Petition for Writ of Certiorari — Howell v. Mississippi
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FILED
93-9560 | MAR 1? 2004
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OFFICE OF THE CLI RK |
No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2003
MARLON HOWELL,
Petitioner,
VS.
STATE OF MISSISSIPPI,
Respondent.
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The petitioner, Marlon Howell, asks leave to file the attached petition for writ of certioran
without prepayment of costs and to proceed in forma pauperis. Petitioner has been granted leave
to so proceed in the state courts. Petitioner's affidavit in support of this motion is attached hereto.
This the 17" day of March 2004.
ti 2a
André de Gruy*
510 George St. Suite 300
Jackson, MS 39202
601-576-2316
Duncan Lott
P.O. Box 382
Booneville, MS 38829
662-728-9733
Counsel for Petitioner
*Counsel of Record
NO.
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2003
MARLON HOWELL. PETITIONER
VERSUS
STATE OF MISSISSIPPI RESPONDENTS.
AFFIDAVIT OF MARLON HOWELL
STATE OF MISSISSIPPI
COUNTY OF SUNFLOWER
PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for the
junsdiction aforesaid, the within named MARLON HOWELL, whe being by me first duly sworn,
stated as follows:
My name is MARLON HOWELL. | am the petitioner in the above-entitled case. In support
of my motion to proceed without being required to prepay fees, costs, or give security therefor, |
state that because of my poverty | am unable to pay the costs of said case or to give security
therefore: and that | believe I am entitled to redress.
| further swear that the responses which | have made to the questions and instructions below
relating to my ability to pay the cost of proceeding in this Court are true.
1. Are you presently employed? |” __
a. If the answer is yes, state the amount of your salary or wages per month and
give the name and address of your employer: __
b. If the answer is no, state the date of your last employment and the amount of
s
the salary and wages per month which you received: 4+/., 7 or tery 7 id ae)
2. Have you received within the last twelve months any income from a business,
profession, or other form of self-employment. or in the form of rent payments, interest, dividends,
‘a
or other source? /.
a. If the answer is yes, describe each source of income and state the amount
received from each during the last twelve months:
3. Do you own any cash or checking or savings account? “= _ >
a. If the answer is yes, state the total value of the items owned: _-- _—-_--
a ’ pete? o? . x
4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable
property (excluding ordinary household furnishings and clothing)? 4.
a. If the answer is yes, describe the property and state its approximate value:
$. List the persons who are dependent upon you for support and state your relationship
to those persons:
A t ch c
I understand that a false statement or answer to any questions on this affidavit will subject
me to penalties for perjury.
This the //"" day of March.
\| 1 ,
( Wi Z ¢ ti!
MARLON HOWELL
/
h
SWORN TO AND SUBSCRIBED before me, this the ., _ d_. of March, 2004.
ey * / ~
*
| NOTARY PUBLIC
MY COMMISSION EXPIRES:
hectp sti ¢¢ - yy.9
‘-
tu
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2003
MARLON HOWELL,
Petitioner,
VS.
STATE OF MISSISSIPPI,
Respondent.
CERTIFICATE OF SERVICE OF
PETITION FOR WRIT OF CERTIORARI
I, André de Gruy, a member of the Bar of this Court, hereby certify that on this 17" day of
March 2004, | deposited at the main post office on South West Street, Jackson, Mississippi, the
Petition for Wnt of Certioran to the Hon. William K. Suter, Clerk of the Supreme Court of the
United States, and to Marvin L. White, Jr., Esq., Assistant Attorney General, Post Office Box 220,
Jackson, MS 39205, [telephone number (601) 359-3680], counsel for the respondent herein. |
further certify that all parties required to be served have been served.
André de Gruy*
510 George St. Suite 300
Jackson, MS 39202
601-576-2316
Duncan Lott
P.O. Box 382
Booneville. MS 38829
662-728-9733
Counsel for Petitioner
*Counsel of Record
oe
————
93-9560 wom
No _————
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2003
MARLON HOWELL,
Petitioner,
VS.
STATE OF MISSISSIPPI,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF MISSISSIPPI
THIS IS A DEATH PENALTY CASE
André de Gruy*
510 George St. Suite 300
Jackson, MS 39202
601-576-2316
Duncan Lott
P.O. Box 382
Booneville, MS 38829
662-728-9733
Counsel for Petitioner
*Counsel of Record
QUESTION PRESENTED TABLE OF CONTENTS
| Can a state court, consistent with the Eighth and Fourteenth Amendments to the Page
Constitution of the United Staces. refuse to instruct a jury ina death penalty case on at least one
lesser included offense that is recognized in state law and supported by the evidence? Questions Presented !
: Table of Contents TT
Table of Authorities Th
Opinion Below l
Junsdiction |
Constitutional Provisions Involved
Statement of the Case
Reasons for Granting the Writ
oo fF NV WN
Conclusion
TABLE OF AL THORITIES
Cases
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Statutes & Administrative Codes
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Miss. Code Ann. § 97-3-19(1 (C).......00. Se RS ESE eS TEE ETT A OF EE EN IN Pa 4
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No.
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2003
MARLON HOWELL,
Petitioner,
vs.
STATE OF MISSISSIPPI,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME RT OF THE STATE OF MI IPPI
The petitioner, Marlon Howell, prays for a writ of certiorari to review the judgment of the
Supreme Court of Mississippi affirming his conviction of capital murder and sentence of death.
PINION BELOW
The opinion of the Supreme Court of Mississippi is reported at Howell v. State, 860 So.2d
704 (Miss. 2003). The opinion is attached as Appendix “A” to this Petition.
JURISDICTION
The judgment of the Supreme Court of Mississippi was entered on October 23, 2003, and
rehearing denied on December 18, 2003. The jurisdiction of the Supreme Court is invoked under
28 U.S.C. § 1257 on the ground that a nght or privilege of the defendant which is claimed under the
Constitution of the United States has been denied by the State of Mississippi.
CONSTITUTIONAL PROVISIONS INVOLVED
This case ir. olves the following provisions of the United States Constitution:
The Eighth Amendment to the Constitution of the United States, which provides that:
Excessive bail shall not be required, nor excessive fines imposed. nor cruel and
“nusual punishments inflicted.
The Fourteenth Amendment to the Constitution of the United States which provides. in
pertinent part, that:
No state shall ... deprive an~ person of life, liberty, or property, without due process
of law, nor deny to any person within its jurisdiction the equal protection of the
laws.
STATEMENT OF THE CASE
Marlon Howell was indicted for capital murder, defined as killing during the commission of
an attempted robbery, by a Union County, Mississippi, Grand Jury. Howell, 860 So.2d 704. He
was tned and convicted of capital murder and sentenced to death by a jury in the Circuit Court of
Union County, Mississippi. During the course of the tnal Howell presented alternative defenses.
He presented the absolute defense of alibi but also vigorously fought the alleged underlying felony
of attempted robbery. If the jury concluded that the evidence of attempted robbery was not
established beyond a reasonable doubt they could not find Howell guilty of capital murder. Id. at
742-43. 136.
The evidence of attempted robbery was weak. The only evidence supporting the theory was
alleged accomplice testimony secured by plea bargain. And two of the state’s witness undermined
the state's own case. First, a co-defendant-turned-state’s-witness testified that the shooting was
done by Howell but it resulted from Mr. Pernell spraving Howell in the face with mace. Id. at 714,
* 11. Further, the shooting was observed by a disinterested witness, Charles Rice. Mr. Rice
testified that he observed a conversation and that there were no indications of a robbery taking
place. Id. at 713, 743, 4% 3, 136.
Howell sought a jury instruction on “simple” murder and manslaughter. The tnal court
denied these instructions. Howell raised this issue on appeal to the state supreme court but was
denied relief. Id. at 741-44. In affirming, the state court relied exclusively on two state court
decisions from the 1970s. Id. at 744, 4 139. Neither case involved the death penalty, nor did either
case address the federal constitution. Such a cursory rejection of a fundamental principle of
constitutional law mandates careful review by this Court.
Ww
REASONS FOR GRANTING THE WRIT
IN AFFIRMING THE TRIAL COURT'S DENIAL OF A
REQUESTED LESSER INCLUDED OFFENSE INSTRUCTION
THE MISSISSIPPL SUPREME COURT IGNORED TWENTY-
FIVE YEARS OF CASELAW FROM THIS COURT, THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT AND ITS OWN DECISIONS, RESULTING IN A
VIOLATION OF MARLON ‘HOWELL’S tIGHTH AND
FOURTEENTH AMENDMENT RIGHTS.
Marlon Howell requested his jury be instructed on the lesser included offenses of murder
and manslaughter. Howell v. State, 860 So.2d at 741-44, 4 131-40. The trial court refused those
instructions and his case was submitted to the jury with two options — guilty of capital murder or
not guilty of any offense. Id. Howell argued in the tnal court and on appeal to the state supreme
court that he was vigvrously fighting the evidence of robbery — the underlying felony elevating the
case from murder to capital murder thus subjecting him to the possibility of a death sentence. Id. at
€ 136.
The state supreme court recognized that Howell's argument, based on the facts of this case,
was that:
The jury could have found and returned the lesser-included offense
of simple murder or manslaughter. The fact remains that if this jury
had believed Howell approached Pernell’s vehicle to sell him drugs
and was sprayed in the face with mace by Pemell in reaction, then
they could have retumed a conviction on manslaughter.' The
{cjourt’s failure to instruct the jury on the lesser included offense of
simple murder and manslaughter was error. The jury as instructed
ad no choice but either to tum Howell loose or convict him of
{cjapital murder ...
Nonetheless. the court held Howell was not entitled to a lesser included offense based on 1975 and
1979 state court decisions. Howell at © 139 (citing Presley v. State, 321 So.2d 309 (Miss. 1975)
More appropriately a reasonable juror could have returned a verdict of guilty of murder
pursuant to Miss. Code § 97-3-19(1)(c). Under this fact scenario Howell would have been guilty
of killing during the commission of a felony, i.e., attempt to sell drugs.
and Grace v. State, 375 So.2d 419, 420 (1979)). Neither case involved the death penalty. Clearly
the state court failed to consider this Court’s substantial jurisprudence on this issue since 1980. In
holding that Howell was not entitled to a lesser-included offense instruction of murder, the state
court ignored its precedent and the mandates of this Court. See Beck v. Alabama, 447 U.S. 625
(1980).
Where as here the evidence in a capital murder tnal could support a verdict of guilt of a
non-capital offense, the defendant is entitled under the Eighth and Fourteenth Amendments to the
Constitution of the United States to submit to the jury an instruction on the non-capital offense.
Beck v. Alabama, 447 U.S. 625, 638 (1980). The resulting capital murder conviction upon which
the death sentence rests is unreliable and the decision of guilt beyond a reasonable doubt uncertain.
Beck at 642-43.
This Court's “fundamental concern in Beck was that a jury convinced that the defendant had
committed some violent crime but not convinced that he was guilty of a capital crime might
nonetheless vote for a capital conviction if the only alternative was to set the defendant free with no
punishment at all.”” Schad v. Arizona, 501 U.S. 624, 646(1991). = The Court previously
acknowledged that “{t]he absence of a lesser included offense instruction increases the risk that the
jury will convict . . . simply to avoid setting the defendant free.” Spaziano v. Florida, 468 U.S. 447,
455 (1984). As the Beck Court noted, such a risk of unwarranted conviction cannot be tolerated in
a case in which the defendant’s life is at stake. Beck, 447 U.S. at 637.
The goal of Beck was to “eliminate the distortion of the factfinding process that is created
when the jury is forced into an all-or-nothing choice between capital murder and innocence.”
Schad, 501 U.S. at 646-47. The Beck Court recognized that the issue of lesser included offenses
directly impacted the reliability of the guilt determination in capital cases. Schad, 501 U-S. at 646.
The Fifth Circuit has held that Beck is violated where the trial judge erroneously fails to
give a lesser offense instruction. Cordova v. Lynaugh, 838 F.2d 764, 767 (Sth Cir. 1988), cert.
demed. 108 S.Ct. 2832 (1988). Under the Eighth Amendment to the Constituuon o the United
States, “a lesser included offense instruction should be given if the evidence would permit a jury
rationally to find {a defendant] guilty of the lesser included offense and acquit him of the greater.”
Id. at 767. The denial of such an instruction in violation of this standard in a capital murder case
/
can never be harmless error. Cordova, 838 F.2d at 770, ny 8. “Beck stands for the proposition that
‘the jury [in a capital case] must be permitted to consider a verdict of guilt of a non-capital offense
‘in every case’ in which ‘the evidence would have supported such a verdict.” Cordova, 838 F.2d at
767.
The question then becomes, as a matter of state law is “murder” a lesser-included offense of
“capital murder?” The Mississippi Supreme Court definitively answered that question in Watts v.
State, 717 So.2d 314 (Miss. 1998). In Watts the State of Mississippi argued and the tnal court held
that “simple murder is a lesser included offense of capital murder.” Watts at 411 In evaluating
this claim the state supreme court held:
“12. In support of his argument, Watts cites to two Fifth Circuit
Court of Appeals’ cases, Jones v. Thigpen, 741 F.2d 805 (Sth Cir.
1984) 475 U.S. 1003, 106 S.Ct. 1172, 89 L.Ed.2d 292 and Bell v.
Watkins, 692 F.2d 999 (Sth Cir. 1982), for the theory that “*[iJ]n
Mississippi, no murder committed during the course of a robbery
can be a simple murder.’”’ Jones v. Thigpen, 741 F.2d 805, 816
(Sth Cir. 1984) (quoting Bell v. Watkins, 692 F.2d 999, 1004-05
(Sth Cir. 1982)), vacated on other grounds . 475 U.S. 1003 (1986).
Both Jones and Bell involved situations in which the tnal court
refused to give a lesser offense instruction where the defendant was
charged with capital murder while engaged in the commission of
robbery. Jones, 741 F.2d at 815-16; Bell, 692 F.2d at 1004-05. In
Jones, the Fifth Circuit held that the trial court did not commit
error by refusing to give a lesser included offense instruction of
simple murder where no lesser included offense was provided by
state law for murder committed during the commission of a
robbery. Jones, 741 F.2d at 816. In Bell, the Fifth Circuit, stating
that under Mississippi law “no murder committed during the
course of a robbery can be simple murder,” similarly held that the
trial court's refusal to give a lesser included offense instruction was
ea)
eee
Watts at 319.
proper where there was no evidence to support the lesser charge.
Bell. 692 F.2d at 1005.
413. This Court, however, in Fairchild v. State, 459 So. 2d 793
(Miss. 1984), held that this theory was flawed because it
presupposed that the defendant was guilty of robbery. Fairchild v.
State, 459 So. 2d 793, 800 (Miss. 1984). The Fairchild Court
stated:
The theory is flawed. It determines what instruction
will be granted at the request of the capital murder
defendant on the basis of a presumption that he has
already been found guilty of the underlying felony.
The theory forgets that there is no such thing as a
directed verdict of guilty in a criminal case, either
on the principal charge in general or on any of its
components. Its logic requires the determination
that the proof offered by the State where not
substantially contradicted must perforce be believed
by the jury and so acted upon in their verdict. True,
the evidence that Fairchild participated in a robbery
in this case is substantial. What the trial judge has
done, however--following the theory advanced by
the Fifth Circuit--has been to find as a matter of law
that Fairchild is guilty of robbery before the case is
ever submitted to the jury. This constitutionally he
has no authority to do.
Fairchild, 459 So.2d at 800. Based on this logic, this Court held
that it was error, although not reversible error because Fairchild
received the same sentence that he would have received for a
conviction of simple murder, for the trial court to refuse to grant a
lesser included offense instruction on simple murder. Id. at 801.
Thus, Watts’ reliance on Jones and Bell is unfounded where this
Court has held that a simple murder instruction may be given on a
charge of capital murder. In addition, this Court has stated that
“[b]y its form, [Miss. Code Ann. §97-3-19] implicitly recognizes
the established doctrine that simple murder is a lesser included
offense of capital murder.” Wheeler v. State, 536 So.2d 1341, 1344
(Miss. 1988).
ooo ee
| Page | of 73
Copr. © West 2004 No Claim to Orig. U.S. Govt. Works
Without question, as a matter of state law. murder is a lesser included offense of capital
860 So.2d 704 :
murder.” Accordingly. the denial of the requested a lesser-included offense instruction for which (Cite as: 860 So.2d 704)
H
Mr. Howell could have been found guilty as a matter of state law violates the Eighth and Fourteenth Supreme Court of Mississippi.
Amendments to the Constitution of the United States. Marlon Latodd HOWELL a/k/a Marlon Cox
v.
| STATE of Mississippi.
CONCLUSION
| ee ee No. 2001-DP-01104-SCT.
