                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2004-DR-00167-SCT

MARLON LATODD HOWELL a/k/a MARLON COX

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         03/30/2001
TRIAL JUDGE:                              HON. KENNETH COLEMAN
COURT FROM WHICH APPEALED:                UNION COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  WILLIAM O. RICHARDSON
                                          JIM WAIDE
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: JASON L. DAVIS
                                          MARVIN L. WHITE, JR.
DISTRICT ATTORNEY:                        JAMES M. HOOD, III
NATURE OF THE CASE:                       CIVIL - DEATH PENALTY - POST
                                          CONVICTION
DISPOSITION:                              APPLICATION FOR POST-CONVICTION
                                          RELIEF IS DENIED IN PART AND
                                          GRANTED IN PART - 08/28/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       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



                                               2
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

                                              3
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.




                                                4
                                        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-


                                                5
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,

                                               6
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 record to indicate “that the probative value of

the conviction supported by the specific facts and circumstances substantially outweigh[ed]

its prejudicial effect.” Miss. R. Evid. 609(b). See Tate v. State, 912 So. 2d 919, 924 n. 6

(Miss. 2005); Jones v. State, 776 So. 2d 643, 651-52 (Miss. 2000). We find that the State

was not required to obtain the criminal history on all its witnesses, especially when there was

no such request by the defense for this information.

       II.    WHETHER THE STATE FAILED TO DISCLOSE IN
              DISCOVERY INFORM ATION CONCERNING RICE’S
              TESTIMONY THAT HE DID NOT KNOW HOWELL PRIOR
              TO THE SHOOTING.

¶17.   Howell maintains that Rice knew Howell prior to the killing and that his testimony

to the contrary at trial was false. Interestingly, Howell’s argument at the post-conviction


                                              7
stage – that Rice’s identification of Howell was untrustworthy because he had seen him

before – is totally at odds with his argument on this issue at trial. In his closing argument at

trial, Howell’s attorney argued that Rice did not know Howell “from Adam” and that his

unfamiliarity with Howell rendered the identification less believable.

¶18.   In support of these allegations, Howell submits several affidavits and one unsworn

written statement. We give the unsworn statement little weight. See Puckett v. State, 879

So. 2d 920, 940 (Miss. 2004). Howell does present substantially identical affidavits from

Mary Simmons and Tulane Simmons who claim that they live near Rice and that “there is

no way” that Rice had not seen and “known of” Howell prior to the shooting. Both affiants

changed the wording of their statements from alleging that Rice knew Howell to allegations

that Rice “knew of” Howell. The State argues that the affidavits do not support Howell’s

claim that Rice knew Howell prior to the shooting.

¶19.   Howell makes several claims here which are completely unsubstantiated. There is no

evidence that the State had any knowledge that Rice might have “known of” Howell. There

is no indication that the State failed to disclose any exculpatory information. Other than the

somewhat vague claims that Rice “knew of” Howell, there is no substantial evidence before

us that Rice testified untruthfully in his identification of Howell.

¶20.   Howell further argues that whether Rice had seen Howell on prior occasions raises

reasonable doubt about Rice’s eyewitness identification of Howell; however, we are mindful

that today’s case is a post-conviction proceeding. Rice’s credibility has been weighed by the

jury and the jury’s determination of guilt has been affirmed on direct appeal; therefore, we

                                               8
will not consider this issue further in these post-conviction proceedings. Mississippi Code

Annotated Section 99-39-21 provides that issues either raised at the trial phase or capable of

being raised in those proceedings are not properly reviewed in the post-conviction stage.

This statute states in pertinent part:

       (1) Failure by a prisoner to raise objections, defenses, claims, questions, issues
       or errors either in fact or law which were capable of determination at trial
       and/or on direct appeal, regardless of whether such are based on the laws and
       the Constitution of the state of Mississippi or of the United States, shall
       constitute a waiver thereof and shall be procedurally barred, but the court may
       upon a showing of cause and actual prejudice grant relief from the waiver.
       ...
       (3) The doctrine of res judicata shall apply to all issues, both factual and legal,
       decided at trial and on direct appeal.

See also Lynch v. State, 951 So. 2d 549, 551 (Miss. 2007); Wiley v. State, 750 So. 2d 1193,

1198 (Miss. 1999); Foster v. State, 687 So. 2d 1124, 1129 (Miss. 1996). We thus find that

issues related to Rice’s reliability as a witness are procedurally barred.

       III.    WHETHER RICE’S IDENTIFICATION OF HOWELL WAS
               RELIABLE.

¶21.   Howell alleges that Rice’s identification of him was flawed because the lighting at the

scene was poor. Howell also claims that the State “misrepresented the conditions at the time

of the shooting” as to the distance from Rice’s window to Pernell’s car. Howell further

alleges that “Petitioner has now discovered evidence that the State’s star witness who stated

in his trial testimony that he was in the process of smoking a cigarette when he supposedly

witnessed the shooting was smoking marijuana and may have been under the influence of a

controlled substance at the time he observed the shooting of Mr. Pernell.”


                                               9
¶22.   As discussed supra, issues related to Rice’s identification of the shooter are res

judicata and are procedurally barred. Miss. Code Ann. § 99-39-21 (Rev. 2007). Visibility

issues and Rice’s opportunity to view the shooting were explored at length at trial. Evidence

was presented that the shooting took place approximately seventy-one feet from Rice and that

Rice’s view of the crime was unobstructed. The State showed that, although at the time of

the shooting, conditions were “predawn,” there was considerable light from several sources,

including streetlights, porch lights, and perhaps most importantly, the headlights of the

vehicle driven by Howell’s cohort. In Howell’s direct appeal, this Court found that “[u]nder

the totality of the circumstances, there is no likelihood whatsoever that Rice’s identification

was not reliable.” Howell, 860 So. 2d at 731. As to the assertion of Howell’s counsel that

Rice was smoking marijuana on the morning of the shooting, the only statement supporting

that claim is the unsworn, handwritten statement of a New Albany resident who claims to

know Rice, and we give that claim via an unsworn statement little weight.

¶23.   Howell presents an affidavit from a professor of psychology who opines that

conditions for a positive identification of the shooter were “highly unfavorable” based on the

lighting, the distance to the shooting, and the fact that Rice is white and Howell is African-

American. We note several flaws in the professor’s analysis. First, the professor claims that

the shooting happened forty-five minutes before dawn. Actually, the shooting happened

approximately forty-two minutes before actual sunrise but as was discussed at trial, twilight

begins much earlier. The professor claims that the shooter “mostly had his back to Mr. Rice

as he was walking from this car to where the shooting took place.” Even if this statement is

                                              10
true, the professor ignores the fact that the shooter was facing Rice at the time of the actual

shooting.

