                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-CA-01027-SCT

MARLON LATODD HOWELL a.k.a. MARLON COX

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                        05/17/2013
TRIAL JUDGE:                             HON. SAMAC S. RICHARDSON
COURT FROM WHICH APPEALED:               UNION COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 WILLIAM ODOM RICHARDSON
                                         MATTHEW H. RICHARDSON
                                         RACHEL PIERCE WAIDE
                                         W. TUCKER CARRINGTON
                                         WILLIAM M. MCINTOSH, JR.
ATTORNEYS FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                         BY: JIM HOOD
                                             JASON L. DAVIS
NATURE OF THE CASE:                      CIVIL - DEATH PENALTY - POST
                                         CONVICTION
DISPOSITION:                             AFFIRMED - 10/09/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE DICKINSON, P.J., PIERCE AND COLEMAN, JJ.

       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.

                                               2
      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).




                                              3
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 (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

                                              4
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




                                               5
¶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. Also

before the Court is Howell’s claim that the trial court erred in allowing Attorney General

Hood to participate in the hearing and his claim that the trial court erred in denying his

motion to supplement the record with affidavits from new alibi witnesses.

       I. Whether Howell is entitled to relief based on Charles Rice’s alleged
          recanted testimony.

¶8.    The shooting occurred outside Charles Rice’s home. Rice looked out the window

when he heard a car horn and witnessed the shooting. Rice identified Howell as the shooter

in a lineup held the day after the shooting. He testified at trial and identified Howell in court.

Howell submitted an affidavit signed by Rice in 2005, which stated that Rice had doubts

about whether Howell was the shooter and that he recanted his identification of Howell. Rice

signed another affidavit in 2007, reaffirming his identification of Howell and his trial

testimony. In the 2007 affidavit, Rice said he had been pressured to sign the 2005 affidavit,

he signed it so that the investigator would leave him alone, and he did not know the legal

significance of the document when he signed it. Both affidavits were before the Court in

Howell II. In light of the contradictory affidavits, the Court held that Howell was entitled

to a post-conviction hearing on the issue of whether Rice had recanted his testimony. The

Court wrote:

       In the direct appeal of Howell’s capital-murder conviction and death sentence,
       we held that Rice’s identification of Howell was reliable and that the jury was

                                                6
       entitled to weigh the credibility of the evidence. Howell, 860 So. 2d at 731.
       Unquestionably, Rice’s testimony was crucial to the State’s case. The State
       admitted as much in closing argument when the prosecutor stated that the State
       could have rested after Rice testified. After reviewing Rice’s trial testimony,
       the 2005 affidavit in which he partially recanted his identification of Howell,
       and the 2007 affidavit in which he reaffirmed his trial testimony, we find that
       Howell has shown that he is entitled to a post-conviction hearing on this issue.
       This issue can be resolved by the trial judge, who will have an opportunity not
       only to hear Rice’s testimony, but also to observe Rice’s demeanor as Rice is
       subjected to both direct examination and cross-examination. This also is
       certainly true of other witnesses who might testify on this issue.

Howell II, 989 So. 2d at 384 (¶ 34).

¶9.    Rice signed another statement in 2013, which was put into evidence at the evidentiary

hearing, reaffirming that his testimony at trial was truthful and saying that he was willing to

take a lie detector test. At the evidentiary hearing, Rice testified that the 2005 affidavit – in

which he expressed doubts about his identification of Howell as the shooter – was not true.

He said investigators came to his house the day before his wedding, and he signed the

statement to get them out of his house. He testified that he has no doubts about his

identification of Howell, and he is 100 percent certain that he accurately identified Howell.

Rice reaffirmed his trial testimony – he said it was still his testimony that “Marlon Howell

shot Mr. Pernell” – and he maintained that he correctly identified Howell in the lineup.

¶10.   In Howell II, although granting Howell’s PCR on the issue, the Court gave the law

regarding recanted testimony:

       As a general rule, recanted testimony is “exceedingly unreliable, and is
       regarded with suspicion; and it is the right and duty of the court to deny a new
       trial where it is not satisfied that such testimony is true.” Bradley v. State, 214
       So. 2d 815, 817 (Miss. 1968). Further, “[e]xperience teaches all courts a
       healthy skepticism toward recanted testimony. . . .” Yarborough v. State, 514
       So. 2d 1215, 1220 (Miss. 1987). The fact that a witness changes his testimony
       after the trial does not necessarily entitle the petitioner to a new trial. Russell

                                               7
         v. State, 849 So. 2d 95, 107 (Miss. 2003) (citing Peeples v. State, 218 So. 2d
         436, 438 (Miss. 1969); Williams v. State, 669 So. 2d 44, 53 (Miss. 1996)).

Howell II, 989 So. 2d at 384 (¶ 33). When a defendant moves for a new trial based on

recanted testimony, the defendant has “the burden of proving two elements to the satisfaction

of the trial judge at the evidentiary hearing: (1) he must have sufficiently proven the perjury

existed by showing that the recantation was material, and (2) he must have proven the result

of a new trial would be different than the one reached.” Walls v. State, 735 So. 2d 1010,

1011 (¶ 3) (Miss. 1999) (citing Williams v. State, 669 So. 2d 44, 54 (Miss. 1996)).

¶11.     The trial judge heard Rice’s testimony at the evidentiary hearing and concluded that

Rice’s 2005 affidavit recanting his testimony was unreliable. Although Rice admittedly lied

when he executed the 2005 affidavit, the trial judge found that Rice’s testimony at the

hearing was credible and that his identification and trial testimony were reliable. The trial

judge found no merit in the claim regarding Rice’s recanted testimony. Because Rice

reaffirmed his trial testimony and his identification of Howell, there is no indication that the

result of a new trial would be different. Thus, Howell has not satisfied the two elements

required to justify a new trial based on recanted testimony. See Walls, 735 So. 2d at 1011

(¶ 3).

¶12.     The trial judge is responsible for reviewing “all of the circumstances of the case,

‘including the testimony of the witnesses submitted on the motion for the new trial’” and the

Court “will not overturn a decision to grant or deny a motion for new trial based on recanted

testimony unless the circuit judge abused his discretion.” Russell v. State, 849 So. 2d 95,

107 (¶ 15) (Miss. 2003) (quoting Bradley v. State, 214 So. 2d 815, 817 (Miss. 1968)). After



                                               8
reviewing the transcript of Rice’s testimony and his affidavits, we hold that the trial judge

did not err in finding that Rice’s testimony at the hearing and at trial was credible and that

the 2005 affidavit was unreliable.