For the foregoing reasons, this Court should grant the wnt of certioran, vacate the
. . : . Oct. 23, 2003.
judgment of the Mississippi Supreme Court, and either set this case for review or summarily Rehearing Denied Dec. 18, 2003.
reverse the opinion of the state court. Defendant was convicted following jury trial in the Circuit Court, Union County, R. Kenneth
| Coleman, J., of capital murder and was sentenced to death. Defendant appealed. The Supreme Court,
Respectfully submitted, Easley, J., held that: (1) denial of motion for change of venue was not abuse of discretion; (2) state
provided race-neutral reasons for peremptory strikes of two African-American prospective jurors; (3)
identification testimony by eyewitness was sufficiently reliable; (4) testimony about defendant's
statements that he needed money to pay his probation officer was admissible to establish defendant's
--—— motive and intent; (5) evidence supported finding that defendant intended to rob victim; (6) defense's
cross-examination of police officer concerning defendant's prior guilty plea to possession of a
controlled substance “opened the door," at sentencing phase during which defense attempted to
Jackson, MS 39202 establish lack of significant criminal history, to state's introduction of indictment for sale of
601-576-2316 | marijuana; and (7) death sentence was not imposed under influence of passion, prejudice, or any other
arbitrary factor, was supported by statutory aggravating circumstances that capital offense was
André dé Gruy*
510 George St. Suite 300
Duncan Lott committed in course of a robbery for pecuniary gain and by a person under a sentence of
P.O. Box 382 imprisonment, probation, or parole, and was not excessive or disproportionate.
Booneville, MS 38829
662-728-9733 Conviction and sentence affirmed.
Counsel for Petitioner Cobb, J., concurred in part and in result.
*Counsel of Record Waller, J., concurred with separate written opinion joined by Pittman, C.J., Cobb and Carlson, JJ.,
and joined in part by Graves, J.
Graves, J., dissented with separate written opinion joined by McRae, P.J.
~ See also Miss. Code § 99-] 7-20 providing in death eligible cases for instruction on any non- West Headnotes
death eligible offense.
{1] Criminal Law 121
110k121 Most Cited Cases
Decision to grant a venue change rests in the sound discretion of the trial judge. (Per Easley, J., with
two justices concurring and three justices concurring in result.)
fe)
__/delivery.htmI?dataid=B00 _vaeeen & &dest=atp& fo 1/13/2004
Page 2 ot 73
|2| Criminal Law <>1150
L1OkKL1S0 Most Cited Cases
State Supreme Court will not disturb the ruling of the trial court where the sound discretion of the
trial judge in denying a change of venue was not abused. (Per Easley, J., with two justices concurring
and three justices concurring in result.)
[3] Criminal Law ©>126(1)
110kK126(1) Most Cited Cases
The accused has a right to a change of venue when it is doubtful that an impartial jury can be
obtained. (Per Easley, J.. with two justices concurring and three justices concurring in result.)
[4] Criminal Law &134(1)
110k134¢1) Most Cited Cases
Upon proper application for change of venue, there arises a presumption that impartial jury cannot be
obtained in present venue, and the state then bears the burden of rebutting that presumption. (Per
Easley, J., with two justices concurring and three justices concurring in result.)
[5] Criminal Law €>134(1)
110k134(1) Most Cited Cases
Certain elements, when present, serve as an indicator to tnal court that presumption of prejudicial
pretnal publicity for purposes of motion to change venue is irrefutable, including: (1) capital cases
based on considerations of a heightened standard of review; (2) crowds threatening violence towards
the accused; (3) an inordinate amount of media coverage, particularly in cases of (a) serious crimes
against influential families; (b) serious crimes against public officials; (c) serial crimes; (d) crimes
committed by a black defendant upon a white victim; (e) where there is an inexperienced tnal
counsel. (Per Easley, J., with two justices concurring and three justices concurring in result.)
[6] Criminal Law €>134(4)
110k134¢4) Most Cited Cases
Denial of motion for change of venue in capital murder case was not abuse of discretion; there was no
evidence offered of any threatened violence towards defendant nor an inordinate amount of media
coverage, testumony of state's witnesses demonstrated that defendant could receive a fair trial and
defendant offered no additional evidence to rebut state's witnesses and support his motion, and
defendant did not present any evidence that he could not or did not receive a fair trial from 12 jurors
who heard his case. (Per Easley. J.. with two justices concurring and three justices concurring in
result.)
[7] Criminal Law C>126(1)
110k126¢1) Most Cited Cases
Linchpin for reviewing the denial of change of venue motion is whether the venire members stated
that they could be fair and impartial jurors if chosen. (Per Easley, J., with two justices concurring and
three justices concurring 1n result.)
... delivery htm! ?dataid=BO005 580000002 7620004680 | 22BAIDCB886886CF82&dest=atp& fo 1/13/2004
Page 3 of 73
|8| Costs ©=302.3
102k302.3 Most Cited Cases
Denial of motion for funds for an investigator to look into possible mitigating issues was not error in
capital murder case. (Per Easley, J., with two justices concurring and three justices concurring in
result.)
{9] Costs &—302.2(2)
102k302.2(2) Most Cited Cases
Denial of defendant's request in capital murder case for funds to hire a jury consultant was not error,
where defendant did not proceed as an indigent or have trial court declare him to be an indigent. (Per
Easley, J., with two justices concurring and three justices concurring in result.)
{10} Costs €=302.2(2)
102k302.2(2) Most Cited Cases
Alleged lack of familiarity on part of defendant's father with venire panel drawn in capital murder
case did not require grant of defendant's request for a jury consultant. (Per Easley, J., with two
justices concurring and fhree justices concurring in result.)
[11] Costs €=302.1(5)
102k302.1(5) Most Cited Cases
Denial of defendant's request in capital murder case for daily transcripts of testimony of co-
defendants and of secondary witnesses was not abuse of discretion. (Per Easley, J., with two justices
concurring and three justices concurring in result.)
[12] Criminal Law €641.5(1)
110k641.5(1) Most Cited Cases
Refusal to furnish defendant in capital murder case a court-appointed attorney to assist his retained
counsel was not error. (Per Easley, J., with two justices concurring and three justices concurmng in
result.)
[13] Criminal Law €>641.5(1)
110k641.5(1) Most Cited Cases
Constitution does not require the appointment of two attorneys in a case where the death penalty ts
involved. (Per Easley, J., with two justices concurring and three justices concurring in result.)
[14] Costs 302.4
102k302.4 Most Cited Cases
Denial in capital murder case of defendant's request for funding for additional psychiatne
examination, after defendant had received a psychiatric examination from a particular doctor by
agreement of the parties, was not abuse of discretion, where defendant did not proceed as an indigent
or raise insanity as a defense. (Per Easley, J., with two justices concurmng and three justices
concurring in result.)
.../delivery.htm!?dataid=B005 580000002 7620004680 | 22BA9DCB886886CF82 &dest=atp& fo 1/13/2004
Page 4 ot 73
}15] Criminal Law C>1158(3)
LIOKTTSS¢3) Most Cited Cases
A reversal of a determination as to whether exercise of peremptory challenges was result of
purposetul discrimination will only occur if the factual findings of the trial judge appear to be clearly
erroneous or against the overwhelming weight of the evidence. (Per Easley, J.. with two justices
concurmng and three justices concurring 1n result.)
[16] Criminal Law €>1158(3)
1 1OK1158¢3) Most Cited Cases
On appellate review, the tnal court's determinations under Batson v. Kentucky with respect to whether
exercise of peremptory challenges was result of purposeful discrimination are accorded great
deference because those determinations are based, in a lenge fart, on credibility. (Per Easley, J., with
two justices concurring and three justices concurring in resuii.)
[17] Constitutional Law €>221(4)
92k221(4) Most Cited Cases
A peremptory challenge based on race constitutes a violation of equal protection. (Per Easley, J., with
two justices concurming and three justices concurnng in result.) U.S.C.A. Const.Amend. 14.
[18] Jury €—33(5.15)
230k33(5.15) Most Cited Cases
To establish a prima facie case that race was the cnterion for exercise of a peremptory challenge, the
objecting party must show (1) that he/she is a member of a cognizable racial group, (2) the prosecutor
has exercised peremptory challenges toward the elimination of prospective jurors of his race, and (3)
the facts and circumstances raised an inference that the prosecutor used his peremptory challenges for
the purpose of striking minorities. (Per Easley, J.. with two justices concurring and three justices
concurring in result.) .
[19] Jury €=33(5.15)
230kK3345.15) Most Cited Cases
Afncan-Amencan prospective juror's prior arrests and reluctance of that prospective juror's brother to
tell officers that he had seen automobile accident in which another motorist ran into prosecutor's
vehicle were race- neutral reasons for state's peremptory strike of prospective juror in capita. murder
case. (Per Easley. J.. with two Justices concurnng and three justices concurring in result.)
{20} Jury 335.15)
230kK33(5.15) Most Cited Cases
Afncan-American prospective juror's claim on jury questionnaire that he had never been arrested for
a crime. when he had in fact been arrested for receiving stolen property, provided race-neutral reason
for state's exercise of peremptory stnke against that prospective juror in capital murder case. (Per
Easley. J.. with two justices concurring and three justices concurring in result.)
|21| Jury G=131(1)
230K 131061) Most Cited Cases
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A jury selection procedure which gives the defendant a fair opportunity to ask questions of individual
jurors which may enable the defendant to determine his right to challenge that juror ts proper. (Per
Easley, J., with two justices concurring and three justices concurring in result.)
[22] Jury —131(2)
230k131(2) Most Cited Cases
|22] Jury €=131(4)
230k 131(4) Most Cited Cases
Trial court has broad discretion in passing upon the extent and propriety of questions addressed to
prospective jurors. (Per Easley, J., with two justices concurring and three justices concurring in
result.)
[23] Jury —131(13)
230k131(13) Most Cited Cases
Denial in capital murder case of defendant's request to conduct individual sequestered voir dire of
prospective jury members who had read articles or seen information about case on television was not
error; each of those prospective jurors had been individually questioned, by way of juror
questionnaires, about what they knew about defendant, his co-defendants, or their families, and more
importantly, none of those prospective jurors ended up serving on jury. (Per Easley, J., with two
justices concurring and three justices concurring in result.)
[24] Jury -131(15.1)
230k131(15.1) Most Cited Cases
Sustaining of state's objection during voir dire in capital murder case to a question as to whether
prospective juror had ever seen or heard of police officers "puffing up” or giving untrue testimony
about facts of a case was not abuse of discretion. (Per Easley, J., with two justices concurring and
three justices concurring in result.)
[25] Jury €—131(8)
230k131(8) Most Cited Cases
Sustaining of state's objection during voir dire in capital murder case to a question about the type of
cases in which prospective juror might vote for death penalty was not abuse of discretion. (Per
Easley, J., with two justices concurring and three justices concurring in result.)
[26] Jury <—131(8)
230k131(8) Most Cited Cases
Sustaining of state's objection during voir dire in capital murder case to a question as to whether
prospective jurors believed mercy should be a factor in considering a death penalty sentence was not
abuse of discretion. (Per Easley, J., with two justices concurring and three justices concurnng in
result.) :
[27] Jury —131(2)
230k131(2) Most Cited Cases
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Vour dire ts conducted under the supervision of the court, and a great deal must be left to its sound
discretion. (Per Easley, J.. with two justices concurring and three justices concurring in result.)
{28] Criminal Law €—1152(2)
LLOKT1S2(2) Most Cited Cases
Standard of review in examining the conduct of voir dire is abuse of discretion. (Per Easley, J., with
two justices concurring and three justices concurting in result.)
{29] Criminal Law €>1152(2)
110k1152(2) Most Cited Cases
Abuse of discretion in the conduct of voir dire will only be found where a defendant shows clear
prejudice resulting from undue lack of constraint on the prosecution or undue constraint of the
defense. (Per Easley, J., with two justices concurring and three justices concurring in result.)
{30] Criminal Law €—339.8(4)
110k339.8(4) Most Cited Cases
As admitted in capital murder prosecution, testimony of eyewitness identifying defendant as shooter
was sufficiently reliable and identification did not need to be suppressed as suggestive, though
eyewitness’ view of shooter was brief, where eyewitness paid close attention once he realized a
shooting had taken place, accurately described defendant as a young, clean cut, black male, was
absolutely certain of defendant's identity when he saw him in lineup, and made that identification
from the lineup a little over 24 hours after the shooting. (Per Easley, J., with two justices concurring
and three justices concurnng in result.)
[31] Criminal Law €—747
110k747 Most Cited Cases
Jury alone determines the weight and worth of any conflicting testimony. (Per Easley, J., with two
Justices concurring and three justices concurming in result.)
[32] Criminal Law €—339.10(5)
110k339.10(5) Most Cited Cases
?
Probation and parole officer had legal authority to issue arrest warrant that another probation and
parole officer had entered into computer but had not signed, and thus witness's identification of
defendant was not the result of an illegal arrest. (Per Easley, J., with two justices concurring and three
justices concurring in result.) West's A.M.C. § 47-7-37.
[33] Criminal Law €—371(12)
110kK371(¢12) Most Cited Cases
Testimony about defendant's statements that he needed money to pay his probation officer was
admissible in capital murder case to establish defendant's motive and intent, despite defendant's claim
that the probative value of admitting the statement. which revealed defendant's prior convictions, did
not outweigh the prejudicial effect. (Per Easley. J.. with two justices concurring and three justices
concurring in result.) Rules of Evid., Rule 404(b)
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|34] Criminal Law €—407(1)
110k407(1) Most Cited Cases :
Testimony that declarant told witness that defendant had shot somebody did not constitute hearsay
and was admissible in capital murder prosecution as an “adoptive admission,” where defendant was
present when statement was made and did not dispute statement, requested that witness drive him
home “right now,” and told witness that "y'all don't need to tell nobody.” (Per Easley, J., with two
justices concurring and three justices concurring in result.) Rules of Evid., Rule 801(d)(2)(B) .
[35] Witnesses <>291
410k291 Most Cited Cases
Refusal in capital murder case to allow re-cross examination of prosecution witness concerning
criminal charges that were pending against him when he gave statement to district attorney's office
was not error, where witness testified on re-direct examination that he had charges pending when he
talked to district attorney's office and that those charges were not discussed and he received no
promises or leniency in exchange for his testimony. (Per Easley, J., with two justices concurring and
three justices concurring in result.)
[36] Criminal Law €>1159.2(2)
110k1159.2(2) Most Cited Cases
[36] Criminal Law €>1159.2(3)
110k1159.2(3) Most Cited Cases
A jury's finding of fact is not to be overturned when there is credible evidence in the record for which
the jury could have reasonably inferred the offense or unless the verdict was clearly against the
overwhelming weight of the evidence. (Per Easley, J., with two justices concurring and three justices
concurring in result.)
[37] Homicide >1165
203k1165 Most Cited Cases
Finding that defendant intended to rob victim was supported in capital murder prosecution by
evidence that defendant told companions on night of murder that he needed some money to pay his
probation officer, that defendant reached into victim's car and there was some "scuffling or fighting”
prior to fatal shooting, and that police found large amount of change on floorboard of driver's side of
victim's car. (Per Easley, J., with two justices concurring and three justices concurring in result.)
West's A.M.C. §$§ 97-3-19(2)(e) , 97-3-73 .
[38] Homicide 1456
203k1456 Most Cited Cases
{38] Homicide <>1457
203k1457 Most Cited Cases
Instructions on simple murder and manslaughter were not warranted based on the evidence in capital
murder prosecution arising from fatal shooting that allege’s: occurred during commission of a
robbery. (Per Easley, J., with two justices concurring and three justices concurring in result.) West's
A.M.C. §§ 97-3-19(2(e) , 97-3-73 .
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|39] Criminal Law €>763(1)
110kK763(1) Most Cited Cases
Instructions that comment on the weight of the evidence are not proper. (Per Easley, J., with two
justices concurring and three justices concurring in result.)
|40] Criminal Law ©8291)
110k829(1) Most Cited Cases
A tnal judge is under no obligation to grant redundant instructions. (Per Easley, J., with two justices
concurring and three justices concurring in result.)
[41] Criminal Law 1173.1
110k1173.1 Most Cited Cases
Refusal to grant an instruction which is similar to one already given does not constitute reversible
error. (Per Easley, J., with two justices concurring and three justices concurring in result.)
[42] Criminal Law €—829(12)
110k829(12) Most Cited Cases
Proposed jury instruction on weight of evidence was properly denied in capital murder prosecution in
view of instructions that were given concerning how to view evidence as a whole, accomplice
testimony, and inconsistent statements or testimony. (Per Easley, J., with two justices concurring and
three justices concurring in result.)