¶24.   The professor also claims that the lineup was biased. The professor incorrectly states

that the lineup was a five-person lineup, whereas the record reveals that there were in fact

six subjects in the lineup. This issue was addressed at trial and on direct appeal and is

procedurally barred. Miss. Code Ann. § 99-39-21 (Rev. 2007). In the direct appeal, this

Court reviewed the five factors for determining whether a lineup is impermissibly suggestive

as set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). We found

that the line-up was not unduly suggestive and that evidence from the lineup was properly

admitted. Howell, 860 So. 2d at 730-31. Therefore, we decline to again consider this issue

via these post-conviction relief proceedings.

       IV.    WHETHER HOWELL’S ATTORNEYS WERE INEFFECTIVE
              CONCERNING RICE’S IDENTIFICATION OF HOWELL.

¶25.   Howell asserts that his trial attorneys did not effectively represent him concerning

Rice’s identification and testimony. Howell was represented at trial by Duncan Lott and Jak

Smith. Lott, who was Howell’s primary attorney, sets out that he has been practicing

criminal law in Mississippi since 1977 and that he had represented three capital-murder

defendants before Howell.




                                              11
¶26.   Lott submitted an affidavit in which he claims that the State should have disclosed

information about Rice’s criminal record, incarceration record, and evidence of drug use.1

As noted supra, there is no evidence that the State had any knowledge of Rice’s criminal

record and then suppressed that information. The assistant district attorney has sworn that

no criminal background check of Rice was performed. Lott also states that “exculpatory

evidence concerning Mr. Rice’s criminal background would have allowed me to impeach the

only eyewitness to this crime.” However, contrary to Lott’s statement that Rice was the only

eyewitness to this crime, the record reveals that Curtis Lipsey also was an eyewitness to the

shooting, and Lipsey likewise identified Howell as the killer.

¶27.   The standard for determining if a criminal defendant received constitutionally

effective counsel is well-established. "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." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). A defendant must demonstrate that his attorney's actions were deficient and that the

deficiency prejudiced the defense of the case. Strickland, 466 U. S. at 687. "Unless a

defendant makes both showings, it cannot be said that the conviction or death sentence

resulted from a breakdown in the adversary process that renders the result unreliable."



       1
       The record is silent as to real evidence concerning Rice’s alleged drug use. Howell’s
only submission on this issue is the unsworn statement of Timothy Gilliam and the hearsay
statements of others through an investigator.

                                             12
Stringer v. State, 454 So. 2d 468, 477 (Miss. 1984), citing Strickland, 466 U.S. at 687. The

focus of the inquiry must be whether counsel's assistance was reasonable considering all the

circumstances. Id.

       Judicial scrutiny of counsel's performance must be highly deferential.
       (Citation omitted) . . . . A fair assessment of attorney performance requires that
       every effort be made to eliminate the distorting effects of hindsight, to
       reconstruct the circumstances of counsel's challenged conduct, and to evaluate
       the conduct from counsel's perspective at the time. Because of the difficulties
       inherent in making the evaluation, a court must indulge a strong presumption
       that counsel's conduct falls within the wide range of reasonable professional
       assistance; that is, the defendant must overcome the presumption that, under
       the circumstances, the challenged action “might be considered sound trial
       strategy.”

Stringer at 477; citing Strickland, 466 U.S. at 689. Defense counsel is presumed competent.

Washington v. State, 620 So. 2d 966 (Miss. 1993). This Court has likewise stated:

       Then, to determine the second prong of prejudice to the defense, the standard
       is "a reasonable probability that, but for counsel's unprofessional errors, the
       result of the proceeding would have been different." Mohr v. State, 584 So.
       2d 426, 430 (Miss. 1991). This means a "probability sufficient to undermine
       the confidence in the outcome." Id.
...
       There is no constitutional right then to errorless counsel. Cabello v. State, 524
       So. 2d 313, 315 (Miss. 1988); 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 just has right to have competent
       counsel). If the post-conviction application fails on either of the Strickland
       prongs, the proceedings end. Neal v. State, 525 So. 2d 1279, 1281 (Miss.
       1987); Mohr v. State, 584 So. 2d 426 (Miss. 1991).

Davis v. State, 743 So. 2d 326, 334 (Miss.1999), citing Foster v. State, 687 So. 2d 1124,

1130 (Miss. 1996).




                                              13
¶28.   Howell’s attorneys did not specifically request information about Rice’s criminal

history. The attorneys did request general discovery and all Brady exculpatory information.

Brady, 373 U. S. at 87. The State’s attorney maintains that all discoverable information was

released to the defense and that the State had no duty to run a background check on Rice and

then to turn over information not even requested by the defense.

¶29.   As we have noted, Rice pleaded guilty to burglary in 1983. Pernell’s murder and

Rice’s testimony against Howell occurred nearly seventeen years later. The impeachment

value of Rice’s 1983 conviction, even if admissible, would have been minor. Jones, 776 So.

2d at 651-52.

¶30.   Howell also asserts that his attorneys were ineffective in failing to discover that Rice

knew him prior to the shooting. As already noted, Howell presents somewhat suspect

affidavits that Rice must have “known of” Howell. Defense counsel argued during closing

that Rice’s identification was not reliable because he had never before seen Howell. We

certainly cannot find that defense counsel’s argument was illogical inasmuch as this

argument could have been based upon a trial-strategy decision to argue to the jury that Rice’s

identification testimony was highly suspect because Rice did not know Howell. Strategic

decisions of trial counsel are presumed to be reasonable. Cabello v. State, 524 So. 2d 313,

319 (Miss. 1988)

¶31.   After a full review of the trial-court record, we are unable to find that Howell did not

receive effective assistance of counsel on these issues. Rice was examined thoroughly and

extensively about his identification of Howell. Counsel for Howell cross-examined Rice at

                                             14
length about the lighting and other visibility factors. We thus find that the actions of

Howell’s trial counsel were not deficient pursuant to Strickland.

       V.     WHETHER RICE HAS RECANTED HIS TESTIMONY.

¶32.   In June of 2005, the investigator for Howell’s post-conviction counsel procured an

affidavit from Rice in which Rice recanted his trial testimony and stated that “I have a very

real and substantial reasonable doubt as to whether or not Marlon Howell is the man I saw

that morning . . . .” Thereafter, Rice reaffirmed his trial testimony by a new affidavit

executed in October of 2007. Rice’s 2007 affidavit states in pertinent part:

       At [Marlon Howell’s] trial I positively identified Marlon Howell as the person
       who shot and killed Mr. David Pernell. I hereby reaffirm that testimony and
       declare it to be true. I have previously given a statement to an investigator
       acting on the behalf of Marlon Howell wherein I called into question the
       accuracy of my identification of Marlon Howell as the person who shot David
       Pernell. I was being married in the week that I signed that statement and I
       signed the statement as a result of continuous pressure that was applied to me
       by the investigator and other persons acting on behalf of Marlon Howell. I
       was not aware of the legal significance of the statement that I gave them
       wherein I called into question the accuracy of my identification of Marlon
       Howell, and this statement was given in an attempt to make the persons acting
       on the behalf of Marlon Howell to leave me and my wife alone during the time
       of our marriage. After signing the above mentioned statement I met with the
       attorney for Marlon Howell, an investigator for Marlon Howell, Tim Kent,
       who was formerly a New Albany police officer and Ben Creekmore who is the
       District Attorney for Union County, at the New Albany City Hall and stated
       to both [sic] of them that my identification of Marlon Howell at the trial was
       correct and that I was standing by that testimony, and that I had given that




                                             15
       statement in an attempt to make the persons acting on the behalf of Marlon
       Howell leave me alone. I am today reaffirming my identification of Marlon
       Howell as the shooter of David Pernell.

