
concerning whether they believed mercy should be a factor in considering a death penalty
sentence. The State objected to this question, and the objection was sustained by the trial
court.
¶74.
The only authority provided by Howell in support of his argument, that the trial court
erred in restricting voir dire of the jury panel, is the general concept that the trial court has the
28
responsibility to control the voir dire process. Howell cites Mack v. State, 650 So.2d 1289,
1304 (Miss. 1995), which states, "[t]rial courts have a responsibility to control voir dire but
in doing so they must take care not to hinder a full exploration of a juror's predisposition by
hypothetical or otherwise." (citing Dennis v. United States, 339 U.S. 162, 171, 172, 70 S.Ct.
519, 523-524, 94 L.Ed. 734 (1950)).
¶75.
Voir dire "is conducted under the supervision of the court, and a great deal must, of
necessity, be left to its sound discretion." Ballenger v. State, 667 So.2d at 1250-51 (citing
Morgan v. Illinois, 504 U.S. at 729). See also Foster v. State, 639 So.2d at 1274. "The
standard of review in examining the conduct of voir dire is abuse of discretion." Jackson v.
State, 791 So.2d 830, 835 (Miss. 2001). Further, "[a]buse of discretion will only be found
where a defendant shows clear prejudice resulting from undue lack of constraint on the
prosecution or undue constraint of the defense." Id. at 835-36 (citing Davis v. State, 684
So.2d at 652). "A jury selection procedure which gives the defendant 'a fair opportunity to ask
questions of individual jurors which may enable the defendant to determine his right to
challenge that juror' is proper." Stevens, 806 So.2d at 1062.
¶76.
It is evident from the record that the trial judge did not abuse his discretion in sustaining
the State's objection to Howell's three proposed questions. More importantly, however, is the
fact that Howell was not harmed in any way by the trial court's rulings. None of the prospective
jurors to whom the first two questions were directed actually served on the jury.3
3
Neither of the jurors whom Howell sought to question actually served on the jury. As stated
previously, the jury selection never reached Juror 153 (Whiteside) so he was never tendered to the defense.
Additionally, Juror 98 (Nobles) was tendered as an alternate and struck by the defense.
29
¶77.
Lastly, the third question, concerning mercy, was directed to the entire venire panel.
"This Court has repeatedly held that 'capital defendants are not entitled to a mercy instruction.'"
Goodin v. State, 787 So.2d 639, 657 (Miss. 2001) (citing Jordan v. State, 728 So.2d at
1099)). "The United States Supreme Court has held that giving a jury instruction allowing
consideration of sympathy or mercy could induce a jury to base its sentencing decision upon
emotion, whim, and caprice instead of upon the evidence presented at trial." Goodin, 787
So.2d at 657. Accordingly, we find that since this Court has held that the jury is not entitled
to be instructed to give mercy, then there is no error in the trial court's decision to disallow
questioning prospective jurors on voir dire as whether they would provide mercy in sentencing.
¶78.
The record does not indicate that the trial court abused its discretion or that Howell was
denied a fair opportunity to conduct voir dire on any relevant issue. As such, Howell's
arguments on this point are clearly without merit.
VII.
¶79.
Identification of Howell and Illegal Arrest
Howell contends that Rice's eyewitness identification should have been suppressed as
the lineup was suggestive. The record reflects that a pretrial hearing was conducted on
Howell's motion to suppress the identification testimony.
¶80.
Rice testified that on the morning in question, he was in his living room watching
television while he was getting ready for work. He heard a car horn, went to the window and
pulled back the blinds. Rice had described the lighting conditions as "[p]re-dawn." Rice talked
to Officer Kent at the scene that morning. He had identified the shooter as wearing a plaid
flannel jacket that was open with a light colored t-shirt underneath and a pair of blue jeans. He
did not notice the shooter's shoes.
30
¶81.
Later that morning, at the police station, Rice gave a statement to Officer Kent and
Chief Grisham. Rice stated that the shooter was wearing a red and black plaid flannel shirt.
Howell contends that Rice misidentified him as wearing a long sleeve plaid red and black shirt
as opposed to the green short sleeve shirt described by other witnesses. Rice told the police
that the shooter was a black male. Rice left the police station and returned later that day to
participate in a lineup upon being informed that three people had been arrested.
¶82.
According to Rice, none of the officers gave a description of the defendant or made any
suggestions as to his identity. Rice testified that there was nothing about the lineup that was
suggestive. Rice described the lineup as follows:
I was in the small office with a desk and couple of chairs and I was kind of sitting
on the edge of the desk squatting against it. There was a small window, yay high,
yay wide and they told me that the men would be brought out one at a time. Take
my time and if I can identify the gentleman that I saw the morning prior to let
them know. When they came out they came out, said they would phase (face)
me. Turn sideways and leave and then they would bring the next one out. They
brought a total of six. But I didn't need to see all six them. When I saw the third
person of the line up which was Mr. Howell, I identified him at that time.
When Rice proceeded to view the six people in the lineup, he identified Howell as the shooter.
¶83.
Chief Grisham testified that the lineup was composed of six, young, black males, who
were inmates. They were selected by a computer program to help choose similar size, race,
age, and things of that nature. No one pressured Rice to identify Howell. Rice was not shown
any photographs prior to the lineup.
¶84.
Chief Grisham's testimony at trial reflected that the other five subjects in the lineup
were Dominique Cannon, 6', 130 pounds; Robert Antron Carr, 5'10", 135 pounds; Romaro
Dixon, 6', 145 pounds; Brad Marion, 6', 160 pounds; Robert Harris, 6'2", 185 pounds. Howell's
31
arrest sheet reflects him to be 6'2", 175 pounds. However, Chief Grisham did place in the case
file a photographic display of the people in the lineup. The picture was taken in an adjacent
room, prior to the time the participants went into the lineup room. Two or three of the
individuals in the lineup were as tall as Howell. Chief Grisham did not observe that Howell was
the only one wearing tennis shoes.
¶85.
The picture showed six young, black men, all of whom are wearing street clothes. The
feet of four of the six people in the lineup appear in the photograph. Of those four, Howell was
the only one wearing sneakers. The other three men in the picture wore socks and sandals.
Howell claims that the height, weight, skin tone and hair of the other people in the lineup were
different than his appearance.
¶86.
Rice specifically testified that he was not able to see the feet of the people in the
lineup. The window that he was looking through "was up off the floor" and he was looking at
people's faces. Rice testified that he did not pay attention to what they were wearing.
¶87.
Howell was represented by a local attorney, Regan Russell (Russell), who was present
at the lineup. Officer Kent was also present in the viewing room with Rice and Russell. Chief
Grisham was not in the viewing room at the time the lineup was conducted.
¶88.
After hearing this evidence and related argument, the trial court denied the motion to
suppress, concluding that the lineup was proper and not tainted or suggestive.
¶89.
In White v. State, 507 So.2d 98, 99-100 (Miss. 1987), this Court in upholding a lineup
where the defendant was the only person with plaited hair, stated that:
In York v. State, 413 So.2d 1372 (Miss. 1982), this Court reviewed United
States Supreme Court decisions addressing due process violations predicated
on impermissibly suggestive lineups. The Court said:
32
An impermissibly suggestive pretrial identification does not
preclude in-court identification by an eyewitness who viewed the
suspect at the procedure, unless: (1) from the totality of the
circumstances surrounding it (2) the identification was so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.
Even if testimony is proffered of the out-of-court identification
itself, the same standard exists as to the above, with the omission
of the word "irreparable."
In determining whether these standards are fulfilled, Neil v.
Biggers states the following may be considered:
... the opportunity of the witness to view the
criminal at the time of the crime, the witness'
degree of attention, the accuracy of the witness'
prior description of the criminal, the level of
certainty demonstrated by the witness at the
confrontation, and the length of time between the
crime and the confrontation.
409 U.S. at 199, 93 S.Ct. at 382.
In the final analysis, under Manson v. Brathwaite, "reliability is
the linchpin in determining the admissibility..."
York, 413 So.2d at 1383. See Foster v. State, 493 So.2d 1304 (Miss. 1986)
(Foster was the only member of the lineup wearing a distinctive fishing hat, and
the Court rejected Foster's contention that the lineup was impermissibly
suggestive); Jones v. State, 504 So.2d 1196 (Miss. 1987), (Jones was the only
person in a photograph display wearing a cap similar to the one worn by the
rapist, and the display was not so suggestive as to be impermissible).
¶90.
In Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), the
U.S. Supreme Court set out five factors to be considered in determining whether a lineup is
impermissibly suggestive:
1.
2.
3.
4.
5.
The opportunity of the witness to view the criminal at the time of the
crime.
The witness's degree of attention.
The accuracy of the witness's prior description of the criminal.
The level of certainty demonstrated by the witness at the confrontation.
Length of time between the crime and the confrontation.
See White, 507 So.2d at 100.
33
¶91.
When the lineup is considered in light of the Biggers factors, it is evident that: (1)
Rice's view of the shooter was brief4; but, (2) he was paying very close attention, once he
realized that a shooting had taken place; (3) he accurately described Howell as a young, clean
cut, black male; (4) he was absolutely certain of Howell's identity when he saw him in the
lineup; and (5) the lineup took place a little over 24 hours after the shooting. See Biggers, 409
U.S. at 199.
¶92.
Howell was represented by counsel throughout the lineup procedure. Furthermore, the
jury was instructed on how to consider eyewitness identification.5 Under the totality of the
circumstances, there is no likelihood whatsoever, that Rice's identification was not reliable.
4
Rice testified that it was "pre dawn," but he could see. Both vehicles had their lights on. The lights
of the rear vehicle were shining on the shooter. The neighborhood was "well lit." There was a streetlamp
right across the street from Rice's house and one at the end of the block. Rice's neighbor had a porch light
on. Rice's view was unobstructed.
5
Instruction S-8 provided, in pertinent part:
Identification testimony is an expression of the belief or impression by the witness. You must
judge its value and reliability from the totality of the circumstances surrounding the crime and
the subsequent identification. In appraising identification testimony of a witness, you should
consider the following:
1.
2.
3.
4.
5.
Did the witness have an adequate opportunity to observe the
offender?
Did the witness observe the offender with an adequate degree of
attention?
Did the witness provide an accurate description of the offender
after the crime?
How certain is the witness of the identification?
How much time passed between the crime and the identification?
If, after examining all of the testimony and the evidence, you have a
reasonable doubt that Marlon Latodd Howell was the person who
committed the crime, then you must find Marlon Latodd Howell is not guilty.
The defense indicated that this was a "good" instruction. The jury's verdict demonstrates how it resolved any
issues about the identification.
34
See Biggers, 409 U.S. at 199, 93 S.Ct. at 382; York, 413 So.2d at 1383. Furthermore, this
Court has repeatedly held that "the jury is the final arbiter of a witness's credibility." See
Williams v. State, 794 So.2d 1019, 1028 (Miss. 2001); Morgan v. State, 681 So.2d 82, 93
(Miss. 1996). The jury alone determines the weight and worth of any conflicting testimony.
Hicks v. State, 812 So.2d 179, 194 (Miss. 2002). Rice's credibility as a witness at trial rests
with the jury. Therefore, we find that this issue is without merit.
¶93.
Additionally, Howell contends that the identification was the result of an alleged illegal
arrest. Howell alleges that the Field Officer's Warrant or "blue warrant" under which he was
arrested was invalid.
¶94.
Probation and Parole Officer Nance testified that the New Albany Police Department
called him on the evening of May 15, 2000, to inquire whether the Mississippi Department of
Corrections (MDOC) had a picture of Howell. Nance checked Howell's file and discovered
that Probation and Parole Officer Mullins had entered a warrant for Howell's arrest into the
computer, but Officer Mullins had not signed the warrant. Officer Nance telephoned Officer
Mullins, and the record reflects that the following transpired:
I asked [Mullins] if we could go get the warrant, asked him if he had sent a copy
of it to the Sheriff's department which he had not at that time to the best of my
knowledge and asked if we could go ahead and get the warrant and serve it on
him and go ahead and place him under arrest of the D O C for the violation that
he had listed on his warrant. He said that will be fine, go ahead and get it. Chad
Glasson, New Albany police officer and I went to the Tippah County Officer,
looked in the file, found the warrant that Mr. Mullins had typed up. He had not
signed the warrant but he had issued the warrant. I turned around and copied the
warrant exactly as he had it. Put my name down there as the field officer and
signed it. That way we would have truly valid warrant. That is the only reason
that I issued the warrant instead of Chuck Mullins because he had not signed the
warrant.
35
¶95.
Officer Nance further explained that:
The administrative authority we have as field officers have the right to issue a
field officer[']s warrant for a violation of probation, terms and conditions. We
are to get a judge[']s warrant as soon as possible after the field officers warrant
is issued. The reason that I signed it instead of Chuck [Mullins] is because he
had not signed the field officer[']s warrant hisself. He had issued it, typed in his
name but just had not signed it.
¶96.
The warrant charged that Howell had violated his probation by "failure to avoid injurious
or vicious habits, fail[ure] to pay supervision fees, fail[ure] to pay for positive urine screen
fail[ure] to pay court ordered monies." Shortly after the warrant was issued, Howell was
arrested and transported to the New Albany Police Department. The arrest warrant from
Justice Court Judge Ronnie Rakestraw was obtained around noon on May 16, 2000.
¶97.
The trial court ruled "that the arrest was in fact proper and that there wasn't anything
illegal about it." Howell contends that Officer Nance did not have authority to sign the warrant
which rendered an illegal arrest. Howell alleges that Officer Nance had no personal knowledge
of the circumstances in the warrant.
¶98.
Officer Nance clearly had the legal authority to issue the warrant. The applicable statute
provides in pertinent part as follows:
Any probation and parole officer may arrest a probationer without a warrant, or
may deputize any other officer with power of arrest to do so by giving him a
written statement setting forth that the probationer has, in the judgment of the
probation and parole officer, violated the conditions of probation. Such written
statement delivered with the probationer by the arresting officer to the official
in charge of a county jail or other place of detention shall be sufficient warrant
for the detention of the probationer.
Miss. Code Ann. § 47-7-37 (Rev. 2000). Accordingly, we find that this issue is wholly without
merit.
36
VIII. Howell's Statement
¶99.
As a continuation of issue VII, Howell contends that the statement he gave to the police
on May 15, 2000, at approximately 9:30 p.m. should have been suppressed. The record
reflects that Howell was read a waiver-of-rights form at 9:29 p.m., and he signed the waiver at
9:31 p.m. Howell argues that since his arrest was illegal, because Officer Nance signed the
"blue warrant," the statement should have been suppressed. Finding that the arrest was proper,
the trial court denied Howell's motion to suppress.
¶100. As issue VII concluded that Howell's arrest was in fact valid, this issue is without merit.
Therefore, we find that the trial court did not err in denying Howell's motion to suppress his
statement given to the police.
IX.
Howell's Statements Made to Other Witnesses
¶101. Howell alleges that the trial court erred by allowing co-defendant, Lipsey, and
witnesses, Shaw and Powell, to testify that he stated that he needed money to pay his probation
officer. Howell contends that the statements attributed to Howell constituted hearsay and that
the probative value of admitting the statement does not outweigh the prejudicial effect to his
case. Howell claims that the State was allowed to bring his prior convictions in through the
backdoor through the testimony of Lipsey, Shaw and Powell since Howell did not testify.
¶102. The State offered witness testimony regarding statements attributed to Howell in order
to demonstrate a possible motive for Pernell's murder. M.R.E. 404(b) provides in part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith. It
may, however, be admissible for other purposes such as proof of motive...
37
The State contends that Howell's motive for killing Pernell was to obtain money to pay his
probation officer in order to remain out of jail.
¶103. This Court has consistently allowed the admission of other crimes to prove intent. See
Hill v. State, 797 So.2d 914, 917 (Miss. 2001) (where this Court found that evidence of
defendant's arrest was properly introduced to establish a possible motive for murder); Sumrall
v. State, 758 So.2d 1091, 1095 (Miss. 2000); Burns v. State, 729 So.2d 203, 222 (Miss.
1998); Warren v. State, 709 So.2d 415 (Miss. 1998); Hunt v. State, 538 So.2d 422 (Miss.
1989); Jenkins v. State, 507 So.2d 89 (Miss. 1987); Duplantis v. State, 644 So.2d 1235
(Miss. 1994); Smith v. State, 499 So.2d 750 (Miss. 1986); Ballenger v. State, 667 So.2d at
1242; Conner v. State, 632 So.2d 1239, 1273-74 (Miss. 1993) (where this Court found that
evidence relating to cocaine use was used to establish motive for crime rather than to show bad
character).
¶104. The State further cites Burns v. State, 729 So.2d 203, 220-22 (Miss. 1998), in support
of its position. In Burns, the defendant argued that the trial court erred by allowing a witness
to refer to the defendant's own statements about a prior crime. The witness testified that Burns
had committed the murder because he "did not want to go back to the pen." Id. at 220.