       II. Whether Howell is entitled to relief based on Terkecia Pannell’s
           alleged exculpatory statements.

¶13.   Terkecia Pannell was Brandon Shaw’s girlfriend at the time of the murder. She was

at Shaw’s house the day and night before the murder. Howell’s co-defendants, Curtis Lipsey

and Adam Ray, were Shaw’s close friends, but Pannell met Howell for the first time the night

before the murder. Lipsey, Ray, and Howell were hanging out at Shaw’s house prior to the

murder, and the trio also allegedly returned to Shaw’s house afterwards. Pannell and Shaw

were asleep when the trio returned. Shaw got out of bed and talked with the others, then he

drove Howell home. Pannell remained in the bedroom; she did not speak with Lipsey, Ray,

or Howell when they returned that morning.

¶14.   Pannell gave a statement to police during the investigation. She told police that Shaw

told her that “Marlon had shot a white guy.” When she asked Shaw why Howell did it, Shaw

said Howell had tried to rob the man and ended up shooting him. Shaw told Pannell that he

agreed to drive Howell home because Howell had a gun and he was afraid Howell would kill

him. Pannell’s version of the events and conversations that occurred the morning of the

murder, after the trio returned to Shaw’s house, came entirely from her conversations with

Shaw. She did not have personal knowledge, because she remained in the bedroom.

¶15.   Pannell was subpoenaed to testify at Howell’s trial, but she was not called as a

witness. Pannell claims that, while they were waiting in the witness room, she told Shaw that



                                              9
she was not going to lie. She then went into the hall and told the district attorney that she

was not going to lie. Pannell could not identify the attorney she spoke to, but she claims he

told her she was not needed and sent her home. Tonya Peterson testified at the evidentiary

hearing. Peterson testified that she was at the courthouse for Howell’s trial, and she heard

a black girl telling two men in suits that she was not going to lie. Howell claims that

Peterson’s testimony corroborated Pannell’s story about speaking to the attorneys in the

hallway.

¶16.   In 2006, Pannell executed an affidavit “to provide information as to Marlon Howell’s

innocence.” She wrote that Lipsey and Ray had shot someone, not Howell, and that Howell

did not return to Shaw’s house with them that morning. She said Lipsey and Ray came back

with a gun, but she did not see Howell with a gun. Pannell wrote that she would have

testified to the above-described version of events at trial and that she wanted to testify, but

she was not called. The affidavit provided that Pannell did not read her original statement

to police before signing it; the police wrote out the statement, and she did not know what it

said. She claimed that she told police and the district attorney the same information and that

her story had always been the same; she did not know how the police came up with the

version of events that they wrote down as her initial statement. However, at the hearing, she

testified that she did read the original statement before signing it, and she “probably lied” and

“probably gave false information to try to protect” Shaw because he was on probation at the

time. Pannell, now an ordained minister, did not attempt to provide the alleged exculpatory

evidence on her own. Instead, she provided the affidavit to investigators after they sought

her out.


                                               10
¶17.   Howell claims that the State did not call Pannell because her testimony would have

inculpated Lipsey and Ray. He claims that the State committed a Brady violation by

withholding material, exculpatory evidence.1 He asserted in his PCR that his trial counsel

was ineffective for failing to interview Pannell, but he did not raise that issue in his brief.

Pannell was questioned at length at the evidentiary hearing, and her story changed constantly.

The trial judge found that the entirety of Pannell’s testimony was hearsay and/or irrelevant,

so it would not have been admissible at trial. Thus, the trial attorneys were not ineffective

for failing to interview her. After Pannell was questioned about her affidavit, the judge

found that, other than her name and age, nearly the entirety of her testimony was not

credible.2    The judge concluded that Pannell had “no credibility” with the court, her

testimony had “no validity,” and if she were allowed to testify at a new trial her testimony

would be “highly suspect” because she had admitted to lying under oath. The trial judge held

that the issues related to Pannell’s testimony were without merit.

¶18.   The United States Supreme Court has held that “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 (1963). The Court has adopted a four-

pronged test for establishing a Brady violation:



       1
           Brady v. Maryland, 373 U.S. 83 (1963).
       2
         On cross-examination at the evidentiary hearing, counsel went through each line of
Pannell’s affidavit and highlighted each item that Pannell said actually might not be true or
that she could not confirm. The judge questioned Pannell as well, and she admitted that she
was drinking and smoking marijuana the night of the murder.

                                              11
       To establish a Brady violation a defendant must prove the following: (1) that
       the government possessed evidence favorable to the defendant (including
       impeachment evidence); (2) that the defendant does not possess the evidence
       nor could he obtain it himself with any 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.

King v. State, 656 So. 2d 1168, 1174 (Miss. 1995) (citations omitted). Howell cannot prove

each element of the Brady violation test because, as the trial judge held, Pannell’s testimony

was hearsay, irrelevant, and unreliable. Likely, none of Pannell’s testimony would have been

admissible at trial; thus, there is not a reasonable probability that the outcome of the trial

would have been different had the prosecution made the defense aware of her statements.

¶19.   As discussed above, the trial judge is responsible for reviewing and evaluating “the

testimony of the witnesses submitted on the motion for the new trial,” and the Court “will not

overturn a decision to grant or deny a motion for new trial based on recanted testimony

unless the circuit judge abused his discretion.” Russell, 849 So. 2d at 107 (¶ 15). After

reviewing the record, transcript, and affidavits related to Pannell’s testimony, we conclude

that the trial judge correctly characterized Pannell’s testimony as unreliable and entirely

lacking in credibility. The trial judge did not abuse his discretion in finding the issues related

to Pannell’s testimony to be without merit.

       III. Whether Howell is entitled to a new trial because he was not able to
            present his defense at trial in regard to his lack of representation at
            the lineup.

¶20.   The trial judge concluded that Howell was not represented by counsel at the lineup.

The judge seemingly reached a harmless error conclusion on Howell’s lack of representation

claims, holding that there was no impropriety or suggestiveness concerning the lineup – that

                                               12
issue was ruled on by the Court in Howell I – so the presence of counsel would not have

mattered. Howell raises multiple issues related to his lack of representation at the lineup.

¶21.   Howell’s first issue is that he is entitled to a new trial because he was not able to

present his defense at trial regarding lack of representation during the lineup. He presents

three arguments under the issue: (1) the Sixth Amendment Confrontation Clause has been

violated and his conviction and sentence should be vacated; (2) the State lied about counsel

being present at the lineup, which denied him his due process right to present a complete

defense; and (3) he is entitled to a new trial because the State’s misrepresentations amounted

to a violation of Napue v. Illinois.3 The State did not respond.

                                  A. Confrontation Clause

¶22.   Howell claims that his conviction and sentence should be vacated because the Sixth

Amendment Confrontation Clause was violated. He asserts that, had counsel known at trial

that no attorney was present at the lineup, questioning of Rice “would have revealed the

complete unreliability of his identification of Howell.” Because Howell was not told the

truth about representation at the lineup, he claims he was not given a “full and fair

opportunity to probe and expose these infirmities through cross-examination,” which was a

violation of the Confrontation Clause.

¶23.   The Sixth Amendment Confrontation Clause provides that the accused has the right

“to be confronted with the witnesses against him[.]” U.S. Const. amend. VI. See also Miss.

