Howell v. State

• Decision Date: 09 October 2014
• Docket Number: No. 2013–CA–01027–SCT.,2013–CA–01027–SCT.
• Citation: 163 So.3d 240
• Parties: Marlon Latodd HOWELL a.k.a. Marlon Cox v. STATE of Mississippi.
• Court: Mississippi Supreme Court

163 So.3d 240

Marlon Latodd HOWELL a.k.a. Marlon Cox

v.STATE of Mississippi.

No. 2013–CA–01027–SCT.

Supreme Court of Mississippi.

Oct. 9, 2014.

Rehearing Denied May 28, 2015.

William Odom Richardson, Matthew H. Richardson, Rachel Pierce Waide, Tupelo, W. Tucker Carrington, William M. McIntosh, Jr., attorneys for appellant.

Office of the Attorney General by Jim Hood Jason L. Davis, attorneys for appellee.

Before DICKINSON, P.J., PIERCE and COLEMAN, JJ.

Opinion

COLEMAN, Justice, for the Court:

¶ 1. Marlon Howell was convicted of capital murder and sentenced to death. On direct appeal, we affirmed. Howell v. State, 860 So.2d 704 (Miss.2003). Howell then sought post-conviction relief (PCR), claiming he was entitled to a new trial. The Court granted Howell's petition for PCR in part, holding that he was entitled to an evidentiary hearing on certain delineated issues. Howell v. State, 989 So.2d 372 (Miss.2008) (“Howell II ”). The trial court held the evidentiary hearing and, finding no merit in the issues, denied Howell's request for a new trial. Howell appeals.

Facts and Procedural History

¶ 2. The instant case has been before the Court twice before, and the facts are well established. The facts were set out in full in the opinion on direct appeal. Howell, 860 So.2d at 712–15 (¶¶ 2–19). The following facts are taken from Howell II, which discussed only the facts relevant to the PCR:

In the early morning hours of May 15, 2000, Hugh David Pernell, a newspaper carrier, was shot and killed in his car on Broad Street in New Albany while running his newspaper route. The shooting occurred in front of Charles Rice's house. Rice would later tell law enforcement that he had heard two cars on the street in front of his house at around five o'clock in the morning. He looked out his window and saw two vehicles, one behind the other, stopped in the street. A man exited the rear car and approached the driver's side window of the front vehicle. After some commotion, the man pulled a pistol and shot the driver of the front vehicle. The shooter then got back in the passenger seat of the rear vehicle and left the scene. Pernell suffered a single gunshot wound

to the chest and died at the scene. Rice immediately called 911 and reported the shooting and later told law enforcement officers that the shooter was a young black male who had fled the scene in a late model, dark-colored Oldsmobile.

Law enforcement officers received an anonymous tip that Curtis Lipsey was involved in the murder. The investigation revealed that Lipsey, Adam Ray, and Marlon Howell had been riding around together throughout the previous night and the early morning hours of the day of the shooting. Ray's grandmother owned a dark Oldsmobile Cutlass. Upon questioning, Ray and Lipsey implicated Howell. Howell was arrested and claimed that he had no involvement in the murder. Howell told officers that he had been in Corinth with a woman at the time of the killing; however, he was unable to provide a name or an address for this woman. After Howell's arrest, Rice identified Howell in a police line-up.

A Lorcin .380 caliber pistol was found in the bushes behind Brandon Shaw's house. Forensic testing indicated that the bullet that killed Pernell was fired by this Lorcin pistol. A shell casing found near the windshield of Pernell's car was consistent with that weapon but could not be positively matched.

Shaw testified that Howell, Ray, and Lipsey had come to his house in the dark Oldsmobile Cutlass in the early morning hours after the shooting. Shaw and Lipsey testified that they had seen Howell with an object wrapped in a shirt under his arm. Shaw and Lipsey testified that they had seen Howell walking out from behind the house where the pistol was later found. Shaw told the police chief that he had seen Howell go behind the house carrying something. While at Shaw's house, Adam Ray told Shaw and others that “Marlon had shot somebody.” The trial court found that the statement by Ray in Howell's presence amounted to an adoptive admission when Howell did not renounce the statement. After the shooting, Howell got a ride to Blue Mountain with Shaw, and during the drive, Howell told Shaw not to tell anyone what had happened.

The State alleged that Howell had killed Pernell in a robbery attempt. Marcus Powell testified that Howell had told him on the night of the killing that he needed money to pay his probation officer and that he was going to have to “make a sting” in order to get the money. Shaw also testified that Howell had commented on robbing a man at a gas station earlier that night.