Pursuant to M.R.E. 404 (b), this Court concluded that the testimony was "admissible to show
motive - that Burns killed [the victim] so that he could not be identified and be sent back to the
penitentiary...." Id. at 221-22.
¶105. However, relevant evidence may still be excluded. In Foster v. State, 508 So.2d 1111,
1117 (Miss. 1987), this Court held:
38
Relevant evidence may still be excluded if its probative value is substantially
outweighed by danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. Miss.R.Evid. 403. Thus, a trial court
presented with Rule 403 objection to relevant evidence must engage in a
balancing process. The more probative the evidence is, the less likely it is that
a 403 factor will be of sufficient consequence to substantially outweigh the
probative value...
To tip the scale is not enough. The 403 factors must, in the language of the rule,
"substantially outweigh" probative value before the evidence may be excluded.
The trial court is afforded broad discretion in weighing these interests. United
States v. Chalan, 812 F.2d 1302 (10th Cir. 1987); Brumley Estate v. Iowa
Beef Processors, Inc., 704 F.2d 1351 (5th Cir. 1983), cert. denied, 465 U.S.
1028, 104 S.Ct. 1288, 79 L.Ed.2d 690 (1984).
¶106. We find that the trial court did not abuse its discretion in allowing the testimony. The
record clearly reflects that any prejudice from admitting the testimony does not substantially
outweigh the probative value of allowing the testimony to establish Howell's motive and intent.
¶107. Finally, Howell argues that the trial court should have provided a limiting instruction
informing the jury as to witness credibility. The record reflects that the State offered a
limiting instruction, jury instruction S-9, which was given by the trial court. Jury instruction
S-9 provided:
The Court instructs you that any evidence you may have heard regarding a
witnesses' or the defendant's character or bad acts may not be considered by you
to prove the character of the defendant in order to show that he acted in
conformity therewith on the occasion alleged in the indictment. You may
consider this evidence only for the purpose of proof of motive, intent,
knowledge, absence or mistake or accident.
See McGilberry v. State, 741 So.2d at 913 ("juries are presumed to follow the instructions
given to them by the court"). See also Johnson v. State, 475 So.2d 1136, 1142 (Miss. 1985)
(juries are to follow instructions "To presume otherwise would render the jury system
39
inoperable."). For all the foregoing reasons, we find that this assignment of error is without
merit.
X.
Testimony by Shaw Regarding Statement made by Ray
¶108. Howell contends that the trial court erred in allowing Shaw to testify that Ray told him,
"Marlon [Howell] had shot somebody." The record reflects that Ray, Howell, and Lipsey fled
to Shaw's house, immediately following the shooting. Shaw's testimony on the State's direct
examination was as follows:
State: When did you know -- what made you know that Adam [Ray], Curtis
[Lipsey] and Marlon Howell had returned to your house?
Shaw:
Because I heard a loud noise. Somebody bumping like somebody
was running through the house or whatever.
State: They were running through the house?
Shaw:
Um-huh.
State: What did you do then?
Shaw:
My girlfriend got up she was fussing. She asked me what was
going on and that is when Adam [Ray] came knocking on the door
and I got up and went to the door.
State: Did you get out of the bed and go when you say to the door or your bed
room [sic] door?
Shaw:
My bed room [sic] door.
State: What happened when you went to the bed room [sic] door?
Shaw:
Adam [Ray], he was all hysterical and everything. He said that
Marlon [Howell] had shot somebody.
Defense:
Your Honor, we object to the statement.
The Court: Sustained.
State: Where was Marlon Howell at when Adam Ray came to your door?
Shaw:
Standing in the front living room.
State: In the front room?
Shaw:
Yes, sir.
State: In what tone of voice was Adam Ray talking?
Shaw:
Like he was scared.
State: Was Marlon Howell positioned so that he could hear what Adam was
saying?
Shaw:
Yes, yes, sir.
State: Did Adam [Ray], did Marlon Howell hear what Adam Ray had to say?
Shaw:
Yes, sir.
40
Defense:
Your Honor, we again object to that.
The Court: It's overruled. He can answer go ahead.
State: When Adam Ray came to your door what did Adam Ray say?
Defense:
Your Honor, we again object to that.
The Court: It's overruled. He can answer go ahead.
State: When Adam Ray came to your door what did Adam Ray say?
Shaw:
He said Marlon had shot somebody.
State: What did you do at that time?
Shaw:
I ran out of the room and I asked I thought they were playing. I
said no he didn't. I said are y'all for real. He said yes, he is for
real?
State: Who said yes he is for real?
Shaw:
Curt [Lipsey].
State: Was Marlon Howell present when Curt [Lipsey] said that?
Shaw:
Yes, sir.
State: What else if anything did Curt [Lipsey] say about the situation?
Shaw:
He didn't really say too much of nothing. They all look like he
this real scared and Marlon [Howell] he was standing right there
in the front room with us too.
State: What else did Adam [Ray] have to say?
Shaw:
He didn't really say nothing just looking scared.
State: Did Marlon Howell say anything?
Shaw:
He told me he said I need to get to Blue Mountain. He said I need
you to take me to Blue Mountain right now.
State: Wanted you to carry him to Blue Mountain right now. Where was
Marlon standing at when he was saying that?
Shaw:
In the front room with all of us.
State: Was he doing anything at the time?
Shaw:
He had a green shirt wrapped like around his hand pulled up under
his arm like this right here.
State: So he was standing in your living room with the shirt wrapped around his
hand under his arm like this?
Shaw:
Yes, sir.
State: What did you do?
Shaw:
I was trying to figure how I was going to get him to Blue
Mountain. I really didn't want to take him. I didn't want him to
endanger me or my family or anyone that was in the house.
State: Were you scared at that time?
Shaw:
Yes, sir....
State: What did you do then?
Shaw:
He then jumped in the car with his and we headed off and rushed
to Blue Mountain.
State: What now?
41
Shaw:
State:
Shaw:
State:
Shaw:
State:
Shaw:
State:
Shaw:
He then jumped in the car with us and we rushed off to Blue
Mountain.
Where did you go in Blue Mountain first?
We took Marlon [Howell] home.
Marlon [Howell] say anything on the way to Blue Mountain or when he
got there?
Nobody was saying anything. I was just trying to hurry up and get
him down there.
Once you got to Blue Mountain did anybody say anything then?
He said don't tell nobody. Y'all don't need to tell nobody.
When you say he said don't tell nobody. You don't need to tell anybody,
who said that?
Marlon [Howell].
¶109. We find that Shaw's testimony did not constitute hearsay pursuant to M.R.E.
801(d)(2)(B) which provides:
(d)
Statements Which Are Not Hearsay. A statement is not hearsay if:
(2)
Admission by Party-Opponent. The statement is offered
against a party and is ... (B) a statement of which he has
manifested his adoption or belief in its truth...
In Manning v. State, 726 So.2d 1152, 1180 (Miss. 1998), this Court basically defined "the
common law version" of M.R.E. 801(d)(2)(B) finding that:
[S]tatements made by a third person, which tend to incriminate an accused, are
admissible so long as they are made in the presence of the accused and are not
contradicted, denied, nor objected to by the accused.
Manning, 726 So.2d at 1180 (quoting Jolly v. State, 269 So.2d 650, 656 (Miss. 1972)). See
also Jones v. State, 367 So.2d 458 (Miss. 1979) (affirming "adoptive admission" where
bystander said, "he's the one that done the shooting" and the accused replied, "Yeah, and I'll get
you as soon as I get out of this mess").
¶110. In the case sub judice, Ray's statement was made in Howell's presence. Howell did not
contradict, deny or object to the statement Ray made to Shaw. Shaw's testimony provided that
42
Howell was present when the statement was made and did not dispute the statement. In fact,
Howell then requested that Shaw drive him home "right now" and told Shaw that "y'all don't need
to tell nobody [sic]." Shaw testified that he was afraid of Howell. Shaw testified that he feared
for his safety and the safety of his family if he did not comply with Howell's request.
¶111. We find that the record reflects that the trial court did not err in allowing Shaw to
testify about Ray's statement. The statement clearly amounts to an "adoptive admission"
pursuant to M.R.E. 801(d)(2)(B). See Manning, 726 So.2d at 1180.
¶112. In the case sub judice, the State presented testimony from Rice, who positively
identified Howell as the shooter and the testimony of Lipsey, co-defendant, who identified
Howell as the person who shot Pernell. We find that this assignment of error is meritless.
XI.
Re-Cross Examination
¶113. Howell contends that the trial court erred by refusing to allow re-cross examination to
be conducted by the defense. Howell argues that the trial court's ruling "left the jury with the
impression Shaw had no pending criminal charges when he gave his statement to the District
Attorney's office." We find that the record reflects that Howell's assertion is meritless. The
following exchange occurred on the record:
Defense:
Shaw:
Defense:
Shaw:
Defense:
Shaw:
Defense:
Shaw:
Cross Examination by the Defense:
Mr. Shaw, have you been promised anything to testify?
No, sir.
Have you been given any leniency on any criminal matters?
No, sir.
You have not?
No, sir.
Do you have pending criminal matters before the district
attorney's office?
I have some charges, against me.
43
Defense:
Shaw:
Defense:
Shaw:
Defense:
The Court:
Defense:
The Court:
State:
Shaw:
State:
Shaw:
State:
Shaw:
State:
Shaw:
State:
Shaw:
State:
Shaw:
State:
Shaw:
State:
Shaw:
State:
Shaw:
State:
Shaw:
State:
Shaw:
State:
Shaw:
State:
Shaw:
State:
Those are charges that existed on the day you went down there
and gave this statement to the police, isn't it?
Yes, sir.
And you have not been prosecuted or brought to trial since have
you?
No, sir.
Court indulge me one second.
All right, sir.
We tender the witness.
Any redirect, Mr. Luther.
Re-Direct Examination by the State:
I will try to cover this as it came along probably working backwards. You
were asked about criminal charges pending against you. What were you
charged with doing?
Grand larceny.
What was that of?
That was some stuff consisted on the rail road.
Steel on the rail road?
Yes, sir.
So you are charged with taking some steel off the rail road tracks?
Yes, sir.
When was that charge brought?
About I was about 15 or 16 then.
You were 15 or 16?
Yes, sir.
I believe that was a '98 charge isn't it?
Yes, sir.
'98. I believe you entered the pretrial diversion program; didn't you?
Yes, sir.
Where and when did you enter the program?
I think I was about 18 then.
So I believe that program consisted of if you did not get in any more
trouble you wouldn't have a felony record; is that right?
Yes, sir....
Have you been promised anything for your testimony today?
No, sir.
Has the police or district attorneys or anything else even discussed your
prior charges with you?
Prior charges towards what.
The incident about taking the steel off the rail road track?
No, sir.
Is that any consideration of your testimony here today?
44
Shaw:
Defense:
The Court:
Defense:
The Court:
No, sir.
Please the court, I need to ask him one question about the issue
he brought up about why he is not being prosecuted.
You did not object to it as being improper.
I don't think it was improper, Your Honor, but he has left the
impression that I think it needs to be cleared up.
I don't. It's overruled....
¶114. The trial court stated that for the record that Howell never objected to the State's line
of re-direct questioning concerning Shaw's pending criminal charges as being improper. The
trial court did not conclude that the jury was left with a false impression of Shaw's criminal
charges. Shaw testified that he had charges pending when he talked to the District Attorney's
office. Shaw further testified that his criminal charges were not discussed and he received no
promises or any leniency in exchange for his testimony.
¶115. In Whitehurst v. State, 540 So.2d 1319, 1325-26 (Miss. 1989), this Court stated:
Hubbard v. State, 437 So.2d 430, 434 (Miss. 1983), sets out rather clearly that
"re-cross examination is not allowable as a matter of right, but a matter of trial
court discretion." The defendant's argument that his valuable right of crossexamination was bridled, based on Edge v. State, 393 So.2d 1337 (Miss. 1981),
and Miskelley v. State, 480 So.2d 1104 (Miss. 1985), avails him none. Edge
dealt with surrebuttal testimony, and Miskelley dealt with cross examination.
Thus, these cases are factually distinguishable.
Hubbard is authority for the proposition that it is proper to deny re-cross
examination "where there is no claim of oversight and no reason stated why the
matter was not inquired into on" cross examination. 437 So.2d at 434.
¶116. Furthermore, this Court held in Sullivan v. State, 749 So.2d 983, 991 (Miss. 1999):
Mississippi has adopted the Corpus Juris Secundum standard for re-cross
examination of witnesses: "It is proper to exclude questions as to matters which
were not opened up or brought out on redirect examination, or as to matters
already fully covered or discussed at length on cross-examination, where there
is not claim of oversight and no reason stated why the matter was not inquired
into on the cross-examination proper." Hubbard v. State, 437 So.2d 430, 434
(Miss. 1983) (quoting 98 C.J.S. Witnesses § 429). In this case, Sullivan does
45
not allege that he was deprived of his constitutional right to confront witnesses
testifying against him. That right is protected by both constitutional and case
law. See Shaffer v. State, 740 So.2d 273 (Miss. 1998) (citing Hamburg v.
State, 248 So.2d 430, 434 (Miss. 1971)).
¶117. From a review of the record and this Court's precedent related to re-cross examination,
we find that Howell's allegation that the trial court erred in declining to reopen crossexamination is without merit.
XII.
Directed Verdict
¶118. Howell contends that the State presented insufficient evidence to prove the underlying
felony of robbery and, therefore, the charge of capital murder. In Knox v. State, 805 So.2d
527, 530 (Miss. 2002), this Court stated:
When reviewing the sufficiency of the evidence, this Court looks to all of the
evidence before the jurors to determine whether a reasonable, hypothetical juror
could find, beyond a reasonable doubt, that the defendant is guilty. Jackson v.
State, 614 So.2d 956, 972 (Miss. 1993). All of the evidence must be
considered in the light most favorable to the verdict, and the credible evidence
consistent with guilt must be accepted as true. Gleeton v. State, 716 So.2d
1083, 1087 (Miss. 1998) (citing Franklin v. State, 676 So.2d 287, 288 (Miss.
1996); Wetz v. State, 503 So.2d 803, 808 (Miss. 1987)). "The prosecution
must be given the benefit of all favorable inferences that may reasonably be
drawn from the evidence." Id.
¶119. Miss. Code Ann. § 97-3-19(2)(e) defines capital murder as:
(2)
The killing of a human being without the authority of law by any means
or in any manner shall be capital murder in the following cases:
(e)
When done with or without any design to effect death, by
any person engaged in the commission of the crime of
rape, burglary, kidnapping, arson, robbery, sexual battery,
unnatural intercourse with any child under the age of
twelve (12), or nonconsensual unnatural intercourse with
mankind, or in any attempt to commit such felonies.
Furthermore, Miss. Code Ann. § 97-3-73 (Rev. 2000) defines robbery as:
46
Every person who shall feloniously take the personal property of another, in his
presence or from his person and against his will, by violence to his person or by
putting such person in fear of some immediate injury to his person, shall be
guilty of robbery.
¶120. The evidence in the record indicates that when Howell got in the car with Shaw, Lipsey
and Ray that night, Howell "explained to [them] that he needed some money to pay his
probation officer." According to Lipsey, Howell "just got in the car and it was like he needed
some money or else [they] weren't going to see him any more after that night, to pay his
probation officer."
¶121. In addition, Powell testified that on that night Howell stated that he "needed to pay the
probation officer." Howell told Powell "that he was going to have to pay his probation officer.
They were going to lock him up." Howell said that "he needed to make a sting for some money
...." That night while driving around Tupelo, Howell observed a man standing outside a closed
service station and stated that "there go [sic] an easy lick right there."
¶122. Howell was identified as the shooter by both an independent witness, Rice, and by codefendant, Lipsey. According to Lipsey, Howell reached inside Pernell's car, and there was
some "scuffling or fighting." Howell "had his arm in the man[']s window doing something with
him." This lasted about a half a minute. Then, Howell pulled away from the car and raised his
hands in the air, jumped back and fired the gun shooting Pernell.
¶123. Lipsey stated that when Howell returned to the car, Howell stated that "the man sprayed
him in the face with some mace so he shot him." Lipsey did not smell mace or see tears in
Howell's eyes. The police found a large amount of change on the floorboard of the driver's
side of the victim's car.
47
¶124. A jury's finding of fact is not to be overturned when there is credible evidence in the
record for which the jury could have reasonably inferred the offense or unless the verdict was
clearly against the overwhelming weight of the evidence. Bailey v. State, 785 So.2d 1071,
1075 (Miss. 2001); Groseclose v. State, 440 So.2d 297, 300 (Miss. 1983). There is no doubt
that there is ample evidence in the record that a reasonable person could infer Howell's intent
to rob Pernell.