Const. art. 3 § 26. Under the Confrontation Clause, “the admission of a testimonial statement




       3
           Napue v. Illinois, 360 U.S. 264 (1959).

                                             13
of a witness who does not appear at trial is barred, unless that witness is unavailable, and the

defendant has had a prior opportunity for cross-examination.” Corbin v. State, 74 So. 3d

333, 338 (¶ 13) (Miss. 2011) (citing Davis v. Washington, 547 U.S. 813, 821 (2006)). The

Supreme Court has held that a testimonial statement is “a solemn declaration or affirmation

made for the purpose of establishing or proving some fact.” Crawford v. Washington, 541

U.S. 36, 59 (2004). The instant issue does not evoke the Confrontation Clause. Rice was

available to testify. His testimonial statement was that he saw Howell shoot Pernell. Howell

was able to “confront” Rice about his testimonial statements through cross-examination.

¶24.   The Sixth Amendment does not give the accused the right to cross-examine every

witness on every possible subject, as some topics may be barred as irrelevant or statements

may be objected to as hearsay. Rice testified at trial about the crime that he witnessed, the

individual he saw, and his identification of Howell in the lineup. Whether an attorney was

present during the lineup would not affect what Rice saw or the certainty of his identification.

Rice was emphatic about the certainty of his identification at trial and at the evidentiary

hearing. Howell makes only general allegations; he does not provide anything specific about

how the presence of an attorney at the lineup would have dampened Rice’s credibility or how

it would have been relevant to Rice’s testimony.

¶25.   Potential Confrontation Clause violations are reviewed for harmless error. Conners

v. State, 92 So. 3d 676, 684 (¶ 20) (Miss. 2012). Because the Court has held that the lineup

was proper, Rice was certain about his identification, and Rice would not be the proper

witness to testify about the presence of an attorney at the lineup, Howell’s inability to cross-




                                              14
examine Rice about the presence of an attorney at the lineup was harmless error, if it was

error at all.

                  B. Due Process Right to Present a Complete Defense

¶26.    Howell maintains that the State’s misrepresentations about counsel being present at

the lineup denied him the due process right to present a complete defense. He claims that the

State’s case hinged on a single piece of evidence – Rice’s identification. Howell argues that,

because the jury assumed an attorney was at the lineup, the jury had no reason to believe the

lineup was not proper. Thus, Howell claims that he was denied the opportunity to put on a

complete defense because, had he known counsel was not present at the lineup, he would

have used that to impeach Rice’s identification “with the actual presumptive unfairness of

not having an attorney present.” Howell does not cite any authority for the argument.

¶27.    Again, it is not clear how the lack of an attorney at the lineup would discredit Rice’s

testimony. There was ample testimony from Rice and others about the lineup. See Howell,

860 So. 2d at 728-29 (¶¶ 82-86). The Court has held that the lineup was not unduly

suggestive and that Rice’s identification was reliable. Id. at 731 (¶ 92); Howell II, 989 So.

2d at 381 (¶ 24). As discussed above, the lack of an attorney at the lineup is not sufficient

to impeach Rice’s testimony because the lineup was proper, Rice was certain about his

identification, and Rice would not be the proper witness to testify about the presence of an

attorney at the lineup.

                              C. Violation of Napue v. Illinois




                                              15
¶28.   Finally, Howell claims that he is entitled to a new trial because the State’s

misrepresentations amounted to a violation of Napue v. Illinois. In that case, the Supreme

Court held:

       [I]t is established that a conviction obtained through use of false evidence,
       known to be such by representatives of the State, must fall under the
       Fourteenth Amendment . . . . The same result obtains when the State, although
       not soliciting false evidence, allows it to go uncorrected when it appears.

       The principle that a State may not knowingly use false evidence, including
       false testimony, to obtain a tainted conviction, implicit in any concept of
       ordered liberty, does not cease to apply merely because the false testimony
       goes only to the credibility of the witness. The jury’s estimate of the
       truthfulness and reliability of a given witness may well be determinative of
       guilt or innocence, and it is upon such subtle factors as the possible interest of
       the witness in testifying falsely that a defendant’s life or liberty may depend.

Napue v. Illinois, 360 U.S. 264, 269 (1959) (internal citations omitted). Howell writes that

a Napue violation occurs when a prosecuting attorney knows that a witness’s testimony is

false and does nothing to correct it.

¶29.   Howell maintains that Police Chief David Grisham lied about the presence of counsel

at the lineup and that “the State has, at the very least, stood by as Grisham made these

statements repeatedly.” He asserts that the State “had every indication that Grisham’s

statements were false.” Grisham testified at the evidentiary hearing that he could have been

mistaken but that he did not lie to the court when he said that Russell was present at the

lineup. At the time of the hearing, Grisham still believed that Russell was there. Howell did

not present any evidence that Grisham intentionally lied or that the State knew that an

attorney was not present at the lineup. The issue is without merit.

       IV. Whether Howell is entitled to a new trial because he was denied his
           right to counsel at the lineup.

                                              16
¶30.   Howell claims that he is entitled to a new trial because he was denied the right to

counsel at the lineup. When Howell was named as a suspect in Pernell’s murder, police

arrested him on an outstanding warrant for a parole violation. A lineup was held the next

morning, and Rice identified Howell. After the lineup, Howell was charged with capital

murder. Howell argues that he was under arrest for capital murder at the time of the lineup,

so the right to counsel had attached. According to the State, the right to counsel had not

attached because Howell was not under arrest for capital murder when the lineup took place.

The State maintains that the right to counsel is “offense specific,” meaning it attaches only

to the offense for which adversarial judicial proceedings have commenced. In the alternative,

the State posits that, if Howell was entitled to counsel at the lineup, the violation was

harmless error. The trial court agreed with the State, holding that Howell was being held on

a probation violation and suspicion of capital murder, but he was not under arrest for capital

murder when the lineup took place.

¶31.   At the evidentiary hearing, officers explained that Howell had an outstanding warrant

for a parole violation, so they used that warrant to arrest him when he became a suspect in

the shooting on May 15, 2000. Chief Grisham and Investigator Tim Kent both testified that

Howell was not under arrest for capital murder when the lineup was conducted the following

morning and that they did not get the warrant for capital murder until after the lineup.

Likewise, Mickey Baker from the Mississippi Bureau of Investigation testified that Howell

was charged with capital murder after the lineup on May 16, 2000. Kent said they did not

charge Howell with capital murder initially because he was not comfortable with the amount



                                             17
of evidence they had at that time – being only the statements of two co-conspirators – so he

wanted to see if the witness identified Howell in a lineup before proceeding with charges.

