Howard v. State

Jim Hannah, Chief Justice, dissenting. I respectfully dissent. Timothy Howard’s Rule 37 petition is denied and again we fail to correct a manifest denial of due process and fundamental fairness in this case. On direct appeal, this court affirmed the conviction and sentence even though the jury’s decision was based on speculation and conjecture. This court also affirmed where prosecutorial misconduct was apparent, excusing an argument to the jury that “Shannon Day saw her child hanging from an extension cord before she died” as a fair inference from evidence that implied no such thing. Facts arising from a horrendous and brutal murder were used by the State to overwhelm and obscure the State’s failure to present sufficient evidence to prove that Howard was the killer.

The right to have one’s conviction rest upon proof beyond a reasonable doubt is not only a requirement of constitutionally declared and protected due process, but it is a right arising from the common law, and is a right which has its origins in ancient times. Apprendi v. New Jersey, 530 U.S. 466 (2000). In this case, two people were murdered, and a small child was brutally attacked, in what was apparently either a drug deal gone bad or an attempt to collect on drug debts. While Howard was certainly a valid suspect, there is the very real possibility that the murderer walks free today.

While Rule 37 petitions most often concern issues .of alleged ineffective assistance of counsel, “[a] petitioner may qualify for relief under Ark. R. Crim. P. 37.1, regardless of trial counsel’s performance, if he demonstrates error so fundamental as to render the judgment of conviction void and subject to collateral attack.” Pardue v. State, 363 Ark. 567, 570 , 215 S.W.3d 650, 654 (2005). “The principal purpose of Rule 37 is to avoid unjust incarceration.” Bohanan v. State, 336 Ark. 367, 372 , 985 S.W.2d 708, 710 (1999). If there is concern under a Rule 37 analysis for unjust incarceration, then our concern should be greater in this case where the death penalty has been imposed.

A number of issues in this case merit serious consideration. First, Danny Russell was the sheriff of Little River County at the time of the murders and trial. He investigated the report that blood was running out of a locked trailer and was the first officer on the scene at the trailer where Brian’s body was found. He was also first on the scene at the Day home where Shannon’s body was found and where Trevor was discovered still alive. He uncovered Shannon’s body. When the state police investigator arrived, Russell ceased his investigation; however, he was called to testify at trial and did testify as an investigating officer. In spite of such intimate contact with the investigation of the crime, Russell served as bailiff at trial, escorting jurors, providing coffee, and seeing to their needs.

In Turner v. Louisana, 379 U.S. 466 (1965), two of the State’s principal witnesses to the crime investigation also served as bailiffs. They provided for the jury’s needs, had lunch with the jury on two occasions, and dealt with the jury during sequestration. Testimony of the deputies showed that they never discussed the case with the jurors, but that they knew a number of the jurors before trial and made the acquaintance of other jurors during the trial. The United States Supreme Court stated that, “[i]t would have undermined the basic guarantees of trial by jury to permit this kind of an association between the jurors and two key witnesses who were not deputy sheriffs. But the role that Simmons and Rispone played as deputies made the association even more prejudicial.” Turner, 379 U.S. at 474 . The majority finds that Howard waived the issue at trial. What is at issue is an error so fundamental as to render the judgment of conviction void and subject to collateral attack. This is but one of many fundamental errors in this case in which Howard was denied a fair trial, and it should not be ignored. At the very least, it was ineffective assistance of counsel requiring relief.

Howard also argues that his attorneys failed to adequately investigate in preparation for trial. As the record shows, there were many witnesses in this case. One might argue that where defense counsel interviewed as large number of witnesses as was done by defense counsel in this case, the decision of what witnesses to interview is one of strategy. However, while defense counsel interviewed many of the witnesses identified by the State, there was another set of critical witnesses that were not identified or interviewed.

First, there was evidence that in the days before the murders Brain had close contact with drug dealers and drug associates from as far away as Oklahoma. Further, there was evidence that immediately prior to their deaths, Shannon and Brian were deeply concerned about demands on debts that they could not pay. There was evidence that at the time of their deaths they were packing to leave. There was also other evidence that demands for payment on the debt had been made. Brian had a significant history of drug sales, and there was evidence of unidentified persons at his house in the days just before his murder. While facts of such events came out indirectly through a witness or two at trial, the outcome might have been very different if witnesses who had first-hand knowledge of such things had testified. These witnesses were never located or produced. Counsel was ineffective for failing to adequately investigate.

I also note a number of other failures in investigation, including:

1. The failure to test the Caucasian hair found in the boots located at the side of the road;

2. The failure to identify the fingerprints on the wooden frame found atop Shannon’s body;

3. The failure to test scrapings from beneath Shannon’s nails; and

4. The failure to test Tim’s clothes.

Despite two bloody murders, and evidence that Howard was wearing the same clothes on the day following the murders as on the day of the murders, no testing was done on his clothing.

Also, counsel’s failure to adequately address Juror Ida Hooks’s inability to stay awake during proceedings is an issue that has merit. Accepting a juror who had an admitted sleeping disorder and then failing to do anything about it once she began to doze off in trial constitutes ineffective assistance of counsel.

There are additional issues that have merit. In closing argument to the penalty phase, the State argued that there was no sign of remorse from Howard. In Estelle v. Smith, 451 U.S. 454, 462-63 (1980), the United States Supreme Court stated:

We can discern no basis to distinguish between the guilt andpenalty phases of respondent’s capital murder trial as far as the protection of the Fifth Amendment privilege is concerned. Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees.

Here again there was ineffective assistance of counsel that resulted in an error that denied Howard fundamental justice.

Other comments during closing argument were prejudicial, and yet they were not challenged. There was an argument that Trevor was placed in the bag to “muffle his pleading cries for help,” when the evidence shows no such thing, and there was the same error when the State argued that Howard left Brian to suffer and die in the truck. Medical testimony showed that Brian died very quickly. We should grant Howard’s petition and grant a new trial.

Special Justice A. Watson Bell, joins this dissent.