¶125. It was within the jury's province to draw reasonable inferences from facts based on
experience and common sense. Lewis v. State, 573 So.2d 719, 723 (Miss. 1990). Inferences
for the motive of robbery have been accepted by this Court when they are reasonable. See
Swinney v. State, 829 So.2d 1225, 1236 (Miss. 2002) (it may be reasonably inferred that the
robbery was interrupted, and the motive was robbery); Duplantis v. State, 708 So.2d 1327,
1342 (Miss. 1998) (the jury apparently drew this inference from the facts, and we accept the
jury's finding). The jury considered the facts and circumstances after listening to the witnesses
then rendered its verdict. The verdict should not be disturbed. The evidence was sufficient to
support the verdict. We find this assignment of error to be without merit.
XIII. Jury Instruction S-2
¶126. Continuing from issue XII, Howell next contends Miss. Code Ann. § 97-3-19 does not
specifically enumerate attempted robbery as an underlying offense for the conviction of capital
murder. As such Howell argues that the underlying offense of attempted robbery violates his
Eighth and Fourteenth Amendment rights. Specifically, Howell asserts that:
To allow the trial court to insert attempted robbery as an aggravating factor when
it is not specifically set out by statute allows the Court to expand the aggravating
circumstances enumerated by MCA § 97-3-19. The aggravating circumstances
48
perform the constitutional necessary function of providing a meaningful basis
for distinguishing the few cases in which the death penalty is imposed from
many cases in which it is not. See Godfrey v. Georgia, 446 U.S. 420, 427, 428
(1980).
¶127. Howell further states that "by allowing the use of attempted robbery, the trial court has
extended the narrow parameters of the Mississippi capital murder statute Miss. Code Ann.
§ 97-3-19." Miss. Code Ann. § 97-3-19(2)(e) provides the list of underlying crimes that can
elevate murder to a capital offense. Miss. Code Ann. § 97-3-19(2)(e) further includes "any
attempt to commit such felonies" within the statutory provision. Miss. Code Ann. § 97-3-19
(2)(e) defines capital murder as follows:
The killing of a human being without the authority of law by any means or in any
manner.... When done with or without any design to effect death, by any person
engaged in the commission of the crime of rape, burglary, kidnapping, arson,
robbery, sexual battery, unnatural intercourse with any child under the age of
twelve (12), or nonconsensual unnatural intercourse with mankind, or in any
attempt to commit such felonies.
Miss. Code Ann. § 97-3-19 (2)(e) (emphasis added).
¶128. We find that Howell's argument is clearly not supported by the language of Miss. Code
Ann. § 97-3-19(2)(e). Furthermore, in Willie v. State, 585 So.2d 660, 674 (Miss. 1991), the
defendant raised similar arguments as the case at hand:
Willie argues that his conviction must be reversed because (1) the jury returned
a general verdict of guilty without specifying whether it found that Willie killed
Joe Clardy while Willie robbed or attempted to rob Joe Clardy, and (2) the jury
was instructed over Willie's objection that it could find Willie's objection that
it could find Willie guilty of capital murder if it found that Willie killed Joe
Clardy while engaged in the commission of attempted robbery.
We previously considered Willie's argument in Culberson v. State, 379 So.2d
499 (Miss. 1979), cert. denied, 449 U.S. 986, 101 S.Ct. 406, 66 L.Ed.2d 250
(1980). In Culberson, we found that reference to subsection 2(e) of Miss.
Code Ann. § 97-3-19 and the statutory language, "engaged in the commission
49
of," was sufficient to put a defendant on notice that he could be charged with the
commission or the attempt to commit the constituent felony of robbery.
Culberson, 379 So.2d at 503-04. Finding nothing new in Willie's argument, we
affirm our decision in Culberson.
Id. See also Harris v. State, 445 So.2d 1369, 1370-71 (Miss. 1984). In Harris, this Court
held:
In Mississippi both an attempt to take and an actual taking of another's
personal property against his will by violence to his person or by putting such
person in fear of immediate injury to his person by exhibition of a deadly
weapon constitutes robbery.
Id.
¶129. Howell contends the trial court erred in granting jury instruction S-2 which contained
the language "attempt to take." Jury instruction S-2 provided:
THE COURT instructs the jury that if you find from the evidence in this
case beyond a reasonable doubt that:
(1)
(2)
(3)
(4)
The defendant, Marlon Latodd Howell, did, on or about the 15th day of
May, 2000, unlawfully, willfully and feloniously, attempt to take the
personal property of Hugh David Pernell; and,
The defendant, Marlon Latodd Howell, attempted to take the personal
property from the person of Hugh David Pernell and against the will of
the said Hugh David Pernell; and,
The defendant, Marlin [sic] Latodd Howell, attempted to take the
property by violence toward Hugh David Pernell by shooting the said
Hugh David Pernell with a pistol; and,
At the time, Marlon Latodd Howell had the intent to permanently deprive
Hugh David Pernell of the property,
then you shall find that the defendant Marlon Latodd Howell, was engaged in the
commission of the crime of robbery as contemplated by Jury Instruction
Number S-1.
If the State of Mississippi has failed to prove any one or more of these
elements beyond a reasonable doubt, then you shall find that the defendant,
Marlon Latodd Howell, was not engaged in the commission of the crime of
robbery as contemplated by Jury Instruction Number S-1.
50
¶130. As discussed, we find that Howell's assignment of error is without merit. Based on the
language of Miss. Code Ann. § 97-3-19 (2)(e), we also find that the trial court did not err in
granting jury instruction S-2.
XIV. Instructions D-13, D-18, S-3
¶131. Howell argues that the trial court erred by failing to grant jury instructions for simple
murder and manslaughter. The trial court gave jury instruction S-6 as a form of the verdict jury
instruction. Instruction S-6 provided:
The Court instructs the jury that all twelve (12) of you must agree on any
verdict that is returned in this case.
The verdict of the jury should be written upon a separate sheet of clean
paper, need not to be signed by you, and should be in one of the following forms,
to-wit:
1)
If you find from the evidence in this case, beyond a reasonable doubt,
that the defendant, Marlon Latodd Howell, is guilty of capital murder
upon Hugh David Pernell as charged under the indictment, then the form
or your verdict should be:
"We, the jury, find the defendant, Marlon Latodd Howell, guilty
of capital murder as charged under the indictment."
2)
If you find the defendant, Marlon Latodd Howell, not guilty of capital
murder, then the form of your verdict should be:
"We, the jury, find the defendant, Marlon Latodd Howell, not
guilty of capital murder under the indictment."
¶132. The State withdrew its jury instruction S-3 on simple murder, citing a lack of evidence
presented to support such an instruction. Instruction S-3 provided:
The Court instructs the jury that if the evidence warrants it, you may find
the defendant, Marlon Latodd Howell, guilty of the lesser crime of "simple
murder."
51
However, notwithstanding this right, it is your duty to accept the law as
given to you by this Court, and, if the facts and the law warrant a conviction of
the crime of "capital murder" as charged in the indictment, then it is your duty
to make such finding uninfluenced by your power to find the defendant guilty of
a lesser offense.
This provision is not designed to relieve you from the performance of an
unpleasant duty. It is included to prevent a failure of justice if the evidence fails
to prove the original charge but does justify a verdict for the lesser offense.
¶133. Howell's proposed instruction D-13 submitted both a simple murder and a manslaughter
instruction. However, Howell requested to submit S-3 on simple murder, combined with his
own instruction on manslaughter.
¶134. The State argued that the evidence did not support an instruction on either simple
murder or manslaughter. Specifically, the State pointed out that an instruction for simple
murder was not proper, as this was a premeditated murder which occurred during the course
of a robbery. Furthermore, the State noted that an instruction for manslaughter was not proper
in the light of the fact that Howell presented an alibi defense. Howell filed a notice of his alibi
defense which stated that at the time of the offense he was at his home in New Albany,
Mississippi, and listed James Howell and Miriam Howell as alibi witnesses.
¶135. Instruction D-13 provided:
If you fail to find the defendant, Marlon Howell, guilty of capital murder,
then you should continue your deliberations to consider the elements of the
felony crime of simple murder. If you find from the evidence in this case
beyond a reasonable doubt that Marlon Howell on or about May 15, 2000, in
Union County, Mississippi, killed David Pernell, a human being in the
commission of an act imminently dangerous to others and evidencing a depraved
heart, regardless of human life, without authority of law, even though the
defendant had no premeditated design to affect the death of any particular
individual, then you should find the defendant, Marlon Howell, guilty of murder.
If the State has failed to prove any one or more of these elements beyond a
reasonable doubt, then you should find the defendant, Marlon Howell, not guilty
of murder.
52
If you fail to find the defendant, Marlon Howell, guilty of simple murder,
then you should continue your deliberations to consider the elements of the
felony crime of manslaughter.
If you find from the evidence in this case beyond a reasonable doubt that:
1.
2.
3.
4.
5.
Marlon Howell on or about May 15, 2000, in Union County, Mississippi;
Killed David Pernell;
By gunshot; and
Marlon Howell was negligent or act with wanton disregard for human
life, and the negligence was so gross as to be tantamount to a wanton
disregard of, or utter indifference to the safety of human life; and
Such negligence or wanton disregard, if any, directly caused the death of
David Pernell, then you shall find the defendant guilty of manslaughter.
If the prosecution has failed to prove any one or more of the above listed
elements beyond a reasonable doubt, then you shall find the defendant not guilty.
¶136. The trial court refused jury instructions D-13 and S-3 after the following exchange
transpired on the record:
Defense:
Now 13 is the one that ... pertains to the simple murder and I think
the State's S-3 that was previously submitted and withdrawn would
be a better instruction on the simple murder. However, the last
paragraph concerning the felony of manslaughter we would ask
that that be joined with S-3 or if the court determines that
manslaughter is not proper then we are submitting that simple
murder is proper. I don't want a commingle with what
manslaughter and the other and have them both effectively
removed. I think it's a case by case situation.
State: We object to both request for a murder and manslaughter instruction.
We object to a simple murder instruction and we object to a man
slaughter instruction because neither of those instructions are supported
by the evidence. We don't we couldn't prove simple murder if we wanted
to. We don't have any. We don't have any intent. The murder to prove a
simple premeditated murder. So, that is why I say that it's not a murder.
This instruction is not supported by the facts of this case. They didn't
know the victim so obviously he didn't have any other then to rob them
and kill him other than the robbery motive. So therefore we are saying
that there is not evidence of premeditation and deliberate design which
is a necessary element to prove simple murder. Whereas the evidence
is sufficient to prove capital murder. And I believe the same thing would
53
go for a manslaughter instruction if the instruction they have submitted
is based upon negligence, gross culpable negligence manslaughter. We
disagree that they should be entitled to that instruction because if you are
committing the crime of armed robbery and regardless of whether it's
negligence or whatever, whatever this case is whether it's with or with out
deliberate design and you kill some one you are guilty of capital murder
and not manslaughter.
Defense:
Judge, I agree with him but the point that I think is going to be
argued strongly by us is there is no proof of a robbery.
The Court: They are putting their burden on that.
Defense:
But then they say well there is no proof of a robbery but we think
he shot this man what is the jury going to do then.
State:
Their defense is not that this man shot him. There defense is
alibi.
Defense:
We are entitled to bring up whatever defenses we want. Mr. Rice
testified there was absolutely nothing to believe there was a
robbery going on. This jury can find that this man was there and
did shoot Mr. Rice. But that, I mean Mr. Pernell but based on Mr.
Rice's testimony there was no robbery going on and therefore
whatever for whatever reason he shot him it's manslaughter.
The Court: I'm going to refuse the instruction....
¶137. Howell also submitted jury instruction D-18, a simple murder instruction, which was
also refused by the trial court. Instruction D-18 provided:
The Court instructs the jury that if you find the defendant, Marlon Latodd
Howell, not guilty of "capital murder" as charged in the indictment, then you
should continue your deliberation to determine whether the defendant, Marlon
Latodd Howell, has committed the lesser crime of "simple murder."
The crime of "simple murder" is distinguished from the crime of "capital
murder" by the absence of, or by the failure of the State to prove, the following
element of the offense of "capital murder," to wit:
the defendant, Marlon Latodd Howell, did kill the said Hugh
David Pernell at a time when the said Marlon Latodd Howell was
engaged in the commission of the crime of robbery of the said
Hugh David Pernell.
THEREFORE, if you find from the evidence under this case beyond a
reasonable doubt that:
1)
Hugh David Pernell was a living human being; and
54
2)
3)
the defendant, Marlon Latodd Howell, did kill the said Hugh David
Pernell in Union County, Mississippi, on or about the 15th day of May,
2000; and
the defendant, Marlon Latodd Howell, acted unlawfully, willfully, and
feloniously, without authority of law, and with the deliberate design to
effect the death if Hugh David Pernell, then you shall find the defendant,
Marlon Latodd Howell, guilty of capital murder.
If you fail to find the defendant, Marlon Howell, guilty of simple murder,
then you should continue your deliberations to consider the elements of the
felony crime of manslaughter.
If you find from the evidence in this case beyond a reasonable doubt that:
1.
2.
3.
4.
5.
Marlon Howell on or about May 15, 2000, in Union County, Mississippi;
Killed David Pernell;
By gunshot; and
Marlon Howell was negligent or acted with wanton disregard for human
life, and the negligence was so gross as to be tantamount to a wanton
disregard of, or utter indifference to the safety to human life; and
Such negligence or wanton disregard, if any, directly caused the death of
David Pernell, then you shall find the defendant guilty of manslaughter.
If the prosecution has failed to prove any one or more of the above listed
elements beyond a reasonable doubt, then you shall find the defendant not guilty.
¶138. On appeal, Howell specifically argues that:
The jury could have found and returned the lesser-included offense of simple
murder or manslaughter. The fact remains that if this jury had believed Howell
approached Pernell's vehicle to sell him drugs and was sprayed in the face with
mace by Pernell in reaction, then they could have returned a conviction on
manslaughter. The [c]ourt's failure to instruct the jury on the lesser included
offense of simple murder and manslaughter was error. The jury as instructed
had no choice but either to turn Howell loose or convict him of [c]apital
murder...
¶139. However, we find that Howell's argument that the trial court erred by not granting
instructions S-3, D-13 and D-18 as to both simple murder and manslaughter, is contradicted
55
by the evidence in the record. The facts of this case clearly do not support or warrant such
instructions. In Presley v. State, 321 So.2d 309, 310 (Miss. 1975), this Court said:
The method of submitting an instruction dealing with a lesser-included offense
varies with each case. In some cases it may be sufficient simply to point out that
the lesser offense is the same except for the absence of some specific element.
In others it may be necessary to include all the essential elements of the
included offense as was done for the principal charge. However, the jury should
not be instructed as to a lesser-included offense in such a way as to ignore the
primary charge as this would be confusing to the jury. It is also true that if the
evidence does not justify submission of a lesser-included offense, the court
should refuse to do so. Unwarranted submission of a lesser offense is an
invitation to the jury to disregard the law.
See Grace v. State, 375 So.2d 419, 420 (Miss. 1979).
¶140. We find that this assignment of error is without merit.
XV.
Instruction D-3, Weight of Evidence
¶141. Howell argues that the jury should have been instructed as to the weight and quality of
the evidence. Specifically, Howell contends that the trial court erred in refusing his proposed
jury instruction D-3, which provided:
Each person testifying under oath is a witness. You have the duty to
determine the believability of the witnesses. In performing this duty, you must
consider each witness' intelligence, the witness' ability to observe and accurately
remember, the witness' sincerity, and the witness' demeanor while testifying.
You must consider also the extent the witness is either supported or
contradicted by other evidence; the relationship the witness may have with either
side; and how the witness might be affected by the verdict. You must consider
any evidence of the witness' character for truthfulness.
In weighing a discrepancy by a witness or between witnesses, you should
consider whether it resulted from an innocent mistake or a deliberate falsehood,
and whether it pertains to a matter of importance or an unimportant detail.
You may reject or accept all or any part of a witness' testimony and you
may reject part and accept other parts of a witnesses' [sic] testimony.
After making your own judgment, you will give the testimony of each
witness the credibility, if any, as you may think it deserves.
56
The weight of the evidence is not necessarily determined by the number
of witnesses testifying as to the existence or nonexistence of any fact. You may
find that the testimony of a smaller number of witnesses as to any fact is more
credible than the testimony of a larger number of witnesses to the contrary.
¶142. In Humphrey v. State, 759 So.2d 368, 380 (Miss. 2000), this Court stated:
Jury instructions are to be read together and taken as a whole with no one jury
instruction taken out of context. A defendant is entitled to have jury instructions
given which present his theory of the case, however, this entitlement is limited
in that the court may refuse an instruction which incorrectly states the law, is
covered fairly elsewhere in the instructions, or is without foundation in the
evidence.
(citing Heidel v. State, 587 So.2d 835, 842 (Miss. 1991)). See also Austin v. State, 784
So.2d 186, 193 (Miss. 2001).