The State also includes an affidavit from Ben Creekmore, the present district attorney, who

states that he attended a meeting with Rice and defense counsel in which Rice reaffirmed his

trial testimony. On the other hand, Howell maintains that Rice’s recanted testimony entitles

him to post-conviction relief and a new trial.

¶33.   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

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)).

¶34.   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 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

                                               16
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.

         VI.    WHETHER THE STATE COERCED ADAM RAY AND CURTIS
                LIPSEY INTO PROVIDING FALSE STATEMENTS AND
                ILLEGALLY SUPPRESSED LIPSEY’S INITIAL STATEMENT.

¶35.     Under these three issues, Howell alleges that the State improperly coerced statements

from Howell’s co-defendants. Howell claims that law enforcement officials improperly

threatened Ray and Lipsey and that both Ray and Lipsey were intoxicated at the time their

statements were taken.       Issues related to the propriety of the interrogations or the

admissibility of any statements provided by Ray and Lipsey either were litigated at trial and

on appeal or were capable of being raised in previous proceedings. Those claims therefore

are barred here. Miss. Code Ann. § 99-39-21 (Rev. 2007). Howell presents affidavits from

Ray and Lipsey in which both claim that their statements were not freely given. The

statements Ray and Lipsey provided to law enforcement officers, which they claim were

coerced, were never entered into evidence at trial. Even assuming arguendo that law

enforcement officials coerced unused statements from Ray and Lipsey, we find no prejudice

to Howell.

¶36.     Additionally, Ray did not even testify at trial. The only statement attributed to Ray

at trial was during Brandon Shaw’s testimony that when Ray, Lipsey, and Howell came back

                                              17
to Shaw’s house after the shooting, Ray had said that Howell had shot someone. That

statement, made in Howell’s presence and not denied or discounted by Howell, was admitted

into evidence as an adoptive admission. This Court found that Ray’s statement was properly

admitted pursuant to Mississippi Rule of Evidence 801(d)(2)(B). Howell v. State, 860 So.

2d at 736. Ray’s statement has been fully reviewed and adjudicated by this Court. Further

review is prohibited in post-conviction proceedings.

¶37.   In his post-conviction affidavit, Ray claims that he was too intoxicated on the night

in question to know who shot Pernell and that the police tricked him into implicating Howell.

Ray never claims in his affidavit that Howell did not shoot the victim. The only indication

of any coercion in Ray’s affidavit is his statement that he would not have told the police

anything if the police had not told him that Howell was implicating him in the shooting.

Even if the police did attempt to trick Ray by claiming that Howell was cooperating with law

enforcement officials, this fact alone would not entitle Howell to any relief. There is no

requirement that law enforcement officials be absolutely honest when interrogating a suspect.

“Ploys to mislead a suspect or lull him into a false sense of security” are permissible during

police questioning, as long as they do not "rise to the level of compulsion or coercion."

Illinois v. Perkins, 496 U.S. 292, 297, 110 L. Ed. 2d 243, 110 S. Ct. 2394 (1990). The

statement Ray gave to law enforcement officials was not even introduced into evidence at

trial. We find no evidence of any relevant compulsion or coercion, especially in light of the

fact that Ray did not testify at trial. Howell also somewhat disingenuously claims that the

State took efforts to keep Ray from testifying and being subject to cross-examination. Ray

                                             18
was available to both sides. Howell and his attorneys could have called Ray had they so

chosen.

¶38.   Howell also now claims that Curtis Lipsey was coerced into implicating him. Again,

the only evidence offered of any coercion is that law enforcement officials told Lipsey that

Howell had given a statement that Lipsey was the shooter. As discussed supra, such action

on the part of law enforcement was not impermissible. At the time of the statement, Lipsey

signed a waiver of rights in which he claimed that he had not been threatened or coerced.

¶39.   Howell also claims that the State improperly destroyed Lipsey’s initial statement in

which he had disclaimed any responsibility for the killing. At trial, Lipsey admitted that his

first statement had been untruthful. He testified that he had denied involvement in an attempt

to “get out of it.” This matter was discussed fully at trial and is now procedurally barred.

Miss. Code Ann. § 99-39-21 (Rev. 2007). Even if it were not barred, we find that no relief

is warranted. Lipsey testified that even in his initial statement, he had said that Howell was

the shooter. The only change between the first statement and the second statement is related

to Lipsey’s own culpability as opposed to Howell’s culpability.

       VII.   WHETHER COUNSEL WERE INEFFECTIVE CONCERNING
              ISSUE VI.

¶40.   We have found Issue VI to be without merit. We also find that Howell has made no

showing of ineffective assistance of counsel as to issues related to the statements of Ray and

Lipsey. This issue is thus without merit.




                                             19
       VIII. WHETHER THE PURPORTED RECANTATIONS OF CURTIS
             LIPSEY AND ADAM RAY MERIT AN EVIDENTIARY
             HEARING.

¶41.   Howell alleges that his two co-defendants have changed their stories and now swear

that they do not know who killed Pernell. We are again reminded that recanted testimony

is inherently unreliable. Bradley, 214 So. 2d at 817; Yarborough, 514 So. 2d at 1220.

¶42.   We note that both Lipsey and Ray are presently incarcerated after pleading guilty to

manslaughter in the killing of Pernell. Their present claims that they do not know who killed

Pernell are contradicted not only by their initial statements to police and, in Lipsey’s case,

by trial testimony, but also by their guilty pleas. Lipsey stated under oath during his guilty-

plea hearing that Marlon “pulled out a gun and shot” Pernell and that Howell’s intention at

the time was to rob the man. Lipsey also testified under oath at Howell’s trial that he saw

Howell shoot Pernell and that the motive was robbery. During his guilty-plea colloquy, Ray

claimed that they were looking for someone to rob; that Howell had flashed the car’s lights

to get Pernell to stop; and that although he did not see the actual shooting, he did see Howell

talking to Pernell. Ray then heard a gunshot and Howell immediately jumped back in the

car.

¶43.   In his affidavit, Lipsey admits that he, Ray, and Howell were together on the night

Pernell was killed. Lipsey now claims that he does not know who killed Pernell since he did

not see the weapon or the shooting. He claims that he told law enforcement that Howell was

the shooter only because he was confused due to intoxication and because law enforcement

officials threatened him. In the waivers of rights signed when they were questioned, both

                                              20
Ray and Lipsey stated that no threats had been made and no pressure or coercion of any kind

had been used against them. No specific threat is mentioned in Lipsey’s affidavit other than

his statement that law enforcement officials had told him that he would get a death sentence

or life imprisonment if he did not cooperate.        Even if true, such statements by law

enforcement would not render Lipsey’s statement inadmissible.

