Howard v. State
| Decision Date | 28 September 2006 |
| Docket Number | No. 2003-DR-01881-SCT.,2003-DR-01881-SCT. |
| Citation | 945 So.2d 326 |
| Parties | Eddie Lee HOWARD, Jr. v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Mississippi Office of Capital Post-Conviction Counsel, by Robert M. Ryan, Jackson, Louwlynn Vanzetta Williams, William J. Clayton, Batesville, attorneys for petitioner.
Office of the Attorney General, by Judy T. Martin, Jackson, attorneys for respondent.
EN BANC.
¶ 1. After Georgie Kemp, age 84, was found murdered in her home, Eddie Lee Howard, Jr., was indicted on the charge of capital murder with the underlying felony of rape. He was found guilty and a jury sentenced him to death. On appeal, we held that Howard's waiver of his right to counsel in order to represent himself was not voluntary, that the circuit court erred in failing to conduct a competency hearing before allowing Howard to represent himself, and that the circuit court erred in denying Howard's request to have standby counsel deliver his closing argument. We reversed the conviction and remanded the case for a new trial. Howard v. State, 697 So.2d 415 (Miss.1997), republished as corrected, 701 So.2d 274 (Miss.1997) ("Howard I").
¶ 2. Shortly before the second trial, the indictment was amended to charge Howard as a habitual offender. Howard was again convicted of capital murder with the underlying felony of rape and sentenced to death. On appeal, we found no reversible error and affirmed the judgment of the circuit court. Howard v. State, 853 So.2d 781 (Miss.2003) ("Howard II"). The United States Supreme Court denied Howard's petition for writ of certiorari. Howard v. Mississippi, 540 U.S. 1197, 124 S.Ct. 1455, 158 L.Ed.2d 113 (2004). Howard, represented by the Mississippi Office of Capital Post-Conviction Counsel, has filed his petition for post-conviction collateral relief. We have fully reviewed Howard's petition and supplements, and, finding no meritorious claims, we deny Howard's petition for post-conviction collateral relief.
¶ 3. On the evening of February 2, 1992, a neighbor of Georgie Kemp noticed smoke coming from Kemp's home and called 911. Firefighters found two small smoldering fires in the living room. Firefighters also found Kemp's body on the floor of her bedroom, although the fire had not produced enough smoke to cause her death. As firefighters confirmed that Kemp was dead, one noticed that her nightgown was pulled up and that her legs were a bit scraped up and bloodied. One firefighter noticed a knife on the bed, which appeared to have blood on it, and noticed that the phone had been knocked onto the floor. Firefighters notified police officers and requested that the coroner be called. An autopsy revealed that Kemp had been beaten, strangled, and stabbed.1 The autopsy also revealed injuries to Kemp's vaginal wall consistent with forced sexual intercourse.
¶ 4. Police officers developed Eddie Lee Howard, Jr., as a suspect. Howard was taken to a local dentist, Dr. David Curtis, and dental impressions were taken. Dr. Michael West, a dentist who holds himself out to be a forensic odontologist, examined Kemp's body and found to a reasonable degree of certainty that the molds from Howard's teeth matched the bite mark on Kemp's breast.2 Howard was arrested for Kemp's murder on February 8, 1992. Police Investigator David Turner testified that on February 13, Howard gave an incriminating statement.3 Howard was later indicted for the capital murder of Kemp, with the underlying felony of rape.
Howard was initially represented by Richard Burdine. In February 1993, Burdine was replaced by Douglas Stone. Stone served as Howard's counsel until five weeks prior to the trial, which ensued on May 9, 1994. During the period of representation by both Burdine and Stone, few motions were filed. Though one trial date drew so close that Stone received a continuance only on the eve of the trial, no motion to test the admissibility of the State's dental impression evidence or the alleged confessionary comments were ever filed by either of Howard's attorneys. Though the only evidence which linked the defendant to the crime scene itself were the dental impressions, neither Burdine nor Stone made a serious effort to obtain funds for an expert to investigate the reliability of the bite-mark comparison or to counter the testimony of the State's dental expert. Nearly two and one-half years after his arrest, Howard appeared before the trial judge and requested that he receive his speedy trial and that the judge not grant his attorneys any more continuances. The judge responded that the defendant would have to cooperate with his attorneys and accept their judgment as to the timing of the trial, and noted that Howard had "an absolute right" to represent himself if he could not cooperate with his attorneys.
