Havard v. State

• Decision Date: 10 May 2012
• Docket Number: No. 2011–DR–00539–SCT.,2011–DR–00539–SCT.
• Citation: 86 So.3d 896
• Parties: Jeffrey Keith HAVARD v. STATE of Mississippi.
• Court: Mississippi Supreme Court

86 So.3d 896

Jeffrey Keith HAVARD

v.STATE of Mississippi.

No. 2011–DR–00539–SCT.

Supreme Court of Mississippi.

March 8, 2012.

As Modified on Denial of Rehearing May 10, 2012.

Graham P. Carner, attorney for appellant.

Office of The Attorney General by Lisa Colonias McGovern Marvin L. White, Jr., attorneys for appellee.

EN BANC.

CARLSON, Presiding Justice, for the Court:

¶ 1. Jeffrey Keith Havard (Havard) was found guilty of capital murder (murder during the commission of sexual battery) of six-month-old Chloe Britt. The jury also found that Havard's sentence should be death, and the Adams County Circuit Court imposed the death sentence upon Havard. This Court affirmed Havard's conviction and sentence on direct appeal. Havard v. State, 928 So.2d 771 (Miss.2006). His motion for rehearing was subsequently denied, as was his motion for post-conviction relief filed May 25, 2007. Havard v. State, 988 So.2d 322 (Miss.2008). Havard is currently seeking habeas relief in the United States District Court for the Southern District of Mississippi; however, that case has been stayed pending the outcome of Havard's second motion for post-conviction relief now before this Court. Finding no merit in Havard's successive motion for post-conviction relief, the Court denies his successive petition.

STATEMENT OF THE FACTS

¶ 2. Havard was living in Adams County with his girlfriend, Rebecca Britt, the mother of the victim, six-month-old Chloe Britt. Havard was not Chloe's father. Havard and Britt had been dating for a few months when Britt and Chloe moved in with Havard. On February 21, 2002, at approximately 8:00 p.m., Havard gave Britt some money and asked her to get supper from the grocery store. When Britt returned home, she found that Chloe had been bathed and was 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. Britt testified that, before that night, Havard had never bathed Chloe or changed her diaper.

¶ 3. Britt testified that she checked on Chloe and she seemed fine. Havard then insisted that Britt go back out to the video store to rent some movies. Britt further testified that when she returned, Havard was in the bathroom with the door shut. She then went to check on Chloe and found the baby was blue and no longer breathing. Britt attempted to resuscitate Chloe by CPR before Britt and Havard drove Chloe to Natchez Community Hospital, where Britt's mother worked. The child was pronounced dead at the hospital later that night.

¶ 4. The pathologist who prepared Chloe's autopsy report testified that some of Chloe's injuries were consistent with penetration of the rectum with an object. Chloe's other injuries included abrasions and bruises inside her mouth. The baby also had internal bleeding inside her skull that was consistent with shaken-baby syndrome. Chloe had anal injuries that were observed by both the hospital staff and the sheriff. 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 21, 2002.

¶ 5. Havard was later charged with capital murder with sexual battery being the underlying felony. Two days after Chloe's death, Havard gave a videotaped statement, in which he denied committing sexual battery on Chloe. He claimed that he accidentally dropped her against the commode after giving her a bath, shook her in a panic, and then rubbed her down with lavender lotion before putting her to bed.

¶ 6. DNA evidence collected from the bed sheets 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. The only explanation offered by Havard regarding Chloe's injuries was that he possibly wiped her down too vigorously when preparing her for bed. Havard was indigent at trial and had appointed counsel at trial and on direct appeal.

ISSUES

¶ 7. We set out here the five issues as presented in Havard's Motion for Relief From Judgment or for Leave to File Successive Petition for Post–Conviction Relief:

(1) The State violated Petitioner's constitutional rights to a fair trial and due process of law as governed by Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and related authority;

(2) The State withheld exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny;

(3) Alternatively to the immediately preceding issue, Petitioner's trial counsel were ineffective for failing to utilize the videotaped statement at issue if it was disclosed or produced prior to trial;

(4) Newly-discovered evidence demonstrates that Petitioner is innocent of the underlying felony of sexual battery-which alone made Petitioner's case a capital murder case and Petitioner eligible for the death sentence that was imposed; and

(5) Newly discovered evidence further demonstrates that Petitioner's trial counsel were ineffective in failing to challenge the underlying felony of sexual battery.

