Howard v. State

Decision Date26 April 2012
Docket NumberNo. CR 00–803.,CR 00–803.
Citation403 S.W.3d 38,2012 Ark. 177
PartiesTimothy Lamont HOWARD, Petitioner v. STATE of Arkansas, Respondent.
CourtArkansas Supreme Court

OPINION TEXT STARTS HERE

Jenniffer Horan, Federal Public Defender, Scott W. Braden, Assistant Federal Public Defender, Office of Federal Public Defender, for petitioner.

Dustin McDaniel, Attorney General, David R. Raupp, Senior Assistant Attorney General, Lauren E. Heil, Assistant Attorney General, for respondent.

ROBERT L. BROWN, Justice.

Timothy Lamont Howard petitions this court to reinvest jurisdiction in the Little River County Circuit Court to consider his petition for a writ of error coram nobis. Howard was convicted by a jury of two counts of capital murder and one count of attempted capital murder in connection with the deaths of Brian and Shannon Day and the attack on their then seven-month-old child, Trevor Day, that occurred on or about December 12, 1997. He was sentenced to death plus thirty years and a $15,000 fine on December 9, 1999.

In 2002, this court affirmed his convictions and sentences on all counts. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002) (Howard I ). Next, Howard filed a Rule 37 petition based on ineffective assistance of counsel, and in 2006, this court remanded the circuit court's denial of Howard's Rule 37 petition in order to permit him to file a properly verified petition. Howard v. State, 366 Ark. 453, 236 S.W.3d 508 (2006) (per curiam) Howard II ). We then denied Howard's petition for Rule 37 relief, after it was properly verified. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006) ( Howard III ).

On March 9, 2007, Howard petitioned the federal district court for a writ of habeas corpus. Subsequently, that court granted Howard's motion to hold his petition in abeyance and found that there was good cause to permit him to return to state court to seek relief. On August 10, 2009, Howard filed a second Rule 37 petition with the circuit court, which was dismissed. This court affirmed the dismissal of the second Rule 37 petition on the grounds that Howard failed to move first to recall the mandate. On May 27, 2010, Howard filed a petition to recall the mandate, which this court denied on September 9, 2010. The present petition to reinvest jurisdiction in the circuit court for purposes of error coram nobis relief was filed with this court on October 7, 2010.

In Howard I, we set out the facts resulting in Howard's convictions and sentences. On Saturday, December 13, 1997, at 10:30 a.m., the Little River County Sheriff's Department discovered Brian Day's body in the back of a U–Haul truck in Ogden. Brian Day had been beaten and had been shot once in the head with a .38 caliber bullet. Once Brian Day's body was identified, Sheriff Danny Russell of the Department went to notify Shannon Day of her husband's death. At the Day home, he found Shannon Day's dead body under a mattress in a closet in a bedroom. Trevor Day, the Days' seven-month-old child, was found in a zipped bag crying with a cord tied around his neck. The bag was underneath a pile of clothes in one of the bedrooms of the Day home. Howard I, 348 Ark. at 476, 79 S.W.3d at 276–77.

Howard was arrested on Wednesday, December 17, 1997, for the capital murders of Brian Day and Shannon Day and the attempted capital murder of Trevor Day. Id. at 477, 79 S.W.3d at 277. This court said in Howard I that “the most incriminating evidence against Howard was his inappropriate and unexplainable behavior both before and after the discovery of Brian, Shannon, and Trevor Day,” and that [d]uring a period of time before and after the bodies were located, Howard relied on three different girlfriends, their homes, and several vehicles interchangeably to plan and to attempt to conceal his crimes.” Id.