¶143. Instructions that comment on the weight of the evidence are not proper. Id. at 193.
Specifically, instructions that direct jurors' attention to the quality or weight of the evidence
have been condemned by this Court. See Hentz v. State, 489 So.2d 1386, 1387 (Miss. 1986).
¶144. Through Instruction C-1, the trial court instructed these jurors were the sole judges of
credibility in this case. Instruction C-1 further stated the jury had the exclusive province to
determine what weight and credibility to assign the testimony and supporting evidence of each
witness.
¶145. The jury was also instructed to view the evidence as a whole when determining whether
reasonable doubt existed. Instruction D-2 further provided that:
The [c]ourt instructs the jury that you are bound in deliberating upon this case,
to give the defendant the benefit of any reasonable doubt of the defendant's guilt
that arises out of the evidence or want of evidence in this case. It is only when,
after examining the evidence on the whole, you are able to say on your oaths,
beyond a reasonable doubt, that the defendant is guilty that the law will permit
you to find him guilty. You might be able to say that you believe him to be
57
guilty, and yet, if you are not able to say on your oaths, beyond a reasonable
doubt, that he is guilty, it is your sworn duty to find the defendant "Not Guilty."
¶146. Additionally, the jury was instructed to view the accomplice testimony with suspicion
and distrust. Instruction D-5 provided as follows:
The [c]ourt instructs the jury that the law looks with suspicion and distrust on the
testimony of an alleged accomplice and requires the jury to weigh the same with
great care, caution, and suspicion. You should weigh the testimony from alleged
accomplices, and passing on what weight, if any, you should give this testimony,
you should weigh it with great care and caution, and look upon it with distrust
and suspicion.
¶147. The jury was further instructed that they could disregard testimony contradicted by
inconsistent evidence. Instruction D-7 provided as follows:
In determining the credibility of particular testimony, you should also
consider the extent to which the testimony was impeached. A witness may be
impeached by disproving the facts to which the witness testified; by proof of
general bad character; and by proof of contradictory or inconsistent prior
statement or statements made by the witness. To access [sic] the importance of
inconsistency or contradictory testimony or statements you should determine:
1.
2.
3.
If such testimony is given or if such statements were
made;
Whether they are in fact in consistent [sic] with or
contradictory to the witness' present testimony; and
Whether or not the testimony or statements are material
to the witness' testimony in the case.
If you find that a witness has been impeached by proof of previous
contradictory or inconsistent testimony or statements, you may disregard that
testimony. You may also consider that impeachment as being relevant to your
determination of the weight to be afforded the balance of the witness' testimony.
¶148. "A trial judge is under no obligation to grant redundant instructions. The refusal to grant
an instruction which is similar to one already given does not constitute reversible error."
Montana v. State, 822 So.2d 954, 961 (Miss. 2002). "The refusal to grant an instruction
58
which is similar to one already given does not constitute reversible error." Id. In Bell v. State,
725 So.2d 836 (Miss. 1998), this Court stated that:
The trial judge is under no obligation to grant redundant instructions. Davis v.
State, 568 So.2d 277, 280-81 (Miss. 1990). Indeed, to do so can only create
confusion and make it more difficult for the jury to understand the charge.
When the instructions are read as a whole, as indeed they must be, we find no
error in the refusal of these specific requested instructions.
Bell, 725 So.2d at 849-49.
¶149. We find that the record reflects that Howell was given numerous jury instructions on
their role in gauging witness credibility. The jury was given instructions D-2, D-5 and D-7
which advised them how to view the evidence as a whole, accomplice testimony and
inconsistent statements or testimony. Howell's instruction D-3 was properly denied. This
issue is without merit.
XVI. Instruction D-8, Testimony of Law Enforcement Officer
¶150. Howell contends that the trial court erred in denying proposed jury instruction, D-8,
which provided:
The testimony of a law enforcement officer should be considered by you just
as any other evidence in the case. In evaluating his or her credibility you should
use the same guidelines which you apply to the testimony of any witness. In no
event should you give greater or lesser credence to the testimony of any witness
merely because he or she is a law enforcement officer.
¶151. This Court has soundly and repeatedly rejected this argument:
Austin argues that the trial court erred by refusing his request for "level playing
field" jury instruction–that is, one that noted that the testimony of a police
officer is not entitled to greater weight than any other witness. The requested
instruction would have advised the jury that:
The testimony of a law enforcement officer should be considered
by you just as any other evidence in the case. In evaluating his or
59
her credibility you should use the same guidelines which you
apply to the testimony of any witness. In no event should you
give either greater or less credence to the testimony of any
witness merely because he or she is a law enforcement officer.
The trial court refused the instruction because it was duplicitous of another
instruction that had already been granted.
This Court has previously held that the very same instruction offered by Austin
was properly refused. See Stewart v. State, 355 So.2d 94, 96 (Miss. 1978);
Washington v. State, 341 So.2d 663, 664 (Miss. 1977). The Court recently
reiterated its stance in Hansen v. State, 592 So.2d 114, 139 (Miss. 1991),
noting that the trial court had given the jury the following general instruction:
As sole judges of the facts in this case, your exclusive province
is to determine what weight and what credibility will be assigned
the testimony and evidence of each witness in this case. You are
required to use your common sense and sound honest judgment
in considering and weighing the testimony of each witness who
has testified in this case.
Id. at 140. This same instruction was granted in the case sub judice. Hansen
further stated that:
Our law of criminal procedure has long perceived dangers in
comments upon the evidence, and in that regard we have for years
had a statute, Miss. Code Ann. § 99-17-35 (1972), which reads in
pertinent part: The judge in any criminal cause, shall not sum up
or comment on the testimony, or charged the jury as to the weight
of evidence.... It is certainly true that of late our attitude toward
comments upon the evidence may have relaxed, see Nichols v.
Munn, 565 So.2d 1132, 1136-37 (Miss. 1990); Weaver v. State,
497 So.2d 1089, 1094 (Miss. 1986), but not so much that we will
require the instruction at issue. We affirm on this issue.
Id. at 141.
Though Mississippi law is clear on this issue, Austin nonetheless argues that the
refusal of the trial court to "level the playing field" resulted in a denial of his
right to due process. Austin argues that courts routinely act contrary to the
holdings in Stewart, Washington, and Hansen by granting cautionary
instructions regarding informant testimony. It is true that where the State's case
is based upon the testimony of an accomplice, corroborated only by a
60
confidential informant, the trial court must grant a cautionary instruction. See
Edwards v. State, 630 So.2d 343, 344 (Miss. 1994); Parker v. State, 378
So.2d 662, 663 (Miss. 1980). The policy behind granting a cautionary
informant instruction, however, is based on the fact that informant or
accomplice testimony, by its very nature, is looked upon with suspicion and
distrust. This rationale does not extend to police officer testimony.
Austin v. State, 784 So.2d at 193.
¶152. As discussed in issue XV, we find that the trial court properly instructed the jury on how
to weigh the credibility of each and every witness. The trial judge did not abuse his discretion
in refusing Howell's instruction D-8, distinguishing the testimony of law enforcement officers
from that of any other witness. See Austin, 784 So.2d at 193. Accordingly, we find that
Howell's assignment of error is without merit.
XVII. Instruction D-16, Cross-Racial Eyewitness Identification
¶153. Howell argues that the trial court erred in denying proposed instruction D-16 pertaining
to eyewitness identification by a member of a different race. Instruction D-16 provided:
In this case the identifying witness is of a different race than the defendant. In
the experience of many, it is more difficult to identify members of a different
race than members of ones own. If this is also your own experience, you may
consider it in evaluating the witness' testimony. You must also consider, of
course, whether there are other factors present in this case which overcome any
such difficulty of identification. For example, you may conclude that the
witness has had sufficient contacts with members of a different race that he
would not have greater difficulty in making a reliable identification.
¶154. Howell submits that this instruction has not been required under the laws of this State,
stating that "this issue appears to be one of first impression." The defense contends that the
special jury instruction should be required because Rice, a white man, identified Howell, a
young black man. In support of his argument, Howell cites State v. Cromedy, 727 A.2d 457
61
(N.J. 1999), where the cross-racial identification in a rape case was not supported by any
corroborating evidence. Id. The New Jersey Supreme Court held that:
"A cross-racial instruction should be given only when, as in the present case,
identification is a critical issue in the case, and an eyewitness's cross-racial
identification is not corroborated by other evidence giving it independent
reliability."
Id. at 467.
¶155. However, the court in Cromedy further provided that:
Courts typically have refused the instruction where the eyewitness or
victim had an adequate opportunity to observe the defendant, there was
corroborating evidence bolstering the identification, and/or there was no
evidence that race affected the identification. See Hyatt, supra, 647 N.E.2d at
1171 (declining instruction in rape and robbery case where victim was
terrorized for fifteen to twenty minutes in broad daylight and could see the
attacker's face); see also Commonwealth v. Engram, 43 Mass.App.Ct. 804, 686
N.E.2d 1080 (1997) (declining instruction where numerous eyewitnesses saw
defendant at close range and positively identified him from a line-up and photo
array).
A number of courts have concluded that cross-racial identification
simply is not an appropriate topic for jury instruction. See State v. Willis, 240
Kan. 580, 731 P.2d 287, 292-93 (1987); Hyatt, supra, 647 N.E.2d at 1171;
People v. McDaniel, 217 A.D.2d 859, 630 N.Y.S.2d 112, 113, appeal denied,
87 N.Y.2d 848, 638 N.Y.S.2d 607, 661 N.E.2d 1389 (1995). Those courts have
determined that the cross-racial instruction requires expert guidance, and that
cross-examination and summation are adequate safeguards to highlight
unreliable identifications.
Other jurisdictions have denied the instruction, finding that the results
of empirical studies on cross-racial identification are questionable. See
Telfaire, supra, 469 F.2d at 561-62 (Leventhal, J., concurring) (rejecting
cross-racial instruction because data supporting hypothesis is "meager");People
v. Bias, 131 Ill.App.3d 98, 86 Ill.Dec.256, 475 N.E.2d 253, 257 (1985)
(rejecting instruction in robbery case where eyewitness failed to describe key
distinguishing facial features and gave inconsistent descriptions because
empirical studies are not unanimous). One jurisdiction has even rejected crossracial identification instructions as improper commentary on "the nature and
quality" of the evidence. See State v. Hadrick, 523 A.2d 441, 444 (R.I. 1987)
62
(rejecting such instruction in robbery case where victim viewed perpetrator for
two to three minutes at close range during robbery and identified him from a
line-up).
Cromedy, 727 A.2d at 464-65.
¶156. As discussed at length in the previously addressed issues, Rice's eyewitness
identification was not the sole evidence against Howell presented to the jury. The facts clearly
demonstrate that corroborating evidence was submitted to the jury, including the testimony of
co-defendant, Lipsey, as well as, witnesses, Shaw and Powell. Therefore, we find thatCromedy
is distinguishable from the facts at hand.
¶157. Furthermore, instruction S-8 given by the trial court instructed the jury about
eyewitness testimony.
The [c]ourt instructs the [j]ury that in reaching your verdict you are to
consider all of the evidence concerning the entire case and the circumstances
surrounding the crime. One of the issues in this case is the identification of
Marlon Latodd Howell is [sic] as the perpetrator of the crime. As with each
element of the crime charged, the State has the burden of proving identity
beyond a reasonable doubt, and before you may convict Marlon Latodd Howell
you must be satisfied beyond a reasonable doubt of the accuracy of the
identification of Marlon Latodd Howell. If, after considering all of the evidence
concerning the crime and the witness's identification of Marlon Latodd Howell
is [sic] as the person who committed the crime, you are not convinced beyond
a reasonable doubt that he is the person who committed the crime, then you
must find him not guilty.
Identification testimony is an expression of belief or impression by the
witness. You must judge its value and reliability from the totality of the
circumstances surrounding the crime and the subsequent identification. In
appraising the identification testimony of a witness, you should consider the
following:
1)
2)
Did the witness have an adequate opportunity to observe
the offender?
Did the witness observe the offender with an adequate
degree of attention?
63
3)
4)
5)
Did the witness provide an accurate description of the
offender after the crime?
How certain is the witness of the identification?
How much time passed between the crime and the
identification?
If, after examining all of the testimony and the evidence, you have a
reasonable doubt that Marlon Latodd Howell was the person who committed the
crime, then you must find Marlon Latodd Howell is not guilty.
¶158. We find that instruction D-16 was properly denied by the trial court. As discussed
previously, the trial court properly instructed the jury how to weigh the credibility of each
witness that testified. This issue is without merit.
XVIII.
Motion for Mistrial
¶159. Howell contends that the trial court erred by refusing to grant his motion for mistrial
and renewed motion for change of venue.
¶160. "Whether to grant a motion for mistrial is within the sound discretion of the trial court.
The standard of review for denial of a motion for mistrial is abuse of discretion." Pulphus v.
State, 782 So.2d 1220, 1222 (Miss. 2001) (citations omitted); Spann v. State, 771 So.2d 883,
889 (Miss. 2000); Johnson v. State, 666 So.2d 784, 794 (Miss. 1995); Hoops v. State, 681
So.2d at 521. "The failure of the court to grant a motion for mistrial will not be overturned on
appeal unless the trial court abused its discretion." Bass v. State, 597 So.2d 182, 191 (Miss.
1992).
¶161. Howell alleges that a juror's father sat on the front row of the audience with the Pernell
family. The record reflects that Howell waited until the next day to bring the matter to the trial
court's attention. Howell made his motion to the trial court after the trial court had ruled on
the jury instructions but before the jury was brought back in to receive the instructions.
64
¶162. The record provides:
Defense:
The Court:
Please the court I do have a matter for the record to bring up.
Your Honor, yesterday at the conclusion of the defendants case
we were advised that juror Michael Reed's father at the close of
our case was seated on the front row with the Pernell family and
we contend that that would be highly prejudicial to us. His son is
sitting on the front row on the jury panel seeing his father with
the victim's family. In light of that we ask the court for a mistrial.
We think it is further evidence of the proof of the passion and
prejudice in this community concerning this case and the inability
of this defendant to get a fair trial here. We also, Your Honor, in
light of that ask the court to declare a mistrial and to grant a
change of venue in support of that I would like to mark a remark
for the record news paper articles from the New Albany Gazette.
March 30. And the Tupelo Daily Journal dated March 30 as well
as a videotape and a transcript of the TV 9 broad cast concerning
this particular case. We think these articles and new cast are
evidence of the high profile nature of this case and the need for
a change of venue.
Your motion for mistrial will be denied. Motion for change of
venue will be denied and the court will address this issue.
Howell did not call any witnesses in support of his motion for mistrial.
¶163. The trial judge called the jury in and read the instructions to the jury. The defense and
the State made their closing arguments to the jury. Following closing arguments, the State
attempted to respond to Howell's allegations. The State offered to submit the testimony of a
bailiff who knew the man in question. The State informed the trial court that the bailiff would
testify that the man had not sat with the victim's family as alleged by the defense. In response,
the trial court stated that "[t]he court hasn't heard any testimony from anybody, so, I don't think
we need to do anything." The record reflects that following this exchange, Howell never
objected nor requested that the trial court admonish the jury.
65
¶164. We find the trial court did not abuse its discretion in denying Howell's motion for
mistrial. Howell did not submit any proof to support his allegation. Furthermore, Howell did
not present any evidence that the jury did not follow the trial court's instructions in rendering
its verdict or that he was prejudiced in any way. We also find this issue to be without merit.
XIX. Prosecutorial Comments in Closing Argument
¶165. Howell contends that the trial court erred by allowing the State to comment on Howell's
failure to testify. During the closing argument of the guilt phase of the trial, the prosecutor
stated that “If you had an alibi and were accused of capital murder, don’t you think you would
tell somebody about it. Don’t you think you would have given some details. Done something.
That is common sense.” According to Howell, the prosecutor's statement was a comment on
his failure to take the stand. In support of his argument, Howell relies upon the following three
cases: Butler v. State, 608 So.2d 314, 318 (Miss. 1992) (prosecutor’s comment that she
“hasn't told you the whole truth yet” and “she has not yet told you the whole truth of the
torment she subjected her son to. You still don't know the whole story.", amounted to
commenting on the defendant's failure to testify, where the defendant was the only witness to
her son's death); West v. State, 485 So.2d 681,688 (Miss. 1985) (prosecutor's comments that
defense counsel stated that, “‘We decided not to put the [d]efendant on the stand for trial
strategy.’ Could any of you possibly have a doubt?” and other similar comments amounted to
a comment on the defendant's failure to take the stand); and Randall v. State, 806 So.2d 185,
211-12 (Miss. 2002) (prosecutorial comments “approached the edge of reversible error” when
the prosecution commented on the failure of 24 witnesses for the defense to testify after
66
Randall's objection to the State's improper comment regarding the absence of one witness”).