¶44.   Notably, Lipsey’s current statement does not include any claim that Howell did not

kill Pernell. Lipsey’s present testimony is simply that he did not see the killing. Lipsey’s

claim that he was intoxicated when he was interrogated is insignificant based on the record

before us. Lipsey claims that he drank “until 3:30 or longer;” however, he was not

questioned until 6:30 p.m., approximately fifteen hours later. Lipsey’s statement to law

enforcement was not introduced into evidence; however, Lipsey testified at Howell’s trial,

and he unquestionably does not claim that he was intoxicated at the time he testified at trial

that Howell was the shooter.

¶45.   Adam Ray’s recantation is even more suspect than Lipsey’s recantation. In his current

statement, Ray admits that he, Lipsey, and Howell were together “riding around” on the night

of the crime. In stating that it was too dark to see from Rice’s house to the street at the time

of the shooting, Ray admits that he, Lipsey, and Howell were at the scene of the killing.

Importantly, Ray does not claim that Howell did not shoot Pernell, but instead, Ray’s claim

now is merely that he did not see anyone with a gun that night and that he never would have

said that Howell was the shooter if law enforcement officials had not tricked him by telling

him that Howell had implicated him. Ray never testified at trial, and his only appearance in

                                              21
the proceedings involved the adoptive admission in which Brandon Shaw testified that Ray

had said in Howell’s presence that Howell had shot a man.

¶46.   We note the apparent contradiction in Howell’s current position. At trial and even

now, Howell’s argument has been that Lipsey or Ray was the actual murderer. Yet in his

petition, Howell relies on affidavits from both, one of whom he claims must be the actual

killer. Lipsey claims that he does not know who the shooter was, but it may be implied from

his affidavit that Lipsey is in essence stating that Howell or Ray was the shooter. Likewise,

Ray claims no knowledge of who shot Pernell, but according to Ray, the only possibilities

as to the killer are Lipsey and Howell. Thus, according to Howell’s affidavits, either Howell

is the killer or one of his affiants is necessarily lying in his affidavit.

¶47.   In light of the general untrustworthiness of recanted testimony and in consideration

of the totality of the circumstances of the affidavits and the record before us, we find that the

current affidavits of Ray and Lipsey wherein they recant previous statements or prior

testimony do not entitle Howell to any relief.

       IX.     WHETHER THE STATE COERCED OTHER WITNESSES
               INTO PROVIDING FALSE TESTIMONY AGAINST HOWELL.

¶48.   Concerning this issue, Howell alleges that the State improperly coerced statements

from Brandon Shaw, Tonya Peterson and Terkecia Pannell. Peterson and Pannell did not

testify at trial. The actions of law enforcement officials in the questioning of Peterson and

Pannell have no relevance here.




                                                22
¶49.   Shaw testified at trial that, prior to the killing, he had been riding around Tupelo with

Ray, Lipsey, and Howell, and that Howell had made a comment about robbing a man at a gas

station who was “an easy lick.” Shaw refused to participate, and no robbery occurred at that

point. Shaw later went home, and Howell, Ray, and Lipsey left without him. Shaw also

testified that several hours later, Howell, Ray, and Lipsey returned to Shaw’s house in the

dark Oldsmobile. Shaw testified that Ray had stated that Howell had shot somebody. Shaw

further testified that he never saw Howell with the gun but that Howell had something

wrapped in a green shirt under his arm after the shooting. Shaw told law enforcement

officials that he had seen Howell walk from behind his house where the gun was later found.

Shaw then drove Howell to Blue Mountain, and when he dropped Howell off, Howell told

him not to tell anyone.

¶50.   In his affidavit, Shaw now recants parts of his prior testimony. Shaw does not recant

his trial testimony about the adoptive admission when Ray claimed that Howell had shot

someone; however, Shaw now attempts to clarify some of his trial testimony. Shaw claims

that after he drove Howell home, Howell unwrapped the shirt from his hand and no gun was

inside. Shaw’s new statement still coincides with the proof offered at trial where it was

shown that the gun was found at Shaw’s house and must have been left there before Shaw

drove Howell to Blue Mountain. Shaw also claims that Ray and Lipsey told him that the gun

was behind the house and that he never saw Howell go behind the house. Shaw further

claims that his testimony concerning Howell’s comments about robbing the man at the gas

station have been misconstrued. He now claims that “[w]hen I told the police that [Howell]

                                              23
mentioned there goes an easy lick in Tupelo that was meant to say sell someone fake drugs

or to trick them . . . Marlon did not mean robbery with a gun.” Shaw’s current statement is

belied by his trial testimony:

       Prosecutor:   What happened there [in Tupelo] when you went by the gas
                     station?
       Shaw:         That is when he made the comment about robbing the man that
                     was standing outside.
       Prosecutor:   When you say he who do you mean by he?
       Shaw:         Marlon.
       Prosecutor:   What exactly was said?
       Shaw:         He said . . . there go an easy lick right there.

The trial record clearly reveals that the comments about an easy lick referred to a robbery and

not a drug scam.

¶51.   Shaw also claims that he was pressured by law enforcement and that the process was

“scary and unbelievable.” No specifics of the alleged pressure have been provided. Shaw

does not claim that he was threatened in any way.

¶52.   We find that Shaw’s current statement is highly suspect and that Howell has not made

a sufficient showing that an evidentiary hearing concerning Shaw’s testimony is necessary.

Therefore, we find this issue has no merit.

       X.      WHETHER THE STATE VIOLATED BATSON v. KENTUCKY
               AND WHETHER A JUROR CONCEALED INFORMATION
               DURING THE JURY SELECTION PROCESS.

¶53.   Howell has withdrawn these claims and further discussion is not required.

       XI.     WHETHER APPELLATE COUNSEL FAILED TO PRESERVE
               A FEDERAL ISSUE RELATED TO A LESSER-OFFENSE
               INSTRUCTION.


                                              24
¶54.   Here, Howell raises two claims of ineffective assistance of counsel. Howell first

maintains that, although his attorneys at trial and on appeal raised issues related to a lesser-

offense instruction, they failed to raise a federal claim along with those issues. This Court

addressed in detail whether Howell was entitled to a lesser-offense instruction on simple

(non-capital) murder or manslaughter and found that such an instruction was not supported

by the evidence. Howell v. State, 860 So. 2d at 741-744. After the United States Supreme

Court granted Howell’s petition for certiorari, that Court found that “Petitioner's brief in the

State Supreme Court did not properly present his claim as one arising under federal law.”

Howell v. Mississippi, 543 U.S. 440, 443 125 S. Ct. 856; 160 L. Ed. 2d 873 (2005). The

United States Supreme Court then dismissed the petition.