Howard at that point determined that he wished to carry out his own defense. The trial judge appointed Thomas Kesler and Armstrong Walters to serve as standby counsel at the trial and to assist Howard with procedural matters. Howard never filed any pretrial motions in the case, and proceeded to trial on May 9, 1994.
Howard I, 701 So.2d. at 278. Howard was convicted of capital murder and sentenced to death. Armstrong Walters and Donna Sue Smith represented Howard on appeal. We found that
[t]he court below could not have known whether Howard was capable of knowingly and intelligently waiving the right to counsel, as a competency hearing should have been ordered before or during the proceedings. The failure to do so, under these circumstances, constitutes error.
Howard I, 701 So.2d at 284. We also found that the circuit court erred when it refused Howard's request that his standby counsel deliver his closing argument. Id. at 287. We reversed Howard's conviction and sentence and remanded the case for a new trial. Id. at 288.
¶ 5. Attorneys Tom Kesler and Armstrong Walters were appointed to represent Howard in his second trial. The jury found Howard guilty of capital murder with the underlying felony of rape and sentenced him to death. Kesler was appointed to represent Howard on appeal. Kesler filed an appellate brief which raised only one issue and the entire argument consisted of one page. We remanded this matter to the circuit court for the appointment of competent appellate counsel. Walters and Gary Goodwin were appointed to represent Howard on appeal. On this appeal, this Court considered the following issues:
I. Whether the Verdict Was Against the Weight and Sufficiency of the Evidence.
II. Whether the Circuit Court Erred in Refusing to Grant a Peremptory Instruction of "Not Guilty" Due to the Insufficiency of Evidence to Support the Conviction.
III. Whether the Circuit Court Erred in Allowing the Testimony of Paris Lowery from Howard's First Trial to Be Read into the Record.
IV. Whether the Circuit Court Erred in Refusing Howard's Motion for Mistrial When a Prosecution Witness Stated That Howard Had Previously Been in the Penitentiary.
V. Whether the Circuit Court Erred in Refusing Howard's Proposed Jury Instruction Regarding Reasonable Doubt.
VI. Whether the Circuit Court Erred in Refusing to Declare a Mistrial During the Penalty Phase and Impose a Life Sentence upon the Failure of the Jury to Return a Unanimous Verdict Thereby Ultimately Coercing a Verdict of Death from the Jury.
VII. Whether the Circuit Court Erred in Failing to Insure That Howard Received a Proper Mental Examination Consistent with the Court's Order Entered after Remand on the First Appeal and Whether this Error Was Compounded by Failing to Conduct a Competency Examination as Seemingly Directed by this Court.
VIII. Whether the Circuit Court Erred in Allowing Forensic Odontologist Testimony Where the Prior Decision on First Appeal Condemned Such Scientific Evidence Therefore Making the Exclusion of Such Evidence the Law of the Case.
IX. Whether Trial Counsel Walters and Kesler Failed to Provide Howard with Constitutionally Effective Assistance of Counsel.
X. Whether the Circuit Judge Made Improper Facial Expressions During Defense Counsel's Opening Statement and Closing Argument.
XI. Whether the Officers Involved in the Numerous Interrogations of Howard Failed to Read the Miranda Warnings Prior to Each of the Interrogation Sessions.
XII. Whether the District Attorney And/or His Assistants, the Commander of the Police Detectives, and the Chief of Police Conspired to Conceal the Results of the DNA Evidence Sent to the State Crime Lab to Be Analyzed.
XIII. Whether the Sentence of Death Was Proportionate.
¶ 6. We found no reversible error in the second appeal and affirmed the conviction and sentence of death. Howard II, 853 So.2d at 784. The mandate issued on September 18, 2003.
¶ 7. In August of 2003, the Mississippi Office of Capital Post-Conviction Counsel (MOCPCC) was appointed to represent Howard in his post-conviction relief proceedings. MOCPCC immediately sent a letter to District Attorney Forrest Allgood requesting, pursuant to M.R.A.P. 22(c)(4)(ii), that the complete files of all law enforcement agencies involved in the case be made available to MOCPCC for inspection and copying. This was the beginning of a very contentious discovery process and alleged discovery violations are an issue in this case.
¶ 8. Numerous motions were filed in this Court and in the circuit court seeking discovery. By Order entered on September 17, 2004, a panel of this Court noted that in August 2004 the circuit court granted Howard's motion for discovery as to certain records and documents. The circuit court's order was entered less than a month before the statute of limitations period for Howard's post-conviction relief petition was set to expire. We found, in pertinent part,
The circuit...
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