¶166. The prosecutor's comments in the case sub judice are clearly distinguishable from the
line of case law authority cited by Howell. In Butler, the prosecutor commented that the
defendant was not telling the whole truth. Butler, 608, So.2d at 318. Unlike Butler, the case
at hand had two witnesses testify that Howell shot Pernell. In Butler, the defendant was the
only witness to her child’s death.
¶167. In West, the prosecutor commented that the defendant did not take the stand for trial
strategy purpose but there was “no doubt" as to guilt. West, 485 So.2d at 688. Again, the
prosecutor in the case sub judice did not go to that extreme and speak about a lack of taking
the stand. Instead, the prosecution brought out discrepancies in witnesses' testimony
concerning Howell’s alleged alibi defense. The prosecutor commented that common sense
would dictate that a defendant would reveal the identity of an alibi when faced with capital
murder charges.
¶168. In Randall, this Court found that prosecutorial misconduct was on the edge of
reversible error for comments concerning the number of defense witnesses that did not testify
at trial. This Court ultimately reversed the case in Randall, but not on that one issue standing
alone. Clearly, no comments of this nature were made by the prosecution at Howell’s trial.
¶169. Attorneys are allowed wide latitude in closing arguments. Holly v. State, 716 So.2d 979,
988 (Miss. 1998). The trial judge is in the best a position to determine if an alleged
objectionable remark has a prejudicial effect. Roundtree v. State, 568 So.2d 1173, 1177
67
(Miss. 1990). “The judge is provided considerable discretion to determine whether the remark
is so prejudicial that a mistrial should be declared.” Id. at 1778. This Court has held:
There is a difference, however, between a comment on the defendant's failure
to testify and a comment on the failure to put on a successful defense.
Moreover, the State is entitled to comment on the lack of any defense, and such
comment will not be construed as a reference to a defendant's failure to testify
'by innuendo and insinuation.'
Strahan v. State, 729 So.2d 800, 806 (Miss. 1998) (citations omitted). An alleged improper
prosecutorial comment during closing argument must be considered by the appellate court in
context in which the statement was made. Ballenger v. State, 667 So.2d at 1270. When faced
with this type of challenge, the appellate court must determine "whether the comment of the
prosecutor can reasonably be construed as a comment upon the failure of [the accused] to take
the stand." Fears v. State, 779 So.2d 1125, 1129 (Miss. 2001) (quoting Ladner v. State, 584
So.2d 743, 754 (Miss. 1991)). The appellate court reviews each comment on a case by case
a basis. Id. at 1129-30. Taking the comment in context during the sentencing phase of the trial
on rebuttal, the prosecution stated the following:
The defendant’s own father. I guess is part of the defense team. He also wanted
to attack the chief who went to school with him. You know the lethal piece of
evidence in this whole case is the big chief’s mouth to think he was stupid
enough and the law enforcement officers were stupid enough to believe that he
is in Corinth with a whore. Think the cops are just going to go away. That you
are going to forget about it. That is how simple minded the defendant is. That
is [the] most lethal piece of evidence in this case that I see. Why would you lie.
What is the reason. Common sense could make that decision. Why would he
lie. Then I suppose that the father would have you believe that the reason the
first time he is told anything about this alibi is that of the police are bad. No.
I wouldn’t tell them. What about the F B I? What about me? What about Judge
Coleman. What about somebody instead of the first time any law enforcement
is told allegedly that the defendant was there at that house when this crime
occurred, when he sat don up here, Does that make common sense, I don’t think
so. Wouldn’t you talk about, you know, with your daughter whether or not what
68
time was it do you remember, did you hear him knock, Remember she head the
bell ring, he head the knock, A lot of discrepancies there. Between their
testimony, She said they never discussed that. Remember that. Nailed her down
on that issue, Never wavered from it. Daddy said they did. Said they discussed
and prayed about it and talked about it. But the best he could come up. He never
came up with any time just the time he dropped him off at 8:25 a time that he
wanted to know about. If you had an alibi and were accused of capital
murder, don’t you think you would tell somebody about it. Don’t you
think you would give some details. Done something. That is common
sense.
(emphasis added).
¶170. When questioned by Chief Grisham, Howell told the officers that he was in Corinth
with a woman at the time Pernell was shot. Howell told Chief Grisham that he did not know
the woman’s name or address, even after the police stressed the importance of verifying his
alibi. Mississippi Highway Patrol investigator Mickey Baker also testified that Howell did not
provide the woman’s name or address. Howell continued to withhold the woman's information
when the police told him that they had information of his involvement in the murder. Howell
maintained that he was with a woman in Corinth.
¶171. Rev. Howell testified that the door bell rang and he went to the door. He heard his son’s
voice say, "It is me daddy." Rev. Howell then turned the latch on the door to his home and went
back to bed. Rev. Howell never saw Howell. Marion Howell (Marion), Howell’s sister, stated
that she heard her father get up. She then looked at her pager which had a time of 3:00 a.m.
She did not see Howell that night. Despite this testimony at trial, Howell never once
mentioned that he had been at his father’s home that night. Rev. Howell and Marion never told
the police about any of these events either. In fact, Rev. Howell stated that he went to the
69
police station and inquired about the arrest and charges against his son, but he never told the
police that his son was allegedly at home that night.
¶172. In the case sub judice, the prosecutor was summarizing the testimony of the witnesses.
He pointed out the conflicts in the alibi testimony of Howell’s father and sister.6 In effect, the
comments concerned the lack of a successful alibi defense. This Court in Strahan v. State,
729 So.2d at 806, held that the prosecution “is entitled to comment on the lack of any defense,
and such comment will not be construed as a reference to a defendant's failure to testify 'by
innuendo and insinuation.'” We find that this issue is without merit.
XX.
Cooling off Period
¶173. Howell argues that the trial court erred by failing to grant his motion for a 24 hour
cooling off period between the end of the guilt phase and the beginning of the sentencing
phase. He claims that the trial court did not make a finding of fact in denying the motion.
¶174. Miss. Code Ann. § 99-19-101(1) (Rev. 2000) states the following in part:
Upon conviction or adjudication of guilt of a defendant of capital murder or
other capital offense, the court shall conduct a separate sentencing proceeding
to determine whether the defendant should be sentenced to death, life
imprisonment without eligibility for parole, or life imprisonment. The
proceeding shall be conducted by the trial judge before the trial jury as soon as
practicable.
(emphasis added). Howell cites McGilberry v. State, 741 So.2d 894, 919 (Miss. 1999), for
authority for his position. In McGilberry, this Court held that the trial court did not abuse its
discretion by denying a motion for a 12 hour cooling off period. Id. The trial court denied the
6
During closing argument, the defense commented on Rev. Howell and Marion's testimony. The
prosecutor merely rebutted and commented on the defense's closing argument. The defense spoke at great
length that neither witness lied to the jury but only stated the facts as they knew them.
70
motion noting that the jury had eaten lunch, it was the middle of the day, and there was no
reason to grant a cooling off period. Id. Consequently, the defense had a 15 minute recess
between the jury verdict and the sentencing phase of the trial. Id.
¶175. Trial judges normally have broad discretion in their decision on the time to begin a trial
and the length of the proceedings each day. Hooker v. State, 716 So.2d 1104, 1112 (Miss.
1998). See also Conley v. State, 790 So.2d 773, 798 (Miss. 2001) (upheld the denial of a 12
hour cooling off period where there had been a 30 minute recess between the guilt and
sentencing phase of a capital murder).
¶176. After a short recess of approximately 15 minutes, defense counsel renewed its motion
to the trial court for a 24 hour cooling off period between the guilt and sentencing phase.
Counsel presented no argument to support of the cooling off period. The trial court denied the
motion.
¶177. Even in his brief, Howell offers no valid reason to grant the motion. Miss. Code Ann.
§ 99-19-101(1) requires that a separate sentencing proceeding shall be conducted as soon as
practicable. The trial court has discretion in determining the length of proceedings each day.
Hooker v. State, 716 So.2d at 1112. Further, Mississippi has not adopted a statutorily
mandated cooling off period between the guilt and sentencing phase of trial. See Conley v.
State, 790 So.2d at 798.
¶178. We find that the trial court’s denial of the motion was not an abuse of discretion.
Howell never showed why the motion for a cooling off period was necessary nor how the
denial of the motion was improper or an abuse of discretion. The applicable statute requires
a separate sentencing proceeding to be conducted as soon as practicable. Miss. Code Ann.
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§ 99-19-101(1). This Court has upheld a 15 minute recess. See McGilberry, 741 So.2d at
919. The trial court in its discretion determined that the sentencing phase could begin the
same day that the verdict was returned by the jury. This issue is without merit.
XXI. Prior Conviction as an Aggravating Factor
¶179. Howell argues that the use of the aggravating factor “under sentence of imprisonment”
amounts to reversible error. In Grayson v. State, 806 So.2d at 252, this Court held that “[t]he
legislature's intent was to protect the citizenry from the evil of the lesser felony by imposing
a greater penalty upon a homicide occurring during its commission.” Id. at 252. Miss. Code
Ann. § 99-19-101(5)(a) provides in pertinent part:
(5) Aggravating circumstances shall be limited to the following:
(a)
The capital offense was committed by a person under
sentence of imprisonment
Howell contends that the legislative intent of this language “under sentencing of
imprisonment” in Miss. Code Ann. § 99-19-101(5)(a) was to deter inmates from committing
murder while in custody. He claims that the fact that a felon is on probation or even off
probation for a non-violent crime should not be considered as an aggravating factor in whether
to impose the death penalty.
¶180. On numerous occasions, this Court has held that the aggravating circumstances language
“under sentencing of imprisonment” applies to unincarcerated felons. In Evans v. State, 422
So.2d 732, 741 (Miss. 1982), this Court held that “under Mississippi statutes and decisions,
when a person has been convicted and placed on probation, particularly here, where four (4)
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years of a five-year sentence were suspended, such sentence is a sentence under
imprisonment.”
¶181. In Brown v. State, 798 So.2d 481, 492 (Miss. 2001) this Court held that “[i]t has been
held that one who is under a suspended sentence is "under sentence of imprisonment" for
purposes of finding the aggravating circumstance listed at Miss. Code Ann. §
99-19-101(5)(a).” Brown was convicted of aggravated assault, sentenced to a ten year term
in prison, the sentence was suspended and he was placed on probation. Id. Later, one year of
the sentence was revoked, however, the rest of the sentence was not revoked. Id. See also Cole
v. State, 666 So.2d at 777 (serving a suspended sentence pursuant to a grand larceny conviction
at the time the murder was committed was considered a sentence of imprisonment); Lockett
v. State, 517 So.2d at 1336-37 (probated sentence meets the "under sentence of imprisonment"
terms for purposes of finding the aggravating circumstance pursuant to Miss. Code Ann. §
99-19-101(5)(a)).
¶182. In the case sub judice, Officer Nance testified at the sentencing phase concerning
Howell’s prior sentence for possession of a controlled substance, a non-violent crime. He
stated that a person on house arrest, a.k.a. intensive supervision program, is considered an
inmate of the State. Howell was sentenced on March 3, 1999, to the intensive supervision
program for three years. The first year of the sentence was to be served on house arrest and
upon completion, Howell would then be placed on post-release supervision for two years.
According to Officer Nance, the intensive supervision program is in lieu of transporting a
defendant to the State penitentiary at Parchman. If a defendant violates the conditions and
terms of the program, then the person is taken directly to Parchman. On February 11, 2000,
73
Howell was transferred from the intense supervised program to post-release supervision in
Tippah County. Pernell was shot on May 15, 2000.
¶183. Our precedents clearly permit the aggravating factor “under sentence of imprisonment”
pursuant to § 99-19-101(5)(a) to include probated, paroled, and suspended sentences.
Accordingly, we find that this issue is without merit.
XXII. Pecuniary Gain
¶184. Howell next argues that the trial court erred by allowing Officer Nance to testify to the
fee payment schedule for probationers. He complains that the prosecution used the same
pecuniary gain or motive at trial and during the sentencing phase to provide an aggravating
factor for the jury.
¶185. The State argues that Howell is procedurally barred from raising this issue as he failed
to raise this objection at the sentencing hearing. We agree. The following exchange between
the State and Officer Nance indicates that the defense objected on the grounds of the
imprisonment issue pursuant to Miss. Code Ann. § 99-19-101(5)(a):
Defense:
The Court:
State:
The Court:
This is a conviction, Judge the record I would want to object to
this being used as an aggravating circumstance because it’s not a
conviction involving violence or the propensity for violence. We
contend that he was under a sentence where he was on probation
and not under a sentence of imprisonment and that is a distinction
and that this conviction could not be used as an aggravating factor.
All right. All right, Mr. Hood.
Your Honor, first of all the State would move to reintroduce for
the juries consideration all the evidence introduced and presented
to the jury for oral testimony for their consideration during the
sentencing phase.
All right, sir. Let it be so admitted.
74
After questioning Officer Nance for a short period of time, the defense objected again for the
purpose of their argument concerning imprisonment, not pecuniary gain. The following
occurred:
Q.
What about these fees that people on the probation have to pay to their
probation officer. What fees are those?
Defense:
The Court:
State:
The Court:
We are going to interpose and objection on top of
the previous objection we made at this bench. That
is not part of the proof that he had a sentence of
imprisonment.
Where are we going.
Trying to determine the pecuniary gain, Your
Honor.
Go ahead?
“If no contemporaneous objection is made, the error, if any, is waived." Walker v. State, 671
So.2d 581, 597 (Miss. 1995) (citing Foster v. State, 639 So.2d at 1270). This Court finds that
the issue is procedurally barred.
¶186. Procedural bar aside, Howell's argument is also without merit. Officer Nance testified
that a probationer had to pay a $25 monthly supervision fee and an extra $10 if a probationer
fails a drug test. The prosecution in this case submitted an instruction which combined the
pecuniary gain and the robbery into one aggravating factor. The portion of the instruction read
as follows: “The capital offense was committed for pecuniary gain during the course of
robbery.” Thus, the instruction was given as one aggravating factor and not as separate factors.
¶187. In West v. State, the defense argued that the capital punishment statute is
unconstitutional because “it fails to provide a principled distinction of death-eligible felony
murderers, since the underlying felony is used both to elevate the defendant into the
death-eligible class as well as to subsequently aggravate his felony murder conviction.” West
75
v. State, 725 So.2d 872, 894 (Miss. 1998). The Court in West stated that this “argument has
been squarely rejected by this Court in Ballenger v. State, 667 So.2d at 1260-61, which noted
that where the class is appropriately narrowed through legislative definition of the capital
offenses, further narrowing is not required at the weighing stage." 725 So.2d at 895.
¶188. In Turner v. State, 732 So.2d 937, 954-55 (Miss. 1999), this Court upheld a jury
instruction which combined the pecuniary gain aggravator with an armed robbery. This Court
held that:
In sentencing instruction number one, only one aggravating factor was offered
for the jury's consideration:
1.
The capital offense was committed for pecuniary gain
during the course of an armed robbery.
Turner contends that underWillie v. State, 585 So.2d 660, 680-81 (Miss.1991),
this Court will not allow the jury "the opportunity to doubly weigh the
commission of the underlying felony and the motive behind the underlying
felony as separate aggravators." Turner alleges that in the present case
sentencing instruction number one violated the spirit, if not the exact letter of
the law.
In Jenkins v. State, 607 So.2d 1171, 1182 (Miss.1992), this Court held, "in
Willie, we clearly rejected the use of robbery and pecuniary gain aggravators
finding that they were, in essence, just one." See also Ladner v. State, 584
So.2d 743, 762 (Miss.1991); Willie v. State, 585 So.2d 660, 680-81
(Miss.1991).
Turner, 732 So.2d at 954-55. The jury instruction in this case is exactly the same as that given
in Turner, albeit one was in the course of “armed robbery” while the other was “robbery.”
Accordingly, this issue is without merit.
XXIII.
Introduction of a Prior Indictment
76
¶189. Howell contends that the trial court erred by allowing the State to introduce an
indictment against him for the sale of a controlled substance. He argues that the indictment
was not relevant and was highly prejudicial. Further, he relies on Eubanks v. State, 419 So.2d
1330 (Miss. 1982) (simple assault case) and Black v. State, 418 So.2d 819 (Miss. 1982)
(burglary), for the general legal principle that trial testimony is confined to the charges for
which the defendant is accused and must stand trial.
¶190. We previously discussed in issue XXI whether Howell was “under sentence of
imprisonment” for the conviction of possession of a controlled substance at the time of the
crime and its use as an aggravating factor. The fact of the matter is that Howell was actually
indicted on a charge of sale of a controlled substance; however, he pled guilty to the reduced
charge of possession of marijuana. On direct examination, Officer Nance testified that
Howell was sentenced for possession of a controlled substance. On redirect examination,
Officer Nance also stated that the original indictment was for the sale of a controlled
substance, that being, marijuana.
