Havard v. State, No. 2006-DR-01161-SCT.

• Decision Date: 22 May 2008
• Docket Number: No. 2006-DR-01161-SCT.
• Citation: 988 So.2d 322
• Parties: Jeffrey Keith HAVARD v. STATE of Mississippi
• Court: Mississippi Supreme Court

988 So.2d 322

Jeffrey Keith HAVARD v. STATE of Mississippi

No. 2006-DR-01161-SCT.

Supreme Court of Mississippi.

May 22, 2008.

Rehearing Denied August 28, 2008.

Mississippi Office of Capital Post-Conviction Counsel by Robert M. Ryan, Thomas C. Levidiotis, Louwlynn Vanzetta Williams, attorneys for appellant.

Office of the Attorney General by Pat McNamara, Marvin L. White, Jr., attorneys for appellee.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. Jeffrey Keith Havard was found guilty of capital murder (murder during the commission of sexual battery) of six-month-old Chloe Britt. The same jury also found that Havard should suffer the penalty of death. Consistent with the jury verdict, the Adams County Circuit Court imposed the death sentence upon Havard. His conviction and sentence were affirmed by this Court on direct appeal. Havard v. State, 928 So.2d 771 (Miss.2006). Havard's motion for rehearing subsequently was denied. Today's case concerns Havard's Application For Leave to Proceed in the Trial Court and Motion for Other Relief filed pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act, and more specifically, Mississippi Code Annotated Section 99-39-27 (Rev.2007). Finding no merit in Havard's claims, we deny his request for post-conviction relief.

FACTS AND PROCEEDINGS IN THE TRIAL COURT¹

¶ 2. In early 2002, Havard was living in Adams County with his girlfriend, Rebecca Britt (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.

¶ 3. 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. According to Britt, before that night, Havard had never bathed Chloe or changed her diaper. Britt checked on Chloe and she appeared fine. Havard then insisted that Britt go back out to the video store to rent some movies. When Britt returned, Havard was in the bathroom with the door shut. Britt went to check on Chloe and discovered that Chloe 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 at trial 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 daycare center had ever noticed bruises or marks on Chloe. No anal injuries or anything unusual about the child's rectum was noticed by the daycare staff earlier on the day of Chloe's death.

¶ 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. Havard claimed that he accidentally dropped Chloe 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 and had appointed counsel at trial and on direct appeal.

SUMMARY OF ISSUES

I. Ineffective assistance of counsel for failure to adopt defense strategy during guilt phase.

A) Failure to obtain DNA evidence.

B) Failure to secure a pathologist.

C) Failure to include a lesser-offense instruction.

II. Ineffective assistance of counsel for failure to investigate, develop and present mitigation evidence during penalty phase.

III. Ineffective assistance of counsel for failing to develop and present compelling evidence of Havard's childhood and family life in mitigation of punishment.

IV. Ineffective assistance of counsel for failing to develop and introduce Havard's successful adaptation at Camp Shelby as mitigating evidence during the penalty phase.

V. Ineffective assistance of counsel for failing to ask potential jurors "reverse-Witherspoon" questions during voir dire.

VI. Ineffective assistance of counsel during closing argument at the penalty phase.

VII. Prosecutorial misconduct during closing argument at the guilt phase.

VIII. Victim impact testimony.

IX. Whether the trial court improperly responded to a question from the jury during the sentencing phase.

X. Limiting instruction of especially heinous, atrocious, or cruel aggravating circumstance.

XI. Failure of the indictment to charge a death-penalty-eligible offense.

XII. Jury consideration of aggravating circumstances.

XIII. Competency of trial counsel.

XIV. Cumulative error.

DISCUSSION

I. Ineffective assistance of counsel for failure to adopt defense strategy during guilt phase.

¶ 7. Havard asserts the following three sub-claims of ineffective assistance of counsel: (A) trial counsel failed to secure expert assistance to develop evidence to support the defense's theory of the case; (B) trial counsel failed to research case law supporting their defense theory in order to obtain relief during trial in the form of an appropriate expert witness and/or preserve the trial court's denial of an expert for direct appeal; and (C) trial counsel, having adopted the theory that no sexual battery occurred, failed to seek a jury instruction to support the theory. On direct appeal, Havard claimed that he received ineffective assistance of counsel due to counsels' failure to adequately support the defense strategy. Havard also raised the three sub-claims listed above.

¶ 8. The theory of defense was that no sexual battery occurred, thereby eliminating the underlying felony to the capital murder charge. If this defense had proved successful, Havard would have avoided the death penalty. On direct appeal, Havard argued that trial counsel should have presented rebuttal evidence, and he relied on the post-trial affidavit of Dr. James Lauridson to offer the possibility of disproving, through the use of DNA testing, the state's theory that sexual battery had occurred. See Havard v. State, 928 So.2d 771, 787-88 (Miss.2006). Havard also claimed that trial counsel was ineffective for failing to secure, or adequately prepare a motion to secure, a pathologist to investigate the case and develop a defense strategy; and that his counsel was ineffective for failing to include a lesser-offense instruction on murder or manslaughter. Id. at 788-91.

¶ 9. When addressing these issues on direct appeal, this Court determined that it would not consider Dr. Lauridson's outside-the-record affidavit. Id. at 787-88 n. 6. The state now argues that Havard is attempting to relitigate the claims already presented on direct appeal and that the issue is barred from post-conviction proceedings by the doctrine of res judicata pursuant to Mississippi Code Annotated Section 99-39-21(3) (Rev.2007). See also Wiley v. State, 750 So.2d 1193, 1200 (Miss. 1999); Foster v. State, 687 So.2d 1124, 1129 (Miss.1996); Wiley v. State, 517 So.2d 1373, 1377 (Miss.1987).

¶ 10. As we explained more fully in Havard's direct appeal, the version of Mississippi Rule of Appellate Procedure 22(b) effective at the time of Havard's direct appeal, like the current version, stated:

(b) Post-conviction issues raised on direct appeal. Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.

Mississippi Rule of Appellate Procedure 22(b) (2005) (emphasis added). Havard, 928 So.2d at 783. However, as we noted in Havard, the version of Rule 22(b) in effect at the time of Havard's trial did not contain the words that appear in italics above. Id. at n. 5. The amendment adding the italicized words to Rule 22(b) took effect February 10, 2005. The Court agreed with Havard that the prior version was controlling on direct appeal. After a thorough analysis, we determined that

[i]t would indeed be dangerous here for us to begin a precedent of considering on direct appeals post-trial affidavits by affiants who have not been subjected to cross-examination. The utilization of affidavits is better served in the post-conviction relief proceedings allowable by statute. Miss.Code Ann. § 99-39-1 et seq. (Rev.2000). Having raised this issue with different counsel on direct appeal, Havard has preserved his right to raise this issue, supported by affidavits, in future post-conviction relief proceedings.

Id. at 786. The Court proceeded to discuss Havard's issues absent certain post-trial affidavits.

¶ 11. In considering the issue sub judice on direct appeal, the Court stated that, "... consistent with our discussion of Issue II, supra, we consider this issue, absent Dr. Lauridson's affidavit." Id. at 787. The Court then considered this issue on the merits. Unlike Havard's Issue II as discussed in Havard's direct appeal, this Court did not specifically state that Havard had preserved his right to raise...