Howell v. State, 2001-DP-01104-SCT.

Citation860 So.2d 704
Decision Date23 October 2003
Docket NumberNo. 2001-DP-01104-SCT.,2001-DP-01104-SCT.
PartiesMarlon Latodd HOWELL a/k/a Marlon Cox v. STATE of Mississippi.
CourtUnited States State Supreme Court of Mississippi

Duncan L. Lott, Booneville, attorneys for appellant.

Office of the Attorney General by Judy T. Martin, Marvin L. White, Jr., Joanne M. Mcleod, Jerrolyn M. Owens, attorneys for Appellee.

EASLEY, Justice, for the Court.

PROCEDURAL HISTORY

¶ 1. Marlon Latodd Howell (Howell) was indicted along with Curtis W. Lipsey (Lipsey) and Adam Ray (Ray) for capital murder arising from the slaying and attempted robbery of Hugh David Pernell (Pernell) in New Albany, Mississippi. Howell was tried and convicted of capital murder in the Union County Circuit Court. The jury determined that Howell should suffer the penalty of death by lethal injection. Howell's subsequent motion for a new trial was denied. Howell perfected his appeal to this Court after being allowed to proceed in forma pauperis.

FACTS

¶ 2. Pernell, a retired postal worker, worked as a newspaper carrier for the Tupelo Daily Journal. On May 15, 2000, Pernell was delivering newspapers when he was flagged down by another vehicle sometime after 5:00 a.m. Howell, Ray and Lipsey were in the other vehicle. Howell approached Pernell's driver's side window and shot Pernell. Pernell's vehicle hit a parked vehicle in a nearby driveway. Howell, Ray and Lipsey fled the scene.

¶ 3. The murder occurred in front of the home of Charles Rice (Rice). At the time, Rice was up watching television and getting ready for work. David Grisham (Chief Grisham), New Albany Police Chief, investigated Pernell's murder and spoke with Rice. Rice had observed the exchange. Rice testified that he looked out his window when he heard a horn blowing. He observed the two vehicles stop in front of his house. Rice testified that a man got out of the passenger's side of the rear vehicle and walked between the two vehicles up to the driver's side of the front vehicle. A conversation ensued, and then the man pulled out a pistol and shot the driver. The shooter then jumped back and got into the rear vehicle which had pulled up to pickup the shooter. Rice testified that he called 911. Rice described the shooter as a young black male, early twenties, clean cut, short hair, approximately six feet tall, light complexion. Rice described the rear vehicle as a darkcolored, late model Oldsmobile based upon the insignia in the middle of the tail lights. Later on May 15, 2000, Chief Grisham received an anonymous telephone call suggesting that he question Lipsey. Chief Grisham left a message for Lipsey to contact the police. Lipsey and Ray voluntarily went to the police station where they were interviewed by Officers Tim Kent (Officer Kent) and Chief Grisham. Based on the statements made by Lipsey and Ray, Chief Grisham began looking for Howell.

¶ 4. Howell was arrested at approximately 7:30 p.m. on May 15, 2000, and questioned by Officer Kent and Chief Grisham. Howell stated that he did not know anything about the shooting. Howell claimed that he was in Corinth with a woman at the time of the murder.

¶ 5. Brandon Shaw (Shaw) testified that on May 14, 2000, he rode around with Lipsey and Ray. They picked up Howell. When Howell got into the vehicle, he stated that he needed money to pay his probation officer.1 The four then drove to Tupelo. While stopped at a gas station, Howell observed a man in the parking lot and stated "there goes an easy lick." After returning to New Albany, Howell, Lipsey, Ray and Shaw sat around at Shaw's house for a few hours talking. Shaw's brother, Quinton Shaw (Quinton), and his girlfriend, Andrea, were also at the house but in a bedroom. Howell, Lipsey and Ray left together around 4:00 a.m. in Ray's grandmother's car. They all returned together around 5:30 a.m.

¶ 6. Marcus Powell (Powell), who lived in Blue Mountain, had arrived at Shaw's home around 5:10 a.m. and had gone to sleep on the couch. Earlier that evening, Powell had used Quinton's Chevy Lumina. On cross-examination, Powell testified that he was awakened by Howell, Lipsey and Ray returning to Shaw's house. Powell saw them go back to Shaw's bedroom. Howell was wearing a green shirt that evening, and he had a green shirt wrapped around his hand when he returned to the house. Ray came back to the living room and sat down. Powell never saw a gun.

¶ 7. Shaw testified that his cousin, Ray, came back to his bedroom, knocked on the door and stated that "Howell had shot somebody." Shaw came out of his bedroom and saw Howell in the living room with a green shirt wrapped around his hand. Howell asked Shaw to drive him home. Shaw asked his brother to borrow his Chevy Lumina to carry Howell home to Blue Mountain. Powell also wanted a ride home to Blue Mountain.