¶191. The State argues that Howell’s claim is procedurally barred for failure to cite relevant
authority, that being, Howell relies upon two non-death penalty cases. We agree and in
addition Howell has not provided any authority to support his argument that the indictment was
not relevant and that it was highly prejudicial.
¶192. Procedural bar aside, this issue is still without merit. The State argues that the
indictment was necessary to rebut the mitigator submitted by Howell that he has no significant
history of prior criminal history. Further, the State maintains that the indictment was offered
77
to demonstrate the validity of the sentencing order and rebut the mitigating evidence presented
by Howell.
¶193. Indeed, this Court held that "[t]he State is allowed to rebut mitigating evidence through
cross-examination, introduction of rebuttal evidence or by argument." Wiley v. State, 750
So.2d 1193, 1202 (Miss. 2000) (quoting Turner v. State, 732 So.2d at 950).
¶194. As previously mentioned in Issue XXI, Officer Nance testified that Howell was “under
sentence of imprisonment” pursuant to § 99-19-101(5)(a). On cross-examination, defense
counsel asked the following questions:
Defense:
Officer Nance:
Defense:
Officer Nance:
Defense:
Officer Nance:
Defense:
Officer Nance:
Defense:
Officer Nance:
Defense:
Officer Nance:
Defense:
Officer Nance:
Defense:
Officer Nance:
Defense:
Officer Nance:
Mr. Nance, the crime for which [Marlon] Howell was
charged, he pled guilty; is that correct?
Yes, sir.
There was no trial or finding by jury. He came here and
entered a guilty plea?
Yes, sir.
And that was to possession of a controlled substance?
That is what the order shows.
Did it reflect what the controlled substance was?
The order does not say.
Do you have personal knowledge of what the
controlled substance was?
I do not.
Do you have any documents reflecting what it was?
I don’t have any with me. I was never his supervising
officer. He went directly to the intensive supervision
program.
This is the only on [sic] criminal conviction that you have
a record of on Marlon Howell?
That is the only thing that I know of personally.
Mr. Nance, this particular crime that you have
testified to is not one of violence.
No, sir.
As I understand under this supervision release program
Mr. Howell was actually never sentenced to serve a term
in Parchman was he?
Yes, sir. He was sentenced to serve a term in Parchman.
78
Defense:
Officer Nance:
Defense:
Officer Nance:
Defense:
Officer Nance:
Defense:
Officer Nance:
I understand he was sentenced to serve three years?
Yes, sir.
My question is was he ever sentenced to go to
Parchman?
He was placed in the Intensive Supervision Program in lieu
of transporting him to Parchman with the conditions that
if he violated any of the terms and conditions of the
Intensive Supervision Program he would be taken directly
to Parchman.
He was released on his house arrest on February 11th of
2000?
Yes, sir.
So he was released actually before his year was up?
Yes, sir the court retained a 365 day right of review of
him.
(emphasis added). The testimony that the defense elicited from Officer Nance was that (1)
Howell was convicted of possession of a controlled substance; (2) the type of controlled
substance was unknown to Officer Nance; (3) Howell pled guilty to a non-violent crime; and
(4) whether the crime was punishable by a sentence to the penitentiary was called into
question.
¶195. Clearly, the defense opened the door to redirect examination questions concerning the
type of controlled substance in Howell’s possession. The indictment indicated that the
substance was marijuana. Furthermore, the indictment also stated that the punishment for sale
of a controlled substance was imprisonment. Any question concerning whether Howell had
a significant history of prior crime was resolved when the defense asked Officer Nance about
Howell’s prior crime. The indictment and testimony from Officer Nance concerning Howell's
criminal history was offered to rebut the defense's inference that Howell’s prior crime was
insignificant and did not warrant time served in the penitentiary. The indictment showed that
the cause numbers in the indictment and the sentencing order were the same and that Howell
79
pled to a lesser offense of possession. Further, the indictment pinpointed the specific
controlled substance that was the basis for the charge against Howell. Accordingly, this issue
is without merit.
XXIV.
Sentencing Instruction S-2
¶196. Howell contends that the trial court erred by giving sentencing instruction S-2 which
allegedly removed sympathy and mercy from the jury’s consideration. He also alludes to the
trial court refusing all of his sentencing instructions. Actually, Howell submitted one
sentencing instruction, D-1, which comprised thirty-six pages of text. The trial court denied
the instruction, but it stated that part of Howell's proposed instruction was incorporated into
other instructions. This argument will be addressed more fully in the next issue.
¶197. There are two portions of Howell’s proposed sentencing instruction D-1 that he argues
contained proper mitigation language. Section three of sentencing instruction D-1 provided:
A mitigating circumstance is a fact which does not excuse the crime but which,
in fairness and in mercy, you should consider as a reason to impose a sentence
of life imprisonment rather than death. Marlon Howell does not have to prove
the existence of mitigating circumstances beyond a reasonable doubt. Rather,
you should find a mitigating circumstance to exist if there is any evidence in
support of it. Furthermore, you, as individual jurors, must consider mitigating
circumstances. Therefore, even if all other eleven jurors find that a certain
mitigating circumstance does not exist, if you believe it does exist, you must
find that mitigating circumstance, and weigh it in your further deliberations.
(emphasis added). Section five of the sentencing instruction D-1 provided:
Finally, each individual juror must decide whether death or life in prison is the
appropriate punishment for this crime and for Marlon Howell. Even if
aggravating factors outweigh mitigating factors, the law permits the jury to
impose a sentence of life imprisonment out of mercy or a determination that
life imprisonment is sufficient punishment under the circumstances.
80
(emphasis added). Jury instructions are within the sound discretion of the trial court. Goodin
v. State, 787 So.2d at 657. In Goodin, this Court addressed the issue of mercy instructions and
held:
This Court has repeatedly held that "capital defendants are not entitled to a
mercy instruction." Jordan v. State, 728 So.2d 1088, 1099 (Miss.1998) (citing
Underwood v. State, 708 So.2d 18, 37 (Miss.1998); Hansen v. State, 592
So.2d 114, 150 (Miss.1991); Williams v. State, 544 So.2d 782, 788
(Miss.1987); Lester v. State, 692 So.2d 755, 798 (Miss.1997); Jackson v.
State, 684 So.2d 1213, 1239 (Miss.1996); Carr v. State, 655 So.2d 824, 850
(Miss.1995); Foster v. State, 639 So.2d 1263, 1299-1301 (Miss.1994);
Jenkins v. State, 607 So.2d 1171, 1181 (Miss.1992); Nixon v. State, 533 So.2d
1078, 1100 (Miss.1987)). "The United States Supreme Court has held that
giving a jury instruction allowing consideration of sympathy or mercy could
induce a jury to base its sentencing decision upon emotion, whim, and caprice
instead of upon the evidence presented at trial." Id. (citing Saffle v. Parks, 494
U.S. 484, 492-95, 110 S.Ct. 1257, 1262-64, 108 L.Ed.2d 415 (1990)).
However, arguments to the jury are not the same as jury instructions. Miss.
Code Ann. § 99-19-101(1) states in pertinent part: "The state and the defendant
and/or his counsel shall be permitted to present arguments for or against the
sentence of death." Thus, it is appropriate for the defense to ask for mercy or
sympathy in the sentencing phase. It is likewise appropriate for the State to
argue to "send a message" in the sentencing phase. Again, neither side is entitled
to a jury instruction regarding mercy or deterrence.
787 So.2d 657-58. See also King v. State, 784 So.2d 884, 889 (Miss. 2001) (“It should be
noted further that neither side is entitled to a jury instruction regarding mercy or deterrence”);
Wiley v. State, 750 So.2d 1193, 1204-05 (Miss. 1999). In Wiley this Court held:
[T]he jury received the "catch-all" instruction on mitigating circumstances. That
is, the jury was instructed to consider, as a mitigating factor, any other matter,
any other aspect of the defendant's character or record, and any other
circumstance of the offense brought before them during the trial, which the jury,
deemed to be mitigating on behalf of the defendant. "This Court long has
accepted the use of a 'catch-all' to encompass any mitigating circumstances not
specifically enumerated under Miss. Code Ann. § 99-19-101(6)."
Wiley, 750 So.2d at1205 (citations omitted).
81
¶198. A portion of instruction S-2 given to the jury stated:
You have found the defendant, guilty of the crime of [c]apital [m]urder. You
must now decide whether the defendant will be sentenced to death or to life
imprisonment without parole. In reaching your decision, you may objectively
consider the detailed circumstances of the offense for which the defendant was
convicted and the character and record of the defendant himself. You must
consider and weigh any aggravating and mitigating circumstances, as set forth
later in this instruction, but you are cautioned not to be swayed by mere
sentiment, conjecture, sympathy, passion, prejudice, public opinion or public
feeling.
This portion of instruction S-2 amounts to a “catch-all” instruction.
¶199. In Turner v. State,732 So.2d at 952, the instruction read to the jury was almost the
same. This Court upheld the language in the Turner instruction which stated "You should
consider and weigh any aggravating and mitigating circumstances, as set forth later in this
instruction, but you are cautioned not to be swayed by mere sentiment, conjecture, sympathy,
passion, prejudice, public opinion, or public feeling." Turner v. State,732 So.2d at 952. See
also Evans v. State, 725 So.2d 613, 690-91 (Miss. 1997); Holland v. State, 705 So.2d 307,
351-52 (Miss. 1997). Indeed, this Court held that a defendant is not entitled to a sympathy or
mercy instruction and allowing such an instruction results in a jury verdict that is based on
“whim and caprice.” Id. (citing Holland v. State, 705 So.2d 307, 351-52 (Miss.1997)). In
Turner, this Court found that "pity", "mercy" and “sympathy” are synonymous. Id. Case law
precedent clearly allows an instruction such as that given to the jury in this case. Accordingly,
this issue is without merit.
XXV. Proposed Sentencing Instruction D-1
¶200. As a continuance of issue XXIV, Howell next contends that the trial court erred by
denying his sentencing instruction D-1 and adequate sentencing instruction definitions. He
82
asserts that the jury was precluded from being adequately informed as to the definition of
aggravating and mitigating circumstances and the proper use of sympathy and mercy in the
sentencing phase. Since the issue of sympathy and mercy were analyzed in the preceding issue,
the Court need not address the same issue again.
¶201. No authority was provided by Howell in his brief other than a reference to the
Mississippi Model Jury Instructions Second Edition, Criminal, Mississippi Judicial
College, 1999, to support this entire issue. Accordingly, this issue is procedurally barred.
Simmons v. State, 805 So.2d 452, 487 (Miss. 2001). See also Mitchell v. State, 792 So.2d
192, 202 (Miss. 2001) (death penalty case where failure to cite any authority for an issue was
a procedural bar).
¶202. Notwithstanding the procedural bar, the one sentencing instruction submitted by
Howell, as referenced in the preceding issue, contained thirty-six pages of text consisting of
twenty-nine sections. Many of the areas of instruction were not relevant to the issues present
in Howell’s case. In fact, Howell even acknowledged that some of the points were not
applicable to his case.
¶203. The trial court incorporated part of Howell's sentencing instruction into the instructions
given, stating:
Now as to the instruction submitted by the defendant, I think the court has taken
part of that instruction and incorporated it into some of the instructions that the
court has already mentioned
This Court has held the standard of review for jury instructions is as follows:
[T]he instructions are to be read together as a whole, with no one instruction to
be read alone or taken out of context. A defendant is entitled to have jury
instructions given which present his theory of the case. However, the trial judge
83
may also properly refuse the instructions if he finds them to incorrectly state
the law or to repeat a theory fairly covered in another instruction or to be
without proper foundation in the evidence of the case.
Thomas v. State, 818 So.2d 335, 349 (Miss. 2002) (quoting Humphrey v. State, 759 So.2d
at 380). Furthermore, Howell requested no specific area of instruction to be considered on
its own by the trial court, rather the instruction was submitted as a whole.7 The trial court noted
that part of the defense instruction was incorporated into some of the other instructions. ¶204.
As to Howell's assertion that the jury was not adequately informed of the definition of
aggravating and mitigating circumstances, the instruction proves otherwise. The instruction
read in part as follows:
You must consider and weigh any aggravating and mitigating
circumstances, as set forth later in this instruction, but you are cautioned not
to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice,
public opinion or public feeling.
* * * *
Next, to return the death penalty, you must find that the mitigating
circumstances (those which tend to warrant the less severe penalty of life
imprisonment) do not outweigh the aggravating circumstances (those which
tend to warrant the death penalty).
Consider only the following elements of aggravation in determining whether
the death penalty should be imposed:
1)
The capital offense was committed by a person under
sentence of imprisonment, probation or parole.
2)
The capital offense was committed for pecuniary gain
during the course of a robbery.
7
Howell also comments on what he considers a “disturbing trend in the trial court’s refusal to grant
defendant’s theory of the case instructions and detailed sentencing instructions.” In addition, Howell questions
why instructions should be shortened when a person’s life is at stake. Again, Howell submitted the instruction
as a whole and did not ask for any specific instruction to be considered by the trial judge. The trial judge also
stated that some of the defense instructions were incorporated into other instructions for the jury. We find
that this contention is without merit.
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You must unanimously find, beyond a reasonable doubt, that one or more of the
preceding aggravating circumstances exists in this case to return the death
penalty. If none of these aggravating circumstances are found to exist, the death
penalty may not be imposed, and you shall write the following verdict on a sheet
of paper:
“We the jury, find the defendant, Marlon Latodd Howell, should
be sentenced to life imprisonment without parole.”
If one or more of these aggravating circumstances is found to exist, then
you must consider whether there are mitigating circumstances which
outweigh the aggravating circumstance(s). Consider the following
elements of mitigation in determining whether the death penalty should
be not imposed.
1)
Whether the defendant, Marlon Latodd Howell, has no
significant history of prior criminal activity.
2)
The age of the defendant Marlon Latodd Howell at the
time of the crime.
3)
The fact that Marlon Latodd Howell will not be eligible
for parole or probation.
4)
The sentence of co-defendant Adam Ray and Curtis
Lipsey.
5)
Any other matter, any other aspect of the defendant’s
character or record, and any other circumstances of the
offense brought to you during the trial of this cause which
you, the jury, deem to be mitigating on behalf of the
defendant.
If you find from the evidence that one or more of the preceding elements of
mitigation exists, then you must consider whether it (or they) outweigh(s) or
overcome(s) the aggravating circumstance(s) you previously found. In the event
that you find that the mitigating circumstance(s) do not outweigh or overcome
the aggravating circumstance(s), you may impose the death sentence. Should
you find that the mitigating circumstance(s) outweigh or overcome the
aggravating circumstance(s), you shall not impose the death sentence.
85
(emphasis added). Clearly, the instruction defined the terms “aggravating” and “mitigating” for
the jury as well as the exact elements of each. Indeed, in Randle v. State, 827 So.2d 705, 713
(Miss. 2002), this Court upheld instructions similar in form to the instructions at hand. The
Court held that the instructions adequately placed the aggravating circumstances and the
mitigating circumstances before the jury, clearly explained that the circumstances must be
weighed against each other, and the appropriate sentence based upon the result of the weighing
process. Id. Accordingly, this issue is without merit.
XXVI.
Comments on the Victim, Pernell
¶205. Howell next contends that the trial court erred in allowing the State to refer to the
victim in the closing argument. More precisely, Howell argues that the State’s remarks
comparing the victim, Pernell, to himself were highly inflammatory and prejudicial.
¶206. Counsel has wide latitude when arguing cases. Wells v. State, 698 So.2d 497, 506
(Miss. 1997); Davis v. State, 530 So.2d at 702. “Where a prosecutor has made an improper
argument, the question on appeal is ‘whether the natural and probable effect of the improper
argument of the prosecuting attorney is to create an unjust prejudice against the accused as to
result in a decision influenced by the prejudice so created.’" Wells v. State, 698 So.2d at 507
(citing Davis v. State, 530 So.2d 694, 701 (Miss. 1988)). See also Bell v. State, 725 So.2d
836, 851 (Miss. 1998) (no error where prosecutor argued that murder victim planned to own
his own store and stated that victim's life now was reduced to trial exhibits); Conner v. State,
632 So.2d 1239, 1276 (Miss. 1993) (overruled on other grounds) (no error where prosecution
referred to victim as a grandmother and not to forget her); Hughes v. State, 820 So.2d 8, 12
86
(Miss. Ct. App. 2002) (no error where the prosecutor asked the jury "to imagine yourself
closing your business or home being faced with a shotgun").
¶207. Howell relies upon Willie v. State, 585 So.2d 660, 679 (Miss. 1991) for authority to
support his position that the trial court erred by allowing the State to comment on the victim
in closing argument. However, Howell does not cite any specific language from the State's
closing arguments. In Willie, the defendant argued that the jury was asked to weigh the value
of Willie’s life against the victim. Willie, 585 So.2d at 679. This Court considered this issue
procedurally barred for failure to object at the trial. Id. Despite the procedural bar, the Court
went on to state that the comment was improper even though it was not considered a victim
impact statement and had no bearing on Willie’s moral culpability. Id. This Court finds that
Willie is not persuasive to the issue sub judice.
