Howard v. State

Decision Date26 June 1997
Docket NumberNo. 94-DP-00524-SCT,94-DP-00524-SCT
Citation701 So.2d 274
PartiesEddie Lee HOWARD, Jr. v. STATE of Mississippi.
CourtMississippi Supreme Court

Donna Sue Smith, Columbus; Armstrong Walters, Walters & Walters, Columbus, for Appellant.

Michael C. Moore, Attorney General, Jackson; Leslie S. Lee, Marvin L. White, Jr., Sp. Asst. Attorneys General, Jackson, for Appellee.

En Banc.

DAN LEE, Chief Justice, for the Court:

STATEMENT OF THE CASE

This death penalty case concerns questions of waiver of counsel, right to self-representation, use of standby counsel, and due process of law that assures a fair trial was afforded in which we have confidence that justice was done. Under the circumstances of this case, we are not so assured. Therefore, we are left no alternative but to reverse.

On August 13, 1992, a Lowndes County grand jury indicted Eddie Lee Howard, a forty-one year old male, on a charge of capital murder in the death of Georgia Kemp, an eighty-two year old female. The indictment charged that the murder occurred during the course of the crime of rape committed on February 2, 1992. Trial on this charge began on May 9, 1994, with Howard acting as his own counsel. The jury returned a guilty verdict on May 12, 1994. At the subsequent

sentencing hearing, the State presented evidence of aggravating circumstances and argued that the death penalty was warranted. The jury returned the same day with a sentence of death. The trial court then sentenced Howard to die by lethal injection and set an execution date of June 27, 1994. Following the denial of a motion for new trial, Howard perfected this appeal, and execution was stayed pending this Court's consideration of the issues. The defendant assigns the following as error:

PRE-TRIAL ISSUES

I. THE CIRCUIT COURT ERRED IN PERMITTING EDDIE HOWARD TO ACT AS HIS OWN ATTORNEY AT TRIAL.

II. DEFENSE ATTORNEYS BURDINE AND STONE FAILED TO PROVIDE DEFENDANT WITH CONSTITUTIONALLY EFFECTIVE ASSISTANCE OF COUNSEL DURING PRETRIAL PROCEEDINGS AND THIS INEFFECTIVE REPRESENTATION SERIOUSLY PREJUDICED EDDIE HOWARD'S DEFENSE.

III. THE TRIAL COURT ERRED IN FAILING TO SUMMON A SPECIAL VENIRE DESPITE THE ABSENCE OF A PERSONAL WAIVER BY THE ACCUSED.

IV. IT WAS IMPROPER FOR THE COURT TO EXCUSE NUMEROUS VENIRE MEMBERS PRIOR TO TRIAL OUTSIDE THE PRESENCE AND WITHOUT THE KNOWLEDGE OR CONSENT OF EDDIE HOWARD OR HIS STANDBY COUNSEL.

V. EDDIE HOWARD WAS DENIED HIS RIGHT TO A SPEEDY TRIAL UNDER STATE AND FEDERAL LAW.

VI. MR. COLEMAN SHOULD NOT HAVE BEEN ALLOWED TO SERVE ON THE JURY, IN LIGHT OF SUBSTANTIAL EVIDENCE THAT HE WAS NOT ABLE TO DECIDE THE CASE IMPARTIALLY.

VII. THE TRIAL JUDGE IMPROPERLY EXCUSED NUMEROUS BLACK PROSPECTIVE JURORS FOR CAUSE, DESPITE THE ABSENCE OF EVIDENCE OF FIXED BIAS OR ANY OTHER BASIS FOR REMOVAL.

VIII. THE DISTRICT ATTORNEY USED HIS PEREMPTORY CHALLENGES TO DISCRIMINATE AGAINST VENIRE MEMBERS ON THE BASIS OF RACE AND GENDER.

GUILT PHASE ISSUES

IX. THE GUILT STAGE INSTRUCTIONS WERE FUNDAMENTALLY FLAWED.

A. IT WAS ERRONEOUS AND SEVERELY PREJUDICIAL FOR THE COURT TO DENY DEFENDANT'S REQUEST FOR A LIMITING INSTRUCTION DIRECTING JURORS NOT TO CONSIDER EVIDENCE OF HIS PRIOR ASSAULT WITH INTENT TO RAPE CONVICTIONS AS PROPENSITY EVIDENCE OF GUILT.

B. THE CIRCUIT COURT'S CHARGE ON RAPE FAILED TO INFORM JURORS THAT SEXUAL INTERCOURSE WAS AN ESSENTIAL ELEMENT OF OR OTHERWISE PROPERLY DEFINE THIS CRIME.

X. THE LOWER COURT VIOLATED THE DEFENDANT'S RIGHT TO COUNSEL WHEN IT REFUSED HIS REQUEST THAT HIS STAND BY (sic) COUNSEL BE ALLOWED TO GIVE THE DEFENSE'S CLOSING ARGUMENT AT THE GUILT INNOCENCE PHASE.

XI. THE STATE FAILED TO OFFER LEGALLY SUFFICIENT EVIDENCE THAT THE VICTIM HAD BEEN RAPED, AN ESSENTIAL ELEMENT OF THE CHARGE.