[43] Criminal Law €—829(16)
110k829(16) Most Cited Cases
Refusal in capital murder case of proposed instruction that jury should not give greater or lesser
credence to testimony of any witness merely because he or she was a law enforcement officer was not
abuse of discretion in view of instructions that were given on how to weigh credibility of each and
every witness. (Per Easley, J., with two justices concurring and three justices concurring in result.)
[44] Criminal Law €>829(16)
1 10k829(16) Most Cited Cases
Denial of proposed jury instruction relating to cross-racial eyewitness identification was not error in
Capital murder case in which white eyewitness identified defendant, who was black, as shooter; other
evidence corroborated that identification, and jury was properly instructed on how to weigh
credibility of each witness who testified. (Per Easley, J., with two justices concurring and three
justices concurring in result.)
[45] Criminal Law 867
110k867 Most Cited Cases
Whether to grant a motion for mistrial is within the sound discretion of the trial court. (Per Easley, J..
with two justices concurring and three justices concurring tn result.)
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{46| Criminal Law ©1155
110k1155 Most Cited Cases
Standard of review for denial of a motion for mistrial is abuse of discretion. (Per Easley, J., with two
justices concurring and three justices concurring in result.)
[47] Criminal Law €—855(1)
110k855(1) Most Cited Cases
[47] Criminal Law €—857(1)
110k857(1) Most Cited Cases
Denial of motion for mistrial was not abuse of discretion in capital murder prosecuiion, where
defendant did not submit any proof to support allegation that a juror’'s father had been sitting on front
row with victim's family and did not present any evidence that jury did not follow trial court's
instructions in rendering its verdict or that defendant was prejudiced in any way. (Per Easley, J., with
two justices concurring and three justices concurring in result.)
[48] Criminal Law €>721(3)
110k721(3) Most Cited Cases
Closing argument comments by prosecutor, "if you had an alibi and were accused of capital murder,
don't you think you would tell somebody about it? Don't you think you would have given some
details? Done something?,"” were not an improper comment on defendant's failure to testify, but
concerned the lack of a successful alibi defense. (Per Easley, J., with two justices concurring and
three justices concurring in result.)
[49] Criminal Law €>708.1
110k708.1 Most Cited Cases
Attorneys are allowed wide latitude in closing arguments. (Per Easley, J., with two justices
concurring and three justices concurring in result.)
[50] Criminal Law €>730(1)
110k730(1) Most Cited Cases
Trial judge is in the best a position to determine if an alieged objectionable remark has a prejudicial
effect. (Per Easley, J., with two justices concurring and three justices concurring in result.)
{51| Criminal Law 867
110k867 Most Cited Cases
Trial judge is provided considerable discretion to determine whcther a remark is so prejudicial that a
mistrial should be declared. (Per Easley, J., with two justices concurring and three justices concurnng
in result.)
[52] Criminal Law €>709
110k709 Most Cited Cases
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An alleged improper prosecutorial comment during closing argument must be considered by the
appellate court in context im which the statement was made. (Per Easley, J.. with two justices
concurring and three justices concurring 1 result.)
{$3} Criminal Law €>1134(3)
110kK1134¢3) Most Cited Cases
Appellate court reviews each alleged comment on a defendant's failure to testify on a case by case a
basis. (Per Easley, J.. with two justices concurring and three justices concurring in result.)
[54] Criminal Law 633(1)
110k633(¢1) Most Cited Cases
Tnal judges normally have broad discretion in their decision on the time to begin a trial and the
length of the proceedings each day. (Per Easley, J., with two justices concurring and three justices
concurming in result.)
[SS] Sentencing and Punishment 1774
350HK1774 Most Cited Cases
Demal in capital murder case of motion for 24-hour "cooling off period" between guilt and
sentencing phase was not abuse of discretion. (Per Easley, J., with two justices concurring and three
justices concurring in result.) West's A.M.C. § 99-19-101(1).
[56] Sentencing and Punishment €<>1680
350HK1680 Most Cited Cases
Aggravating factor in capital murder case that capital offense was committed by a person “under
sentence of impnsonment" can include probated, paroled, and suspended sentences. (Per Easley, J.,
with two justices concurring and three justices concurring in result.) West's A.M.C. § 99-19-101(5)
(a). ,
[57] Criminal Law ©1042
110k1042 Most Cited Cases
Defendant in capital murder case was procedurally barred from raising on appeal the argument that
prosecution improperly used pecuniary gain both at tral and during sentencing phase to provide an
aggravating factor. where defendant failed to raise that objection at sentencing hearing. (Per Easley,
J., with two justices concurming and three justices concurring in result.)
{58} Criminal Law C=1030(1)
110K 103001) Most Cited Cases
If no contemporaneous objection 1s made, the error, if any, is waived. (Per Easley, J., with two
justices concurring and three justices concurring in result.)
|59| Sentencing and Punishment <>1660
3S50HK 1660 Most Cited Cases
That capital offense was committed for pecuniary gain during course of robbery was proper
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aggravating factor in prosecution in which robbery was also alleged as underlying felony for felony
murder charge. (Per Easley, J.. with two justices concurring and three justices concurring in result.)
West's A.M.C. §§ 97-3-19(2)(e) , 97-3-73 .
|60| Criminal Law €>1130(5)
110k1130(5) Most Cited Cases
Argument raised on appeal in capital murder prosecution, that a prior indictment for sale of a
controlled substance was not relevant and was highly prejudicial, was waived by defendant's failure
to cite relevant authority. (Per Easley, J., with two justices concurring and three justices concurring in
rest.)
[61] Sentencing and Punishment ©1762
350HK1762 Most Cited Cases
Defense's cross-examination of police officer concerning defendant's prior guilty plea to possession
of a controlled substance “opened the door," at sentencing phase of capital murder prosecution at
which defense was attempting to establish mitigating factor of no significant criminal history, to
state's introduction of indictment for sale of a controlled substance, name.y, marijuana, with respect
to which defendant had entered guilty plea to lesser offense of possess.on. (Per Easley, J., with two
justices concurring and three justices concurring in result.)
[62] Criminal Law 769
110k769 Most Cited Cases
Jury instructions are within the sound discretion of the trial court. (Per Easley, J., with two justices
concurring and three justices concurring in result.)
[63] Sentencing and Punishment €>1780(3)
350Hk1780(3) Most Cited Cases
Instruction at sentencing phase of capital murder prosecution, cautioning jurors not to be swayed by
mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling, was not
improper. (Per Easley, J., with two justices concurring and three justices concurring in result.)
[64] Sentencing and Punishment €<>1789(3)
350Hk1789(3) Most Cited Cases
Argument raised on appeal in capital murder case, that trial court erred by denying proposed
sentencing instruction and by not providing adequate sentencing instruction definitions, was
procedurally barred based on defendant's to provide any authority other than a reference to a
publication containing model jury instructions. (Per Easley, J., with two justices concurring and three
justices concurring in result.)
|65| Sentencing and Punishment ©>1780(3)
350Hk1780(3) Most Cited Cases
Instructions at sentencing phase of capital case that defined mitigating circumstances as those which
tended to warrant the less severe penalty of life imprisonment, defined aggravating circumstances as
those which tended to warrant the death penalty, and set forth the exact elements of alleged
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aggravating and mitigating circumstances, adequately informed jury of definitions of those terms.
(Per Easley, J., with two justices concurring and three justices concurring in result.)
[66] Criminal Law ©>1171.1(1)
L1OKL1 71.101) Most Cited Cases é
Where a prosecutor has made an improper argument, the question on appeal is whether the natural
and probable effect of the improper argument of the prosecuting attorney is to create an unjust
prejudice against the accused as to result in a decision influenced by the prejudice so created. (Per
Easley, J., with two justices concurring and three justices concurring in result.)
{67} Sentencing and Punishment €>1780(2)
350Hk1 780(2) Most Cited Cases
Prosecutor's comments during closing argument at sentencing phase of capital murder case, that jury
should not be swayed by a "guilt trip,” that victim had worked to earn money whereas defendant had
murdered victim for money, and that defendant had ruined not only the lives of victim's family but
also the lives of his own family, did not create an unjust prejudice against defendant. (Per Easley, J.,
with two justices concurring and three justices concurring in result.)
[68] Criminal Law €=935(1)
110K935(1) Most Cited Cases
A moton for new tnal challenges the weight of the evidence. (Per Easley, J., with two justices
concurming and three justices concurring in result.)
{69} Criminal Law €—1 156(1)
110k1156(1) Most Cited Cases
A reversal of order denying a motion for new tral is warranted only if the lower court abused its
discretion. (Per Easley, J., with two justices concurring and three justices concurring in result.)
|70| Criminal Law >1144.18
110k1144.18 Most Cited Cases
In reviewing an order denying motion for new trial, appellate court accepts as true the evidence which
supports the verdict and gives to the prosecution the benefit of all favorable inferences that may be
drawn from the evidence. (Per Easley, J., with two justices concurring and three justices concurring in
result.)
[71] Criminal Law €>935(1)
1 }OK935¢1) Most Cited Cases
Appellate court will not order a new tnal unless the verdict is so contrary to the overwhelming weight
of the evidence that to allow it to stand would sanction unconscionable injustice. (Per Easley, J., with
two justices concurring and three justices concurring in result.)
{72} Sentencing and Punishment <1 788(4)
S5S0HK 178814) Most Cited Cases
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|72| Sentencing and Punishment €>1788(6)
350HkK1788(6) Most Cited Cases
Death sentence was not imposed under influence of passion, prejudice, or any other arbitrary factor,
was supported by statutory aggravating circumstances that capital offense was committed in course of
a robbery for pecuniary gain and by a person under a sentence of imprisonment, probation, or parole,
and was not excessive or disproportionate when compared to other factualiy similar cases where
death sentence was imposed. (Per Easley, J., with two justices concurring and three justices
concurring in result.) West's A.M.C. § 99-19- 105(3) .
*712 Duncan L. Lott, Booneville, attorneys for appellant.
Office of the Attorney General by Judy T. Martin, Marvin L. White, Jr., Joanne M. Mcleod , Jerrolyn
M. Owens , attorneys for Appellee.
En Banc.
EASLEY , Justice, for the Court.
PROCEDURAL HISTORY
4 1. Marlon Latodd Howell (Howell) was indicted along with Curtis W. Lipsey (Lipsey) and Adam
Ray (Ray) for capital murder arising from the slaying and attempted robbery of Hugh David Pernell
(Pernell) in New Albany, Mississippi. Howell was tried and convicted of capital murder in the Union
County Circuit Court. The jury determined that Howell should suffer the penalty of death by lethal
injection. Howell's subsequent motion for a new trial was denied. Howell perfected his appeal to this
Court after being allowed to proceed in forma pauperis.
FACTS
4 2. Pernell, a retired postal worker, worked as a newspaper carrier for the Tupelo Daily Journal. On
May 15, 2000, Pernell was delivering newspapers when he was flagged down by another vehicle
sometime after 5:00 a.m. Howell, Ray and Lipsey were in the other vehicle. Howell approached
Pernell's driver's side window and shot Pernell. Pernell's vehicle hit a parked vehicle in a nearby
driveway. Howell, Ray and Lipsey fled the scene.
4 3. The murder occurred in front of the home of Charles Rice (Rice). At the time, Rice was up
watching television and getting ready for work. David Grisham (Chief Grisham), New Albany Police
Chief, investigated Pernell's murder and spoke with Rice. Rice had observed the exchange. Rice
testified that he looked out his window when he heard a horn blowing. *713 He observed the two
vehicles stop in front of his house. Rice testified that a man got out of the passenger's side of the rear
vehicle and walled between the two vehicles up to the driver's side of the front vehicle. A
conversation ensued, and then the man pulled out a pistol and shot the driver. The shooter then
jumped back and got into the rear vehicle which had pulled up to pickup the shooter. Rice testified
that he called 911. Rice described the shooter as a young black male, early twenties, clean cut, short
hair, approximately six feet tall, light complexion. Rice described the rear vehicle as a dark-colored,
late model Oldsmobile based upon the insignia in the middle of the tail lights. Later on May 15, 2000,
Chiet Grisham received an anonymous telephone call suggesting that he question Lipsey. Chief
Grisham left a message for Lipsey to contact the police. Lipsey and Ray voluntarily went to the police
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ee ee ee Ee ee ee ee ee
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station where they were interviewed by Officers Tim Kent (Officer Kent) and Chief Grisham. Based
on the statements made by Lipsey and Ray, Chief Grisham began looking for Howell.
* 4. Howell was arrested at approximately 7:30 p.m. on May 15, 2000, and questioned by Officer
Kent and Chief Grisham. Howell stated that he did not know anything about the shooting. Howell
claimed that he was in Corinth with a woman at the time of the murder.
* 5. Brandon Shaw (Shaw) testified that on May 14, 2000, he rode around with Lipsey and Ray. They
picked up Howell. When Howell got into the vehicle, he stated that he needed money to pay his
probation officer. [FN1] The four then drove to Tupelo. While stopped at a gas station, Howell
observed a man in the parking lot and stated "there goes an easy lick." After returning to New Albany,
Howell, Lipsey, Ray and Shaw sat around at Shaw's house for a few hours talking. Shaw's brother,
Quinton Shaw (Quinton), and his girlfriend, Andrea, were also at the house but in a bedroom.
Howell, Lipsey and Ray left together around 4:00 a.m. in Ray's grandmother's car. They all returned
together around 5:30 a.m.
FN1. At the sentencing phase of tral, Officer Nance testified that a probationer had to pay a $25
monthly supervision fee and an extra $10 if a probationer fails a drug test.
*£ 6. Marcus Powell (Powell), who lived in Blue Mountain, had arrived at Shaw's home around 5:10
a.m. and had gone to sleep on the couch. Earlier that evening, Powell had used Quinton's Chevy
Lumina. On cross-examination, Powell testified that he was awakened by Howell, Lipsey and Ray
returning to Shaw's house. Powell saw them go back to Shaw's bedroom. Howell was wearing a green
shirt that evening, and he had a green shirt wrapped around his hand when he returned to the house.
Ray came back to the living room and sat down. Powell never saw a gun.
{ 7. Shaw testified that his cousin, Ray, came back to his bedroom, knocked on the door and stated
that "Howell had shot somebody." Shaw came out of his bedroom and saw Howell in the living room
with a green shirt wrapped around his hand. Howell asked Shaw to drive him home. Shaw asked his
brother to borrow his Chevy Lumina to carry Howell home to Blue Mountain. Powell also wanted a
nde home to Blue Mountain.
€ 8. While Shaw went to borrow Quinton's car keys, Howell, Ray and Lipsey had already gone
outside. Howell still had the green shirt around his hand. Shaw testified that he carried Powell home
first and then dropped Howell off at his house.
{ 9. Shaw then dropped off Lipsey and *714 Ray. {[FN2] When Shaw returned home, he discovered a
gun in his backyard. Shaw convinced Lipsey and Ray to go with him to the police later that day to
report what had happened. Officer Kent went behind Shaw's house and discovered a gun in the weeds
in the backyard. Shaw testfied that the gun was lying on top of a bag in the bushes when Officer
Kent came to retrieve it.
FN2. Ray had returned his grandmother's car before they left for Blue Mountain.
* 10. Lipsey tesufied that he was with Howell when he shot Pernell. On the evening of May 14, 2000,
Lipsey was with Shaw and Ray when they picked up Howell to go to Tupelo. According to Lipsey,
Howell indicated that he needed money to pay his probation officer. While in Tupelo, Howell spotted
a man outside at a payphone at a convenience store. Howell stated that the man would be "a good
lick.”
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{ 11. Lipsey further testified that after leaving Shaw's house, he was in the car with Ray and Howell
when Howell reached over and blinked the vehicle's lights at another vehicle trying to make it stop.
Howell got out of the vehicle trying to make the other vehicle stop. Howell then went over to the
other vehicle and began fighting with the man for about half a minute. Howell pulled a gun and shot
the man. Howell then jumped back into the vehicle and went back to Shaw's house with Lipsey and
Ray. Lipsey testified that Howell told them that the man sprayed him in the face with mace, so he
shot him.
{ 12. According to Lipsey, Howell woke Shaw when they got to Shaw's house. Lipsey testified that
ive and Ray remained in the living room while Howell went to get Shaw. Shaw carried Powell home
first and then dropped off Howell. Lipsey saw Howell take a Wal-Mart sack out of the vehicle and
put the gun in the sack. Lipsey did not know what Howell did with the gun.
4 13. Lipsey testified that he went with Shaw and Ray to the police station later that day. He made
two statements to the police. For his participation in Pernell's murder, Lipsey pled guilty to
manslaughter and armed robbery, receiving a sentence of twenty years and ten years, respectively, to
run consecutively.