¶55.   Howell maintains that, in not raising a federal claim, his attorneys were

constitutionally ineffective. In showing that his attorneys failed to raise a federal issue which

would have been reviewable in the Supreme Court or other federal courts, Howell has made

a facial showing that counsel’s performance was deficient. But the second prong of the

Strickland test requires a showing that the deficient performance by the attorneys also

prejudiced the defense. Strickland, 466 U. S. at 687. In the direct appeal, this Court found

that under Mississippi law and the evidence presented at trial, Howell was not entitled to a

lesser-offense instruction. Even after further review of Beck v. Alabama, 447 U.S. 625, 100

S. Ct. 2382, 65 L. Ed. 2d 392 (1980), this Court finds that no lesser-offense instruction was

required. In Beck, the U.S. Supreme Court determined that the death sentence may not be

imposed after a jury verdict of guilty of a capital offense where the jury was not permitted

                                               25
to consider a verdict of guilt of a lesser offense. See Goodin v. State, 787 So. 2d 639, 655

(Miss. 2001). This Court has held Beck to be inapplicable to this state’s statutory capital-

murder sentencing scheme where the sentence is untied to the conviction and the jury is

entitled to sentence a convicted defendant to death, life without parole, or life with parole.

Id. See also Jackson v. State, 684 So. 2d 1213, 1228 (Miss. 1996).2

¶56.   In the end, we find that Howell has not shown that his attorneys were constitutionally

ineffective as to this issue and thus this issue is without merit.

       XII.   WHETHER THE STATE MISREPRESENTED HOWELL’S
              INDIGENT STATUS ON APPEAL OR, ALTERNATIVELY,
              COUNSEL WERE INEFFECTIVE IN FAILING TO SECURE A
              FINDING OF INDIGENCE BY THE TRIAL COURT, AND
              WHETHER COUNSEL FAILED TO SEEK AND OBTAIN
              FUNDING FOR VARIOUS DEFENSE EXPERTS.

¶57.   Howell was represented at trial by Duncan Lott, who was assisted by Jak Smith.

Apparently, Lott agreed to represent Howell pro bono as a favor to Howell’s father. Whether

Howell was entitled to expert funds was contingent on whether Howell was indigent. In his

concurring opinion on Howell’s direct appeal, Justice Waller, joined by three other justices

and in part by an additional justice, would have found that an otherwise indigent defendant

is entitled to expert funding even if that defendant is being represented by an attorney pro

bono. Howell, 860 So. 2d at 765 (Waller, J., concurring). However, Justice Waller’s opinion




       2
        Even though life with parole is no longer an option under our parole laws, the same
analysis applies because death is not an automatic sentence upon conviction of capital
murder.

                                              26
makes clear that no error was committed in that Howell suffered no prejudice in the refusal

to provide expert funds. Id.

¶58.   Howell now claims that in the direct appeal, the State misrepresented to the Court that

Howell was not indigent. He provides an affidavit from the attorney who represented Howell

prior to Lott’s entry into the case. That attorney states that he was appointed to represent

Howell in preliminary proceedings and that he never would have been appointed if there had

been no finding of indigence. After that attorney ceased his representation of Howell, the trial

judge entered an order allowing attorneys’ fees and expenses. The order recites that the

attorney is to be paid “incident to his representation of the above named indigent.” For

reasons unknown, neither Howell nor the State mentioned that order in the original briefing

of this matter. Despite that order, the State, in its response to the petition, maintains that “the

petitioner could not cite to [sic] any instance in the record supporting his claim of indigence.”

The State apparently maintains that, since Howell was later represented by a pro bono

attorney of his choosing, the previous finding of indigence had been extinguished. In light

of that order, it is apparent that this Court’s finding that Howell had never been determined

to be indigent was erroneous.

¶59.   Howell claims that his attorneys should have sought money from the state in order to

retain defense experts who would have been able to testify about (1) lighting and defense

perception, (2) fingerprint analysis, and (3) firearms ballistics. The State maintains only that

Howell was never declared to be indigent and that the state was therefore not required to

provide any funding for the procurement of defense experts.

                                                27
¶60.   On direct appeal, this Court found that “[s]ince Howell did not proceed as an indigent

or have the trial court declare him to be an indigent, there is no authority to require the State

to fund his request for defense expenses.” Howell v. State, 860 So. 2d at 721. As noted

supra, the finding in the direct appeal that Howell had not been declared to be indigent is

incorrect. Howell had in fact been found to be indigent. The fact remains, however, that in

order to be entitled to state-funded experts, Howell was required to show an actual, specific

need for those experts. Loden v. State, 971 So. 2d 548, 563-564 (Miss. 2007) See also

Ruffin v. State, 447 So. 2d 113, 118 (Miss. 1984) ("[a]n indigent's . . . right to defense

expenses . . . is conditioned upon a showing that such expenses are needed to prepare and

present an adequate defense.”); Green v. State, 631 So. 2d 167, 171-72 (Miss. 1994)

(“Concrete reasons for requiring an expert must be provided by the accused."). This Court

on direct appeal found no prejudice to Howell.

¶61.   Howell claims that he was entitled to a lighting-and-perceptions expert who might

have discredited Rice’s identification of Howell as the shooter. That expert’s affidavit has

been discussed previously. The expert states that Rice’s identification was suspect because

of the lighting, the distance to the subject, the relative positioning of the parties, and because

Rice is white and Howell is black. As we stated in our discussion of Issue III, supra, this

issue was fully discussed and resolved on direct appeal, and alternatively, for the reasons

stated, this issue has no merit.

¶62.   Howell also now presents the affidavit of a fingerprint expert. The State’s fingerprint

expert testified at trial that several partial fingerprints had been lifted from the window area

                                               28
of Pernell’s vehicle but that “there were no prints of value that could be compared to anyone

to make an identification.” Howell’s expert now claims that one of the partial prints lifted

from Pernell’s vehicle was detailed enough for analysis. He claims that the print “appears

to be” part of the left index finger and part of the left middle finger of some unknown person.

He states that the print lifted from Pernell’s vehicle has “a couple” of distinct features and

that those distinct features can be distinguished from Howell’s known prints. We find that

the fingerprint expert’s assertions, even if assumed to be true, do not require an evidentiary

hearing on these issues. There was no testimony that Howell ever touched the window post

of Pernell’s car. The fact that Pernell himself or any other unknown person might have left

a print on the car at some point prior to the shooting does not lead to a conclusion that

Howell was not the shooter. The fingerprint testimony would have been of minimal

assistance to the defense.

¶63.   As to the request for a firearms ballistics expert, we find that there has never been an

issue about whether the pistol found behind Brandon Shaw’s house was the murder weapon.

The State’s firearms expert matched the projectile found in Pernell’s chest wall to the Lorcin

.380 caliber pistol. Howell’s argument at trial and now is that Ray or Lipsey shot Pernell and

then left the gun behind Shaw’s house. Howell does present the affidavit of a purported

firearms expert who examined the pistol, the bullet, and the shell casing. Howell’s expert

opines that the bullet “has the same rifling characteristics and some microscopic similarities”

as the pistol, but that the bullet lacks sufficient microscopic agreement to determine whether

the bullet definitively came from that particular pistol. Likewise, Howell’s expert states that

                                              29
the cartridge case has a similar firing-pin impression as the pistol but insufficient details to

make a positive identification. We find the inconclusive firearms testimony to be insufficient

to require a post-conviction hearing on this issue.

