Havard v. State

Decision Date09 February 2006
Docket NumberNo. 2003-DP-00457-SCT.,2003-DP-00457-SCT.
Citation928 So.2d 771
PartiesJeffrey Keith HAVARD v. STATE of Mississippi.
CourtMississippi Supreme Court

Andre De Gruy, Jackson, Stacy P. Ferraro, attorneys for appellant.

Office of the Attorney General by Melanie Kathryn Dotson, attorney for appellee.


CARLSON, Justice, for the Court:

¶ 1. After a jury found Jeffrey Havard guilty of capital murder (murder during the commission of sexual battery) of six-month old Chloe Britt, the same jury found Havard should suffer the penalty of death. Consistent with the jury verdict, the trial judge imposed the death sentence upon Havard, and it is from this final judgment that Havard appeals to us. Finding no reversible error in the guilt/innocence phase, or the sentencing phase, we affirm the judgment of conviction and sentence entered by the Adams County Circuit Court.


¶ 2. Jeffrey Havard was living in Adams County with Rebecca Britt, the mother of six-month old Chloe Britt.1 Havard was not Chloe's father. Havard and Britt had been dating for a few months when Britt and Chloe moved in with Havard in his trailer located on property owned by Havard's grandfather. Around 8:00 p.m. on February 21, 2002, Havard gave Britt some money and asked her to go to the grocery store to get supper. Britt returned to find Chloe bathed and asleep. Havard told Britt he had given Chloe her bath and put her to bed. Havard had also stripped the sheets off the bed and told Britt he was washing them. Before that night, Havard had never bathed Chloe or changed her diaper. After Britt checked on Chloe, Havard insisted that Britt go back out to the video store to rent some movies. When Britt returned, Havard was in the bathroom, and Chloe was blue and no longer breathing. Britt performed CPR on Chloe in an attempt to resuscitate her. Britt and Havard drove Chloe to Natchez Community Hospital, where Britt's mother worked. The pathologist who prepared Chloe's autopsy report would later testify that some of her injuries were consistent with penetration of the rectum with an object. Other injuries of the child included abrasions and bruises inside her mouth and internal bleeding inside her skull consistent with shaken baby syndrome. Both the hospital staff and the Sheriff observed anal injuries on Chloe as well, but no one at Chloe's day care had ever noticed bruises or marks on Chloe. No anal injuries or anything unusual about the child's rectum was noticed by the day care staff earlier on the day of February 21st. Chloe was pronounced dead at the hospital later that night.

¶ 3. In the course of the investigation, Havard was charged with capital murder. In a videotaped statement two days after Chloe's death, Havard denied committing sexual battery on Chloe, but instead claimed he accidentally dropped her against the commode after bathing her, shook her in a panic, and then rubbed her down with lavender lotion before putting her to bed. The State presented DNA evidence which had been collected from the bed sheet. This evidence matched the DNA of both Havard and Chloe. A sexual assault kit testing for any of Havard's DNA in Chloe's rectum or vagina produced negative results. Havard offered no explanation for Chloe's injuries other than the possibility that he wiped her down too vigorously when preparing her for bed. Because Havard was indigent at trial, counsel was appointed to represent Havard, who also has court-appointed counsel for this appeal. Various events in the trial proceedings give rise to Havard's issues on appeal. In a pre-trial motion, defense counsel requested that any victim impact statement be excluded; and, the trial judge granted the motion as to the guilt/innocence phase of the trial. During the trial court's voir dire concerning any personal relationships jurors may have had with Havard, one juror stated she felt she could not be fair because her niece had been raped. The trial court later questioned the potential jurors to ascertain whether any one juror would either automatically vote for the death penalty, or would be unable to vote for the death penalty in the sentencing phase of the trial, regardless of the evidence presented at trial. One juror, who would later swear in a post-trial affidavit that he felt the death penalty was always appropriate in murder cases, was selected as a juror for the trial of this case. Trial counsel's defense strategy was to defend against any allegations of the underlying felony of sexual battery, consistent with Havard's version of the events of that night. The jury returned a verdict of guilty; and, in a separate sentencing hearing, the same jury found that Havard should be sentenced to death. Havard raises fourteen issues on appeal, including questions of ineffective assistance of counsel, trial court error, prosecutorial misconduct, and a legally defective indictment. These issues arise from various phases of the trial, including the voir dire examination of the jury, the introduction of certain testimony and other evidence, the closing arguments, and the sentencing phase of the trial. Additionally, in death penalty cases here on direct appeal, this Court is required by statute to review other issues, regardless of whether the appellant has specifically raised those issues. These issues include the proportionality of the death sentence and other designated questions regarding the death sentence. Miss.Code Ann. § 99-19-105 (1972).