Ray and Lipsey pleaded guilty to manslaughter and armed robbery in the killing of Pernell. As part of his plea agreement, Lipsey was to offer truthful testimony at any subsequent trial related to Pernell's killing. At Howell's trial, Lipsey testified that Howell had shot Pernell, and Lipsey also corroborated Powell's testimony that Howell had said that he needed money in order to pay his probation officer the next day or else they would not see him around anymore. Lipsey also testified that Howell had flashed the car's lights at Pernell to get Pernell to pull over.

At his trial, Howell presented an alibi defense by offering as witnesses his father and sister, who testified that Howell had been at home in the early morning hours of May 15, 2000. Howell presented no evidence that during the relevant time surrounding Pernell's killing, he had been with a woman in Corinth.

Howell II, 989 So.2d at 377–78 (¶¶ 2–10). Howell was convicted of capital murder for killing Pernell during an attempted robbery, and he was sentenced to death. The Court affirmed the conviction and sentence on direct appeal. Howell, 860 So.2d at 765 ( ¶ 216). The United States Supreme Court granted Howell's petition for certiorari, but later dismissed it as improvidently granted because Howell had not properly raised a claim arising under federal law in state court. Howell v. Mississippi, 543 U.S. 440, 125 S.Ct. 856, 160 L.Ed.2d 873 (2005).

¶ 3. In 2008, Howell filed a petition for post-conviction relief, which was granted in part. The Court held that Howell was entitled to an evidentiary hearing on three specific areas: (1) claims regarding Charles Rice's recanted testimony; (2) issues related to Howell's representation or lack thereof at the lineup; and (3) issues related to Terkecia Pannell's alleged exculpatory statements. Howell II, 989 So.2d at 396 (¶ 90). The evidentiary hearing took place in April 2013. The trial judge found no merit in Howell's claims and denied his request for a new trial. Howell now appeals.

¶ 4. Howell raises two issues in addition to the three areas that were the subject of the hearing. First, he claims that the trial court erred in allowing Attorney General Jim Hood to participate in the evidentiary hearing. Hood was the district attorney who prosecuted Howell, and he chose to participate in the evidentiary hearing. Part of Howell's claim about Pannell is that the State's attorney intimidated her and did not let her testify at trial. Although it is not clear to whom Pannell spoke, Howell claims it was Hood. Howell also asserts that Hood tried to intimidate his attorneys during the evidentiary hearing. Howell moved to have Hood barred from participating in the hearing, but the judge denied the request. Howell claims that was error.

¶ 5. Second, after the evidentiary hearing, new information came to light that Howell asked the trial court to consider. A woman from South Carolina, who used to live in Blue Mountain, Mississippi, read about Howell's case on the Tupelo Daily Journal's website and came forward claiming she was with Howell on the night of the murder. The woman was interviewed, and she and her mother submitted affidavits about Howell's whereabouts the night/morning of the murder. Howell claims she is the previously unnamed woman he claimed to be with on the night of the murder, which supports his original alibi. Howell moved to supplement the record, but the trial court denied the motion for lack of jurisdiction. Howell raises the denial of his motion to supplement the record on appeal as well.

Standard of Review

¶ 6. At an evidentiary hearing on PCR, the burden of proof is on the petitioner to prove “by a preponderance of the evidence that he is entitled to the relief.” Miss.Code Ann. § 99–39–23(7) (Supp.2014). The standard of review on appeal from a trial court's evidentiary hearing in a PCR case is as follows:

“When reviewing a lower court's decision to deny a petition for post [-]conviction relief this Court will not disturb the trial court's factual findings unless they are found to be clearly erroneous.” Brown v. State, 731 So.2d 595, 598 (Miss.1999) (citing Bank of Mississippi v. Southern Mem'l Park, Inc., 677 So.2d 186, 191 (Miss.1996) ).... In making that determination, “[t]his Court must examine the entire record and accept ‘that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's finding of fact....’ ” Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987) (quoting Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983) ). That includes deference to the circuit judge as the “sole authority for determining credibility of the witnesses.” Mullins, 515 So.2d at 1189 (citing Hall v. State ex rel. Waller, 247 Miss. 896, 903, 157 So.2d 781, 784 (1963) ).

Goodin v. State, 102 So.3d 1102, 1111 (¶ 30) (Miss.2012) (quoting Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss.2009) ). “[Q]uestions of law are reviewed de novo.” Id.

Discussion

¶ 7. The purpose of the evidentiary hearing was to address Howell's claims in three areas: (1) Rice's alleged recanted testimony, (2) Howell's representation at the lineup, and (3) Pannell's alleged exculpatory statements. Howell II, 989 So.2d at 396 (¶ 90). The trial judge found no merit in Howell's claims, and Howell raises the issues on appeal....