¶32.   Several exhibits were introduced at the hearing pertaining to Howell’s arrest on May

15, 2000 – arrest forms, a booking sheet, and Kent’s report – which indicated that Howell

was booked on both capital murder and the parole violation on May 15. Kent’s initial

narrative attached to his report referred to Howell being taken to the detention center “where

he was booked on capital murder.” When questioned about the documents, Kent explained

that they did not want Howell to get out on the parole violation before they had a chance to

conduct the lineup. Kent said “being booked and being charged are two different things.”

He testified that, in his mind, Howell was not charged with capital murder at that time; he

was being held on the parole violation warrant and suspicion of capital murder. However,

Kent testified that, even if Howell had bonded out on the parole violation, he would not have

been able to leave. Kent said he did not tell Howell that he was being charged with capital

murder on the night of May 15. He testified that Howell likely was first served with the

warrant for capital murder around noon the day of the lineup, which took place around 10:00

that morning. The date on the warrant for capital murder is May 16, 2000.

¶33.   “The Sixth Amendment right to counsel is ‘offense’ specific and does not attach until

prosecution begins.” Weeks v. State, 804 So. 2d 980, 995 (¶ 55) (Miss. 2001) (citing McNeil

v. Wisconsin, 501 U.S. 171, 174-77 (1991)). In McNeil, the United States Supreme Court

explained, “The purpose of the Sixth Amendment counsel guarantee – and hence the purpose

of invoking it – is to protect the unaided layman at critical confrontations with his expert

adversary, the government, after the adverse positions of government and defendant have

                                             18
solidified with respect to a particular alleged crime.” McNeil, 501 U.S. at 177-78 (internal

quotations omitted).    Thus, the Sixth Amendment right to counsel attaches once the

government has initiated charges “with respect to a particular alleged crime.” Id. See also

Neal v. State, 57 So. 3d 1271, 1279 (Miss. 2011) (defendant was in custody on felony escape

charge; Sixth Amendment right to counsel did not extended to burglary charge); Mack v.

State, 650 So. 2d 1289, 1316 (Miss. 1994) (defendant’s invocation of Sixth Amendment right

to counsel on burglary charge did not extend to capital murder charge).

¶34.   In Weeks v. State, Weeks was being held on a firearms charge on March 16, 1997,

when he gave a statement to police confessing to murder. Weeks, 804 So. 2d at 995 (¶ 52).

Weeks was charged with murder two weeks later on March 31. Id. at 996 (¶ 57). The Court

held that Weeks’s right to counsel as to the murder charge had not attached when he

confessed on March 16. Id. Weeks had gone to the sheriff’s office as early as February 26

and told officers that “it was his fault” that the victim was missing. Id. at 985 (¶ 3). Other

evidence also linked Weeks to the victim’s disappearance. Id. at 985-86 (¶¶ 3-4). Thus, like

the case at hand, law enforcement officers had reason to suspect that Weeks was involved

in the murder prior to his being charged, yet the Court still held that Weeks’s right to counsel

on the murder charge had not attached when he was under arrest for possession of a firearm

and made an incriminating statement to police.

¶35.   The right to counsel attaches at the “accusatory stage.” Id. at 995 (¶ 54). The Weeks

Court wrote:

       This Court has held that “under both the United States and the Mississippi
       constitutions, an accused is entitled to be assisted by counsel during criminal
       proceedings against him.” Ormond v. State, 599 So. 2d 951, 956 (Miss. 1992).

                                              19
       See U.S. Const. amend. VI; Miss. Const. art. 3, § 26 (1890). The only
       difference between the two is the time of attachment. Id. In Mississippi the
       Sixth Amendment right attaches at the “accusatory stage.” Id. (citing
       Williamson v. State, 512 So. 2d 868, 876 (Miss. 1987)). “However, the
       defendant must be able to show some adverse effect or prejudice to his ability
       to conduct his defense before denial of this right to counsel constitutes
       reversible error.” Id.

Weeks, 804 So. 2d at 995 (¶ 54). In Page v. State, the Court further explained the rule, as

well as the departure from federal law.

       Once proceedings against a defendant reach the accusatory stage, a right to
       counsel attaches. Cannaday v. State, 455 So. 2d 713, 722 (Miss. 1984). For
       purposes of our state constitutional right to counsel, we define the advent of
       the accusatory stage by reference to state law. Miss. Code Ann. [§] 99-1-7
       (1972) provides for commencement of prosecution as occurring when a
       warrant is issued as well as “by binding over or recognizing the offender to
       compel his appearance to answer the offense[.”] See Atkinson v. State, 132
       Miss. 377, 96 So. 310, 311-12 (1923); State v. Hughes, 96 Miss. 581, 585-86,
       51 So. 464 (1910). It would be totally irrational to suggest that one “bound
       over” to await the action of the next grand jury had not been accused.
       Similarly, law enforcement officials have no authority to deny reasonable
       access to counsel by one arrested, charged, and advised that his release may
       be secured upon $25,000.00 bond.

       If it has not already attached, the right to counsel is surely available to the
       accused at the time the Initial Appearance under Rule 1.04, Unif. Crim. R. Cir.
       Ct. Prac., ought to have been held, the “initial appearance[,”] of course, being
       that of the accused before a judicial officer “without unnecessary delay”
       following arrest. See also, Miss. Code Ann. § 99-3-17 (Supp. 1985). Without
       engaging in nice calculations regarding the precise moment of conception, we
       hesitate little in holding that the right to counsel has attached to one such as
       Ricky Page who has been arrested, has been released on bond, and has in fact
       secured the services of counsel.5

            [FN 5] We are very much aware of the fact that a number of recent
            federal cases have held that the right to counsel secured by the Sixth
            Amendment to the Constitution of the United States is available
            only after the initiation of judicial criminal proceeding, i.e.,
            indictment and arraignment. Michigan v. Jackson, 475 U.S. 625,
            106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986); United States v. Gouveia,
            467 U.S. 180, 104 S. Ct. 2292, 81 L. Ed. 2d 146, 154 (1984).

                                             20
            Application of this approach to our state constitutional right to
            counsel would be wholly unworkable. With grand juries meeting
            infrequently in many of our rural counties, such an approach would
            have the right to counsel available to the accused only after many
            months had passed following arrest. We also take note of the
            practice in many of our counties of postponing arraignment in order
            to avoid the impact of our 270 day rule. Miss. Code Ann. § 99-17-1
            (Supp. 1985). Adherence to the recently stated federal approach to
            the right to counsel would, simply put, have the effect of providing
            that the accused had the right to counsel only after it could be said
            with reasonable certainty that it would no longer do him any good,
            i.e., after the point where any competent law enforcement officer
            would long since have obtained a confession or other inculpatory
            statement. For these reasons we reject the federal approach and for
            purposes of today’s decision rely exclusively upon state law.

Page v. State, 495 So. 2d 436, 439-40 (Miss. 1986). See also Cannaday v. State, 455 So.