XII. THE DISTRICT ATTORNEY ENGAGED IN SEVERAL SERIOUS INSTANCES OF MISCONDUCT IN HIS GUILT PHASE SUMMATION.

A. IT WAS IMPROPER FOR THE STATE TO URGE JURORS TO CONSIDER HEARSAY ACCUSATIONS ABOUT EDDIE HOWARD BITING HIS GIRLFRIEND AND THREATENING ANOTHER WOMAN AS SUBSTANTIVE EVIDENCE OF HIS GUILT.

B. THE DISTRICT ATTORNEY FALSELY TOLD JURORS THAT BITE MARK COMPARISONS WERE AS CERTAIN AND RELIABLE AS FINGERPRINT EVIDENCE.

C. THE PROSECUTOR BLATANTLY AND PREJUDICIALLY MISSTATED THE EVIDENCE WHEN HE TOLD JURORS THAT EDDIE HOWARD HAD DISPLAYED KNOWLEDGE OF THE VICTIM'S HOME THAT COULD ONLY HAVE BEEN GAINED THROUGH PARTICIPATION IN THE OFFENSE.

XIII. THE STATE'S PATHOLOGIST, STEVEN HAYNE, INVADED THE JURY'S PROVINCE AND OTHERWISE GAVE UNRELIABLE, IMPROPER TESTIMONY WHEN HE CLAIMED THAT CERTAIN INJURIES TO THE VICTIM'S VAGINA WERE CONSISTENT WITH RAPE.

XIV. TESTIMONY FROM THE STATE'S DENTAL EXPERT, MICHAEL WEST, CLAIMING TO HAVE POSITIVELY MATCHED EDDIE HOWARD'S TEETH TO A BITEMARK ON THE VICTIM'S BODY WAS CONSTITUTIONALLY UNRELIABLE, AS IT IS WELL-ESTABLISHED IN THE SCIENTIFIC COMMUNITY THAT SUCH COMPARISONS ARE NOT POSSIBLE.

XV. IT WAS REVERSIBLE ERROR TO ADMIT STATE'S EVIDENCE OF DENTAL IMPRESSIONS TAKEN FROM EDDIE HOWARD BECAUSE THESE WERE THE PRODUCT OF AN ILLEGAL ARREST AND ILLEGAL SEIZURE OF HIS DENTURES.

SENTENCING PHASE ISSUES

XVI. THE USE OF EDDIE HOWARD'S PRIOR CONVICTIONS TO ESTABLISH THE "PRIOR VIOLENT FELONY" AGGRAVATOR WAS IMPROPER, FOR ASSAULT WITH INTENT TO RAVISH IS NOT PER SE A CRIME INVOLVING THE USE OR THREAT OF VIOLENCE.

XVII. THE SPECIAL RELIABILITY REQUIREMENTS THAT ATTEND THE USE OF THE DEATH PENALTY OBLIGATED THE COURT TO CHARGE STANDBY COUNSEL WITH THE DUTY TO INVESTIGATE AND PRESENT MITIGATING EVIDENCE.

As we deem issues I, X, and XIV to be dispositive of the case and to require reversal, we do not endeavor to discuss the other issues raised by the appellant.

STATEMENT OF THE FACTS

Georgia Kemp, age eighty-two, was a resident of Columbus, Mississippi. On February 2, 1992, after a neighbor observed smoke coming from the Kemp residence, the Columbus Fire Department arrived at the home and discovered the front door standing open. The firefighters entered and found a smoldering fire in the living room which had burned two holes in the floor of the home. Upon extinguishing the fire, they discovered a partially burnt broom in one of the holes. The firefighters found Ms. Kemp's body on the bedroom floor, lying on her left side near the bed. They also found a butcher knife with blood on it lying on the bed. The phone was off of the receiver and the phone line had been cut.

Investigators found nylon stockings around the ankles of the victim, and two stab wounds to the chest. An autopsy revealed extensive bruising on Georgia Kemp's face and neck, and that bleeding occurred under the scalp. Testimony suggested that the bruises on Ms. Kemp's body were consistent with an attempt to choke the victim and a struggle with her assailant. The stab wounds were determined to be the cause of death. The autopsy also revealed bruises and scrapes to the skin of the vaginal vault, injuries said to be "consistent On February 6, 1992, apparently without a warrant, the Columbus police detained Eddie Lee Howard and took him to a dentist's office, where he was forced to allow impressions to be made of his mouth. The police retained these impressions, and also took from Howard a partial denture. Following comparisons by investigators of the impressions made of Howard's teeth to bite marks on the victim's body, the defendant was arrested on February 8, 1992, for the murder of Ms. Kemp.

                with forced sexual intercourse."   Bite marks were found on the victim's right breast, and also between her neck and shoulder and the back of her right arm
                

While in jail, Howard refused to sign a form waiving his Miranda rights. Testimony suggested, however, that Howard later asked an investigator to carry him to the crime scene to see if it might bring something back to his memory. Testimony from the investigator further suggested that, after returning to the jail, Howard commented to him that "the case was solved; that I had the man," and that Howard also said that he "had a temper and that's why this happened." Howard purportedly also told the investigator that others were involved and that he should continue investigating.

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. During voir dire, Howard exercised no peremptory challenges, nor any challenges for cause. He did, however, object to the removal of several potential jurors after the prosecutor offered to protect Howard's interest through...

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