¶ 4. On appeal to this Court, convictions upon indictments for capital murder and sentences of death must be subjected to "heightened scrutiny." Balfour v. State, 598 So.2d 731, 739 (Miss.1992) (citing Smith v. State, 499 So.2d 750, 756 (Miss.1986); West v. State, 485 So.2d 681, 685 (Miss.1985)). Under this standard of review, all doubts are to be resolved in favor of the accused because "what may be harmless error in a case with less at stake becomes reversible error when the penalty is death." Id. (quoting Irving v. State, 361 So.2d 1360, 1363 (Miss.1978)). See also Fisher v. State, 481 So.2d 203, 211 (Miss. 1985).


¶ 5. Havard argues his representation was ineffective at several points during the trial, violating his right to effective counsel. Havard specifically asserts his trial counsel failed to ensure that juror number twenty-five, Dorothy Sylvester, was excused for cause because she was biased against him. During the court's voir dire, the trial judge asked whether any of the prospective jurors knew Havard or his family. In response, Sylvester stated, "I don't know him, but I had a niece to be raped — you know — I don't think I could be fair about it, too." The trial judge clarified that he would deal with those concerns later, and at that point in the questioning, he was merely asking if any member of the venire was acquainted with Havard or his family. Sylvester was eventually selected and served on the trial jury as juror number seven in the order of selection.

¶ 6. During the jury selection process, the trial judge granted all but one of the thirteen for-cause challenges exercised by defense counsel. Of the forty-five jurors stricken for cause in this case, defense counsel successfully challenged twelve jurors. Additionally, counsel for the State exercised ten of the allotted twelve peremptory challenges, plus one peremptory challenge on an alternate juror; and, defense counsel exercised seven of the allotted twelve peremptory challenges, but with no peremptory challenges being exercised on an alternate juror. Neither counsel for the State nor for the defense challenged Sylvester for cause or peremptorily. When the trial judge was conducting his voir dire of the jury venire, the emphasis was on fairness. The trial judge informed the jury that the purpose of voir dire examination was to discover anything "that in all honesty would make it very difficult for you to be a totally fair and impartial juror." During his follow-up questions directed at specific jurors, the trial judge also repeatedly asked whether certain circumstances would make it difficult for the juror to be totally fair and impartial. The words "fair," "impartial," "fairly," and "honestly" appear multiple times in the transcript throughout the trial court's voir dire examination. Counsel for the State likewise emphasized fairness in his questioning, and defense counsel informed the members of the jury venire that he would not repeat a question already asked of the jury unless he felt compelled to do so.

¶ 7. The right to effective assistance of counsel can be found in the Sixth Amendment of the United States Constitution. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Sixth Amendment, however, guarantees only the right to reasonably effective counsel or competent counsel, not perfect counsel or one who makes no mistakes at trial. Wilcher v. State, 863 So.2d 719, 734 (Miss.2003); Mohr v. State, 584 So.2d 426, 430 (Miss.1991); Cabello v. State, 524 So.2d 313, 315 (Miss.1988). See also Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Mississippi has recognized that a strong presumption of competence exists in favor of the attorney. Mohr, 584 So.2d at 430. The test is one of reasonableness; counsel must have provided "reasonably effective assistance." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. For a defendant to prevail on a claim of ineffectiveness, counsel's representation must have fallen "below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. The United States Supreme Court in Strickland laid out the standard and the test that must be met for a successful claim...

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