4 14. Powell testified that on May 14, 2000, he initially arrived at Shaw's house around 8:00 p.m. Ray
was already at Shaw's house when he arrived. Ray and Shaw left together to pick up Howell and
Lipsey. All four returned to Shaw's house. Powell testified that Howell stated that he needed to pay
his probation officer or he was going to be locked up. Shaw, Howell, Ray and Lipsey all left Shaw's
home around 11:00 p.m. Poweli borrowed Quinton's vehicle to go to Pontotoc.
4 15. Powell returned to Shaw's house in New Albany around 5:10 a.m. Powell was asleep on the
couch when Howell, Lipsey and Ray came back to Shaw's house. Ray sat on the couch beside him.
Howell went back to Shaw's bedroom. Powell testified that Shaw used Quinton's vehicle to carry
Howell and him home to Blue Mountain. Powell never saw Howell with a gun, but Howell had a
green shirt wrapped around his hand. Powell testified that it was the same green shirt Howell had
been wearing earlier. Powell was dropped off at his home first.
4 16. Dr. Steven Hayne (Dr. Hayne), state pathologist, conducted the autopsy on Perel: . body. Dr.
Hayne testified that Pernell died from a gunshot wound. The bullet entered the chest cavity and
traveled from Pernell's front left side through the body on an essentially horizontal p!ane without
deviation up or down and then *715 traveled from front to back at approximately 40 to 50 degrees.
Once the bullet entered the chest cavity, it fractured the fourth left rib. The bullet traveled through the
left lung and the two chambers of the heart. After the bullet traveled through the left ventricle and the
left atrium, it went through the aorta. The bullet left the heart and traveled from the aorta to enter the
right lung. The bullet struck the 7th posterior right rib on the right flank, fracturing that bone before it
came to rest.
4 17. The bullet caused extensive internal bleeding. There were one and one half quarts of blood in
the right chest cavity, approximately one and one half quarts of blood in the left chest cavity, and one
cup of blood in the structure that holds the heart's pericardial sac. Dr. Hayne testified that blood
displacement of that magnitude would create irreversible shock that would cause death without
immediate medical intervention. Dr. Hayne estimated that irreversible shock would have occurred
within five to ten minutes.
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“ 18. Dr. Hayne retrieved the bullet and transported it under a chain of custody to the Mississippi
State Crime Lab in Jackson to the firearms division for analysis. Dr. Hayne concluded the manner of
death to be homicide due to a gunshot wound. On cross-examination, Dr. Hayne testified that there
was no evidence of a struggle. lacerations, contusions or scratches. However, on redirect, Dr. Hayne
testified that he could not preclude the possibility of a struggle, only that there was no evidence of a
struggle.
* 19. Starks Hathcock (Hathcock), a forensic scientist specializing in firearms identification with the
Mississipp: Crime Lab, performed a ballistics examination on the gun recovered from Shaw's
residence, the bullet retneved by Dr. Hayne, and the cartridge case recovered from the crime scene.
Hathcock fired and retrieved bullets fired from the Larcin .380 caliber handgun recovered from
Shaw's residence to compare to the bullet recovered from Pernell's body. Hathcock examined the
class characteristics and individual characteristics to that firearm. Hathcock concluded that the .380
caliber handgun recovered and submitted to the crime lab was the firearm that fired the bullet
recovered from Pernell. Tc examine the recovered cartridge case, Hathcock compared the cartridge
case to the markings on the breach case of the firearm. Hathcock found that the markings on the
cartndge case bore class characteristics consistent with the firearms, but he did not find specific
characteristics consistent with that firearm to positively include or exclude it as being fired from that
gun.
{ 20. On appeal, Howell raises the following issues for consideration by this Court:
1. Whether the trial court erred in denying a change of venue.
Il. Whether the trial court erred in denying Howell access to county funds in order to employ
an investigator, a jury consultant, 2 daily transcript, and additional counsel to assist with his
defense.
Ill. Whether the trial court erred in failing to quash the jury panel.
IV. Whether the trial court erred in finding that the State's use of peremptory strikes did not
violate Batson.
V. Whether the trial court erred in denying Howell's request for individual sequestered voir
dire.
VI. Whether the trial court erred in limiting Howell's voir dire examination.
*716 VII. Whether the trial court erred in admitting Rice's eyewitness identification testimony.
VIII. Whether the trial court erred in admitting Howell's statement.
1X. Whether the trial court erred in allowing witnesses to testify as to statements that Howell
made.
X. Whether the trial court erred in allowing Shaw to testify as to statements made by co-
defendant, Ray.
XI. Whether the trial court erred in refusing to allow Howell to re-cross- examine Shaw after
the State's re-direct examination.
XII. Whether the trial court erred in denying Howell's request for a directed verdict.
XIII. Whether the trial court erred in granting the State's instruction S-2, which referred to
attempted robbery; and whether Mississippi Code Annotated, Section 97-3-19 does not
specifically enumerated attempted robbery as an underlying offense for conviction of capital
murder.
XIV. Whether the trial court erred in granting the State's instruction S-6 which did not
instruct the jury on simple murder and manslaughter; and whether the trial court erred in
denving Howell's instructions D-13 and D-18 on the crime of simple murder and manslaughter.
X\. Whether the trial court erred in denying instruction D-3 on the weight of the evidence.
XVI. Whether the trial court erred in denying instruction D-8 on the jury's consideration of
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testimony of a law enforcement officer.
XVII. Whether the trial court erred in denying instruction D-16 as to cross- racial eyewitness
identification.
XVIII. Whether the trial court erred in denying Howell's motion for a mistrial and renewed
motion for change of venue based upon a juror's father allegedly sitting on front row of
audience with victim's family.
XIX. Whether the trial court erred in allowing the district attorney, in closing argument, to
refer to Howell's failure to tell somebody about his alibi defense or give details.
XX. Whether the trial court erred in denying a twenty-four (24) hour "cooling off" period
before the jury considered sentencing.
XXI. Whether the trial court erred in the sentencing phase by allowing evidence of Howell's
previous conviction for possession of marijuana as an aggravating factor.
XXII. Whether the trial court erred in the sentencing phase by allowing evidence of fees due
from Howell during his probation as double use of the same robbery element and pecuniary
gain element in the guilt and sentencing phase.
XXIII. Whether the trial court erred in the sentencing phase by allowing the introduction of
the indictment against Howell on a charge of sale of controlled substance, marijuana.
XXIV. Whether the trial court erred in granting sentencing instruction S-2 because it allegedly
removed the issue of sympathy and mercy from consideration by the jury, improperly listed
aggravating *717 factors of imprisonment and pecuniary gain, and failed to instruct the jury on how
to properly weigh mitigating factor against aggravating facts and define what mitigating and
aggravating factors are.
XXV. Whether the trial court erred in denying Howell's sentencing instruction.
XXVI. Whether the trial court erred in the sentencing phase by allowing the district attorney to
refer to the victim, Pernell, his work, his loss, and what Pernell might say if he were still alive.
XXVII. Whether the trial court erred in denying Howell's post-trial motion for a new trial.
XXVIII. Whether the imposition of the death penalty is excessive or disproportionate in this
case. :
DISCUSSION
I. Change of Venue
4] 21. Howell contends that the trial court erred by denying his request for a change of venue. Howell's
motion was supported by six newspaper articles: (1) dated May 16, 2000, from the Tupelo Daily
Journal, which described the crime, victim, and community reaction, but did not name Howell; (2)
dated May 31, 2000, from the Tupelo Daily Journal, which reported on a totally separate crime and
briefly referred to this crime, but did not name Howell; (3) dated May 17, 2000, from the Tupelo
Daily Journal, which reported on the arraignment of the three co-defendants and the details of the
crime, contained pictures of the three co-defendants, and stated that the court appearance was
emotional for the victim's family and the defendants’ families; (4) dated May 17, 2000, from the
Southern Sentinel, which reported the details of the crime; (5) dated May 17, 2000, from the New
Albany Gazette, which reported the details of the crime and contained pictures of the victim and the
three co-defendants and was re-run on May 19, 2000; and (6) dated May 19, 2000, from the New
Albany Gazette, which reported on the details of the crime, funeral preparations, and community
reaction.
{| 22. Additionally, Howell submitted seven identical brief affidavits, which stated that Howell could
not receive a fair and impartial trial in Union County. Howell also introduced a videotape of a WTVA
television newscast. Although Howell did not submit his own affidavit, as statutorily required, the
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trial court allowed Howell to state in the record his desire for a change of venue.
{ 23. The State called four witnesses to testify in response to Howell's motion: (1) Tom Cooper
(Cooper), Chancery Clerk of Union County; (2) Danny Barnes (Barnes), Second District Supervisor
of Union County; (3) Thomas Stanford (Stanford), retired Circuit Clerk of Union County; and (4)
Norman Treadway (Treadway), Fourth District Supervisor of Union County. Each witness testified
that Howell could receive a fair and impartial trial in Union County.
{ 24. Specifically, Cooper testified that in his capacity as chancery clerk he dealt with a wide
assortment of people from all over Union County. Prior to becoming chancery clerk, Cooper had
worked at the Union Grocery Company and served as Mayor of New Albany. Cooper stated that he
considered himself to be fairly well informed as to what is happening in the county. Cooper testified
that until he was contacted about testifying, it had been several months since he had heard anything
about Howell's case. Cooper had not personally heard anybody threaten Howell, *718 express ill will
towards Howell or prejudice towards his case.
4 25. Barnes testified that he had lived in Union County for thirty-six years and knew a lot of people
in the county both inside and outside of the second district. Before becoming a supervisor, Barnes had
served as a policeman, a deputy sheriff and a constable. As a member of the Board of Supervisors,
Barnes testified that he had continuous dealings with people in the county and considered himself to
be a well-informed resident of Union County. Barnes did not recall any media coverage concerning
Howell's case since the days immediately following Pernell's death. Barnes did not believe that
Pernell was well known within the county outside of New Albany. He had not heard any ill will
expressed toward Howell by people in his district.
§ 26. On cross-examination, Barnes testified that after Pernell’s murder had first occurred, he had
heard some comments within New Albany like "they shouldn't be given a trial." On redirect, Barnes
testified that he believed that because of his law enforcement experience, people would be more
likely to ask him about the case or talk to him about the case. However, people in his district had not
talked to him about the case. No one had expressed to him any opinion about how this case should
"turn out.”
{| 27. Stanford testified, that as the former circuit clerk for Union County, he dealt with a wide
assortment of people and continued to stay in contact with people all over the county. At the time of
the incident, people were concerned about the case and there was news coverage. However, several
days following Pernell's death, there was very littlke news coverage. Stanford had not seen any
newspaper articles in the last month before trial or any recent news coverage. Stanford also testified
about his experience as circuit clerk and that the jury pool is selected randomly from the county's list
of registered voters.
{ 28. On cross-examination, Stanford testified that he had heard people express sympathy for both the
Pernell and Howell families. He knew Howell's father, Reverend James Howell (Rev. Howell), and
thought a lot of the family. Stanford heard that Howell was on probation for a drug-related offense
when the incident occurred, but he could not testify as to whether people out in the county had heard
about a drug conviction.
{| 29. Treadway testified that he had been a supervisor in the eastern part of Union County since 1982.
Initially there was some news coverage concerning Pernell's death, but Treadway had not read
anything about it in the last two months before trial. Treadway heard very little mention of Pernell’s
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death in his part of the county. As supervisor for nineteen years, Treadway knew a lot of people in
Union County. Treadway had not heard anyone express any ill will toward Howell or prejudgment of
the case.
{1} [2] | 30. The decision to grant a venue change rests in the sound discretion of the trial judge.
Hoops v. State, 681 So.2d 521, 526 (Miss.1996) ; Johnson v. State, 476 So.2d 1195, 1208
(Miss.1985) ; Winters v. State, 473 So.2d 452, 457 (Miss.1985) ; Cabello v. State, 471 So.2d 332,
339 (Miss.1985) . This Court will not disturb the ruling of the trial court where the sound discretion
of the trial judge in denying a change of venue was not abused. Burrell v. State, 613 So.2d 1186,
1190 (Miss.1993) ; Harris v. State, 537 So.2d 1325, 1328 (Miss.1989) ; White v. State, 495 So.2d
1346, 1349 (Miss.1986) .
4 31. In Davis v. State, 767 So.2d 986, 993 (Miss.2000) , this Court held that "[a] motion for change
of venue ‘must be in *719 writing and supported by affidavits of two or more credible persons
showing that the defendant cannot receive an impartial and fair trial in that particular county because
of prejudgment of the case or grudge or ill will to the defendant in the mind of the public.’ " (citing
Hoops, 681 So.2d at 526).
{3} [4] 4 32. The right to a fair trial by an impartial jury is guaranteed by both the federal and state
constitutions. Johnson, 476 So.2d at 1208 (citing U.S. Const. Amend. VI and Miss. Const. art. 3, §
26 ). "The accused has a right to a change of venue when it is doubtful that an impartial jury can be
obtained." Davis, 767 So.2d at 993 (citing White, 495 So.2d at 1348). "[U]pon proper application,
there-arises a presumption that such sentiment exists; and, the state then bears the burden of rebutting
that presumption." Johnson, 476 So.2d at 1211.
[5] 4 33. This Court enumerated "certain elements which, when present would serve as an indicator to
the trial court as to when the presumption is irrebutable." White, 495 So.2d at 1349. The elements are
as follows:
(1) capital cases based on considerations of a heightened standard of review;
(2) crowds threatening violence toward the accused;
(3) an inordinate amount of media coverage, particularly in cases of
(a) serious crimes against influential families;
(b) serious crimes against public officials;
(c) serial crimes;
(d) crimes committed by a black defendant upon a white victim;
(e) where there is an inexperienced trial counsel.
Id.; Davis, 767 So.2d at 993-94; Baldwin vy. State, 732 So.2d 236, 241 (Miss.1999) ; Burrell, 613
So.2d at 1189-90 .
{| 34. In the case sub judice, Howell filed a motion for a change of venue accompanied by seven
affidavits. He claims that the "alleged murder [of Pernell] evokes great passion and prejudice in this
community." Howell's motion contended that a jury empaneled in a case of an assaultive crime by
blacks against whites in Union County, a largely rural, small county with a majority white population,
would follow a “long tradition" of convicting "on almost any evidence to serve as a deterrent to
blacks." Howell's motion stated that the people of a largely rural county such as Union County would
"naturally have fears and apprehensions of murder cases." The trial court conducted a hearing on
Howell's motion for change of venue. Howell testified at the change of venue hearing that he thought
that he could not receive a fair tria! in Union County.
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“ 35. The State then had the burden of rebutting the presumption. See Jo/inson, 476 So.2d at 1211. In
support of its position, the State called the four witnesses, Cooper, Barnes, Stanford and Treadway, to
testify. None of the State's witnesses testified to having any knowledge of any grudge or ill will
toward Howell, threats against Howell or prejudgments of the case. Within the last months prior to
tnal, none of the State's witnesses had heard any publicity about the case. The State rested and
Howell offered no additional evidence to support his position. The trial court withheld ruling on the
change of venue motion until it could review a tape of a newscast and transcript of the newscast
prepared by WTVA offered by the defense and the affidavits filed to support Howell's motion. In
denying Howell's motion for change of venue, the trial court stated, *720 "having considered the
affidavits and exhibits filed on behalf of the defendant and the testimony presented the [c]ourt finds
that the State has overcome the presumption raised by the filing of the affidavits seeking change of
venue..."
[6] 4 36. Given the facts surrounding this issue, we find that Howell did not demonstrate an abuse of
discretion by the trial court's denial of the motion for change of venue. There was no evidence offered
of any threatened violence towards Howell, nor an inordinate amount of media coverage. The
testimony of the State's witnesses demonstrated that Howell could receive a fair trial. Upon the
conclusion of testimony from the State's witnesses, Howell offered no additional evidence to rebut
the State's witnesses and support his motion.
[7] 4 37. Finally, Howell did not present any evidence that he could not or did not receive a fair trial
from twelve jurors who heard his case. Because a large number of the venire panel had read about the
case in the newspaper, the trial judge questioned the entire panel to determine whether anyone had
formed or expressed an opinion concerning the guilt or innocence of Howell based on anything they
may have read, heard or seen in the media. The trial court informed the venire panel that if they had
not already responded to the trial court's prior questions concerning media coverage, they must
respond at that time if anything they had read, heard or seen wou'd affect their decision. The trial
court informed the panel that their responses were being made under oath. No venire member
responded that they had formed or expressed an opinion as to Howell's guilt. No venire member
expressed that they had any personal knowledge of the case or had been pressured by anyone on how
to vote. "The linchpin is whether the venire members stated that they could be fair and impartial
jurors if chosen." Simon v. State, 688 So.2d 791, 803 (Miss.1997) . Based on the evidence in the
record, we find that the tral court did not abuse its discretion in denying the motion for change of
venue. Accordingly, this issue is without merit.