In addition to his “inappropriate and unexplainable behavior,” the State introduced a pair of work boots found two miles from the site where Brian Day's body was found. The boots found were the same size and type that Howard's ex-wife, Vicki Howard, said that she had bought for him. Id. at 480, 79 S.W.3d at 279. She thought that she had seen him wearing those boots the day before the murders. Id. Jennifer Qualls, a witness for the State, testified that after Howard read a newspaper article describing the boots, he told her his boots “were in the U–Haul and somebody was trying to set him up.” There were several Negroid hairs found inside the boots, blood on top of the left boot, and a Caucasian hair found on the outside of the boots.1 Testimony at trial from a DNA analyst named Charity Diefenbach connected Howard to the Negroid hairs recovered from the boots. An Arkansas State Crime Lab analyst, Kermit Channel, also testified that the blood on the boots came from Brian Day. The Caucasian hair has not been identified. In addition to the DNA evidence, fingerprints matching Howard's fingerprints were found on a Mountain Dew bottle inside the Days' home. Id. at 485, 79 S.W.3d at 281.

We first consider the burden of proof and our standard of review for error coram nobis proceedings. Such proceedings are attended by a strong presumption that the judgment of conviction is valid. Sanders v. State, 374 Ark. 70, 71, 285 S.W.3d 630, 632 (2008) (per curiam). A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Id. at 72, 285 S.W.3d at 632. For the writ to issue following the affirmance of a conviction and sentence, the petitioner must show a fundamental error of fact extrinsic to the record. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Id.

The writ is issued only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. We have held that a writ of error coram nobis is available to address certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Id.

The proper standard of review for granting permission to reinvest jurisdiction in the circuit court to pursue a writ of error coram nobis is the one used by this court in Flanagan v. State:

This court will grant permission for a petitioner to proceed in the trial court with a petition for writ of error coram nobis only when it appears the proposed attack on the judgment is meritorious. In making such a determination, we look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof.

2010 Ark. 140, at 1, 2010 WL 987049 (per curiam). We turn then to the merits of Howard's petition.

I. Brady Claim Based on DNA Report in Guilt Phase

In seeking to reinvest jurisdiction in the circuit court to consider his petition, Howard focuses on the failure of the State to produce a DNA report with Charity Diefenbach's handwritten notes regarding testing conducted on the Negroid hairs found on the work boots. Howard asserts that this failure to produce evidences an apparent violation of his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and entitles him to a hearing in circuit court to decide the merit of his error coram nobis petition.

The DNA report with Diefenbach's notes was created by Bode Technology Group (Bode), a private laboratory in Virginia hired by the State. At the time of Howard's trial, the Arkansas State Crime Laboratory did not have the capability to conduct mitochondrial DNA (mtDNA) testing on the Negroid hairs recovered from the boots, and so that evidence was sent to Bode for analysis.2 The Arkansas Crime Lab, however, was able to test the blood that was on the work boots. Kermit Channel, then supervisor of the forensic biology section at the Arkansas Crime Lab, testified that the blood sample taken from the boot was consistent with the blood sample taken from Brian Day.3

Channel further testified that mtDNA had to be used to analyze the Negroid hairs instead of nuclear DNA testing, which was used at the Crime Lab to analyze the blood. Channel stated that nuclear DNA is found in the nucleus of white blood cells. He added that nuclear DNA testing can be performed on hairs, if there is sufficient root material attached. If there is not enough root material on the hairs for nuclear DNA testing, mtDNA testing can be performed. MtDNA testing analyzes the mitochondria, an organelle found inside the cells but outside the nucleus.Channel told the jury that hair, bone material, and teeth are all items where mtDNA can be used if there is not enough nuclear material for nuclear DNA testing.

At trial, Diefenbach testified that Howard “could not be excluded” as the source of the Negroid hairs. She further testified that “using a published statistical calculation, you could say that 99.8 percent of the population would not match this mitochondrial DNA profile” of the hairs. On cross-examination, Diefenbach testified as follows:

Attorney: Just for point of clarification. 99.8 percent of the people would be excluded from this sequence that were in these hairs, but the Defendant's blood DNA was included and is a match?

Diefenbach: That's correct.

The State did not introduce a copy of Diefenbach's report at trial detailing her mtDNA analysis and procedures. Nor did the State, according to Howard, make the full report, including Diefenbach's handwritten notes, available to him during discovery.

The handwritten notes on the report, Howard maintains, describe several extensive errors made by Diefenbach during the mtDNA analysis at Bode. First, he states that the report notes read “cap flipped open while spinning, resulting in sample loss,”...

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