¶208. During Howell’s closing argument, Howell's counsel raised a number of points for the
jury's consideration before making its decision. In essence, the defense counsel elaborated
on how awful the whole situation was for Howell and his family. Defense counsel referenced
that Howell was just 20 years old. Defense counsel further mentioned that Howell’s family
was physically unable to come and testify at the sentencing phase of the trial and that the
sentence takes him away from his family. In addition, defense counsel stated that a life
sentence for a 20 year old was basically a death sentence.
¶209. After Howell’s closing argument, the State made its final arguments to the jury. The
State's closing argument emphasized that Howell was trying to “put a guilt trip” on the jury.
In addition, the State argued that Howell did not want the jury to consider the victim. The State
87
asked the jury to compare Howell, who murdered Pernell for money, to Pernell, a retired
postal worker with a family who worked to earn money. Later, the State argued:
I dare put words in the mouth of the man I never met but I heard a lot about and
you heard some about for this witness stand. But I bet you [Pernell] would tell
you this. When you consider him to be mean or nice or whatever he would say
I would like to see that may lay on death row a long long time. Let him think
about what blast across my mind when I saw the fire coming from that barrel.
* * * *
Let me bring you back to that second in time before he died to ask what would
he say. Did he get a chance to say goodbye to his family. No. What about asking
God for forgiveness and mercy? No he died instantly. I expect he would like to
see this defendant sit on death row and look down thinking about what will
happen to him. Thinking about what the sentence will be like if carried out. I
think he would at least want that.
The State also pointed out that by his actions, Howell not only ruined the lives of Pernell's
family, he ruined the lives of his own family. As a final statement, the State requested that the
jury consider the instructions and stated “don’t let the guilt trip bother you.”
¶210. This Court finds that the State's comments did not create an unjust prejudice against
Howell which resulted in a decision influenced by prejudice. Attorneys have wide latitude in
closing statements. Wells, 698 So.2d at 506. In the case sub judice, the State was asking the
jury to be mindful of the facts and not be swayed by a “guilt trip” or sympathy. Further, the
State was arguing aggravating factors by stating that Howell took the money for pecuniary gain
as opposed to working for the money as did Pernell. The State also placed responsibility on
Howell for ruining the lives of all involved. The State asked the jury to follow the instructions
and not allow themselves to be swayed by a “guilt trip.” This issue is without merit.
XXVII.
Howell's Post-Trial Motion for a New Trial.
88
¶211. The trial court conducted a hearing on a motion for new trial. Howell argues that the
trial court erred in denying his motion for new trial. Of particular concern, Howell cites to
issue I (venue), XIII8 (guilt phase instruction S-2 concerning whether § 97-3-19 specifically
enumerate attempted robbery as an underlying offense for the conviction of capital murder),
and XXVI (the prosecution’s reference to the victim, Pernell, in the sentencing phase).
¶212. In Birkley v. State, 750 So.2d 1244, 1255 (Miss. 1999), this Court held that the
standard of review for a post-trial motion is abuse of discretion. “A motion for new trial
challenges the weight of the evidence. A reversal is warranted only if the lower court abused
its discretion in denying a motion for new trial.” Edwards v. State, 800 So.2d 454, 464 (Miss.
2001) (citing Sheffield v. State, 749 So.2d 123, 127 (Miss. 1999). “This Court will accept
as true the evidence which supports the verdict and gives the benefit of all favorable inferences
that may be drawn from the evidence to the prosecution.” Jefferson v. State, 818 So.2d 1099,
1111-12 (Miss. 2002) (citing Edwards, 800 So.2d at 465). The appellate court will not order
a new trial “unless the verdict is so contrary to the overwhelming weight of the evidence that
to allow it to stand would sanction ‘unconscionable injustice.’" McDowell v. State, 813 So.2d
694, 699-700 (Miss. 2002) (citing Crawford v. State, 754 So.2d 1211, 1222 (Miss. 2000));
Birkley v. State, 750 So.2d at 1255; McNeal v. State, 617 So.2d 999, 1009 (Miss. 1993).
¶213. This Court has adequately addressed Howell’s concerns in its discussion of the prior
issues. Further, the trial court did not abuse its discretion in denying the post-trial motion for
8
Howell cites issue XIII concerning guilt phase instruction S-2 in his brief to be of particular concern,
however, at the hearing defense counsel argued sentencing phase instruction S-2 in issue XXIV. In either
case, this Court had adequately addressed these issues and no further discussion is required.
89
new trial. No unconscionable injustice is sanctioned by allowing the jury verdict to stand.
Looking at all the evidence in the light that is most consistent to the jury verdict, there is
substantial evidence in the record that reasonable and fair-minded jurors would have found
Howell guilty of capital murder. Accordingly, this issue is without merit.
XXVIII.
Proportionality of the Death Penalty in this Case
¶214. This Court must perform a proportionality review when reviewing a death sentence in
a capital case pursuant to Miss. Code Ann. § 99-19-105(3) (Rev. 2000). Section 99-19-105(3)
states:
(3)
With regard to the sentence, the court shall determine:
(a)
Whether the sentence of death was imposed under the
influence of passion, prejudice or any other arbitrary
factor;
(b)
Whether the evidence supports the jury's or judge's finding
of a statutory aggravating circumstance as enumerated in
Section 99-19-101;
(c)
Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant; and
(d)
Should one or more of the aggravating circumstances be
found invalid on appeal, the Mississippi Supreme Court
shall determine whether the remaining aggravating
circumstances are outweighed by the mitigating
circumstances or whether the inclusion of any invalid
circumstance was harmless error, or both.
¶215. After reviewing the record in this appeal as well as the death penalty cases listed in the
attached appendix, we find that Howell’s death sentence was not imposed under the influence
of passion, prejudice, or any other arbitrary factor. The evidence is more than sufficient to
90
support the jury's finding of the two statutory aggravating circumstances being namely, a capital
offense committed in the course of a robbery for pecuniary gain and by person under a
sentence of imprisonment, probation or parole. Further, in comparison to other factually
similar cases where the death sentence was imposed, the sentence of death is neither excessive
or disproportionate in this case. Finally, we find that the jury did not consider any invalid
aggravating circumstances. Therefore, this Court affirms the death sentence imposed in this
case.
CONCLUSION
¶216. Finding no reversible error, we affirm the judgment of the Union County Circuit Court.
¶217. CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH BY
LETHAL INJECTION, AFFIRMED.
SMITH, P.J., AND CARLSON, J., CONCUR. COBB, J., CONCURS IN PART
AND IN RESULT. WALLER, J., CONCURS WITH SEPARATE WRITTEN OPINION
JOINED BY PITTMAN, C.J., COBB AND CARLSON, JJ. GRAVES, J., JOINS IN PART.
GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE,
P.J. DIAZ, J., NOT PARTICIPATING.
WALLER, JUSTICE, CONCURRING:
¶218. While I concur with the majority opinion in the result of an affirmance of Howell's
conviction and death sentence, I write to express reservations about an indigent defendant being
refused funding for expert services because his attorney was acting pro bono.
¶219. We should encourage members of the Bar to take complex criminal cases pro bono.
To deny a defendant what is customarily afforded an indigent defendant simply because counsel
is pro bono sends the wrong message to the Bar and will have a chilling effect on attorneys
91
volunteering to represent indigent defendants accused of capital offenses due to the costs
associated with defending a capital case.
¶220. Other jurisdictions have addressed whether an indigent defendant who is represented
by private counsel is entitled to public funds to retain an expert. The Delaware Supreme Court
has set out a procedure to determine whether an indigent defendant represented by private
counsel could receive public funding for expert services. See Chao v. State, 780 A.2d 1060,
1063 (Del. 2001). To receive funding, the trial court must determine whether (1) the
defendant is indigent; (2) counsel is serving pro bono; (3) it would be inappropriate to require
private counsel to withdraw in favor of a public defender; and (4) the services are necessary
for adequate representation. Id.
¶221. Although a procedure similar to the one given by the Delaware court would not help
Howell in the present case because he has shown no prejudice, it would be useful in future
cases to encourage members of the Bar to volunteer to represent indigent criminal defendants
with the assurance that the necessary tools for an adequate defense will be provided.
PITTMAN, C.J., COBB AND CARLSON, JJ., JOIN THIS OPINION. GRAVES, J.,
JOINS IN PART.
GRAVES, JUSTICE, DISSENTING:
¶222. With deference to both my colleague on the circuit court and my colleagues in the
majority, I am convinced that three errors below deprived Marlon Latodd Howell of a fair trial.
Therefore, I respectfully dissent.
A. Failure to find that the State’s peremptory strikes of AfricanAmerican venire members was racially discriminatory.
92
¶223. Unfortunately in so many cases voir dire has become an exercise in finding race neutral
reasons to justify racially motivated strikes. As Justice Marshall predicted, “[m]erely allowing
defendants the opportunity to challenge the racially discriminatory use of peremptory
challenges in individual cases will not end the illegitimate use of the peremptory challenge.”
Batson v. Kentucky, 476 U.S. 79, 105, 106 S.Ct. 1712, 1727, 90 L. Ed. 2d 69 (1986)
(Marshall, J., concurring). The case sub judice is another example of the improper use of
peremptory strikes to exclude African-American jurors.
¶224. In this case, the State exercised peremptory challenges against Juror No. 34 (“High”)
and Juror No. 68 (“Wade”),the only two African-American jurors on the venire considered
by the State for service. The State exercised peremptory challenges on both jurors, thus
eliminating any African-American jurors from service in the trial of Howell, an AfricanAmerican defendant.
¶225. The State’s proffered reason for striking juror High was that he had several arrests and
a recent charge for public drunk. The State further indicated that one of the District Attorneys
involved in the case had been in an automobile accident in front of High’s brother’s house and
he believed that High had witnessed the accident but refused to tell officers what he had seen.
As for juror Wade, the State indicated that there was an arrest warrant in Lee County issued for
Wade for receiving stolen property and that Wade had not been forthcoming in his
questionnaire as to criminal activity which would have prevented him from being fair and
impartial.
¶226. It is fundamentally unfair that the reasons proffered by the State were not brought up,
discussed with or produced to defense counsel at any time prior to or during voir dire. Further,
93
the matters were never raised during voir dire of jurors High and Wade. Neither High nor Wade
was given an opportunity to respond to the truthfulness or accuracy of these allegations. This
is exactly the type of information that should be revealed prior to voir dire because without it
the defense is denied the opportunity to evaluate and test the veracity and accuracy of the
information which the State used as the basis for its challenges. A review of the record reveals
that jurors High and Wade were never asked any specific questions by the State regarding the
matters which were subsequently used as reasons to strike them.
¶227. In support of its alleged race-neutral reason for striking juror Wade the State produced
Exhibit No. “1-A.” While the first page of this exhibit refers to Anthony Wade, another last
name appearing to be “Haney” was struck from the arrest warrant This exhibit also reflects that
this charge was made in 1994 and was later dismissed in justice court without prosecution.
This charge could have been dismissed for any number of reasons, one being that the State had
charged the wrong person. The State failed to produce this information to defense counsel,
failed to ask any questions regarding it, and failed to provide any indicia of reliability. Despite
all of these failures, the State was allowed to strike an African-American from the venire.
Further, the State presented no documentation to support its contention that juror High “had
several arrests” and a recent charge for public drunk or that juror High in fact observed any
accident in which the District Attorney had been involved.
¶228. This Court in Mack v. State, 650 So.2d 1289, 1298 (Miss. 1994), stated :
The failure to voir dire usually comes in to play when the prosecutor expresses
some suspicion or uncertainty about the true situation involving the juror, such
as when he "believes" that the juror is related to a criminal, or has been involved
in some activities which might engender a negative attitude toward the
defendant. This factor is closely related to the lack of an evidentiary basis. Here,
94
the fact that Mitchell was unemployed was reflected in the jury questionnaire.
The prosecutor was not acting on a mere suspicion. Still, voir dire on this issue
may have revealed an explanation for this status which would not have been
consistent with assumptions regarding the stability and community values of the
unemployed. The failure to conduct voir dire must weigh against the state in an
evaluation of the bona fides of the proffered reason.
In the Batson formulation, the relationship of the reason to the facts of the case
is to be considered. The usual role given this circumstance is as another factor
tending to show that the proffered reason is pretextual. See Whitsey 796 S.W.2d
at 714-15; State v. Slappy, 522 So.2d 18, 23-24 (Fla.1988). This too, must
weigh against the state. Nothing about the facts of this case suggests that a
juror's employment status should be an issue.
¶229. This Court, in Mack, went on to state that such a failure must be weighed in light of the
relative strength of the prima facie case of discrimination. In the case at bar, the defendant was
black, the victim was white, the jury seated was all white, and the only two black venire
members available for selection were struck by the State. If the State intends to use
information obtained outside of the voir dire process, it must make that information available
to the defendant before peremptory challenges are made so that the defendant has the
opportunity to investigate the truthfulness and accuracy of the reasons given by the State in
striking the only black jurors available for service.
¶230. Howell made a prima facie showing that the prosecutor exercised peremptory
challenges on the basis of race. Howell has shown that the State failed to articulate the raceneutral explanation to strike the jurors in question and purposely eliminated any black jurors
from sitting on a jury in the trial of a case involving a black man accused of killing a white man
in a predominately white county. The race-neutral reasons given by the State were unexplored
during voir dire and were based upon pretrial investigation of jurors High and Wade to which
the defense was not privileged nor apprised of during voir dire examination.
95
¶231. This Court in Mack, 650 So. 2d at 1299, declined to extend then Unif. Crim. R. Cir. Ct.
4.06 to information concerning prospective jurors. However, this Court did indicate that the
prosecutor may not withhold information concerning a prospective juror which impacts upon
the juror’s ability to be fair and impartial. Allowing the State to present uncorroborated facts
and information to the court in support of its peremptory challenge of black jurors after the
voir dire process has been completed denies Howell the basic fairness guaranteed under the
Constitution and rewards the State for failure to ask any relevant questions of High and Wade.
I would urge this Court to expand Mack, in recognition of due process, and require pretrial
disclosure of information concerning members of the venire and, at a minimum, require the
party attempting to exercise the peremptory strike, to question the person who is the object
of that strike, before it may challenge them.
B. Failure to allow Howell to conduct individual sequestered voir
dire of jurors who indicated a predisposition in the case.
¶232. Prior to trial, defense counsel filed a motion requesting individual sequestered voir dire
which the court reserved ruling on pending responses from the venire panel. Defense counsel
again requested the right to individually voir dire jurors who had indicated they had read
articles or seen information about the case on television and in particular inquire about the
facts concerning the alleged motive of robbery and the mention of Howell’s previous drug
conviction in newspapers. The court denied these requests.
¶233. Howell should have been granted the opportunity to individually voir dire jurors to
inquire as to opinions that these jurors had admitted to having on their juror information forms,
and not taint other jurors who had expressed no prejudgment of Howell’s guilt. In fact, 37 of
96
the 59 jurors remaining for selection either responded that they had a relationship with the
defendant, his family, the victim or his family, or had knowledge of the case, and in some cases
the juror had formed an opinion. To require defense counsel to question jurors regarding their
knowledge of Howell’s criminal background, which had been discussed in local newspapers
multiple times prior to the start of the trial, would have highly prejudiced Howell’s chances
of getting a fair and impartial jury.
¶234. This Court in Carr v. State, 655 So.2d 824, 842 (Miss. 1995), addressed the right of
the defendant to conduct individual voir dire. The Court noted that under then existent Rule
5.05 of the Mississippi Uniform Criminal Rules of Circuit Court Practice, the defendant is
granted the right to conduct individual voir dire at the discretion of the trial court. However,
the trial court must be aware of the heightened publicity surrounding capital murder cases and
the possibility, if not probability, of tainting unbiased jurors with information gained outside
of the courtroom. The U.S. Supreme Court has noted the importance of the ability to
individually voir dire members of the venire in Sheppard v. Maxwell, 384 U.S. 333,362, 86
S. Ct. 1507, 16 L. Ed. 2d 600 (1966), stating that the danger of general voir dire is that the
panel members not only hear prejudicial information, but also learn the desired response to
questions.
¶235. During voir dire, jurors repeatedly responded that they had knowledge of the facts of
this case. To require the defendant to voir dire those jurors as to their knowledge of the
defendant’s previous criminal activity would contaminate the entire jury pool. Due to the
persuasiveness of modern communication and the difficulty of erasing prejudicial publicity
97
from the minds of jurors, the trial court should have allowed sequestered voir dire to eliminate
prejudice and prejudgment of a jury sitting in the trial of a capital murder case.
C. Allowing the State, in closing argument, to refer to Howell’s failure to tell
somebody about his alibi defense or give details.