II. Faiiure to Grant Howell County Funds For His Defense
§{ 38. Howell contends that the trial court erred in denying funds for his defense to hire: (1) an
investigator: (2) a jury consultant; (3) limited daily transcripts; (4) additional counsel; and (5)
additional psychiatric evaluation. At tnal, Howell did not proceed as a pauper and accordingly he did
not have court-appointed counsel. Howell's attorney was retained and chose to handle the case on a
pro bono basis as a favor to Howell's father.
A. Investigator
[8] € 39. Terry Cox (Cox) conducted an investigation on Howell's behalf. Rev. Howell testified that
Cox was employed and compensated from donations received from friends. Cox testified that his
investigation was limited due to available funds. Howell's family was having trouble paying for his
services. Cox had primarily been able to interview the State's witnesses, but he was not able to
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conduct any investigation into any possible mitigating issues. The trial court denied Howell's motion
for funds for an investigator. The trial court stated that:
The court is of the opinion that there has not been any showing that the defendant has been or is being
denied a fair opportunity to present [its] defense based on what the court has before it.
This issue is without merit.
B. Jury Consultant
4 40. Howell further contends that the trial court erred in denying his request for *721 a jury
consultant. Rev. Howell testified that he did not have the funds available to hire a jury consultant to
help pick Howell's jury. As pastor of Bethlehem Baptist Church in Tippah County for approximately
twenty years, Rev. Howell did not have much contact with people outside of his church. Furthermore,
Howell's attorney asked the trial court to take notice that he was not from Union County; and
therefore, he would not be familiar with a venire panel drawn from Union County. On cross-
examination, Rev. Howell testified that he had a lot of relatives in Union County, grew up in New
Albany and also graduated from a school in New Albany. Howell testified that besides the nine years
that he lived in Starkville he had lived in New Albany until 1998. The trial court denied Howell's
motion for a jury consultant.
4] 41. This Court has stated:
[T]he Fifth Circuit has recently held that the right of an indigent to a court-appointed psychiatric
expert does not extend to a right to a jury- selection expert. Moore v. Johnson, 225 F.3d 495, 503 (Sth
Cir.2000) . There, the court noted that a "defendant cannot expect the state to provide him a most-
sophisticated defense; rather, he is entitled to ‘access to the raw materials integral to the to the
105 S.Ct. 1087, 84 L.Ed.2d 53(1985) ).
Grayson v. State, 806 So.2d 241, 255 (Miss.2001) (emphasis added).
{ 42. This Court has further analyzed an indigent's right to defense expenses to hire experts, stating:
An indigent's right to defense expenses is "conditioned upon a showing that such expenses are needed
needed to prepare and present an adequate defense." Ruffin v. State, 447 So.2d 113, 118
(Miss.1984) . Concrete reasons for requiring an expert must be provided by the accused. Hansen v.
State, 592 So.2d 114, 125 (Miss.1991) .
In determining whether a defendant was denied a fair trial because of failure to appoint or allow funds
for an expert, some of the factors to consider are whether and to what degree the defendant had access
to the State's experts, whether the defendant had the opportunity to cross-examine those experts, and
lack of prejudice or incompetence of the State's experts. Fisher v. City of Eupora, 587 So.2d 878, 883
(Miss.1991) . We have also considered to what extent the State's case depends upon the State's
expert, Zubhs v. State, 402 So.2d 830, 836 (Miss.1981) , and the risk of inaccuracy in resolving the
issue for which the expert is requested. Johnson v. State, 529 So.2d 577, 592 (Miss. 1988) .
Green v. State, 631 So.2d 167, 171-72 (Miss.1994) .
[9] [10] 4 43. Since 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.
father's lack of contact with Union County required a jury consultant is unpersuasive. This issue is
without merit.
C. Limited Daily Transcripts
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“ 44. Howell requested that the trial court make the county responsible for providing the defense with
a copy of daily transcripts of the testimony of co- defendants, Ray and Lipsey, and the testimony of
secondary witnesses, Shaw, Powell and Rice. The tral court stated:
The Court is not going to order that the county pay for it [daily transcripts]. *722 But if you want to
make some arrangements with Mrs. Fair [the court reporter] that is between you and your client and
Mrs. Fair.
{11} § 45. Howell was not precluded by the trial court from obtaining the daily transcripts nor did
Howcll demonstrate that he had been denied access to daily transcripts by the court reporter.
Furthermore, Howell offers this Court no authority which requires the State to furnish a criminal
defendant with daily transcripts. We find no manifest injustice or any abuse of discretion in the tral
court's denial of Howell's request for daily transcripts. See Ruffin v. State, 481 So.2d 312, 314-15
(Miss.1985) (trial court did not abuse its discretion in denying an indigent defendant with a transcript
of the prior tral which ended in mistrial).
D. Additional Counsel
4 46. Howell also requested that the State furnish additional counsel to assist Howell's retained
counsel in handling his case. Before denying Howell's request for additional counsel, the trial court
requested supporting authority. Howell offered no authority to the trial court, nor does Howell offer
any authority on appeal. The trial court ruled:
I think you [defense counsel] are very good but, I don't know of any authority this court would have
to appoint somebody. So I'm going to deny your motion.
{ 47. Furthermore, the record reflects that a second attorney, Jak Smith, assisted in Howell's case at
various stages: voir dire, jury selection, arguments involving evidentiary matters, questioning of
witness, arguments on jury instructions and closing arguments. Jak Smith is also listed in Howell's
certificate of interested persons as attorney for the defendant/appellant.
{12} [13] § 48. We find that the tnal court did not err by refusing to furnish Howell a court-appointed
attorney to assist his retained counsel. The constitution does not require the appointment of two
attorneys in a case where the death penalty is involved. In Bell v. Watkins, 692 F.2d 999, 1009 (Sth
Cir.1982) . the court stated that "[a]lthough Mississippi courts may customarily appoint two lawyers
in a Capital case, the constitution dictates no such requirement." This assignment of error is without
menit.
E. Additional Psychiatric Examination
§{ 49. Finally, Howell claims that the tnal court erred in not allowing funding for additional
psychiatric examination. Howell had already received, by agreement between the parties, a
psychiatric examination from Dr. Louis Masseur (Dr. Masseur). Howell relies on Dr. Masseur’s
comment in his notes that Howell suffered slight distortion of reality as to the facts. Howell
introduced a copy of Dr. Masseur's handwritten notes indicating what he would charge for an
additional] hour on the mitigating factors. The tnal court ruled that based on what it had seen and
heard, further funding for additional psychiatric examination was not warranted.
* 50. Howell cites 4ke v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) , in support
of his position. In Ake the United States Supreme Court determined that “when a defendant
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demonstrates to the trial judge that his sanity at the time of the offenses to be a significant factor at
trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will
conduct an appropriate examination and assist in evaluation, preparation and presentation of the
defense." 105 S.Ct. at 1096.
*723 4 51. We find that Howell's reliance on Ake is misplaced as he did not raise an insanity defense
at trial. See Cole v. State, 666 So.2d 767, 781 (Miss.1995) . In Cole, the defendant's post-conviction
relief appeal from the affirmance of his conviction and death sentence relied upon Ake contending
that he had been deprived due process and eewal protection, as well as, his Fifth, Sixth and Eighth
Amendment nghts. This Court determined that since sanity was not an issue, Cole was not entitled to
additional mental examination.
4 52. This Court has considered a similar argument raised b, an indigent defendant and held:
A defendant is not entitled to a psychological expert where he has not raised insanity as a defense or
where the State does not plan to submit psychological evidence against the defendant. Ladner v. State,
State, 584 So.2d 743, 757 (Miss.1991) ; Nixon v. State, 533 So.2d 1078, 1096 (Miss.1987) . As we
have stated, "[w]here a defendant offers no more ‘than undeveloped assertions that the requested
assistance would be beneficial,’ no trial court is under an obligation to provide him with fishing
equ »ment." Griffin v. State, 557 So.2d 542, 550 (Miss.1990) (quoting Caldwell v. Mississippi, 472
U.S. 320, 323 n. 1, 105 S.Ct. 2633, 2637 n. 1, 86 L.Ed.2d 231 (1985) ).
Bishop did not raise an insanity defense; he offered no facts which would show that there was a need
to develop mitigating evidence based on psychological problems; and he underwent a thorough
psychological evaluation performed at the State Hospital which produced not mitigating evidence.
We therefore find, that Bishop was not entitled to a psychological expert for the purpose of
developing mitigating evidence.
Bishop v. State, 812 So.2d 934, 939-40 (Miss.2002) .
[14] 4 53. As Howell did not proceed as an indigent or raise insanity as a defense, we find that the
trial court did not err in denying his request for additional psychiatric examinations. This assignment
of error is without merit.
Ill. Jury Panel Selection
{| 54. Howell raises two arguments on appeal as to the selection process involved in composing the
jury wheel used to draw Howell's prospective jurors. The circuit clerk testified that at the time of
Howell's jury draw, the jury wheel consisted of 1,195 prospective jurors. The jury wheel had
originally consisted of the names of 3,000 qualified electors selected from the roughly 16,200
qualified electors in Union County. Each time a jury panel was selected, the circuit clerk removed
those names from the wheel and they were not available for selection at the next draw. Howell
contends that the trial court erred by not quashing the jury panel because he was denied a jury from a
"fair cross section of the community." However, Howell admits that the circuit clerk followed the
procedure dictated in Miss.Code Ann. §§ 13-5-10 & -12 (Rev.2002). Therefore, we find that the
circuit clerk clearly complied with the dictates of Miss.Code Ann. §§ 13-5-10 and 13-5-12 . This
issue is without merit.
4 55. Howell next contends that prohibiting the selection of jurors under the age of 21 years old
pursuant to Miss.Code Ann. § 13-5-1 (Rev.2002) constitutes intentional discrimination against
persons who are 18 to 20 years old.
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* 56. This Court has repeatedly rejected this argument.
This Court has previously considered the exclusion of persons under age 21 *724 from jury service
and has consistently held that the exclusion does not violate the state or federal constitution. 7urner v.
State, 373 So.2d 657, 666 (Miss.1990) , rev'd on other grounds; /rving v. State, 498 So.2d 305, 319
(Miss. 1986) . cert. demied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987) ; Fermo v. State,
370 So.2d 930, 934 (Miss.1979) ; Jovee v. State, 327 So.2d 255, 261 (Miss.1976) ; Johnson v. State,
260 So.2d 436, 437 (Miss.1972) .
Milano v. State, 790 So.2d 179, 188 (Miss.2001) . See Jordan yv. State, 786 So.2d 987, 1024
(Miss.2001) . Therefore, we find that this argument is also without merit. The circuit clerk properly
followed the statutes of this State in drawing and selecting Howell's jury
IV. Batson
{ 57. Howell contends that the trial court erred by allowing the State to exercise its peremptory
challenges on two black members of the venire, namely Juror 34 (High) and Juror 68 (Wade). The
record reflects that the State exercised a total of 12 peremptory challenges, 11 on the jury panel and |
on the alternates. The jury was selected, and the trial court recessed for lunch.
{ 58. Howell did not raise a contemporaneous objection to the State's use of its two peremptory
challenges as to Juror 34 and 68. However, the record indicates that, prior to resuming court and
empaneling the jury, Howell's counsel requested “that the State provide race neutral reasons for
disqualifications of two jurors (Jurors 34 and Juror 68) under Batson. “ The record reflects the
following exchange occurred:
State: Your Honor. | don't know if they made out a prima facia case of racial discrimination.
Nevertheless without waiving our argument. | would state as our reason to first of all there are only
three Afncan American remaining on the entire panel. I exercised 12 strikes, two of which were of
Afncan American. First strike that I exercised was on juror number 34. He was a black male
Lavongia High, [J]unior. Mr. High has had several arrests here actually on his jury questionnaire he
has had a recent public drunk and he is the Highs and the Fosters are related. He didn't state anything
about being related. That is information that I have gathered from some of the law enforcement. And
the main reason is when | left here two weeks ago from the 60 motions that we went through some
woman ran into me. It happened in front of Mr. High's house. Mr. High's brother came out and he
was first one out there. Mr. High was out there and | believe they saw the wreck but when I sent the
officers over there the brother stayed outside and you can see him inside the screen and he wouldn't
_ tell them that he saw it. So that is our reasons for having striken him.
The Court: Let me hear you on your next one. Yhe other one was.
The Court: Number 68.
State: Anthony Wade. Anthony Wade ts an African American. Who put down on his jury
questionnaire that he had never been arrested for a cme when | have right here warrants that were
issued for receiving stolen property out of Lee County where he was arrested. Yes, here is a copy of
his arrest record of Anthony Wade in Lee County for receiving stolen property. There were some
guns in that case arose out of stolen here in Union County that wound up in the possession of *725
Anthony Wade and he did not state that he had been arrested. And I have the arrest record here
available. You can make 11 a part of this record so therefore we believe that he was not forth coming
in his jury questionnaire and that his criminal activity would prevent him from being a fair and
impartial juror. And that was our main reason for striking him but also I assume defense counsel
would have striken him because he testified that if the county coroner Mark Golden testified he
would follow his testumony.
The Court: All mght. The court is satisfied of the race neutral reasons even though | don't think there
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has been any pattern of racial discrimination. But | think it would be sufficient. Anything else before
we go now.
[15] [16] 4 59. A reversal will only occur if the factual findings of the trial judge appear to be "clearly
erroneous or against the overwhelming weight of the evidence." Tanner v. State, 764 So.2d 385, 393
(Miss.2000) (citing Stewart v. State, 662 So.2d 552, 558 (Miss.1995) ); Davis v. State, 551 So.2d
165, 171 (Miss.1989) . "On appellate review, the trial court's determinations under Batson_v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) , are accorded great deference because
they are based, in a large part, on credibility." Coleman v. State, 697 So.2d 777, 785 (Miss.1997)
(citing Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987) ). The term “great deference” has been
defined in the Batson context as meaning an insulation from appellate reversal any trial findings
which are not clearly erroneous. Lockett v. State, 517 So.2d at 1349.
[17] 4 60. In Batson, the United States Supreme Court held that a peremptory challenge cannot be
used to exclude venire-persons from jury service based on their race. Batson v. Kentucky, 476 U.S.
79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) . A peremptory challenge based on race constitutes a
violation of equal protection. /d. at 98, 106 S.Ct. 1712.
[18] 4 61. The necessary steps to resolve a peremptory challenge based upon Batson are cited in
Stewart v. State, 662 So.2d 552, 557-58 (Miss.1995) , as follows:
1. The party objecting to the peremptory challenge must first make a prima facie showing that race
was the criteria for the exercise of the peremptory challenge.
2. If this initial showing is successful, the party desiring to exercise the chalienge has the burden to
offer a race-neutral explanation for striking the potential juror.
3. The trial court must then determine whether the objecting party has met their burden to prove there
has been purposeful discrimination in the exercise of peremptory challenges.
To establish the first prong, a prima facie case under Batson, the objecting party must show (1) that
he/she is a member of a "cognizable racial group,” (2) the prosecutor has exercised peremptory
challenges toward the elimination of prospective jurors of his race, and (3) the facts and
circumstances raised an inference that the prosecutor used his peremptory challenges for the purpose
of striking minorities. Conerly v. State, 544 So.2d 1370, 1376-77 (Miss.1989) .
[19] [20] 4 62. In the case sub judice, a review of the record demonstrates that the State provided race
neutral reasons for striking juror 34 and 68. Great deference is afforded to a trial court's ruling.
Therefore, this issue is without merit.
*726 V. Individual Sequestered Voir Dire
{ 63. Howell contends the trial court erred in denying his request to conduct individual sequestered
voir dire of prospective jury members who had read articles or seen information about the case on
telev.sion. Howell wanted to question these prospective jurors as to their knowledge of any facts
concerning the "alleged" robbery and Howell's previous drug conviction that appeared in newspaper
articles. The trial court concluded that Howell's counsel had questioned the prospective jurors 13, 85,
88, 106, 126, 127, 146 and 153 at issue, who indicated they had heard about the case.
4 64. Howell's counsel had generally questioned them as to whether they would have to hear strong
evidence to contradict what they had seen or heard. The trial court took a recess. In chambers,
Howell's counsel requested individual sequestered voir dire. The trial court ruled that Howell's
counsel could ask more narrow questions in general voir dire in order to elicit the information.
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1 65. Furthermore, each juror had completed juror questionnaires which asked questions to determine
if they had ever heard of Marlon Howell or his family, Adam Ray or his family; and Curtis Lipsey or
his family. The questionnaires asked the jurors to "[p]lease explain what you know about" each of
these individuals. Therefore, each juror had been individually questioned as to any prior knowledge
of Howell.