DISCUSSION

¶ 8. Before advancing directly to Havard's claims, we state here our standard of review when confronted with successive motions for post-conviction relief:

When this Court is presented with an application to file a motion for post-conviction relief, the Court shall deny relief unless the claims are not procedurally barred and they make a substantial showing of the denial of a state or federal right. Miss.Code Ann. § 99–39–27 (Supp.2011). Absent an applicable exception, a successive motion for post-conviction relief is procedurally barred. Miss.Code Ann. § 99–39–23(6) (Supp.2011); Rowland v. State, 42 So.3d 503, 507 (Miss.2010).

Knox v. State, 75 So.3d 1030, 1036 (Miss.2011).

¶ 9. Additionally, filings for post-conviction relief in capital cases are to be made within one year after conviction. Miss.Code Ann. § 99–39–5(2)(b) (Rev.2007). Again, absent an applicable exception, an untimely filed motion for post-conviction relief is procedurally time-barred.

¶ 10. For the sake of discussion, we will restate and reorder the issues presented to us for consideration in today's case.

I. WHETHER THE STATE WITHHELD EXCULPATORY INFORMATION IN VIOLATION OF BRADY v. MARYLAND AND ITS PROGENY.

¶ 11. Prior to trial, Rebecca Britt gave a videotaped statement to law enforcement officials. Havard claims that the video was uncovered during the discovery phase of his federal habeas corpus proceedings. Havard alleges that, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the prosecution withheld the videotape at trial despite his trial counsels' request for all exculpatory evidence.

¶ 12. In Brady, the United States Supreme Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. In King v. State, 656 So.2d 1168, 1174 (Miss.1995), this Court articulated a four-part test to assess whether a Brady violation had occurred. Under the test, it is the defendant's burden to prove: “(a) that the State possessed evidence favorable to the defendant (including impeachment evidence); (b) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence; (c) that the prosecution suppressed the favorable evidence; and (d) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.” Manning v. State, 929 So.2d 885, 891 (Miss.2006).

¶ 13. Despite the State's argument that Havard fails all four prongs of this test, the Court need only look to the third prong to determine that this issue must fail. In its response, the State has provided an affidavit from Gus Sermos, Havard's lead trial counsel, in which he states that, prior to trial, he did watch the videotaped interview of Rebecca Britt that was conducted the day after Chloe's murder at the Adams County Sheriff's Office. Sermos also states that Tom Rosenblatt, the Assistant District Attorney who prosecuted Havard, along with Lt. Manley, were present at the time he watched Britt's videotaped interview.

¶ 14. Corroborating Sermos's affidavit is the affidavit of Tom Rosenblatt, in which Rosenblatt states that he viewed the videotaped interview of Rebecca Britt conducted by the Adams County Sheriff's office while in the presence of Gus Sermos and Lt. Manley. Given the sworn affidavits from Havard's trial counsel and the prosecutor in his case, we find no merit in Havard's claim of a Brady violation, because he has not shown that the evidence was suppressed.

II. WHETHER THE STATE VIOLATED HAVARD'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW AS GOVERNED BY NAPUE v. ILLINOIS AND RELATED AUTHORITY.

¶ 15. Havard asserts that the State solicited testimony from Rebecca Britt at trial that it knew to be false. His contention is based on Britt's videotaped statement given the day after Chloe's murder at the Adam's County Sheriff's Office. Havard maintains that Britt's videotaped statement and her trial testimony differed and that the State allowed the disparity to go uncorrected.

¶ 16. It is Havard's contention in this successive motion for post-conviction relief that Britt's videotaped statement is “newly discovered evidence.” As discussed above, trial counsel was aware of Britt's videotaped statement and viewed it prior to trial. Therefore, the videotaped statement is not newly discovered evidence. This claim would have been procedurally barred from consideration even if it had been raised in Havard's original motion for post-conviction relief because it was capable of being raised at trial and/or on direct appeal....