163 So. 3d 240
Miss.2014Background
- In 2000 Hugh David Pernell was shot and killed during his newspaper route; Charles Rice witnessed the shooting and later identified Marlon Howell in a police lineup. A Lorcin .380 pistol found nearby forensically matched the fatal bullet; co-defendants Lipsey and Ray implicated Howell and pleaded guilty to related charges.
- Howell was convicted of capital murder and sentenced to death; this Court affirmed on direct appeal in 2003 and later granted limited PCR relief in 2008, ordering an evidentiary hearing on three issues: Rice’s alleged recantation, counsel’s presence at the lineup, and Terkecia Pannell’s alleged exculpatory statements.
- At the 2013 evidentiary hearing Rice reaffirmed his trial identification and disavowed a 2005 affidavit that cast doubt on his ID; the trial judge found the 2005 affidavit unreliable and Rice credible.
- Pannell’s statements were inconsistent: she provided an affidavit suggesting Howell’s innocence but admitted to drinking, possible falsehoods, and lacked personal knowledge; the trial court found her testimony hearsay, unreliable, and not material for Brady relief.
- The court heard extensive testimony about whether defense counsel was present at the pre-indictment lineup; officers testified Howell was held on a parole-warrant (not yet charged with capital murder) when the lineup occurred. The trial court found no Sixth Amendment right to counsel had attached for capital murder and, in any event, any error was harmless because Rice’s in-court ID rested on his view at the scene.
- Additional claims that Attorney General Jim Hood should have been excluded from the hearing and that newly discovered alibi affidavits (Lasonja Gambles) should be admitted were rejected: Hood was not called as a witness and exclusion was within the trial court’s discretion; the court also denied supplementing the record because the remand scope was limited.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rice’s alleged recanted identification | Rice’s 2005 affidavit recanted his ID; a new trial is warranted | Rice reaffirmed his ID at hearing; 2005 affidavit unreliable | No new trial — trial judge credited Rice; recantation was unreliable |
| Pannell’s alleged exculpatory statements / Brady claim | Pannell’s statements were favorable, suppressed, and would have changed outcome | Pannell’s testimony was hearsay, inconsistent, and not admissible or material | No Brady violation — her evidence was not credible or material |
| Right to counsel at lineup (Sixth Amendment/offense-specific) | Howell was effectively under arrest and entitled to counsel at the lineup; absence of counsel tainted ID | Right to counsel is offense-specific and had not attached for capital murder at pre-indictment lineup; harmless if error | No entitlement to counsel for capital murder at pre-indictment lineup; even if error, harmless because ID was reliable |
| Ineffective assistance for failing to investigate counsel’s presence at lineup | Trial counsel failed to confirm whether an attorney was at the lineup, undermining defense | Counsel reasonably relied on official testimony and moved to suppress; investigation not required further | No Strickland relief — counsel’s performance was reasonable under circumstances |
| Participation of Attorney General Hood in hearing | Hood should have been excluded as a potential witness; his conduct prejudiced Howell | Hood was not called as a witness; exclusion was discretionary and no demonstrable prejudice | No abuse of discretion; allowing Hood to participate was not reversible error |
| Motion to supplement record with new alibi affidavit (Gambles) | Newly discovered affidavit corroborates Howell’s alibi and should be considered | Trial court lacked jurisdiction to consider evidence beyond issues remanded by this Court | Denied — remand scope limited; court properly refused to supplement the record |
Key Cases Cited
- Howell v. State, 860 So. 2d 704 (Miss. 2003) (direct appeal affirming conviction and addressing lineup/identification issues)
- Howell v. State, 989 So. 2d 372 (Miss. 2008) (granting limited PCR and ordering evidentiary hearing on specified issues)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose material favorable evidence)
- Napue v. Illinois, 360 U.S. 264 (1959) (prosecutor may not allow false testimony to go uncorrected)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance standard)
- McNeil v. Wisconsin, 501 U.S. 171 (1991) (Sixth Amendment right to counsel is offense-specific)
- Kirby v. Illinois, 406 U.S. 682 (1972) (right to counsel at post-indictment lineup)
- Neil v. Biggers, 409 U.S. 188 (1972) (factors for assessing reliability of identification)