{| 66. More importantly, the record further reflects that prospective jurors 13, 85, 88, 106, 126, 127,
146 and 153 in question did not end up serving on the jury. Jurors 13, 88 and 126 were excused for
cause at Howell's request. At the time of the request for individual sequestered voir dire, juror 106
had already been excused from the panel. After the request, the parties agreed to strike juror 85. Jun
selection did not reach jurors 127, 146 and 153. They did not serve on the jury or as alternates, and
they were never tendered for possible service on the jury.
{ 67. This Court has held that voir dire "is conducted under the supervision of the court, and a great
deal must, of necessity, be left to its sound discretion." Ballenger v. State, 667 So.2d 1242, 1250
(Miss.1995) (citing Morgan vy. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 2230, 119 L.Ed.2d 492
(1992) , citing Ristaino v. Ross, 424 U.S. 589, 594, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976) )
(quoting Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895) ). See
also Foster v. State, 639 So.2d 1263, 1274 (Miss.1994) . This Court has stated that the trial court
should take a substantial role in conducting Witherspoon voir dire of the venire panel in capital cases.
Ballenger v. State, 667 So.2d at 1250; see Hansen v. State, 592 So.2d at 128-29; Lockett v. State, 517
So.2d at 1335.
§ 68. Rule 3.05 of the Uniform Circuit and County Court Rules addresses voir dire examination of
jurors:
In the voir dire examination of jurors, the attorney will question the entire venire only on matters not
inquired into by the court. Individual jurors may be examined only when proper to inquire as to
answers given or for other good cause allowed by the court. No hypothetical questions requiring any
juror to pledge a particular verdict will be asked. Attorneys will not offer an opinion on the law. The
court may set a reasonable time limit for voir dire.
{2 1 { 69. "A jury selection procedure which gives the defendant ‘a fair opportunity to ask questions
of individual jurors which may enable the defendant to determine his right to challenge that juror’ is
proper.” *727 McLemore v. State, 669 So.2d 19, 25 (Miss.1996) (quoting Peters v. State, 314 So.2d
724, 728 (Miss.1975) ).
{22} { 70. "The tnal court has broad discretion in passing upon the extent and propriety of questions
addressed to prospective jurors.” Sevens v. State, 806 So.2d 1051, 1062 (Miss.2001) . See also
McGulberry vy. State, 741 So.2d 894, 912 (Miss.1999) ; Davis v. State, 684 So.2d 643, 651-52
(Miss.1996) ; Jones v. State, 381 So.2d 983, 990 (Miss.1980) .
[23] 4 71. We find nothing in the record that supports Howell's contention that the trial court erred by
denying his request to conduct individual sequestered voir dire. None of the prospective jurors whom
Howell sought to individually voir dire actually served on the jury that was seated. Finally, Howell
presents no evidence of any ‘arm or prejudice which resulted because of the denial for individual voir
dire. See Stevens, 806 So.2d at 1054. This issue is without merit.
VL. Voir Dire Examination
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{24} 4 72. During voir dire, Howell sought to question jurors as to whether or not they had ever seen
or heard of police officers "puffing up" or giving untrue testimony about the facts of a case. The State
objected to this line of questioning which was sustained by the trial court. The "puffed testimony”
question was proposed to Juror 153 (Whiteside). The question posed by the defense did not involve
the facts of the case sub judice.
[25] [26] 4 73. Next, Howell questioned Juror 98 (Nobles) about his feelings against the death penalty
and the type of cases in which he might vote for the death penalty. The State objected to the question,
and it was sustained by the trial court. Howell finally questioned the jurors concerning whether they
believed mercy should be a factor in considering a death penalty sentence. The State objected to this
question, and the objection was sustained by the trial court.
4 74. The only authority provided by Howell in support of his argument, that the trial court erred in
restricting voir dire of the jury panel, is the general concept that the trial court has the responsibility
to control the voir dire process. Howell cites Mack v. State, 650 So.2d 1289, 1304 (Miss.1995) ,
which states, "[t]rial courts have a responsibility to control voir dire but in doing so they must take
care not to hinder a fuil exploration of a juror’s predisposition by hypothetical or otherwise." (citing
Dennis v. United States, 339 U.S. 162, 171, 172, 70 S.Ct. 519, 523-524, 94 L.Ed. 734 (1950) ).
[27] [28] [29] 4 75. Voir dire "is conducted under the supervision of the court, and a great deal must,
of necessity, be left to its sound discretion.” Ballenger v. State, 667 So.2d at 1250-51 (citing Morgan
v. Illinois, 504 U.S. at 729, 112 S.Ct. 2222). See also Foster v. State, 639 So.2d at 1274. "The
standard of review in examining the conduct of voir dire is abuse of discretion." Jackson v. State, 791
So.2d 830, 835 (Miss.2001) . Further, “[aJbuse of discretion will only be found where a defendant
shows clear prejudice resulting from undue lack of constraint on the prosecution or undue constraint
of the defense.” /d. at 835-36 (citing Davis v. State, 684 So.2d at 652). "A jury selection procedure
which gives the defendant ‘a fair opportunity to ask questions of individual jurors which nay enable
the defendant to determine his right to challenge that juror’ is proper.” Stevens, 806 So.2d at 1062 .
4 76. It is evident from the record that the trial judge did not abuse his discretion in sustaining the
State's objection to Howell's three proposed questions. More importantly, however, is the fact that
Howell *728 was not harmed in any way by the trial court's rulings. None of the prospective jurors to
whom the first two questions were directed actually se1 ved on the jury. [FN3]}
FN3. Neither of the jurors whom Howell sought to question actually served on the jury. As stated
previously, the jury selection never reached Juror 153 (Whiteside) so he was never tendered to the
defense. Additionally, Juror 98 (Nobles) was tendered as an alternate and struck by the defense.
Supreme Court has held that giving a jury instruction allowing consideration of sympathy or mercy
could induce a jury to base its sentencing decision upon emotion, whim, and caprice instead of upon
the evidence presented at trial." Goodin, 787 So.2d at 657. Accordingly, we find that since this Court
has held that the jury is not entitled to be instructed to give mercy, then there is no error in the tnal
court's decision to disallow questioning prospective jurors on voir dire as whether they would provide
mercy in sentencing.
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* 78. The record does not indicate that the trial court abused its discretion or that Howell was denied
a fair opportunity to conduct voir dire on any relevant issue. As such, Howell's arguments on this
point are clearly without merit.
VIL. Identification of Howell and Illegal Arrest
* 79. Howell contends that Rice's eyewitness identification should have been suppressed as the lineup
Was suggestive. The record reflects that a pretrial hearing was conducted on Howell's motion to
suppress the identification testimony.
§ 80. Rice testified that on the morning in question, he was in his living room watching television
while he was getting ready for work. He heard a car horn, went to the window and pulled back the
blinds. Rice had described the lighting conditions as "[p]re-dawn." Rice talked to Officer Kent at the
scene that moming. He had identified the shooter as wearing a plaid flannel jacket that was open with
a light colored t-shirt underneath and a pair of blue jeans. He did not notice the shooter's shoes.
§ 81. Later that morning, at the police station, Rice gave a statement to Officer Kent and Chief
Grisham. Rice stated that the shooter was wearing a red and black plaid flannel shirt. Howell
contends that Rice misidentified him as wearing a long sleeve plaid red and black shirt as opposed to
the green short sleeve shirt described by other witnesses. Rice told the police that the shooter was a
black male. Rice left the police station and returned later that day to participate in a lineup upon being
informed that three people had been arrested.
§ 82. According to Rice, none of the officers gave a description of the defendant or made any
Suggestions as to his identity. Rice testified that there was nothing about the lineup that was
suggestive. Rice described the lineup as follows:
I was in the small office with a desk and couple of chairs and I was kind of sitting on the edge of the
desk squatting against it. There was a small window, yay high, yay wide and they told me that the
men would be brought out one at a time. Take my time and if I can identify the gentleman that I saw
the morning prior to let them know. When they came out they came out, said they would *729 phase
(face) me. Turn sideways and leave and then they would bring the next one out. They brought a total
of six. But I didn't need to see all six them. When | saw the third person of the line up which was Mr.
Howell, | identified him at that time.
When Rice proceeded to view the six people in the lineup, he identified Howell as the shooter.
§ 83. Chief Grisham testified that the lineup was composed of six, young, black males, who were
inmates. They were selected by a computer program to help choose similar size, race, age, and things
of that nature. No one pressured Rice to identify Howell. Rice was not shown any photographs prior
to the lineup.
§ 84. Chief Grisham's testimony at trial reflected that the other five subjects in the lineup were
Dominique Cannon, 6', 130 pounds: Robert Antron Carr, 5'10", 135 pounds; Romaro Dixon, 6', 145
pounds: Brad Marion. 6'. 160 pounds; Robert Harris, 6'2", 185 pounds. Howell's arrest slieet reflects
him to be 6'2", 175 pounds. However, Chief Grisham did place in the case file a photographic display
of the peuple in the lineup. The picture was taken in an adjacent room, prior to the time the
participants went into the lineup room. [wo or three of the individuals in the lineup were as tall as
Howell. Chief Gnsham did not observe that Howell was the only one wearing tennis shoes.
* 85. The picture showed six young. black men, all of whom are wearing street clothes. The feet of
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four of the six people in the lineup appear in the photograph. Of those four, Howell was the only one
wearing sneakers. The other three men in the picture wore socks and sandals. Howell claims that the
height, weight, skin tone and hair of the other people in the lineup were different than his appearance.
4 86. Rice specifically testified that he was not able to see the feet of the people in the lineup. The
window that he was looking through "was up off the floor" and he was looking at people's faces. Rice
testified that he did not pay attention to what they were wearing.
4 87. Howell was represented by a local attorney, Regan Russell (Russell), who was present at the
lineup. Officer Kent was also present in the viewing room with Rice and Russell. Chief Grisham was
not in the viewing room at the time the lineup was conducted.
q 88. After hearing this evidence and related argument, the trial court denied the motion to suppress,
concluding that the lineup was proper and not tainted or suggestive.
4 89. In White v. State, 507 So.2d 98, 99-100 (Miss.1987) , this Court in upholding a lineup where the
defendant was the only person with plaited hair, stated that:
In York v. State, 413 So.2d 1372 (Miss.1982) , this Court reviewed United States Supreme Court
decisions addressing due process violations predicated on impermissibly suggestive lineups. The
Court said:
An impermissibly suggestive pretrial identification does not preclude in- court identification by an
eyewitness who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances
surrounding it (2) the identification was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.
Even if testimony is proffered of the out-of-court identification itself, the same standard exists as to
the above, with the omission of the wora "irreparable."
*730 In determining whether these standards are fulfilled, Neil v. Biggers states the following may be
considered:
... the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of
attention, the accuracy of the witness’ prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of time between the crime and the
confrontation.
409 U.S. at 199, 93 S.Ct. at 382 .
In the final analysis, under Manson v. Brathwaite [ , 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140
(1977)], "reliability is the linchpin in determining the admissibility ...”
York, 413 So.2d at 1383. See Foster v. State, 493 So.2d 1304 (Miss.1986) (Foster was the only
member of the lineup wearing a distinctive fishing hat, and the Court rejected Foster's contention that
the lineup was impermissibly suggestive); Jones v. State, 504 So.2d 1196 (Miss.1987) . (Jones was
the only person in a photograph display wearing a cap similar to the one worn by the rapist, and the
display was not so suggestive as to be impermissible).
4 90. In Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L Ed.2d 401 (1972) , the U.S.
Supreme Court set out five factors to be considered in determining whether a lineup is impermissibly
suggestive:
1. The opportunity of the witness to view the criminal at the time of the cnme.
2. The witness's degree of attention.
3. The accuracy of the witness's prior description of the criminal.
4. The level of certainty demonstrated by the witness at the confrontation.
5. Length of time between the crime and the confrontation.
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See White, 507 So.2d at 100.
[30] 4 91. When the lineup ts considered in light of the Biggers factors, it is evident that: (1) Rice's
view of the shooter was brief {| FN4] ; but, (2) he was paying very close attention, once he »ealized that
a shooting had taken place; (3) he accurately described Howell as a young, clean cut, black male; (4)
he was absolutely certain of Howell's identity when he saw him in the lineup; and (5) the lineup took
place a little over 24 hours after the shooting. See Biggers, 409 U.S. at 199, 93 S.Ct. 375.
FN4. Rice testified that it was “pre dawn,” but he could see. Both vehicles had their lights on. The
lights of the rear vehicle were shining on the shooter. The neighborhood was "well lit." There was a
streetlamp right across the street from Rice's house and one at the end of the block. Rice's neighbor
had a porch light on. Rice's view was unobstructed.
[31] € 92. Howell was represented by counsel throughout the lineup procedure. Furthermore, the jury
was instructed on how to consider eyewitness identification. [FN5] *731 Under the totality of the
circumstances, there is no likelihood whatsoever, that Rice's identification was not reliable. See
Biggers, 409 U.S. at 199, 116, 93 S.Ct. at 382 ; York, 413 So.2d at 1383. Furthermore, this Court has
repeatedly held that “the jury is the final arbiter of a witness's credibility." See Williams v. State, 794
So.2d 1019, 1028 (Miss.2001) ; Morgan v. State, 681 So.2d 82, 93 (Miss.1996) . The jury alone
determines the weight and worth of any conflicting testimony. Hicks v. State, 812 So.2d 179, 194
(Miss.2002) . Rice's credibility as a witness at trial rests with the jury. Therefore, we find that this
issue 1s without ment.
FNS. Instruction S-8 provided, in pertinent part:
Identification testimony is an expression of the belief or impression by the witness. You must judge
its value and reliability from the totality of the circumstances surrounding the crime and the
subsequent identification. In appraising identification testimony of a witness, you should consider the
following:
1. Did the witness have an adequate opportunity to observe the offender?
2. Did the witness observe the offender with an adequate degree of attention?
3. Did the witness provide an accurate description of the offender after the crime?
4. How certain is the witness of the identification?
5. How much time passed between the crime and the identification?
If, after examining all of the testimony and the evidence, you have a reasonable doubt that Marlon
Latodd Howell was the person who committed the crime, then you must find Marlon Latodd Howell
Is not guilty.
The defense indicated that this was a “good” instruction. The jury's verdict demonstrates how it
resolved any issues about the identification.
4, 93. Additionally. Howell contends that the identification was the result of an alleged illegal arrest.
Howell alleges that the Field Officer's Warrant or “blue warrant" under which he was arrested was
invalid.
§ 94. Probation and Parole Officer Nance testified that the New Albany Police Department called him
on the evening of May 15. 2000, to inquire whether the Mississippi Department of Corrections
(MDOC) had a picture of Howell. Nance checked Howell's file and discovered that Probation and
Parole Officer Mullins had entered a warrant for Howell's arrest into the computer, but Officer
Mullins had not signed the warrant. Officer Nance telephoned Officer Mullins, and the record reflects
that the following transpired:
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I asked [Mullins] if we could go get the warrant, asked him if he had sent a copy of it to the Sheriff's
department which he had not at that time to the best of my knowledge and asked if we could go ahead
and get the warrant and serve it on him and go ahead and place him under arrest of the D O C for the
violation that he had listed on his warrant. He said that will be fine, go ahead and get it. Chad
Glasson, New Albany police officer and | went to the Tippah County Officer, looked in the file,
found the warrant that Mr. Mullins had typed up. He had not signed the warrant but he had issued the
warrant. | turned around and copied the warrant exactly as he had it. Put my name down there as the
field officer and signed it. That way we would have truly valid warrant. That is the only reason that I
issued the warrant instead of Chuck Mullins because he had not signed the warrant.
4 95. Officer Nance further explained that:
The administrative authority we have as field officers have t right to issue a field officer[']s warrant
for a violation of probation, terms and conditions. We ar. to get a judge[']s warrant as soon as
possible after the field officers warrant is issued. The reason that | signed it instead of Chuck
[Mullins] is because he had not signed the field officer{']s warrant hisself. He had issued it, typed in
his name but just had not signed it.
4 96. The warrant charged that Howell had violated his probation by "failure to avoid injurious or
vicious habits, fail{ure] to pay supervision fees, fail [ure] to pay for positive urine screen fail[ure] to
pay court ordered monies." Shortly after the warrant was issued, Howell was arrested and transported
to the New Albany Police Department. The arrest warrant from Justice *732 Court Judge Ronnie
Rakestraw was obtained around noon on May 16, 2000.
4 97. The trial court ruled "that the arrest was in fact proper and that there wasn't anything illegal
about it." Howell contends that Officer Nance did not have authority to sign the warrant which
rendered an illegal arrest. Howell alleges that Officer Nance had no personal knowledge of the
circumstances in the warrant. .