2d 713, 722 (Miss. 1984) (under Mississippi Code Section 99-1-7, prosecution commences

with “the issuance of a warrant, or by binding over or recognizing the offender to compel his

appearance to answer the offense, as well as by indictment or affidavit.”).

¶36.   The Court has held that an accused has the right to counsel at all “critical stages” after

he is in custody. Brooks v. State, 903 So. 2d 691, 694-95 (¶ 7) (Miss. 2005) (quoting

Coleman v. State, 592 So. 2d 517, 520 (Miss. 1991)). Undoubtedly, a lineup is a critical

stage. Jimpson v. State, 532 So. 2d 985, 989 (Miss. 1988). The key, however, is whether

adversarial proceedings have been initiated against the accused when the lineup takes place.

“A participant in a lineup has a constitutional right to have a lawyer present if the lineup is

held after adversarial proceedings had been initiated against him.” Brooks, 903 So. 2d at 694

(¶ 6) (citing Jimpson, 532 So. 2d at 988; York v. State, 413 So. 2d 1372, 1383 (Miss. 1982)).

In Brooks, the Court held that adversarial proceedings had commenced because an arrest

warrant had been issued, Brooks had been extradited from another state, and Brooks had

                                              21
indicated that he did not want to speak to law enforcement officials. Brooks, 903 So. 2d at

695 (¶ 8).

¶37.   Although an accused has a right to counsel at a lineup once adversarial proceedings

have commenced, neither we nor the United States Supreme Court has recognized the right

to counsel at pre-indictment lineups. See Wilson v. State, 451 So. 2d 718, 722 (Miss. 1984)

(“This Court has held consistently that the right to counsel does not extend to preindictment

lineups.”) (collecting cases); Gentry v. State, 338 So. 2d 1229, 1232 (Miss. 1976) (“[T]he

constitutional right to counsel does not attach to a pre-indictment show-up performed for the

purpose of including or ruling out a suspect as a possible perpetrator of a recent criminal act,

provided that the show-up is not so unduly suggestive as to taint it.”); Hobson v. State, 285

So. 2d 464, 466 (Miss. 1973) (citing Kirby v. Illinois, 406 U.S. 682 (1972)).

       The right to counsel at a lineup proceeding as held in United States v. Wade,
       388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), was thereafter
       specifically limited to a post-indictment situation in which a lineup is held
       after the formal initiation of judicial criminal proceedings. Kirby v. Illinois,
       406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972). This Court has adopted
       the rule of Kirby and held that the right to counsel does not apply to pre-
       indictment lineups. Howard v. State, Miss., 319 So. 2d 219 (1975); Hobson
       v. State, 285 So. 2d 464 (Miss. 1973); Allen v. State, 274 So. 2d 136 (Miss.
       1973); Chandler v. State, 272 So. 2d 641 (Miss. 1973).

Cox v. State, 326 So. 2d 794, 794-95 (Miss. 1976). “In Kirby v. Illinois . . . , the Court made

it clear that the right to counsel attaches only ‘at or after the initiation of adversary judicial

criminal proceedings, whether by way of formal charge, preliminary hearing, indictment,

information, or arraignment.’” Bankston v. State, 391 So. 2d 1005, 1007 (Miss. 1980)

(quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).




                                               22
¶38.   The Court has held that “[a]dversarial proceedings are held to have been initiated

when a defendant is arrested pursuant to a warrant.” Lattimore v. State, 958 So. 2d 192, 198

(¶ 11) (Miss. 2007) (citing Brooks, 903 So. 2d at 694 and Nicholson v. State, 523 So. 2d 68,

74 (Miss. 1988)). In Lattimore, the lineup was held eight days after the defendant had been

arrested pursuant to a warrant; thus, the defendant’s right to counsel had attached and failure

to have counsel at the lineup was error. Lattimore, 958 So. 2d at 198 (¶ 12). However, the

Court held that the error was “not fatal” to the case because the witness’s “in-court

identification was based upon her view of the defendant at the scene of the crime and not

based upon the lineup.” Id. at 198 (¶ 13).

¶39.   In Jimpson, the Court held that adversarial proceedings had commenced where

Jimpson had been arrested pursuant to an arrest warrant, he had been given his Miranda

warning, and he had signed a waiver. Jimpson, 532 So. 2d at 988. However, although

adversarial proceedings had begun and Jimpson had been subject to a lineup without counsel

present, the Court held that the denial of right to counsel at the lineup was harmless error.

Id. at 989. The Court held that the witnesses’ identification of Jimpson was based on their

close proximity to him during the crime and, in addition, the evidence in support of the

conviction was overwhelming. Id.

¶40.   In Magee v. State, the Court held that “[a]t the time of the lineup Magee was in

custody in the sense that he was not free to leave.” Magee v. State, 542 So. 2d 228, 233

(Miss. 1989). Although Magee was entitled to counsel at that point and his right to counsel

was violated, it was harmless error because the witness did not identify Magee at the lineup.

Id. Unlike the witness in Magee, Rice identified Howell in the lineup. But, like the

                                              23
witnesses in Jimpson and Lattimore, Rice was confident in his identification, testifying that

he had ample time to see the shooter at the time of the crime. Testimony from Rice and the

officers involved in the lineup make it clear that the lineup was not suggestive. Thus, Rice’s

in-court identification of Howell was based on his opportunity to view the shooter at the

scene of the crime, not based on the lineup.

¶41.   At the time of the lineup, Howell was under arrest for a parole violation, not for

capital murder. The warrant for capital murder had not been issued and proceedings for

capital murder charges had not begun. Strictly applying the offense-specific rule, Howell’s

right to counsel had not attached as to the charge of capital murder. As to capital murder,

“the adverse positions of government and defendant” had not been solidified. See McNeil,

501 U.S. at 171. An initial appearance pertaining to capital murder could not have been held

because there was no charge on which to hold one. See Page, 495 So. 2d at 439 (“If it has

not already attached, the right to counsel is surely available to the accused at the time the

Initial Appearance . . . ought to have been held[.]”). The indictment had not been issued,

Howell had not been charged, and he had not been told he was being charged with capital

murder when the lineup was held. Therefore, we hold that Howell’s right to counsel had not

attached for that offense. Further, in cases in which the defendant was identified in a lineup

– even after the warrant had been issued and the right to counsel had definitively attached –

the Court has found harmless error where the witness’s in-court identification was reliable

based their opportunity to view the defendant at the time of the crime, rather than being based

on seeing the defendant in the lineup. See Lattimore, 958 So. 2d at 198 (¶ 13); Jimpson, 532




                                               24
So. 2d at 989. See also Brooks, 903 So. 2d at 697 (¶ 15) (harmless error, but combined with

other errors, reversal was warranted).

¶42.   The Howell I Court applied the Biggers factors and held that, “[u]nder the totality of

the circumstances, there is no likelihood whatsoever, that Rice’s identification was not

reliable.” Howell I, 860 So. 2d at 730-31 (¶¶ 89-92) (discussing Neil v. Biggers, 409 U.S.

