171 So. 3d 566
Miss. Ct. App.2015Background
- Dennis Howard was convicted of armed robbery; conviction affirmed on direct appeal (Howard v. State). He later obtained Mississippi Supreme Court permission to file a post-conviction relief (PCR) motion alleging trial counsel prevented him from testifying.
- At the PCR evidentiary hearing Howard (pro se) testified that he repeatedly told trial counsel he wanted to testify but counsel ignored him and rested the case; no defense counsel witness (trial attorney) testified to contradict him.
- The circuit court found Howard not credible, denied the PCR motion, and Howard appealed. The Court of Appeals reviewed procedural challenges to the hearing and whether the merits claim was waived.
- The Mississippi Supreme Court’s leave to file a PCR motion limited the scope of issues that could be litigated in the circuit court. Howard attempted to expand his motion; the trial court declined to consider claims beyond the approved motion.
- The record includes on-the-record admonitions by the trial judge advising Howard of his personal constitutional right to testify and that the decision to testify belongs to the defendant. After a sidebar/recess, defense counsel rested without calling Howard; the jury later submitted questions referencing the defendant’s non-testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Whether the trial court should have subpoenaed Howard’s trial counsel for the PCR hearing | Howard: court should have compelled counsel to testify because counsel was the only witness who could confirm/deny his claim | State: burden rested on Howard to produce witnesses; no authority requires court to secure petitioner’s witnesses | Court: No error — petitioner must subpoena or otherwise present witnesses; trial court not required to subpoena counsel sua sponte |
| 2) Whether the trial court exceeded scope by refusing to allow amendments and new claims at the PCR hearing | Howard: additional constitutional and ineffective-assistance claims should be heard | State: Supreme Court’s leave was limited to issues in Howard’s application; trial court lacked jurisdiction to consider new claims | Court: Denial proper — leave from supreme court was jurisdictional and limited hearing scope |
| 3) Whether denial of motions (transfer from lockdown, appointment of counsel, continuance) was erroneous | Howard: lockdown prevented preparation; needed appointed counsel or continuance to secure counsel and witnesses | State: no constitutional right to appointed counsel in PCR; Howard had notice and delayed requesting continuance; no showing of particular prejudice | Court: No abuse of discretion — appointment not required; continuance denied properly; no showing of manifest injustice |
| 4) Whether Howard was deprived of his right to testify and whether the merits were properly decided/waived | Howard: counsel prevented him from testifying; judge should have obtained an on-the-record waiver or compelled counsel to testify | State: record shows judge advised Howard of right to testify; defendant’s silence and counsel resting allows inference counsel followed client’s wishes; Howard waived/failed to prove claim | Court: On appeal merits waived by inadequate briefing; alternatively, even on merits court upheld denial — credibility finding against Howard and established jurisprudence permits treating silence/acquiescence as prima facie proof counsel followed client’s wishes unless petitioner proves otherwise |
Key Cases Cited
- Howard v. State, 2 So.3d 669 (Miss. Ct. App. 2008) (prior appeal affirming conviction)
- Roach v. State, 116 So.3d 126 (Miss. 2013) (petitioner bears burden by preponderance in PCR)
- Culberson v. State, 412 So.2d 1184 (Miss. 1982) (trial judges should, as prudent practice, inquire out of jury’s presence whether defendant wishes to testify)
- Dizon v. State, 749 So.2d 996 (Miss. 1999) (remanding for hearing where opening statement indicated defendant would testify and judge was on notice defendant wanted to testify)
- King v. State, 679 So.2d 208 (Miss. 1996) (defendant’s post-rest silence can be treated as acquiescence; opportunity to notify court could have corrected issue)
- Shelton v. State, 445 So.2d 844 (Miss. 1984) (Mississippi does not impose a mandatory on-the-record waiver requirement)
- Underwood v. Clark, 939 F.2d 473 (7th Cir. 1991) (defendant must produce more than a bare, self-serving affidavit in collateral attack claiming counsel prevented testimony)