¶ 8. While Shaw went to borrow Quinton's car keys, Howell, Ray and Lipsey had already gone outside. Howell still had the green shirt around his hand. Shaw testified that he carried Powell home first and then dropped Howell off at his house.

¶ 9. Shaw then dropped off Lipsey and Ray.2 When Shaw returned home, he discovered a gun in his backyard. Shaw convinced Lipsey and Ray to go with him to the police later that day to report what had happened. Officer Kent went behind Shaw's house and discovered a gun in the weeds in the backyard. Shaw testified that the gun was lying on top of a bag in the bushes when Officer Kent came to retrieve it.

¶ 10. Lipsey testified that he was with Howell when he shot Pernell. On the evening of May 14, 2000, Lipsey was with Shaw and Ray when they picked up Howell to go to Tupelo. According to Lipsey, Howell indicated that he needed money to pay his probation officer. While in Tupelo, Howell spotted a man outside at a payphone at a convenience store. Howell stated that the man would be "a good lick."

¶ 11. Lipsey further testified that after leaving Shaw's house, he was in the car with Ray and Howell when Howell reached over and blinked the vehicle's lights at another vehicle trying to make it stop. Howell got out of the vehicle trying to make the other vehicle stop. Howell then went over to the other vehicle and began fighting with the man for about half a minute. Howell pulled a gun and shot the man. Howell then jumped back into the vehicle and went back to Shaw's house with Lipsey and Ray. Lipsey testified that Howell told them that the man sprayed him in the face with mace, so he shot him.

¶ 12. According to Lipsey, Howell woke Shaw when they got to Shaw's house. Lipsey testified that he and Ray remained in the living room while Howell went to get Shaw. Shaw carried Powell home first and then dropped off Howell. Lipsey saw Howell take a Wal-Mart sack out of the vehicle and put the gun in the sack. Lipsey did not know what Howell did with the gun.

¶ 13. Lipsey testified that he went with Shaw and Ray to the police station later that day. He made two statements to the police. For his participation in Pernell's murder, Lipsey pled guilty to manslaughter and armed robbery, receiving a sentence of twenty years and ten years, respectively, to run consecutively.

¶ 14. Powell testified that on May 14, 2000, he initially arrived at Shaw's house around 8:00 p.m. Ray was already at Shaw's house when he arrived. Ray and Shaw left together to pick up Howell and Lipsey. All four returned to Shaw's house. Powell testified that Howell stated that he needed to pay his probation officer or he was going to be locked up. Shaw, Howell, Ray and Lipsey all left Shaw's home around 11:00 p.m. Powell borrowed Quinton's vehicle to go to Pontotoc.

¶ 15. Powell returned to Shaw's house in New Albany around 5:10 a.m. Powell was asleep on the couch when Howell, Lipsey and Ray came back to Shaw's house. Ray sat on the couch beside him. Howell went back to Shaw's bedroom. Powell testified that Shaw used Quinton's vehicle to carry Howell and him home to Blue Mountain. Powell never saw Howell with a gun, but Howell had a green shirt wrapped around his hand. Powell testified that it was the same green shirt Howell had been wearing earlier. Powell was dropped off at his home first.

¶ 16. Dr. Steven Hayne (Dr. Hayne), state pathologist, conducted the autopsy on Pernell's body. Dr. Hayne testified that Pernell died from a gunshot wound. The bullet entered the chest cavity and traveled from Pernell's front left side through the body on an essentially horizontal plane without deviation up or down and then traveled from front to back at approximately 40 to 50 degrees. Once the bullet entered the chest cavity, it fractured the fourth left rib. The bullet traveled through the left lung and the two chambers of the heart. After the bullet traveled through the left ventricle and the left atrium, it went through the aorta. The bullet left the heart and traveled from the aorta to enter the right lung. The bullet struck the 7th posterior right rib on the right flank, fracturing that bone before it came to rest.

¶ 17. The bullet caused extensive internal bleeding. There were one and one half quarts of blood in the right chest cavity, approximately one and one half quarts of blood in the left chest cavity, and one cup of blood in the structure that holds the heart's pericardial sac. Dr. Hayne testified that blood displacement of that magnitude would create irreversible shock that would cause death without immediate medical intervention. Dr. Hayne estimated that irreversible shock would have occurred within five to ten minutes.

¶ 18. Dr. Hayne retrieved the bullet and transported it under a chain of custody to the Mississippi State Crime Lab in Jackson to the firearms division for analysis. Dr. Hayne concluded the manner of death to be homicide due to a gunshot wound. On cross-examination, Dr. Hayne testified that there was no evidence of a struggle, lacerations, contusions or scratches. However, on redirect, Dr. Hayne testified that he could not preclude the possibility of a struggle, only that...

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