188, 199 (1972)). The Court affirmed that holding in Howell II. Howell II, 989 So. 2d at

380-81 (¶¶ 21-24). It is evident from the testimony of the officers involved and the Court’s

evaluation of the lineup in Howell I and Howell II that the lineup was not suggestive. The

trial judge was convinced that Rice’s identification was reliable and was based on his ability

to view the shooter at the time of the crime. Howell was not under arrest for capital murder

at the time of the lineup, and he was not entitled to counsel at the pre-indictment lineup.

Regardless, even if there was error, it was harmless because Rice’s in-court identification of

Howell was based on his opportunity to view Howell at the time of the crime, not based on

the lineup.

       V. Whether the failure of Howell’s trial counsel to investigate whether
          Howell was represented by counsel at the lineup amounted to
          ineffective assistance of counsel.

¶43.   Howell’s final issue related to lack of representation at the lineup is that his trial

counsel’s failure to investigate whether counsel was present at the lineup deprived him of

fundamental rights, injected false testimony into the trial, and ultimately amounted to

ineffective assistance of counsel. The State maintains that, because the lineup was not

suggestive, there is no merit to the claim. The trial court held that Howell failed to meet the




                                              25
standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S.

668 (1984).

¶44.   Before trial, Howell filed a motion to suppress the pretrial identification made by Rice

and any subsequent in-court identification. Howell asserted that the lineup was “improper

and suggestive” and that he was not represented by counsel at the lineup even though counsel

was available and there were no exigent circumstances that required a line-up in violation of

his right to counsel and his right to due process of law. At a hearing on the motion, Chief

Grisham testified that local attorney Regan Russell represented Howell at the lineup. Howell

claims that his trial counsel “made no effort to confirm” that Russell had represented him at

the lineup. Russell later unequivocally testified that, although he met with Howell briefly

and represented him at an initial appearance, he was not present at the lineup.

¶45.   At the evidentiary hearing, Chief Grisham testified that he still believed Russell was

at the lineup. Chief Grisham said that he saw Howell conferring with Russell on the day of

the lineup, he knew Russell was in the building that day, court documents indicate that

Russell represented Howell at the arraignment, and he believed Russell was at the lineup.

However, Chief Grisham signed an affidavit in 2007 saying that Tom McDonough, a public

defender, was present at the lineup on Howell’s behalf. Grisham testified that, at some point

after the trial, Russell told him that he was “in and out” that day, but “he did not remember

being at the lineup.” Grisham thought that McDonough could have been there, or that he

could have been the attorney conferring with Howell on the day of the lineup if it was not

Russell. McDonough has since testified that he did not represent Howell at the lineup or in

any capacity. Chief Grisham testified that he could have been mistaken, but he would not


                                             26
have lied intentionally about Howell being represented. He thought an attorney was present

at the lineup, but he could not be 100 percent sure. Grisham was in the hallway with the

individuals who were part of the lineup; he was not in the room with Rice and Investigator

Kent during the lineup.

¶46.   In Howell’s PCR, he presented the Court with affidavits from Russell and

McDonough stating that neither had represented to him at the lineup. The Court granted

Howell’s PCR on the issue of whether Howell’s counsel was ineffective for failing to

investigate whether counsel was present at the lineup, writing:

       In light of the affidavits from Russell and McDonough, we are unable to find
       that Howell’s attorney was not ineffective in his representation through the
       suppression hearing. Rice’s identification of Howell was obviously crucial to
       the State’s case. Minimal efforts on the part of trial counsel could have
       confirmed Russell’s presence or non-presence at the lineup. We thus find these
       issues to have merit, and an evidentiary hearing is required on these combined
       issues of whether Howell’s attorney was ineffective at the lineup stage.

Howell II, 989 So. 2d at 395-96 (¶ 86). Howell cites the above-quoted paragraph and asserts

that if counsel was not present, which has been determined, then “the parameters of this

Court’s opinion . . . mandate that Howell receive post-conviction relief on this issue.”

Howell claims that the trial court should not have applied a harmless error analysis but,

regardless, because the lineup identification was crucial to the State’s case, Howell maintains

that introduction of the lineup identification could not have been harmless.

¶47.   The State asserts that the “only reason to have an attorney present during a lineup

would be to minimize the possibility of a suggestive array and to preserve the ability to

challenge a tainted identification.”   Because the Court has held that the lineup was not

suggestive, the failure to have an attorney at the lineup was harmless error. Consequently,


                                              27
if the error was harmless, the State maintains that “there can be no Strickland prejudice

arising from any failure to investigate whether counsel was present during the lineup.”

¶48.   To prove that his trial counsel was so ineffective that reversal of his conviction is

required, Howell must show that (1) “counsel’s performance was deficient” and (2) “the

deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687

(1984). Under the first prong, to prove that counsel’s performance was deficient “requires

showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id. The second prong “requires

showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Id. If the defendant fails to prove either prong, the proceedings

end. Carter v. State, 775 So. 2d 91, 93 (¶ 10) (Miss. 1999) (quoting Foster v. State, 687 So.

2d 1124, 1130 (Miss. 1996)).

¶49.   “The benchmark for judging any claim of ineffectiveness [of counsel] must be

whether counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.” Brown v. State, 798 So.

2d 481, 493 (¶ 14) (Miss. 2001) (quoting Strickland, 466 U.S. at 686). We have held as

follows:

       In order to prevail on a claim of ineffective assistance of counsel, a defendant
       must prove that his attorney’s performance was deficient, and that the
       deficiency was so substantial as to deprive the defendant of a fair trial. This
       Court looks at the totality of circumstances to determine whether counsel’s
       efforts were both deficient and prejudicial. “Judicial scrutiny of counsel’s
       performance [is] highly deferential.” There is a strong but rebuttable
       presumption that counsel’s conduct falls within the wide range of reasonable
       professional assistance. Only where it is reasonably probable that but for the



                                               28
       attorney’s errors, the outcome of the trial would have been different, will we
       find that counsel’s performance was deficient.

Williams v. State, 73 So. 3d 1125, 1129 (¶ 12) (Miss. 2011) (quoting Parker v. State, 30 So.

3d 1222, 1233 (¶37) (Miss. 2010) (quoting Holly v. State, 716 So. 2d 979, 989 (¶ 37) (Miss.

1998) (internal citations omitted)).

¶50.   In Strickland, the Supreme Court emphasized that counsel is held to “an objective

standard of reasonableness” and a court’s inquiry into counsel’s performance “must be

whether counsel’s assistance was reasonable considering all the circumstances.” Strickland,

466 U.S. at 688. Regarding counsel’s duty to investigate, the Strickland Court wrote:

       [S]trategic choices made after thorough investigation of law and facts relevant
       to plausible options are virtually unchallengeable; and strategic choices made
       after less than complete investigation are reasonable precisely to the extent that
       reasonable professional judgments support the limitations on investigation. In
       other words, counsel has a duty to make reasonable investigations or to make
       a reasonable decision that makes particular investigations unnecessary. In any
       ineffectiveness case, a particular decision not to investigate must be directly
       assessed for reasonableness in all the circumstances, applying a heavy measure
       of deference to counsel’s judgments.