[32] 4 98. Officer Nance clearly had the legal authority to issue the warrant. The applicable statute
provides in pertinent part as follows:
Any probation and parole officer may arrest a probationer without a warrant, or may deputize any
other officer with power of arrest to do so by giving him a written statement setting forth that the
probationer has, in the judgment of the probation and parole officer, violated the conditions of
probation. Such written statement delivered with the probationer by the arresting officer to the
official in charge of a county jail or other place of detention shall be sufficient warrant for the
detention of the probationer.
Miss.Code Ann. § 47-7-37 (Rev.2000). Accordingly, we find that this issue is wholly without menit.
VIII. Howell's Statement
4] 99. As a continuation of issue VII, Howell contends that the statement he gave to the police on May
15, 2000, at approximately 9:30 p.m. should have been suppressed. The record reflects that Howell
was read a waiver-of-rights form at 9:29 p.m., and he signed the waiver at 9:31 p.m. Howell argues
that since his arrest was illegal, because Officer Nance signed the “blue warrant,” the statement
should have been suppressed. Finding that the arrest was proper, the trial court denied Howell's
raotion to suppress.
4 100. As issue VII concluded that Howell's arrest was in fact valid, this issue is without merit.
Therefore, we find that the trial court did not err in denying Howell's motion to suppress his
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statement given to the police.
IX. Howell's Statements Made to Other Witnesses
4 101. Howell alleges that the tral court erred by allowing co-defendant, Lipsey, and witnesses, Shaw
and Powell, to testify that he stated that he needed money to pay his probation officer. Howell
contends that the statements attributed to Howell constituted hearsay and that the probative value of
admitting the statement does not outweigh the prejudicial effect to his case. Howell claims that the
State was allowed to bring his prior convictions in through the backdoor through the testimony of
Lipsey, Shaw and Powell since Howell did not testify.
{ 102. The State offered witness testimony regarding statements attributed to Howell in order to
demonstrate a possible motive for Pernell's murder. M.R.E. 404(b) provides in part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order
to show that he acted in conformity therewith. It may, however, be admissible for other purposes such
as proof of motive ...
The State contends that Howell's motive for killing Pernell was to obtain money to pay his probation
officer in order to remain out of jail.
§ 103. This Court has consistently allowed the admission of other crimes to prove intent. See Hill v.
State, 797 So.2d 914, 917 (Miss.2001) (where this Court found that evidence of defendant's arrest
was properly introduced to establish a possible motive for murder); *733 Sumrall v. State, 758 So.2d
1091, 1095 (Miss.App. 2000) ; Burns v. State, 729 So.2d 203, 222 (Miss.1998) ; Warren v. State, 709
So.2d 415 (Miss.1998) ; Hunt v. State, 538 So.2d 422 (Miss.1989) ; Jenkins v. State, 507 So.2d 89
(Miss. 1986) ; Ballenger v. State, 667 So.2d at 1242; Conner v. State, 632 So.2d 1239, 1273-74
(Miss.1993) (where this Court found that evidence relating to cocaine use was used to establish
motive for crime rather than to show bad character).
{ 104. The State further cites Burns v. State, 729 So.2d 203, 220-22 (Miss.1998) , in support of its
position. In Burns, the defendant argued that the trial court erred by allowing a witness to refer to the
defendant's own statements about a prior crime. The witness testified that Burns had committed the
murder because he “did not want to go back to the pen." /d. at 220. Pursuant to M.R.E. 404(b) , this
Court concluded that the testimony was “admissible to show motive-that Burns killed [the victim] so
that he could not be identified and be sent back to the penitentiary...." /d. at 221-22.
4 105. However, relevant evidence may still be excluded. In Foster v. State, 508 So.2d 1111, 1117
(Miss.1987) , this Court held:
Relevant evidence may still be excluded if its probative value is substantially outweighed by danger
of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence. Miss. R.Evid. 403 . Thus, a
trial court presented with Rule 403 objection to relevant evidence must engage in a balancing process.
The more probative the evidence is, the less likely it is that a 403 factor will be of sufficient
consequence to substantially outweigh the probative value ...
To tp the scale is not enough. The 403 factors must, in the language of the rule, “substantially
outweigh" probative value before the evidence may be excluded. The trial court is afforded broad
discretion in weighing these interests. United States v. Chalan, 812 F.2d 1302 (10th Cir.1987) ;
Brumley Estate v. lowa Beef Processors, Inc., 704 F.2d 1351 (Sth Cir.1983) , cert. denied, 465 U.S.
1028. 104 $.Ct. 1288, 79 L.Ed.2d 690 (1984) .
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7
33] 4 106. We find that the trial court did not abuse its discretion in allowing the testimony. The .
record clearly reflects that any prejudice from admitting the testimony does not substantially
outweigh the probative value of allowing the testimony to establish Howell's motive and intent.
4 107. Finally, Howell argues that the trial court should have provided a limiting instruction
informing the jury as to witness credibility. The record reflects that the State offered a limiting
instruction, jury instruction S-9, which was given by the trial court. Jury instruction S-9 provided:
The Court instructs you that any evidence you may have heard regarding a witnesses’ or the
defendant's character or bad acts may not be considered by you to prove the character of the
defendant in order to show that he acted in conformity therewith on the occasion alleged in the
indictment. You may consider this evidence only for the purpose of proof of motive, intent,
knowledge, absence or mistake or accident. :
See McGilberry v. State, 741 So.2d at 913 ("juries are presumed to follow the instructions given to
them by the court"). See also Johnson v. State, 475 So.2d 1136, 1142 (Miss.1985) (juries are to
follow instructions "To presume otherwise would render the jury system inoperable."). For all the
*734 foregoing reasons, we find that this assignment of error is without merit.
X. Testimony by Shaw Regarding Statement made by Ray
4 108. Howell contends that the trial court erred in allowing Shaw to testify that Ray told him,
"Marlon [Howell] had shot somebody." The record reflects that Ray, Howell, and Lipsey fled to
Shaw's house, immediately following the shooting. Shaw's testimony on the State's direct
examination was as follows:
State: When did you know--what made you know that Adam [Ray], Curtis [Lipsey] and Marlon
Howell had returned to your house?
Shaw: Because I heard a loud noise. Somebody bumping like somebody was running through the
house or whatever.
State: They were running through the house?
Shaw: Um-huh.
State: What did you do then?
Shaw: My girlfriend got up she was fussing. She asked me what was going on and that is when Adam
[Ray] came knocking on the door and I got up and went to the door.
State: Did you get out of the bed and go when you say to the door or your bed room [sic] door?
Shaw: My bed room [sic] door.
State: What happened when you went to the bed room [sic] door?
Shaw: Adam [Ray], he was all hysterical and everything. He said that Marlon [Howell] had shot
somebody.
Defense: Your Honor, we object to the statement.
The Court: Sustained. ;
State: Where was Marlon Howell at when Adam Ray came to your door?
Shaw: Standing in the front living room.
State: In the front toom?
Shaw: Yes, sir.
State: In what tone of voice was Adam Ray talking?
Shaw: Like he was scared.
State: Was Marlon Howell positioned so that he could hear what Adam was saying?
Shaw: Yes, yes, sir.
State: Did Adam [Ray], did Marlon Howell hear what Adam Ray had to say?
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Shaw: Yes, sir.
Defense: Your Honor, we again object to that.
The Court: It's overruled. He can answer go ahead.
State: When Adam Ray came to your door what did Adam Ray say?
Defense: Your Honor, we again object to that.
The Court: It's overruled. He can answer go ahead.
State: When Adam Ray came to your door what did Adam Ray say?
Shaw: He said Marlon had shot somebody.
State: What did you do at that time?
Shaw: | ran out of the room and | asked | thought they were playing. I said no he didn't. | said are y'all
for real. He said yes, he is for real?
State: Who said yes he is for real?
Shaw: Curt [Lipsey].
State: Was Marlon Howell present when Curt [Lipsey] said that?
Shaw: Yes, sir.
State: What else if anything did Curt [Lipsey] say about the situation?
Shaw: He didn't really say too much of nothing. They all look like he this real scared and Marlon
[Howell] he *735 was standing right there in the front room with us too.
State: What else did Adam [Ray] have to say?
Shaw: He didn't really say nothing just looking scared.
State: Did Marlon Howell say anything?
Shaw: He told me he said | need to get to Blue Mountain. He said I need you to take me to Blue
Mountain nght now.
State: Wanted you to carry him to Blue Mountain right now. Where was Marlon standing at when he
was saying that?
Shaw: In the front room with all of us.
State: Was he doing anything at the time?
Shaw: He had a green shirt wrapped like around his hand pulled up under his arm like this right here.
State: So he was standing in your living room with the shirt wrapped around his hand under his arm
like this?
Shaw: Yes, sir.
State: What did you do?
Shaw: | was trying to figure how I was going to get him to Blue Mountain. I really didn't want to take
him. | didn't want him to endanger me or my family or anyone that was in the house.
State: Were you scared at that time?
Shaw: Yes, sir....
State: What did you do then?
Shaw: He then jumped in the car with his and we headed off and rushed to Blue Mountain.
State: What now?
Shaw: He then jumped in the car with us and we rushed off to Blue Mountain.
State: Where did you go in Blue Mountain first?
Shaw: We took Marlon [Howell] home.
State: Marlon [Howell] say anything on the way to Blue Mountain or when he got there?
Shaw: Nobody was saying anything. I was just trying to hurry up and get him down there.
State: Once you got to Blue Mountain did anybody say anything then?
Shaw: He said don't tell nobody. Y'all don't need to tell nobody.
State: When you say he said don't tell nobody. You don't need to tell anybody, who said that?
Shaw: Marlon [Howell].
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4 109. We find that Shaw's testimony did not constitute hearsay pursuant to M.R.E. 801(d)(2)(B)
which provides:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if:
(2) Admission by Party-Opponent. The statement is offered against a party and is ... (B) a statement
of which he has manifested his adoption or belief in its truth ...
In Manning v. State, 726 So.2d 1152, 1180 (Miss.1998) , this Court basically defined "the common
law version" of M.R.E. 801(d)(2)(B) finding that:
[S]tatements made by a third person, which tend to incriminate an accused, are admissible so long as
they are made in the presence of the accused and are not contradicted, denied, nor objected to by the
accused.
Manning, 726 So.2d at 1180 (quoting Jolly v. State, 269 So.2d 650, 656 (Miss.1972) ). See also Jones
v. State, 367 So.2d 458 (Miss.1979) (affirming “adoptive admission” where bystander said, “he's the
one that done the shooting” and the accused replied, "Yeah, and I'll get you as soon as I get out of this
mess").
*736 4 110. In the case sub judice, Ray's statement was made in Howell's presence. Howell did not
contradict, deny or object to the statement Ray made to Shaw. Shaw's testimony provided that Howeil
was present when the statement was made and did not dispute the statement. In fact, Howell then
requested that Shaw drive him home "right now" and told Shaw that "y'all don't need to tell nobody
[sic]." Shaw testified that he was afraid of Howell. Shaw testified that he feared for his safety and the
safety of his family if he did not comply with Howell's request.
[34] 4 111. We find that the record reflects that the trial court did not err in allowing Shaw to testify
about Ray's statement. The statement clearly amounts to an "adoptive admission" pursuant to M.R.E.
801(d)(2)(B) . See Manning, 726 So.2d at 1180.
q 112. In the case sub judice, the State presented testimony from Rice, who positively identified
Howell as the shooter and the testimony of Lipsey, co- defendant, who identified Howell as the
person who shot Pernell. We find that this assignment of error is meritless.
XI. Re-Cross Examination
[35] 4 113. Howell contends that the trial court erred by refusing to allow re-cross examination to be
conducted by the defense. Howell argues that the trial court's ruling “left the jury with the impression
Shaw had no pending criminal charges when he gave his statement to the District Attorney's office."
We find that the record reflects that Howell's assertion is meritless. The following exchange occurred
on the record:
Cross Examination by the Defense:
Defense: Mr. Shaw, have you been promised anything to testify?
Shaw: No, sir.
Defense: Have you been given any leniency on any criminal matters?
Shaw: No, sir.
Defense: You have not?
Shaw: No, sir.
Defense: Do you have pending criminal matters before the district attorney's office?
Shaw: I have some charges, against me.
Defense: Those are charges that existed on the day you went down there and gave this statement to
the police, isn't it?
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Shaw: Yes, sir.
Defense: And you have not been prosecuted or brought to trial since have you?
Shaw: No, sir. a
Defense: Court indulge me one second.
The Court: All nght, sir.
Defense: We tender the witness.
The Court: Any redirect, Mr. Luther.
Re-Direct Examination by the State:
State: | will try to cover this as it came aleug probably working backwards. You were asked about
cnmuinal charges pending against you. What were you charged with doing?
Shaw: Grand larceny.
State: What was that of? _
Shaw: That was some stuff consisted on the rail road.
State: Steel on the rail road?
Shaw: Yes, sir.
State: So you are charged with taking some steel off the rail road tracks?
Shaw: Yes, sir.
State: When was that charge brought?
Shaw: About I was about 15 or 16 then.
State: You were 15 or 16?
Shaw: Yes, sir.
*737 State: | believe that was a "98 charge isn't it?
Shaw: Yes, sir.
State: '98. I believe you entered the pretrial diversion program; didn't you?
Shaw: Yes, sir.
State: Where and when did you enter the program?
Shaw: I think I was about 18 then.
State: So I believe that program consisted of if you did not get in any more trouble you wouldn't have
a felony record; is that right?
Shaw: Yes, sir....
State: Have you been promised anything for your testimony today?
Shaw: No, sir.
State: Has the police or district attorneys or anything else even discussed your prior charges with
you?
Shaw: Prior charges towards what.
State: The incident about taking the steel off the rail road track?
Shaw: No, sir.
State: Is that any consideration of your testimony here today?
Shaw: No, sir.
Defense: Please the court, | need to ask him one question about the issue he brought up about why he
is not being prosecuted.
The Court: You did not object to it as being improper.
Defense: | don't think it was improper, Your Honor, but he has left the impression that | think it needs
to be cleared up.
The Court: | don't. It's overruled...
{ 114. The tral court stated that for the record that Howell never objected to the State's line of re-
direct questioning concerning Shaw's pending criminal charges as being improper. The trial court did
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not conclude that the jury was left with a false impression of Shaw's criminal charges. Shaw testified
that he had charges pending when he talked to the District Attorney's office. Shaw further testified
that his criminal charges were not discussed and he received no promises or any leniency in exchange
for his testimony.
4 115. In Whitehurst v. State, 540 So.2d 131°, 1325-26 (Miss.1989) , this Court stated:
Hubbard v. State, 437 So.2d 430, 434 (Miss.1983) , sets out rather clearly that "re-cross examination
is not allowable as a matter of right, but a matter of trial court discretion." The defendant's argument
that his valuable right of cross-examination was bridled, based on Edge v. State, 393 So.2d 1337
(Miss.1981) , and Miskelley v. State, 480 So.2d 1104 (Miss.1985) , avails him none. Edge dealt with
surrebuttal testimony, and Miskelley dealt with cross examination. Thus, these cases are factually
distinguishable.
Hubbard is authority for the proposition that it is proper to deny re-cross examination "where there is
no claim of oversight and no reason stated why the matter was not inquired into on" cross
examination. 437 So.2d at 434.
q 116. Furthermore, this Court held in Sullivan v. State, 749 So.2d 983, 991 (Miss.1999) :
Mississippi has adopted the Corpus Juris Secundum standard for re-cross examination of witnesses:
"It is proper to exclude questions as to matters which were not opened up or brought out on redirect
examination, or as to matters already fully covered or discussed at length on cross-examination,
where there is not claim of oversight and no reason stated why the matter was not inquired into on the
cross-examination proper." *738 Hubbard v. State, 437 So.2d 430, 434 (Miss.1983) (quoting 98
C.J.S. Witnesses § 429). In this case, Sullivan does not allege that he was deprived of his
constitutional right to confront witnesses testifying against him. That right is protected by both
constitutional and case law. See Shaffer v. State, 740 So.2d 273 (Miss:1998) (citing Hamburg v. State,
State, 248 So.2d 430, 434 (Miss.1971) ).
4 117. From a review of the record and this Court's precedent related to re- cross examination, we
find that Howell's allegation that the trial court erred in declining to reopen cross-examination is
without merit.