       XIII. WHETHER HOWELL IS INNOCENT.

¶64.   Here, Howell states that “[n]o physical evidence linked him to the murder of Mr.

Pernell. The State had no fingerprints, no DNA, no fibers, no ballistics, no confession, no

property in his possession that was linked to the victim, or any other conclusive, objective

evidence that linked Marlon Howell to the murder of David Pernell.” Howell also argues

that many of the witnesses against Howell have recanted and that Rice has been discredited.

¶65.   Howell also points to the affidavit of Terkecia Pannell, who alleges that Ray and

Lipsey claimed responsibility for the killing. Howell claims that the cumulative result of all

of his arguments set out above is that he is entitled to a reversal of his conviction, or at a

minimum, an evidentiary hearing in the trial court. We disagree. Howell’s guilt has been

affixed by a jury and affirmed by this Court. Two eyewitnesses testified that Howell was the

shooter. The murder weapon was found where Howell previously had been. A statement

that “Howell shot a man” was deemed an adoptive admission of guilt and was heard by the

jury. Howell needed money to pay his probation officer. He made a statement about robbing

another man prior to this shooting. Even after reviewing the recantations and the new

affidavits, we find that the jury’s verdict is supported by the evidence.




                                              30
       XIV. WHETHER THE STATES’S CLOSING ARGUMENT WAS
            IMPROPER.

¶66.   Howell next claims that the district attorney improperly inflamed the jury by referring

to him with the nickname “Chiefa” during closing argument. Howell maintains that the

district attorney’s use of the nickname was meant to play on the jury’s fears of gang violence.

Howell now claims that his admitted nickname, “Chiefa,” had no connection to leadership

in gang activity but instead referred to his “non-violent nature as well as his tendency to

smoke marijuana in the context of ‘Chiefa smokes peace pipe.’” The district attorney referred

to Howell as “Chiefa” several times in closing argument, and the defense attorney posed no

objection.

¶67.   We find that the claim of improper closing argument is procedurally barred. First, no

contemporary objection was made. Second, this issue could have been raised in the direct

appeal. Because it was capable of review in previous proceedings, it is barred here. Miss.

Code Ann. § 99-39- 21 (Rev. 2007). Procedural bar notwithstanding, we find no error.

There was no discussion of any gang connection at trial, and the record does not reveal that

the nickname had any obvious gang connotation. Howell admits that “Chiefa” was his

nickname. We find that the prosecutor was within reasonable closing argument in referring

to Howell by his admitted nickname. As we find no objectionable error in the use of the

nickname, we also find no attorney ineffectiveness on this claim.




                                              31
       XV.    WHETHER THE STATE LACKED PROBABLE CAUSE FOR
              THE ARREST.

¶68.   The murder of Pernell occurred on May 15, 2000. At the time, Howell was on

probation for a previous drug conviction. As a condition of his probation, Howell was

required to make a monthly payment to his probation officer. In April 2000, after several

months of missed payments, Howell’s probation officer initiated the process of issuing an

arrest warrant for Howell; however, the warrant was not executed. After the murder, New

Albany police officers contacted the probation office to find out if there was an available

photograph of Howell. At that time they discovered that there was an outstanding warrant

for Howell’s arrest. A probation officer signed the warrant, and Howell was arrested. After

the arrest, Howell was subjected to the lineup and he also presented his unverifiable alibi of

being in Corinth with an unknown woman. In his petition, Howell claims that the arrest was

illegal and that the comments and the lineup which stemmed from it should have been

suppressed. Howell likewise claims that law enforcement officers should have been aware

that the trial judge had held a hearing on the morning of May 15 and granted Howell a

continuance to pay the probation arrearage.

¶69.   This matter was raised at the trial court level and was discussed in Howell’s direct

appeal. Howell, 860 So. 2d at 731. This Court found that the arrest was proper; therefore,

this claim is procedurally barred. Miss. Code Ann. § 99-39-21 (Rev. 2007).

¶70.   Howell’s new wrinkle at this stage in the proceedings is that the State should have

known that on the same day that the warrant was executed, the trial judge had extended the


                                              32
time for making the past-due probation payments. The State fails to address this issue in its

response.

¶71.   We find that the evidence adduced as a result of the arrest was properly admitted.

This Court has recognized a good-faith exception to the exclusionary rule in certain

circumstances. See White v. State, 842 So. 2d 565, 570 (Miss. 2003). Where the officers

execute the warrant in good faith and reasonably rely on the warrant, the evidence is properly

admitted. There is no indication that the officers who arrested or questioned Howell

exhibited any bad faith in relying on the warrant. This issue is thus without merit.

       XVI. WHETHER COUNSEL WERE INEFFECTIVE IN FAILING TO
            INVESTIGATE AND PRESENT RELEVANT FACTS ABOUT
            THE ARREST.

¶72.   Howell maintains that his attorneys at trial failed to properly investigate and present

evidence about the probation-violation warrant. Although Howell’s trial attorneys presented

arguments that the arrest had been illegal and sought suppression of any evidence resulting

therefrom, Howell now claims that the attorneys should have investigated the clerk’s notes

from the May 15 hearing. He also claims that the attorneys should have questioned witnesses

who were in the courtroom during the hearing. Howell asserts that his attorneys should have

sought evidence in support of arguments that Howell had received an extension of his

obligation to pay his probation officer. In its response, the State claims only that the validity

of the warrant was raised on appeal. The State does not address the merits of the ineffective-

assistance-of-counsel claim. As we have found that the arrest was legal, we find no

deficiency on the part of Howell’s attorneys; therefore, this issue is without merit.

                                               33
       XVII. WHETHER COUNSEL WERE INEFFECTIVE IN FAILING TO
             DOCUMENT AND PRESERVE THE CHANGE-OF-VENUE
             MOTION.

¶73.   The murder occurred in Union County, and, prior to trial, Howell’s attorneys argued

that pretrial publicity prevented Howell from receiving a fair trial in Union County. In the

motion to transfer venue, Howell’s attorney referred to several newspaper articles and one

television report about the murder. Howell submitted seven affidavits from citizens who

stated that he could not receive a fair trial in Union County. The State called several

witnesses at the hearing on the motion to transfer venue. The witnesses included the Union

County chancery clerk, a former Union County circuit clerk, and two current Union County

supervisors. All of the Union County officials testified that discussion of the Howell case

had been minimal and that Howell could receive a fair trial in Union County. The motion

to transfer venue was denied after the trial judge found that the State had overcome the

presumption of partiality and that the defendant could receive a fair trial in Union County.

¶74.   The merits of the change-of-venue motion were discussed in the direct appeal, where

this Court found that the trial court had not abused its discretion in denying the motion to

transfer venue. Howell, 860 So. 2d at 720. This Court further reviewed the jury venire’s

responses to the trial court’s questions about publicity and the jurors’ ability to fairly judge

the evidence. The Court determined that pretrial publicity had not tainted the jury pool. Id.

