Howard v. State, No. 2000-DP-01280-SCT.

CourtMississippi Supreme Court
Citation853 So.2d 781
Decision Date24 July 2003
PartiesEddie Lee HOWARD, Jr. v. STATE of Mississippi.
Docket NumberNo. 2000-DP-01280-SCT.

853 So.2d 781

Eddie Lee HOWARD, Jr.
v.
STATE of Mississippi

No. 2000-DP-01280-SCT.

Supreme Court of Mississippi.

July 24, 2003.

Rehearing Denied September 11, 2003.


853 So.2d 784
Gary Goodwin, Armstrong Walters, Columbus, Attorneys for Appellant

Office of the Attorney General by Judy T. Martin, Marvin L. White, Attorneys for Appellee.

EN BANC.

WALLER, Justice, for the Court.

¶ 1. Eddie Lee Howard, Jr., appeals his conviction of capital murder and death sentence for the 1992 rape and murder of Georgia Kemp. Howard's first conviction and sentence were reversed and remanded for a new trial on the basis that, inter alia, he was not competent to represent himself. Howard v. State, 697 So.2d 415 (Miss. 1997), republished as corrected, 701 So.2d 274 (Miss.1997). Finding no reversible error in this second direct appeal, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of February 2, 1992, 14-year-old Paris Lowery noticed smoke emerging from the home of her neighbor, 84-year-old Georgia Kemp. Lowery informed her mother of the smoke, and the Columbus, Mississippi, Fire Department was summoned. The firefighters found a small smoldering fire in the living room which had burned two holes in the floor. Stanley Clark, battalion chief with the Columbus Fire Department, found Kemp on the floor of her bedroom but was surprised because the fire did not generate enough smoke to cause death by smoke inhalation. Another firefighter, Tony Clark, checked for vital signs and concluded that Kemp was dead. Stanley noticed that Kemp's legs were bloodied up a bit and that she was partially exposed. He also found a bloody knife on the bed and a telephone with its line cut. At that point, Stanley and Tony exited the house so as not to disturb the scene.

¶ 3. An investigation ensued which found that Kemp was lying on her left side, exposed from the waist down, and wearing nylon stockings. Her nightgown had been pulled up and ripped open in the front. Kemp had been stabbed twice in the left side of her chest, and blood was found on the sheets of the bed from the headboard to the footboard. There was no evidence of forced entry or anything stolen from the house.

¶ 4. Dr. Steven Hayne performed an autopsy on Kemp's body on February 3, 1992. He found that Kemp had bruises and scrapes about the face, head and neck, multiple bruises to the left shin, and bite marks on the right breast, right side of the neck, and right forearm. Also found were injuries to both sides of the vaginal vault, which, according to Dr. Hayne, were consistent with forced sexual intercourse. However, no semen was found, but Dr. Hayne testified that did not mean that intercourse had not taken place. In addition, Kemp suffered injuries consistent with manual strangulation, but the cause of death was the two stab wounds to the left side of the chest which caused severe internal bleeding.

¶ 5. Eddie Lee Howard, Jr., consented to have dental impressions taken which were made by Dr. David Curtis on February

853 So.2d 785
6, 1992. Dr. Curtis noted that Howard had a removable partial denture replacing the upper four front teeth

¶ 6. After Kemp's body was exhumed, Dr. Michael West, a forensic odontologist, examined the dental impressions and the bite marks on Kemp on February 7, 1992. He found that Howard's upper teeth were consistent with the mark on Kemp's arm and that both Howard's upper and lower teeth were consistent with the marks on Kemp's neck and breast.

¶ 7. On the morning of February 3, 1992, one day after the murder, Howard paid a visit to Kayfen Fulgham, his former girlfriend and the mother of his adult child. Fulgham noted that Howard smelled of smoke, not cigarette smoke, but "like burnt clothes or something, you know, wood, like smoke."

¶ 8. Howard was arrested on February 8, 1992, and, at the time, was living with his mother a couple of blocks away from Kemp. On February 13, 1992, Detective David Turner was given a note from Howard stating, "Dear Mr. Turner, I need to see you as soon as possible. It's in relation to my case." Howard was taken to Turner's office and requested that Turner drive him by the crime scene to see if it would bring back some memories. Howard also told Turner the case was solved.