¶236. The prosecution in closing arguments stated: “If you had an alibi and were accused of
Capital Murder, don’t you think you would tell somebody about it. Don’t you think you would
give some details. Done something, that is common sense.”
¶237. This Court noted in Taylor v. State, 672 So.2d 1246, 1266 (Miss. 1996), that the
prosecution is prohibited from making a direct comment or reference by innuendo or
insinuation to a defendant’s failure to testify on his behalf. The prosecution’s statement in
closing argument here can only be construed as a comment on Howell’s failure to take the
stand and give details concerning his alibi. Considering that the prosecution was well aware of
the two witnesses who testified as to Howell’s whereabouts supporting his alibi, the
prosecution’s argument can only apply to Howell. In fact, the prosecution’s use of the phrases
“don’t you think you would tell somebody, don’t you think you would give some details”, can,
in my opinion, only be referring to Howell’s failure to testify on his own behalf.
¶238. Because these three errors deprived Howell of a fair trial, I would reverse the circuit
court's judgment and remand this case for a new trial.
¶239. It is for the foregoing reasons that I respectfully dissent.
McRAE, P.J., JOINS THIS OPINION.
98
APPENDIX
DEATH CASES AFFIRMED BY THIS COURT
Walker v. State, 815 So.2d 1209 (Miss. 2002). *following remand.
Bishop v. State, 812 So.2d 934 (Miss. 2002).
Stevens v. State, 806 So.2d 1031 (Miss. 2002).
Grayson v. State, 806 So.2d 241 (Miss. 2002).
Knox v. State, 805 So.2d 527 (Miss. 2002).
Simmons v. State, 805 So.2d 452 (Miss. 2002).
Berry v. State, 802 So.2d 1033 (Miss. 2001).
Snow v. State, 800 So.2d 472 (Miss. 2001).
Mitchell v. State, 792 So.2d 192 (Miss. 2001).
Puckett v. State, 788 So.2d 752 (Miss. 2001). * following remand.
Goodin v. State, 787 So.2d 639 (Miss. 2001).
Jordan v. State, 786 So.2d 987 (Miss. 2001).
Manning v. State, 765 So.2d 516 (Miss. 2000). *following remand.
Eskridge v. State, 765 So.2d 508 (Miss. 2000).
McGilberry v. State, 741 So. 2d 894 (Miss. 1999).
Puckett v. State, 737 So. 2d 322 (Miss. 1999). *remanded for Batson hearing.
Manning v. State, 735 So. 2d 323 (Miss. 1999). *remanded for Batson hearing.
Hughes v. State, 735 So. 2d 238 (Miss. 1999).
Turner v. State, 732 So. 2d 937 (Miss. 1999).
Smith v. State, 729 So. 2d 1191 (Miss. 1998).
Burns v. State, 729 So. 2d 203 (Miss. 1998).
Jordan v. State, 728 So. 2d 1088 (Miss. 1998).
Gray v. State, 728 So. 2d 36 (Miss. 1998).
Manning v. State, 726 So. 2d 1152 (Miss. 1998).
i
Woodward v. State, 726 So. 2d 524 (Miss. 1997).
DEATH CASES AFFIRMED BY THIS COURT
(continued)
Bell v. State, 725 So. 2d 836 (Miss. 1998).
Evans v. State, 725 So. 2d 613 (Miss. 1997).
Brewer v. State, 725 So. 2d 106 (Miss. 1998).
Crawford v. State, 716 So. 2d 1028 (Miss. 1998).
Doss v. State, 709 So. 2d 369 (Miss. 1996).
Underwood v. State, 708 So. 2d 18 (Miss. 1998).
Holland v. State, 705 So. 2d 307 (Miss. 1997).
Wells v. State, 698 So. 2d 497 (Miss. 1997).
Wilcher v. State, 697 So. 2d 1087 (Miss. 1997).
Wiley v. State, 691 So. 2d 959 (Miss. 1997).
Brown v. State, 690 So. 2d 276 (Miss. 1996).
Simon v. State, 688 So. 2d 791 (Miss.1997).
Jackson v. State, 684 So. 2d 1213 (Miss. 1996).
Williams v. State, 684 So. 2d 1179 (Miss. 1996).
Davis v. State, 684 So. 2d 643 (Miss. 1996).
Taylor v. State, 682 So. 2d. 359 (Miss. 1996).
Brown v. State, 682 So. 2d 340 (Miss. 1996).
Blue v. State, 674 So. 2d 1184 (Miss. 1996).
Holly v. State, 671 So. 2d 32 (Miss. 1996).
Walker v. State, 671 So. 2d 581(Miss. 1995).
Russell v. State, 670 So. 2d 816 (Miss. 1995).
Ballenger v. State, 667 So. 2d 1242 (Miss. 1995).
Davis v. State, 660 So. 2d 1228 (Miss. 1995).
Carr v. State, 655 So. 2d 824 (Miss. 1995).
ii
DEATH CASES AFFIRMED BY THIS COURT
(continued)
Mack v. State, 650 So. 2d 1289 (Miss. 1994).
Chase v. State, 645 So. 2d 829 (Miss. 1994).
Foster v. State, 639 So. 2d 1263 (Miss. 1994).
Conner v. State, 632 So. 2d 1239 (Miss. 1993).
Hansen v. State, 592 So. 2d 114 (Miss. 1991).
*Shell v. State, 554 So. 2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1
(1990) reversing, in part, and remanding, Shell v. State, 595 So. 2d 1323 (Miss. 1992)
remanding for new sentencing hearing.
Davis v. State, 551 So. 2d 165 (Miss. 1989).
Minnick v. State, 551 So. 2d 77 (Miss. 1989).
*Pinkney v. State, 538 So. 2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S.
1075 (1990) vacating and remanding Pinkney v. State, 602 So. 2d 1177 (Miss. 1992)
remanding for new sentencing hearing.
*Clemons v. State, 535 So. 2d 1354 (Miss. 1988), Clemons v. Mississippi, 494
U.S. 738 (1990) vacating and remanding, Clemons v. State, 593 So. 2d 1004 (Miss. 1992)
remanding for new sentencing hearing.
Woodward v. State, 533 So. 2d 418 (Miss. 1988).
Nixon v. State, 533 So. 2d 1078 (Miss. 1987).
Cole v. State, 525 So. 2d 365 (Miss. 1987).
Lockett v. State, 517 So. 2d 1346 (Miss. 1987).
Lockett v. State, 517 So. 2d 1317 (Miss. 1987).
Faraga v. State, 514 So. 2d 295 (Miss. 1987).
iii
DEATH CASES AFFIRMED BY THIS COURT
(continued)
*Jones v. State, 517 So. 2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230
(1988) vacating and remanding, Jones v. State, 602 So. 2d 1170 (Miss. 1992)
remanding for new sentencing hearing.
Wiley v. State, 484 So. 2d 339 (Miss. 1986).
Johnson v. State, 477 So. 2d 196 (Miss. 1985).
Gray v. State, 472 So. 2d 409 (Miss. 1985).
Cabello v. State, 471 So. 2d 332 (Miss. 1985).
Jordan v. State, 464 So. 2d 475 (Miss. 1985).
Wilcher v. State, 455 So. 2d 727 (Miss. 1984).
Billiot v. State, 454 So. 2d 445 (Miss. 1984).
Stringer v. State, 454 So. 2d 468 (Miss. 1984).
Dufour v. State, 453 So. 2d 337 (Miss. 1984).
Neal v. State, 451 So. 2d 743 (Miss. 1984).
Booker v. State, 449 So. 2d 209 (Miss. 1984).
Wilcher v. State, 448 So. 2d 927 (Miss. 1984).
Caldwell v. State, 443 So. 2d 806 (Miss. 1983).
Irving v. State, 441 So. 2d 846 (Miss. 1983).
Tokman v. State, 435 So. 2d 664 (Miss. 1983).
Leatherwood v. State, 435 So. 2d 645 (Miss. 1983).
Hill v. State, 432 So. 2d 427 (Miss. 1983).
Pruett v. State, 431 So. 2d 1101 (Miss. 1983).
Gilliard v. State, 428 So. 2d 576 (Miss. 1983).
Evans v. State, 422 So. 2d 737 (Miss. 1982).
King v. State, 421 So. 2d 1009 (Miss. 1982).
iv
DEATH CASES AFFIRMED BY THIS COURT
(continued)
Wheat v. State, 420 So. 2d 229 (Miss. 1982).
Smith v. State, 419 So. 2d 563 (Miss. 1982).
Johnson v. State, 416 So. 2d 383 (Miss.1982).
Edwards v. State, 413 So. 2d 1007 (Miss. 1982).
Bullock v. State, 391 So. 2d 601 (Miss. 1980).
Reddix v. State, 381 So. 2d 999 (Miss. 1980).
Jones v. State, 381 So. 2d 983 (Miss. 1980).
Culberson v. State, 379 So. 2d 499 (Miss. 1979).
Gray v. State, 375 So. 2d 994 (Miss. 1979).
Jordan v. State, 365 So. 2d 1198 (Miss. 1978).
Voyles v. State, 362 So. 2d 1236 (Miss. 1978).
Irving v. State, 361 So. 2d 1360 (Miss. 1978).
Washington v. State, 361 So. 2d 6l (Miss. 1978).
Bell v. State, 360 So. 2d 1206 (Miss. 1978).
* Case was originally affirmed in this Court but on remand from U. S. Supreme
Court, case was remanded by this Court for a new sentencing hearing.
v
DEATH CASES REVERSED AS TO GUILT PHASE
AND SENTENCE PHASE
Flowers v. Sate, 842 So.2d 531 (Miss. 2003).
Randall v. State, 806 So. 2d 185 (Miss. 2002).
Flowers v. State, 773 So.2d 309 (Miss. 2000).
Edwards v. State, 737 So. 2d 275 (Miss. 1999).
Smith v. State, 733 So. 2d 793 (Miss. 1999).
Porter v. State, 732 So.2d 899 (Miss. 1999).
Kolberg v. State, 704 So. 2d 1307 (Miss. 1997).
Snelson v. State, 704 So. 2d 452 (Miss. 1997).
Fusilier v. State, 702 So. 2d 388 (Miss. 1997).
Howard v. State, 701 So. 2d 274 (Miss. 1997).
Lester v. State, 692 So. 2d 755 (Miss. 1997).
Hunter v. State, 684 So. 2d 625 (Miss. 1996).
Lanier v. State, 684 So. 2d 93 (Miss. 1996).
Giles v. State, 650 So. 2d 846 (Miss. 1995).
Duplantis v. State, 644 So. 2d 1235 (Miss. 1994).
Harrison v. State, 635 So. 2d 894 (Miss. 1994).
Butler v. State, 608 So. 2d 314 (Miss. 1992).
Jenkins v. State, 607 So. 2d 1171 (Miss. 1992).
Abram v. State, 606 So. 2d 1015 (Miss. 1992).
Balfour v. State, 598 So. 2d 731 (Miss. 1992).
Griffin v. State, 557 So. 2d 542 (Miss. 1990).
Bevill v. State, 556 So. 2d 699 (Miss. 1990).
West v. State, 553 So. 2d 8 (Miss. 1989).
Leatherwood v. State, 548 So. 2d 389 (Miss. 1989).
Mease v. State, 539 So. 2d 1324 (Miss. 1989).
vi
DEATH CASES REVERSED AS TO GUILT PHASE
AND SENTENCE PHASE
(continued)
Houston v. State, 531 So. 2d 598 (Miss. 1988).
West v. State, 519 So. 2d 418 (Miss. 1988).
Davis v. State, 512 So. 2d 129l (Miss. 1987).
Williamson v. State, 512 So. 2d 868 (Miss. 1987).
Foster v. State, 508 So. 2d 1111 (Miss. 1987).
Smith v. State, 499 So. 2d 750 (Miss. 1986).
West v. State, 485 So. 2d 681 (Miss. 1985).
Fisher v. State, 481 So. 2d 203 (Miss. 1985).
Johnson v. State, 476 So. 2d 1195 (Miss. 1985).
Fuselier v. State, 468 So. 2d 45 (Miss. 1985).
West v. State, 463 So. 2d 1048 (Miss. 1985).
Jones v. State, 461 So. 2d 686 (Miss. 1984).
Moffett v. State, 456 So. 2d 714 (Miss. 1984).
Lanier v. State, 450 So. 2d 69 (Miss. 1984).
Laney v. State, 421 So. 2d 1216 (Miss. 1982).
vii
DEATH CASES REVERSED
AS TO PUNISHMENT AND REMANDED
FOR RESENTENCING TO LIFE IMPRISONMENT
Reddix v. State, 547 So. 2d 792 (Miss. 1989).
Wheeler v. State, 536 So. 2d 1341 (Miss. 1988).
White v. State, 532 So. 2d 1207 (Miss. 1988).
Bullock v. State, 525 So. 2d 764 (Miss. 1987).
Edwards v. State, 441 So. 2d 84 (Miss. l983).
Dycus v. State, 440 So. 2d 246 (Miss. 1983).
Coleman v. State, 378 So. 2d 640 (Miss. 1979).
viii
DEATH CASES REVERSED AS TO
PUNISHMENT AND REMANDED FOR A NEW TRIAL
ON SENTENCING PHASE ONLY
King v. State, 784 So.2d 884 (Miss. 2001).
Walker v. State, 740 So.2d 873 (Miss. 1999).
Watts v. State, 733 So.2d 214 (Miss. 1999).
West v. State, 725 So. 2d 872 (Miss. 1998).
Smith v. State, 724 So. 2d 280 (Miss. 1998).
Berry v. State, 703 So. 2d 269 (Miss. 1997).
Booker v. State, 699 So. 2d 132 (Miss. 1997).
Taylor v. State, 672 So. 2d 1246 (Miss. 1996).
*Shell v. State, 554 So. 2d 887 (Miss. 1989), Shell v. Mississippi, 498 U.S. 1 (1990)
reversing, in part, and remanding, Shell v. State 595 So. 2d 1323 (Miss. 1992) remanding
for new sentencing hearing.
*Pinkney v. State, 538 So. 2d 329 (Miss. 1989), Pinkney v. Mississippi, 494 U.S. 1075
(1990) vacating and remanding, Pinkney v. State, 602 So. 2d 1177 (Miss. 1992)
remanding for new sentencing hearing.
*Clemons v. State, 535 So. 2d 1354 (Miss. 1988), Clemons v. Mississippi, 494 U.S.
738 (1990) vacating and remanding, Clemons v. State, 593 So. 2d 1004 (Miss. 1992)
remanding for new sentencing hearing.
*Jones v. State, 517 So. 2d 1295 (Miss. 1987), Jones v. Mississippi, 487 U.S. 1230
(1988) vacating and remanding, Jones v. State, 602 So. 2d 1170 (Miss. 1992) remanding
for new sentencing hearing.
Russell v. State, 607 So. 2d 1107 (Miss. 1992).
Holland v. State, 587 So. 2d 848 (Miss. 1991).
Willie v. State, 585 So. 2d 660 (Miss. 1991).
Ladner v. State, 584 So. 2d 743 (Miss. 1991).
Mackbee v. State, 575 So. 2d 16 (Miss. 1990).
ix
DEATH CASES REVERSED AS TO
PUNISHMENT AND REMANDED FOR A NEW TRIAL
ON SENTENCING PHASE ONLY
(continued)
Berry v. State, 575 So. 2d 1 (Miss. 1990).
Turner v. State, 573 So. 2d 657 (Miss. 1990).
State v. Tokman, 564 So. 2d 1339 (Miss. 1990).
Johnson v. State, 547 So. 2d 59 (Miss. 1989).
Williams v. State, 544 So. 2d 782 (Miss. 1989); sentence aff'd 684 So. 2d 1179 (1996).
Lanier v. State, 533 So. 2d 473 (Miss. 1988).
Stringer v. State, 500 So. 2d 928 (Miss. 1986).
Pinkton v. State, 481 So. 2d 306 (Miss. 1985).
Mhoon v. State, 464 So. 2d 77 (Miss. 1985).
Cannaday v. State, 455 So. 2d 713 (Miss. 1984).
Wiley v. State, 449 So. 2d 756 (Miss. 1984); resentencing affirmed, Wiley v. State, 484
So. 2d 339 (Miss. 1986), cert. denied Wiley v. Mississippi, 479 U.S. 1036 (1988);
resentencing ordered, Wiley v. State, 635 So. 2d 802 (Miss. 1993) following writ of
habeas corpus issued pursuant to Wiley v. Puckett, 969 So. 2d 86, 105-106 (5th Cir.
1992); resentencing affirmed, Wiley v. State, 95-DP-00149, February 13, 1997
(rehearing pending).
Williams v. State, 445 So. 2d 798 (Miss. 1984). * Case was originally affirmed in this
Court but on remand from U. S. Supreme Court, case was remanded by this Court for a
new sentencing hearing.
x
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