Strickland, 466 U.S. at 690-91. See also Carter v. State, 775 So. 2d 91, 93-94 (Miss. 1999).

The Court has held the following regarding counsel’s duty to investigate:

       There is no constitutional right to errorless counsel. Mohr v. State, 584 So. 2d
       426, 430 (Miss. 1991) (right to effective counsel does not entitle defendant to
       have an attorney who makes no mistakes at trial; defendant only has right to
       have competent counsel); Cabello v. State, 524 So. 2d 313, 315 (Miss. 1988)[.]
       [F]urther, this Court has held that

              [t]he duty to investigate and prepare is not limitless and not
              every breach means that counsel has failed to render reasonably
              effective assistance. “Counsel for a criminal defendant is not
              required to pursue every path until it bears fruit or until all
              conceivable hope withers.” Lovett v. Florida, 627 F.2d 706, 708
              (5th Cir. 1980).

                                              29
       Brown v. State, 798 So. 2d 481, 497 (Miss. 2001).

Thorson v. State, 994 So. 2d 707, 719 (¶ 31) (Miss. 2007). “[T]here is a presumption that

trial counsel is competent and that counsel’s conduct is reasonable.” Carter, 775 So. 2d at

94 (¶ 12) (citing Lindsay v. State, 720 So. 2d 182, 184 (Miss. 1998)).

¶51.   Looking at the totality of circumstances, Howell’s trial counsel’s performance was

“within the wide range of reasonable professional assistance.” Counsel moved to have the

lineup identification excluded, there was a hearing, testimony at the hearing indicated that

counsel was present at the lineup, and the trial judge denied the motion. Certainly, counsel

could have investigated further, but there was no reason for him to believe that Chief

Grisham was wrong, and counsel’s decision to take Chief Grisham’s testimony at face value

was reasonable. Because we conclude that counsel’s conduct was reasonable, we need not

analyze the second prong of the Strickland test.

       VI. Whether the trial court erred by allowing Attorney General Jim
           Hood to participate in the evidentiary hearing.

¶52.   Attorney General Jim Hood was the district attorney who prosecuted Howell in 2001.

Howell claimed that Hood had information related to two issues at the evidentiary hearing

– Pannell’s alleged exculpatory information and whether counsel was present at the lineup

– and Howell subpoenaed Hood as a witness. Instead, Hood showed up to participate as an

attorney at the hearing. Howell claims that the trial court erroneously allowed Hood to

participate in the evidentiary hearing because he could have been called as a witness. He

also takes issue with Hood’s conduct during the hearing.

                           A. Hood as Attorney and Witness

                                            30
¶53.   At the beginning of the hearing, the rule was invoked that witnesses must remain

outside the courtroom.     Howell’s counsel asked the court to exclude Hood from the

courtroom because he was “a material witness.” Howell claimed that, during the trial, a

district attorney intimidated Pannell and did not let her testify. Although it is not clear which

attorney Pannell spoke to during the trial, Howell claims it was Hood. Even if it was not

Hood, Howell claims Hood had knowledge of it. Howell also claims that Hood knew that

counsel was not present at the lineup and that he failed to disclose that information.

Naturally, Hood objected to being excluded from the courtroom and to being called as a

witness. Hood called it a “fishing expedition” and argued that excluding the lead prosecutor

from the courtroom was inappropriate. The judge denied the request to exclude Hood and

allowed him to participate in the hearing.

¶54.   Howell claims that Hood’s participation in the hearing was a violation of Rule 3.7 of

the Mississippi Rules of Professional Conduct, which provides that “[a] lawyer shall not act

as advocate at a trial in which the lawyer is likely to be a necessary witness.” Miss. R. Prof’l

Conduct 3.7(a). Howell argues that allowing an attorney to act as both a witness and

advocate is unfair and prejudicial. Howell relies on Jenkins v. State, 136 So. 2d 580 (Miss.

1962), Turner v. State, 55 So. 2d 228 (Miss. 1951), and Adams v. State, 30 So. 2d 593

(Miss. 1947), which stand for the rule that attorneys should not be allowed to act as both

witness and advocate.4 However, Hood was not actually called to testify at the hearing.



       4
          “Although a prosecuting attorney is competent to testify, his testifying is not
approved by the courts except where it is made necessary by the circumstances of the case,
and, if he knows before the trial that he will be a necessary witness, he should withdraw and
have other counsel prosecute the case.” Adams v. State, 202 Miss. 68, 30 So. 2d 593, 598

                                               31
¶55.   The State responds that there was no error, primarily because the attorney general was

not called to testify. In the alternative, if the Court finds error in the trial court’s failure to

disqualify the attorney general, the State submits that such error was harmless because

Howell failed to articulate what prejudice he suffered. Regarding the standard of review for

a trial court’s decision on a motion to disqualify an attorney, this Court has held that

“manifest error applies only to review of findings of fact and that the court has broad

discretion.” Byrd v. Bowie, 933 So. 2d 899, 906 (¶ 25) (Miss. 2006) (quoting Colson v.

Johnson, 764 So. 2d 438, 439 (¶ 4) (Miss. 2000)). See also Adams, 30 So. 2d at 598 (“The

propriety of allowing the prosecutor to testify is a matter largely within the trial court’s

discretion.”).

¶56.   Howell claimed that Hood had information related to two issues. Regarding his

alleged conversation with Pannell during the trial, in her affidavit, Pannell claimed that she

spoke with the district attorney about her testimony and he sent her home. However, when

questioned at the hearing, Pannell said she had no idea who she spoke with during the trial.

Regarding whether Howell had counsel at the lineup, multiple witnesses were questioned

extensively, and it is unclear what Hood would have offered in addition. At the time of the

trial, everyone was operating under the belief that Howell had counsel at the lineup based on

the police chief’s testimony. Howell did not offer any proof that Hood had knowledge




(1947) (internal citations omitted). See also Jenkins v. State ex rel. Sweat, 242 Miss. 646,
136 So. 2d 580, 582 (1962) (“to permit the county attorney to act as advocate for the State
and testify as a prosecuting witness constitutes reversible error”); Turner v. State, 212 Miss.
590, 55 So. 2d 228, 230 (1951) (“error for the district attorney to testify in this case against
the appellant over objection”).

                                                32
otherwise. The trial court’s denial of Howell’s request to exclude Hood did not amount to

abuse of discretion. Further, since Hood was not called to testify, there was no actual error.

                 B. Hood’s Behavior During the Evidentiary Hearing

¶57.   Howell asserts that, during the evidentiary hearing, Hood tried to intimidate his lead

attorney by threatening him with subornation of perjury and telling him that he “should

lawyer up.” Howell moved for a new trial at that point, and the court denied the motion.