¶75.   Howell now claims that his attorney failed to adequately investigate and present the

motion to transfer venue. He offers the affidavit of a North Carolina attorney who states that

the attorney was ineffective in failing to document other Union County cases where venue

                                              34
was changed “which would have shown venue changes in far less public cases.” The affiant

produces no such Union County cases for us to review. The out-of-state attorney also claims

that there was inadequate briefing of the motion to change venue. Howell provides no

specific argument as to what should have been briefed or how any different argument would

have yielded a better result. In its response, the State does not address the affidavits

presented by Howell and poses no argument as to the merits of the ineffective-assistance-of-

counsel claim.

¶76.   We find that Howell’s attorney filed a motion to change venue and supported that

motion with numerous affidavits and all known relevant press documentation. The trial court

held a hearing and determined that a fair trial could be held in Union County, and this Court

found no error on appeal. The attorney adequately briefed and argued the motion. The mere

fact that the motion to transfer venue was not granted does not lead to a finding of ineffective

assistance of counsel. We find that this issue is without merit.

       XVIII.     WHETHER COUNSEL WERE INEFFECTIVE IN FAILING
                  TO DEVELOP AND PRESENT EVIDENCE IN MITIGATION
                  DURING THE PENALTY PHASE OF TRIAL.

¶77.   After Howell was convicted of capital murder, the trial moved to the penalty phase,

at which time the State sought the death penalty. In mitigation, the defense provided

testimony from several witnesses. Tommy Shoemaker testified that he was a manager at

Wal-Mart, that he had been Howell’s supervisor for six to eight months, and that Howell had

been a satisfactory employee. Elaine Simonson, a long-time family friend who had known

Howell all of his life, testified that Howell was a respectable, likeable, and kind person who

                                              35
was not prone to violence. Howell’s sister, Apresha Prather, testified that Howell was a

loving person who was only twenty years old at the time of the crime. Likewise, it appears

from the record that Howell’s mother had been prepared to testify in the mitigation phase but

was unable to testify due to being upset by the verdict in the guilt phase.

¶78.   Howell now argues that the trial attorneys were ineffective in several respects. He

claims that the attorneys should have investigated Howell’s school records. After review,

we find those records to be unremarkable insofar as providing any benefit concerning

mitigation in the penalty phase of the trial.

¶79.   Howell also claims that the trial attorneys should have called Brandon Shaw and

Howell’s two co-defendants, Ray and Lipsey, to testify. Shaw, Ray, and Lipsey have

provided affidavits in which they claim that Howell was not a violent person. Lipsey

testified at trial that Howell killed Pernell. Shaw testified that Howell discussed robbing a

man prior to the eventual killing. Their current affidavit testimony would have been

unbelievable on the heels of trial testimony to the contrary. Ray and Lipsey had pleaded

guilty to manslaughter in Pernell’s killing. The value of their testimony for Howell in the

mitigation phase would have been negligible in light of their trial testimony during the guilt

phase. Howell also claims that counsel should have called witnesses in mitigation who

would have testified that the true meaning of Howell’s “Chiefa” nickname had no gang

connotations but referred to Howell’s propensity to smoke marijuana like an Indian chief

smokes a peace pipe. The attorneys would have been understandably reluctant to bring the

jury’s attention to additional law-breaking by Howell. Also, Howell relies in part on the

                                                36
affidavit of Duncan Lott, who states that his failure to interview witnesses and consult with

experts amounted to ineffective assistance of counsel. After a full review of the mitigation

evidence presented during the penalty phase and the affidavits offered in the post-conviction

proceedings, we disagree. Howell has offered no substantial mitigation evidence which his

attorneys failed to present; therefore, we find Howell’s claim of ineffective assistance of

counsel in developing and presenting mitigation evidence to be without merit.

       XIX. WHETHER THE CUMULATIVE EFFECT OF COUNSEL’S
            PERFORMANCE AT THE TRIAL AND APPELLATE LEVELS
            WAS INEFFECTIVE.

¶80.   In considering these two issues together, we are mindful of what we stated in Byrom

v. State, 863 So. 2d 836 (Miss. 2003):

       [U]pon appellate review of cases in which we find harmless error or any error
       which is not specifically found to be reversible in and of itself, we shall have
       the discretion to determine, on a case-by-case basis, as to whether such error
       or errors, although not reversible when standing alone, may when considered
       cumulatively require reversal because of the resulting cumulative prejudicial
       effect. That having been said, for the reasons herein stated, we find that errors
       as may appear in the record before us in today's case, are individually harmless
       beyond a reasonable doubt, and when taken cumulatively, the effect of all
       errors committed during the trial did not deprive Michelle Byrom of a
       fundamentally fair and impartial trial.

Id. at 847.

¶81.   Applying the Byrom criteria, we find no indications of ineffective assistance of

counsel outside the Court’s specific findings of possible ineffective assistance of counsel,

and we thus find no cumulative error.

       XX.    WHETHER HOWELL WAS PREJUDICED BY THE PRE-
              TRIAL LINEUP PROCEDURES AND WHETHER HOWELL’S

                                              37
              COUNSEL RENDERED INEFFECTIVE ASSISTANCE AT
              TRIAL CONCERNING EVIDENCE RELATING TO THE
              LINEUP.

¶82.   On the day after the crime, Howell was placed in a police lineup in which Charles

Rice identified him as the shooter. In a subsequent hearing on Howell’s motion to suppress

the lineup evidence, the New Albany Chief of Police testified that he believed that Howell

had been represented at the lineup by attorney Regan Russell. It appears from the record that

the trial judge found that Howell had been represented by Russell. In the direct appeal, this

Court found that the lineup was not overly suggestive and that the trial judge did not err in

allowing the lineup testimony.      Howell now claims that the State misrepresented his

representation by counsel at the lineup, and that, in fact, he had had no attorney at the lineup.

In the petition, Howell presents the affidavit of Regan Russell, who states that he was not

present at the lineup and did not represent Howell at that point in time.

¶83.   In its response, the State claims that the police chief misstated who represented

Howell. The Chief has now sworn by affidavit that public defender Tom McDonough

actually was present and represented Howell at the lineup. The State argues that Howell’s

representation at the lineup stage was discoverable prior to trial and is barred in the post-

conviction proceedings. The State also argues that Howell was represented at the hearing,

and whether the attorney was Russell or McDonough is immaterial.

¶84.   In his reply to the State’s response, Howell submits an affidavit from Tom

McDonough, who swears that he never represented Howell in this case and was not present

at the lineup. Howell’s trial attorney did file a motion to suppress the lineup in which he

                                               38
alleged that Howell was not represented at the lineup. Howell’s attorney apparently made

no effort to confirm whether Russell had been present at the lineup or not. He presented no

evidence in support of his argument that Howell had not been not represented at that critical

stage. Howell now claims that his previous attorney was ineffective in failing to investigate

whether Howell had an attorney present at the lineup.

