Howell v. State

Citation989 So.2d 372
Decision Date28 August 2008
Docket NumberNo. 2004-DR-00167-SCT.,2004-DR-00167-SCT.
PartiesMarlon Latodd HOWELL a/k/a Marlon Cox v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

William O. Richardson, Indianola, Jim Waide, Tupelo, Attorneys for appellant.

Office of the Attorney General by Jason L. Davis, Marvin L. White, Jr., Attorneys for appellee.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. Marlon Latodd Howell was convicted by a Union County jury of killing Hugh David Pernell during an attempted robbery. The jury found Howell guilty of capital murder and then found that he should be sentenced to death. On Howell's direct appeal to this Court, we affirmed his capital murder conviction and sentence of death. Howell v. State, 860 So.2d 704 (Miss.2003). The United States Supreme Court initially granted certiorari and then dismissed Howell's petition as improvidently granted. Howell v. Mississippi, 543 U.S. 440, 125 S.Ct. 856, 160 L.Ed.2d 873 (2005).

¶ 2. Howell now seeks post-conviction relief (PCR) pursuant to Mississippi Code Annotated Sections 99-39-1-99-39-29 (Rev.2007) raising numerous issues. Upon a review of the claims raised in the petition, we find that Howell has established that he is entitled to an evidentiary hearing on certain grounds; therefore, his PCR petition is granted in part and denied in part.

RELEVANT FACTS AND TRIAL COURT PROCEEDINGS

¶ 3. The facts of this case are fully set out in our decision on direct appeal. See Howell, 860 So.2d at 712-15. We thus set out only those facts necessary for today's discussion.

¶ 4. 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.

¶ 5. 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.

¶ 6. 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.

¶ 7. 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.

¶ 8. 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.

¶ 9. 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.

¶ 10. 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.

DISCUSSION

¶ 11. In his PCR petition, Howell raises numerous issues, and thus our discussion of these issues follows.

I. WHETHER THE STATE FAILED TO DISCLOSE EXCULPATORY INFORMATION ABOUT CHARLES RICE.

¶ 12. Unquestionably, the State's critical witness at trial was Charles Rice, who testified that he saw Howell shoot Pernell on Broad Street. Howell claims that the State withheld relevant information about Rice which would have discredited his testimony against Howell at trial. In his petition, Howell asserts that Rice had been incarcerated in Illinois in the early 1980s; that he had been affiliated with gangs while in prison; that he had perjured himself about his work history; that he was a drug user at the time of the killing; and that he knew Howell from previous encounters. Prior to trial, Howell's attorneys filed a motion entitled "Rule 9.04 Motion" in which the defense sought general discovery material from the State. See Uniform Rule of Circuit and County Court Practice 9.04. Notably, the defense requested information concerning the criminal history of Howell and his co-defendants. There was no specific request for information about any other witness's criminal history.

¶ 13. It is well established that the State had the duty to turn over all exculpatory material relevant to Howell's case. The United States Supreme Court has stated that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963). See also Howard v. State, 945 So.2d 326, 337 (Miss.2006); Simon v. State, 857 So.2d 668, 699 (Miss.2003).

¶ 14. In order to establish a Brady violation, the defendant must show: (1) that the State possessed evidence favorable to the defendant; (2) that the defendant did not possess the evidence and could not have obtained it himself with reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. Howard, 945 So.2d at 337; King v. State, 656 So.2d 1168, 1174 (Miss.1995).

¶ 15. Howell alleges that the State failed to disclose that Rice had been arrested several times; that he had been convicted of burglary; and that he had been incarcerated in Illinois in the 1980s, during which time he was a member of a prison gang. The State presents the affidavit of Kelly Luther, the assistant district attorney who prepared the case against Howell. Luther says that he never sought a criminal background check for Rice and that the defense never asked for a criminal background check on Rice prior to trial; however, Luther states the State turned over all discoverable evidence, exculpatory or not, to the defense. Both the trial court record and the post-conviction-proceedings record are devoid of any evidence indicating that the State withheld information that would have been about Rice's criminal history. As to Howell's claim that the State failed to disclose information helpful to the defense about Rice's criminal background, we find that Howell has failed to show that the State possessed the information or that the State suppressed that information. Alternatively, Howell argues that the State should have run a criminal background check on Rice; however, Howell cites no authority which would require the State to run criminal checks on every prosecution witness. Therefore, we are under no obligation to review this issue. Dampier v. State, 973 So.2d 221, 228-29 (Miss.2008) (citing Glasper v. State, 914 So.2d 708, 726 (Miss.2005)).

¶ 16. We also note that Rice's felony conviction occurred in 1983, almost seventeen years before Pernell was murdered. Whether impeachment of Rice concerning his seventeen-year-old conviction for burglary would have been admissible is doubtful. See Miss. Rule of Evid. 609 ("Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement...."). There is nothing in the...

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