Howell also claims that, on the third day of the evidentiary hearing, Hood tried to intimidate

Pannell again in an attempt to get her to change her testimony. Allegedly, Hood called

Pannell into a witness room and asked, “Do you know the penalty for perjury? You have

another opportunity to tell the truth.” Hood also allegedly told Pannell that she had failed

a polygraph test. Pannell maintained that she had told the truth. When Howell’s counsel

raised the issue with the judge, Hood said he did not intend to call Pannell as a witness,5 and

the judge ruled that the matter was closed. Howell claims that Hood’s “unethical behavior

during the hearing” deprived him of a fair hearing and of the opportunity to present his

evidence.

¶58.   The State simply retorts that it was Howell’s attorney, not Hood, who “resorted to

shenanigans.” The State goes on to discuss in detail how one of Howell’s attorneys paid

Brandon Shaw, a witness, twenty dollars after speaking with him for several hours while he

was at work one day. The State attempts to shift the attention to Howell’s attorney, but that




       5
         Howell had called Pannell during his case; she was questioned by Howell and cross-
examined by the State. The State originally said it would call Pannell again during its case,
but ultimately did not do so.

                                              33
attorney’s behavior is not at issue. The State does not otherwise address Howell’s allegations

about Hood’s behavior except to say that the record does not support the claims.

¶59.   Howell frames the issue as the trial court denying his repeated requests to remove

Hood from the courtroom, but that request was made only once at the beginning of trial. As

to Hood’s comments to Pannell, Howell did not actually move to have Hood removed from

the courtroom; he simply informed the court of the situation. The court found that the issue

was resolved because the State did not intend to call Pannell again during its case in chief.

We conclude that no error occurred because Howell did not actually enter a motion regarding

Hood’s comments to Pannell; he did not make a request upon which the court could have

acted. Further, the trial court correctly determined that the issue was moot because the State

did not intend to put Pannell back on the stand.

¶60.   When Hood threatened Howell’s attorney with subornation of perjury, Howell moved

for a new trial. “Trial courts are allowed considerable discretion to determine whether or not

the conduct of an attorney in argument is so prejudicial that an objection should be sustained

or a new trial granted.” Henton v. State, 752 So. 2d 406, 409 (¶ 10) (Miss. 1999) (quoting

Harvey v. State, 666 So. 2d 798, 801 (Miss. 1995)). See also Jones v. State, 857 So. 2d 740,

744-45 (Miss. 2003); Johnson v. State, 596 So. 2d 865, 869 (Miss. 1992). The listed cases

pertain to statements made by attorneys in front of the jury during trial, the issue being

whether improper arguments were prejudicial and unfairly influenced the jury. Such was not

the case here. Hood’s conduct is not appropriate grounds for a new trial, and the trial judge

did not abuse his discretion in denying the motion for new trial based on Hood’s comments

to Howell’s attorney.

                                             34
        VII. Whether the trial judge erred by denying Howell’s motion to
             supplement the record with Lasonja Gambles’s affidavit.

¶61.    Lasonja Gambles, a Mississippi native who had moved to South Carolina, read about

Howell’s evidentiary hearing on the Tupelo Daily Journal’s Facebook page, and she came

forward claiming to have information about Howell’s whereabouts the night/morning of the

murder. Gambles was interviewed and submitted an affidavit. She claims that she picked

up Howell in New Albany and drove him home to Blue Mountain in the early morning hours,

prior to the time Pernell was shot. Gambles’s mother was interviewed as well, and her

statement corroborates Gambles’s story. Howell claims that Gambles is the woman he

claimed to be with on the night of the murder, but he previously could not remember her

name.

¶62.    After Gambles came forward, Howell filed a motion to supplement the record with

her affidavit or, in the alternative, to reopen the evidentiary hearing to consider the new

evidence. The trial judge denied the motion to supplement for lack of jurisdiction, holding

that the Supreme Court had appointed him as special judge to consider only the specific

issues set forth in the Court’s opinion on Howell’s PCR. Howell asserts that the newly

discovered evidence is material to his case because it corroborates his alibi. He also claims

that “there is reason to believe that the New Albany Police Department prevented Howell

from discovering Gambles’s identity and statements.” He claims that the trial court had

jurisdiction and should have granted his motion to supplement the record and that he is

entitled to a new trial based on newly discovered evidence. The State maintains that the trial

court correctly denied Howell’s motion to supplement because it did not have jurisdiction



                                             35
to address any issues outside those identified in the grant of leave to proceed. See Davis v.

State, 897 So. 2d 960, 970-71 (Miss. 2004).

¶63.   In Davis v. State, the Court remanded for a hearing on five issues, thereby limiting the

“scope of the trial court’s proceedings” to the five issues. Id. at 970 (¶ 34). Davis tried to

raise additional issues before the trial court, and we held that the trial judge did not err in

declining to address the additional claims because the “trial court had no jurisdiction to

address any claims outside those specifically addressed in this Court’s remand order.” Id.

at 971 (¶ 34). Likewise, in Burns v. State, the Court held that the trial court did not err in

denying Burns’s motion for a psychologist expert, because the motion was “outside the scope

on remand” where the Court had granted Burns’s PCR on the limited issue of “ineffective

assistance of counsel during the sentencing phase.” Burns v. State, 879 So. 2d 1000, 1003

(¶¶ 7-12) (Miss. 2004). The Burns Court wrote that “[t]his Court has held on several

occasions that the only issues properly considered are those issues for which the case was

initially remanded.” Id. at 1003 (¶ 9) (citing Neal v. State, 687 So. 2d 1180, 1182 (Miss.

1996); Billiot v. State, 655 So. 2d 1, 17 (Miss. 1995); Culberson v. State, 456 So. 2d 697,

698 (Miss. 1984)). The trial judge did not err in denying Howell’s motion to supplement the

record with the newly discovered evidence, which was not germane to the issues specified

by the Howell II Court.

                                         Conclusion

¶64.   Howell’s claims regarding Rice’s recanted testimony and Pannell’s statements are

without merit, and the trial court did not err in denying Howell’s motion for a new trial.

Howell was not under arrest for capital murder at the time of the lineup, and he was not

                                              36
entitled to counsel at the pre-indictment lineup. Regardless, even if Howell had been entitled

to counsel, the failure to provide counsel during the lineup would have been harmless error

because the lineup was not suggestive, and Rice’s identification was reliable. Howell’s

claims about Attorney General Hood lack merit, and the trial court did not err in allowing

him to participate in the hearing. Finally, the trial judge did not err in denying Howell’s

motion to supplement the record with new evidence after the evidentiary hearing. The trial

court’s denial of Howell’s motion for new trial is affirmed.

¶65.   AFFIRMED.

     WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
PIERCE, AND KING, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.




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