¶85.   The State argues in part that whether Howell had an attorney at the lineup is not

decisive. The State cites Lattimore v. State, 958 So. 2d 192, 198 (Miss. 2007), in which this

Court found that procedural problems in the lineup were not sufficiently prejudicial in light

of the witness’s clear identification at trial.

¶86.   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.

       XXI. WHETHER THE STATE FAILED TO DISCLOSE
            INFORMATION ABOUT TERKECIA PANNELL.

¶87.   Terkecia Pannell was Brandon Shaw’s girlfriend at the time of the murder. On the

night of the crime, she was with Shaw at Shaw’s house when Howell, Ray, and Lipsey

returned after the murder. She was questioned by police and gave a statement in which she

claimed that Shaw had given Howell a ride home and that Shaw had said that Howell had


                                                  39
told him that he had killed a white man on the north side of town. She was subpoenaed to

testify at trial but was not called. Pannell has now submitted an affidavit in which she claims

that she told prosecutors that she heard Ray and Lipsey say that they had shot a white man.

She claims that she heard Ray and Lipsey discuss hiding the gun behind the house. She now

claims that the prosecutors attempted to get her to testify that she saw Howell with the gun

or heard Howell say that he shot the victim. She states that she insisted on telling the truth

and that, as a result, the State never called her to testify. She claims that law enforcement

officials pressured her into signing the initial statement, but she provides no specifics of that

alleged coercion. She also claims that she never read the statement she gave to law

enforcement during the initial investigation. However, that claim of never having read the

statement is belied by the evidence that she made changes in the middle of her statement and

initialed those changes.

¶88.   Howell claims that Pannell’s subsequent statements to prosecutors were exculpatory

and were not disclosed to the defense in violation of Brady and the discovery rules. The State

simply maintains that Pannell’s present testimony is not credible. We find that this issue

likewise has merit and thus must be resolved by way of an evidentiary hearing to determine

the validity of Pannell’s present claims.

       XXII. WHETHER COUNSEL WERE INEFFECTIVE IN RELATION
             TO TERKECIA PANNELL’S STATEMENT.

¶89.   Alternatively, Howell claims that his attorneys were ineffective in failing to

investigate Pannell’s claims and to call her to testify at trial. Pannell was known to the


                                               40
defense. She was listed as a State’s witness and was subpoenaed to testify. Her statement

to law enforcement had been provided to the defense in discovery. Yet it appears from the

record that she was never questioned by the defense. Since we have found that Howell was

entitled to an evidentiary hearing on Issue XXI concerning Terkecia Pannell, we find that

Howell likewise is entitled to an evidentiary hearing on whether his attorneys were

ineffective in failing to investigate Pannell’s statement and possible testimony.

                                      CONCLUSION

¶90.   The petition for post-conviction relief should be denied in part and granted in part.

Howell is entitled to an evidentiary hearing on the claims of Rice’s recanted testimony, the

issues related to his representation or lack thereof at the lineup, and on issues related to

Terkecia Pannell’s alleged exculpatory statements. As to the remaining issues, Howell’s

petition for post-conviction relief is denied.

¶91. APPLICATION FOR POST-CONVICTION RELIEF IS DENIED IN PART
AND GRANTED IN PART.

     SMITH, C.J., WALLER, P.J., RANDOLPH AND LAMAR, JJ., CONCUR.
EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, P.J.,
CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION JOINED BY GRAVES AND DICKINSON, JJ.

     DIAZ, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING
IN PART:


¶92.   I concur with the majority opinion, but find that Howell is also entitled to relief on

the suppression of Lipsey’s initial statement and Lipsey’s recantation.



                                                 41
¶93.   Regarding Lipsey’s initial statement, the majority finds the issue without merit

because “[t]he only change between the first statement and the second statement related to

Lipsey’s own culpability.” However, the majority is mistaken, as Lipsey’s current affidavit

clearly states that none of the defendants were involved: “We did not shoot Mr. Pernell.

This included Marlon and was the truth.”

¶94.   This erroneous conclusion also supports the majority’s finding that the issue is

procedurally barred because it was “discussed fully at trial.” While Lipsey did offer

testimony at trial as to the contents of his first statement, it is directly contradicted by his

current affidavit. Therefore, this issue could not have been discussed at trial, and the matter

is not procedurally barred.

¶95.   I also find that Howell has sufficiently demonstrated evidence of a Brady violation

which entitles him to post-conviction relief. As the majority explains, in order to establish

a Brady violation, the defendant must show: “(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.” Howard, 945 So. 2d 326, 337 (Miss. 2006) (internal citation and

quotations omitted).

¶96.   Moreover, when the “reliability of a given witness may well be determinative of guilt

or innocence,” impeachment evidence affecting the credibility of that witness should not be

                                              42
concealed by the prosecution. Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 79 S.

Ct. 1173 (1959). The duty to provide Brady evidence extends even to evidence that is

“known only to police investigators and not to the prosecutor.” Youngblood v. West

Virginia, 547 U.S. 867, 869-870, 126 S. Ct. 2188, 165 L. Ed. 269 (2006) (quoting Kyles v.

Whitley, 514 U.S. 419, 438, 1155 S. Ct. 1555, 131 L. Ed. 2d 490 (1995)). “[T]he individual

prosecutor has a duty to learn of any favorable evidence known to the others acting on the

government's behalf in the case, including the police.” Kyles, 514 U.S. at 437.

¶97.   Lipsey claims that “[m]y first statement which I signed angered the officers. They

ripped it up without my permission and told me that I was going to get death or life if I did

not cooperate.” Importantly, the State does not dispute that the interrogating officers

destroyed this first statement or that the prosecution did not know about this statement.

Additionally, the State does not address whether the statement could have been used to

impeach Lipsey, one of the State’s key witnesses. Because the first statement was destroyed,

the defense could not have learned the contents of this statement. Taking into consideration

our heightened scrutiny of death penalty cases, Howell is entitled to an evidentiary hearing

as to whether the State destroyed exculpatory impeachment evidence affecting the credibility

of a material witness in violation of Brady.3


       3
        I also note that Rule 9.04 of the Uniform Rules of circuit and County Court Practice
required the State to disclose “names and addresses of all witnesses in chief proposed to be
offered by the prosecution at trial, together with a copy of the contents of any statement,
written recorded or otherwise preserved of each such witness and the substance of any oral
statement made by any witness.” (emphasis supplied).


                                                43
¶98.   The suppression of this initial statement also supports Howell’s argument that he is

entitled to an evidentiary hearing as to Lipsey’s recantation. Lipsey was integral to the

State’s case, as he was one of two eyewitnesses to the crime. “[T]he validity of a recantation

by the central witness to a crime cannot be summarily resolved. There must be a [post-

conviction] hearing.” Hardiman v. State, 789 So. 2d 814, 817 (Miss. Ct. App. 2001)

(Southwick, J.) (emphasis supplied).

¶99.   For these reasons, I concur in part and dissent in part.

       GRAVES AND DICKINSON, JJ., JOIN THIS OPINION.




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