¶ 9. After Turner gave Howard an advice of rights form, Turner and Commander Donald Freshour drove Howard by Kemp's house, but Howard indicated it did not bring back any memories to him. Turner and Freshour then drove Howard past his mother's house two blocks away where he had been living and his aunt's house three blocks away. The three men then passed by Kemp's house again and returned to the Columbus Police Department. Howard was placed in Turner's office whereupon Turner testified the following transpired:

Again he told me that the case was solved and he told me that there was— uh—five or six other individuals involved and to keep investigating the case, that I would [ ] find out [ ] their roles [ ] in this case. Uh—and he asked me if I thought he was [ ] crazy. I looked at him and I said, ["]no, man—you know, I don't think you're crazy["] and he said ["]well I'm not. I'm not crazy["] and he said ["]I had a temper and that's why this happened.["] And when he said that, I mean shock just went across my body and I felt like at that point this was the guy that had actually committed the murder.

¶ 10. Howard was indicted on August 13, 1992, on the charge of capital murder with an underlying felony of rape. Howard represented himself at his trial which began on May 9, 1994. The jury returned a guilty verdict after three days of trial and returned a sentence of death the same day.

¶ 11. Howard appealed the verdict and sentence, alleging seventeen assignments of error. Howard v. State, 697 So.2d 415 (Miss.1997), republished as corrected, 701 So.2d 274 (Miss.1997) (Howard I). We held that Howard's waiver of his right to counsel was not voluntary, the court erred in failing to order a competency hearing before allowing Howard to represent himself, and the court's denial of Howard's request to have standby counsel deliver his closing argument violated his right to counsel. Based on those errors, we reversed the verdict and remanded for a new trial. 701 So.2d at 288.

¶ 12. The new trial, this time with counsel, commenced on May 22, 2000. On the day trial began, the indictment was amended to charge Howard as a habitual offender. Howard had been sentenced in 1972 to nine years in prison for assault

853 So.2d 786
with intent to ravish and in 1977 to twenty-five years for assault with intent to rape and ravish. After a two-day trial, a Lowndes County jury once again found Howard guilty of capital murder with the underlying felonies of rape and arson and again sentenced him to death. It is from this conviction and sentence that Howard prosecutes this appeal

STATEMENT OF THE ISSUES

¶ 13. Howard's first brief, filed by trial counsel Thomas Kesler, consisted of only the following assignment of error:

I. WHETHER THE VERDICT WAS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

¶ 14. By order dated August 21, 2001, we remanded the case for an order regarding appointment of substitute counsel and suspended the briefing schedule during the period the case was remanded. Gary Goodwin and Kesler's trial co-counsel Armstrong Walters1 were appointed substitute appellate counsel and filed a brief asserting the following assignments of error:

II. WHETHER THE TRIAL 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 TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF PARIS LOWERY FROM HOWARD'S FIRST TRIAL TO BE READ INTO THE RECORD.

IV. WHETHER THE TRIAL 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 TRIAL COURT ERRED IN REFUSING HOWARD'S PROPOSED JURY INSTRUCTION REGARDING REASONABLE DOUBT.

VI. WHETHER THE TRIAL 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 TRIAL 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 TRIAL 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.

853 So.2d 787
¶ 15. We also allowed Howard to file a pro se brief on his own behalf wherein he asserts the following issues:

IX. WHETHER TRIAL COUNSEL WALTERS AND KESLER FAILED TO PROVIDE HOWARD WITH CONSTITUTIONALLY EFFECTIVE ASSISTANCE OF COUNSEL.

X. WHETHER THE TRIAL 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.

¶ 16. Finally, pursuant to Miss.Code Ann. § 99-19-105(2) (2000 & Supp.2002), we are required to review the proportionality of the death penalty.

XIII. WHETHER THE SENTENCE OF DEATH WAS PROPORTIONATE.

DISCUSSION

I. WHETHER THE VERDICT OF GUILTY WAS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT A PEREMPTORY INSTRUCTION OF "NOT GUILTY" DUE TO THE INSUFFICIENCY OF EVIDENCE TO SUPPORT THE...

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