XII. Directed Verdict
4 118. Howell contends that the State presented insufficient evidence to prove the underlying felony
of robbery and, therefore, the charge of capital murder. In Knox v. State, 805 So.2d 527, 530
(Miss.2002) , this Court stated:
When reviewing the sufficiency of the evidence, this Court looks to all of the evidence before the
jurors to determine whether a reasonable, hypothetical juror could find, beyond a reasonable doubt,
must be considered in the light most favorable to the verdict, and the credible evidence consistent
with guilt must be accepted as true. Gleeton v. State, 716 So.2d 1083, 1087 (Miss.1998) (citing
Franklin v. State, 676 So.2d 287, 288 (Miss.1996) ; Wetz v. State, 503 So.2d 803, 808 (Miss.1987) ).
"The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn
from the evidence." /d.
4 119. Miss.Code Ann. § 97-3-19(2)(e) defines capital murder as:
(2) The killing of a human being without .:e authority of law by any means or in any manner shall be
capital murder in the following cases:
(ec) When done with or without any design to effect death, by any person engaged in the commission
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of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with
any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in
any attempt to commit such felonies.
Furthermore. Miss.Code Ann. § 97-3-73 (Rev.2000) defines robbery as:
Every person who shall feloniously take the personal property of another, in his presence or from his
person and against his will, by violence to his person or by putting such person in fear of some
immediate injury to his person, shall be guilty of robbery.
“ 120. The evidence in the record indicates that when Howell got in the car with Shaw, Lipsey and
Ray that might, Howell "explained to [them] that he needed some money to pay his probation officer."
According to Lipsey, Howell "just got in the car and it was like he needed some money or else [they]
weren't going to see him any more after that night, to pay his probation officer.”
€ 121. In addition, Powell testified that on that night Howell stated that he "needed to pay the
probation officer." Howell told Powell "that he was going to have to pay his probation officer. They
were going to lock him up." Howell said that "he needed to make a sting for some money...." That
night while Grnving around Tupelo, Howell observed a man standing outside a closed service station
and stated that "there go [sic] an easy lick nght there."
{ 122. Howell was identified as the shooter by both an independent witness, *739 Rice, and by co-
defendant, Lipsey. According to Lipsey, Howell reached inside Perell's car, and there was some
"scuffling or fighting." Howell “had his arm in the man{']s window doing something with him." This
lasted about a half a minute. Then, Howell pulled away from the car and raised his hands in the air,
jumped back and fired the gun shooting Pernell.
{ 123. Lipsey stated that when Howell returned to the car, Howell stated that "the man sprayed him in
the face with some mace so he shot him." Lipsey did not smell mace or see tears in Howell's eyes.
The poiice found a large amount of change on the floorboard of the driver's side of the victim's car.
{36] [37] § 124. A jury's finding of fact is not to be overturned when there is credible evidence in the
record for which the jury could have reasonably inferred the offense or unless the verdict was clearly
against the overwhelming weight of the evidence. Bailey v. State, 785 So.2d 1071, 1075
(Miss.App.2001) ; Groseclose v. State, 440 So.2d 297, 300 (Miss.1983) . There is no doubt that there
is ample evidence in the record that a reasonable person could infer Howell's intent to rob Pernell.
€ 125. It was within the jury's province to draw reasonable inferences from facts based on experience
and common sense. Lewis v. State, 573 So.2d 719, 723 (Miss.1990) . Inferences for the motive of
robbery have been accepted by this Court when they are reasonable. See Swinney v. State, 829 So.2d
1225, 1236 (Miss.2002) (it may be reasonably inferred that the robbery was interrupted, and the
motive was robbery); Dup/antis v. State, 708 So.2d 1327, 1342 (Miss.1998) (the jury apparently drew
this inference from the facts, and we accept the jury's finding). The jury considered the facts and
circumstances after listening to the witnesses then rendered its verdict. The verdict should not be
disturbed. The evidence was sufficient to support the verdict. We find this assignment of error to be
without merit.
XIIL. Jury Instruction S-2
* 126. Continuing from issue XII, Howell next contends Miss.Code Ann. § 97-3-19 does not
specifically enumerate attempted robbery as an underlying offense for the conviction of capital
’
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murder. As such Howell argues that the underlying offense of attempted robbery violates his Eighth
and Fourteenth Amendment rights. Specifically, Howell asserts that:
To allow the trial court to insert attempted robbery as an aggravating factor when it is not specifically
set oui by statute allows the Court to expand the aggravating circumstances enumerated by MCA §
97-3-19 . The aggravating circumstances perform the constitutional necessary function of providing a
meaningful basis for distinguishing the few cases in which the death penalty is imposed from many
cases in which it is not. See Godfrey v. Georgia, 446 U.S. 420, 427, 428, 100 S.Ct. 1759, 64 L.Ed.2d
398 (1980) .
4 127. Howell further states that "by allowing the use of attempted robbery. the trial court has
extended the narrow parameters of the Mississippi capital murder statute Miss.Code Ann. § 97-3-
19 ." Miss.Code Ann. § 97-3-19(2)(e) provides the list of underlying crimes that can elevate murder
to a capital offense. Miss.Code Ann. § 97-3-19(2)(e) further includes "any attempt to commit such
felonies" within the statutory provision. Miss.Code Ann. § 97- 3-19(2)(e) defines capital murder as
follows:
The killing of a human being without the authority of law by any means or in any manner.... When
done with or without any design to effect death, by any person *740 engaged in the commission of
the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with
any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in
any attempt to commit such felonies.
Miss.Code Ann. § 97-3-19(2)(e) (emphasis added).
4 128. We find that Howell's argument is clearly not supported by the language of Miss.Code Ann. §
97-3-19(2)(e) . Furthermore, in Willie v. State, 585 So.2d 660, 674 (Miss.1991) , the defendant raised
similar arguments as the case at hand:
Willie argues that his conviction must be reversed because (1) the jury returned a general verdict of
guilty without specifying whether it found that Willie killed Joe Clardy while Willie robbed or
attempted to rob Joe Clardy, and (2) the jury was instructed over Willie's objection that it could find
Willie's objection that it could find Willie guilty of capital murder if it found that Willie killed Joe
Clardy while engaged in the commission of attempted robbery.
We previously considered Willie's argument in Culberson v. State, 379 So.2d 499 (Miss.1979) , cert.
denied, 449 U.S. 986, 101 S.Ct. 406, 66 L.Ed.2d 250 (1980) . In Culberson, we found that reference
to subsection 2(e) of Miss.Code Ann. § 9/-3-19 and the statutory language, “engaged in the
commission of," was sufficient to put a defendant on notice that he could be charged with the
commission or the attempt to commit the constituent felony of robbery. Culberson, 379 So.2d at 503-
04. Finding nothing new in Willie's argument, we affirm our decision in Culberson.
Id. See also Harris v. State, 445 So.2d 1369, 1270-71 (Miss.1984) . In Harris, this Court held:
In Mississippi both an attempt to take and an actuai taking of another's personal property against his
will by violence to his person or by putting such person in fear of immediate injury to his person by
exhibition of a deadly weapon constitutes robbery.
Id.
4 129. Howell contends the trial court erred in granting jury instruction S-2 which contained the
language "attempt to take." Jury instruction S-2 provided:
THE COURT instructs the jury that if you find from the evidence in this case beyond a reasonable
doubt that:
(1) The defendant, Marlon Latodd Howell, did, on or about the 15th day of May, 2000, unlawfully,
willfully and feloniously, attempt to take the personal property of Hugh David Pernell; and,
(2) The defendant, Marlon Latodd Howell, attempted to take the personal property from the person of
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Hugh David Pemell and against the will of .he said Hugh David Pernell; and,
(3) The defendant, Marlin [sic] Latodd Howell, attempted to take the property by violence toward
Hugh David Pernell by shooting the said Hugh David Pernell with a pistol; and,
(4) At the time, Marlon Latodd Howell had the intent to permanently deprive Hugh David Perell of
the property,
then you shall find that the defendant Marlon Latodd Howell, was engaged in the commission of the
crime of robbery as contemplated by Jury Instruction Number S-1.
If the State of Mississippi has failed to prove any one or more of these elements beyond a reasonable
doubt, then you shall find that the defendant, Marlon Latodd Howell, was not engaged in the
commission of the crime of robbery as *741 contemplated by Jury Instruction Number S-1.
* 130. As discussed, we find that Howell's assignment of error is without merit. Based on the
language of Miss.Code Ann. § 97-3-19(2)(e) , we also find that the trial court did not err in granting
jury instruction S-2.
XIV. Instructions D-13, D-18, S-3
{ 131. Howell argues that the trial court erred by failing to grant jury instructions for simple murder
and manslaughter. The trial court gave jury instruction S-6 as a‘form of the verdict jury instruction.
Instruction S-6 provided:
The Court instructs the jury that all twelve (12) of you must agree on any verdict that is returned in
this case. -
The verdict of the jury should be written upon a separate sheet of clean paper, need not to be signed
by you, and should be in one of the ‘ollowing forms, to-wit:
1) If you find from the evidence in this case, beyond a reasonable doubt, that the defendant, Marlon
Latodd Howell, is guilty of capital murder upon Hugh David Permell as charged under the indictment,
then the form or your verdict should be:
"We, the jury, find the defendant, Marlon Latodd Howell, guilty of capital murder as charged under
the indictment."
2) If you find the defendant, Marlon Latodd Howell, not guilty of capital murder, then the form of
your verdict should be:
"We, the jury, find the defendant, Marlon Latodd Howell, not guilty of capital murder under the
indictment."
4 132. The State withdrew its jury instruction S-3 on simple murder, citing a lack of evidence
presented to support such an instructtun. Instruction S-3 provided:
The Court instructs the jury that if the evidence warrants it, you may find the defendant, Marlon
Latodd Howell, guilty of the lesser crime of “simple murder.”
However, notwithstanding this nght, it is your duty to accept the law as given to you by this Court,
and, if the facts and the law warrant a conviction of the crime of “capital murder" as charged in the
indictment, then it is your duty to make such finding uninfluenced by your power to find the
defendant guilty of a lesser offense.
This provision is not designed to relieve you from the performance of an unpleasant duty. It is
included to prevent a failure of justice if the evidence fails to prove the original charge but does
justify a verdict for the lesser offense.
* 133. Howell's proposed instruction D 13 submitted both a simple murder and a manslaughter
instruction. However. Howell requested to submit S 3 on simple murder, combined with his own
instruction on manslaughter.
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{| 134. The State argued that the evidence did not support an insiruction on either simple murder or
manslaughter. Specifically, the State pointed out that an instruction for simple murder was not proper,
as this was a premeditated murder which occurred during the course of a robbery. Furthermore, the
State noted that an instruction for manslaughter was not proper in the light of the fact that Howell
presented an alibi defense. Howell filed a notice of his alibi defense which stated that at the time of
the offense he was at his home in New Albany, Mississippi, and listed James Howell and Miriam
Howell as alibi witnesses.
4 135. Instruction D-13 provided: :
*742 If you fail to find the defendant, Marlon Howell, guilty of capital murder, then you should
continue your deliberations to consider the elements of the felony crime of simple murder. If you find
from the evidence in this case beyond a reasonable doubt that Marlon Howell on or about May 15,
2000, in Union County, Mississippi, killed David Pernell, a human being in the commission of an act
imminently dangerous to others and evidencing a depraved heart, regardless of human life, without
authority of law, even though the defendant had no premeditated design to affect the death of any
particular individual, then you should find the defendant, Marlon Howell, guilty of murder. If the
State has failed to prove any one or more of these elements beyond a reasonable doubt, then you
should find the defendant, Marlon Howell, not guilty of murder.
If you fail to find the defendant, Marlon Howell, guilty of simple murder, then you should continue
your deliberations to consider the elements of the felony crime of manslaughter.
If you find from the evidence in this case beyond a reasonable doubt that:
1. Marlon Howell on or about May 15, 2000. in Union County, Mississippi;
2. Killed David Pernell; :
3. By gunshot; and
4. Marlon Howell was negligent or act with wanton disregard for human life, and the negligence was
SO gross as to be tantamount to a wanton disregard of, or utter indifference to the safety of human life;
and
5. Such negligence or wanton disregard, if any, directly caused the death of David Pernell, then you
shall find the defendant guilty of manslaughter.
If the prosecution has failed to prove any one or more of the above listed elements beyond a
reasonable doubt, then you shall find the defendant not guilty.
{| 136. The trial court refused jury instructions D-13 and S-3 after the following exchange transpired
on the record:
Defense: Now 13 is the one that ... pertains to the simple murder and I think the State's S-3 that was
previously submitted and withdrawn would be a better instruction on the simple murder. However,
the last paragraph concerning the felony of manslaughter we would ask that that be joined with S-3 or
if the court determines that manslaughter is not proper then we are submitting that simple murder is
proper. I don't want a commingle with what manslaughter and the other and have them both
effectively removed. | think it's a case by case situation.
State: We object to both request for a murder and manslaughter instruction. We object to a simple
murder instruction and we object to a man slaughter instruction because neither of those instructions
are supported by the evidence. We don't we couldn't prove simple murder if we wanted to. We don't
have any. We don't have any intent. The murder to prove a simple premeditated murder. So, that is
why I say that it's not a murder. This instruction is not supported by the facts of this case. They didn't
know the victim so obviously he didn't have any other then to rob them and kill him other than the
robbery motive. So therefore we are saying that there is not evidence of premeditation and deliberate
design which is a necessary element to prove simple murder. Whereas the evidence is sufficient to
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prove capital murder. And I believe the same thing would go for a manslaughter *743 instruction if
the instruction they have submitted ts based upon negligence, gross culpable negligence
manslaughter. We disagree that they should be entitled to that instruction because if you are
committing the crime of armed robbery and regardless of whether it's negligence or whatever,
whatever this case is whether it's with or with out deliberate design and you kill some one you are
guilty of capital murder and not manslaughter.
Detense: Judge, | agree with him but the point that I think is going to be argued strongly by us is there
is no proof of a robbery.
The Court: They are putting their burden on that.
Defense: But then they say well there is no proof of a robbery but we think he shot this man what is
the jury going to do then.
State: Their defense is not that this man shot him. There defense is alibi.
Defense: We are entitled to bring up whatever defenses we want. Mr. Rice testified there was
absolutely nothing to believe there was a robbery going on. This jury can find that this man was there
and did shoot Mr. Rice. But that, | mean Mr. Permell but based on Mr. Rice's testimony there was no
robbery going on and therefore whatever for whatever reason he shot him it's manslaughter.
The Court: I'm going to refuse the instruction....
§ 137. Howell also submitted jury instruction D-18, a simple murder instruction, which was also
refused by the tnal court. Instruction D-18 provided:
The Court instructs the jury that if you find the defendant, Marlon Latodd Howell, not guilty of
“capital murder" as charged in the indictment, then you should continue your deliberation to
determine whether the defendant, Marlon Latodd Howell, has committed the lesser crime of "simple
murder.”
The cnme of "simple murder" is distinguished from the crime of "capital murder” by the absence of,
or by the failure of the State to prove, the following element of the offense of “capital murder,” to wit:
the defendant, Marlon Latodd Howell, did kill the said Hugh David Pernell at a time when the said
Marlon Latodd Howell was engaged in the commission of the crime of robbery of the said Hugh
David Pernell.
THEREFORE. if you find from the evidence under this case beyond a reasonable doubt that:
1) Hugh David Pernell was a living human being; and
2) the defendant, Marlon Latodd Howell, did kill the said Hugh David Pernell in Union County,
Mississippi. on or about the 15th day of May, 2000; and
3) the defendant. Marlon Latodd Howell, acted unlawfully, willfully, and feloniously, without
authority of law, and with the deiiberate design to effect the death if Hugh David Pernell, then you
shal] find the defendant, Marlon Latodd Howell, guilty of capital murder.
If you fail to find the defendant, Marlon Howell, guilty of simple murder, then you should continue
your deliberations to consider the elements of the felony crime of manslaughter.
If you find trom the evidence in this case beyond a reasonable doubt that:
1. Marlon Howell on or about May 15, 2000, in Union County, Mississippi;
2. Killed David Pernell:
*744 3. By gunshot: and
4. Marlon Howell was negligent or acted with wanton disregard for human life, and the negligence
Was SO gross as to be tantamount to a wanton disregard of, or utter indifference to the safety to human
life: and
5. Such negligence or wanton disregard, if any, directly caused the death of David Pernell, then you
shall find the defendant guilty of manslaughter.
If the prosecution has failed to prove any one or more of the above listed elements beyond a
reasonable doubt. then you shall find the defendant not guilty.
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{ 138. On appeal, Howell specifically argues that:
The jury could have found and returned the lesser-included offense of simple murder or
manslaughter. The fact remains that if this jury had believed Howell approached P= nell's vehicle to
sell him drugs and was sprayed in the face »*th mace by Pernell in reaction, then they could have
returned a conviction on manslaughter. The [c, t's failure to instruct the jury on the lesser included
offense of simple murder and manslaughter was error. The jury as instructed had no choice but either
to turn Howel! loose or convict him of [
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