Howell, Marlon (aka Cox, Marlon) v. Mississippi (01/24/2005)

Questions presented: (1) Whether, in death penalty cases, a state court can refuse to give a jury the option of finding a defendant guilty of at least one lesser offense if it is recognized by state law and supported by evidence? (2) Was Howell's federal constitutional claim properly raised before the Mississippi Supreme Court for the purposes of 28 U.S.C. Sec. 1257?

BY HAILEE LAMPERT, MEDILL NEWS SERVICE

It was a little after 8:00 on the night of May 14, 2000, in New Albany, Mississippi. Hugh David Pernell was getting ready for bed, since he had to wake up early the next day to deliver copies of the Tupelo Daily Journal as he did every morning. Charles Rice was also asleep, as he, too, would be waking up in the early morning hours to begin another day at work. Marlon Latodd Howell had just gotten into a car with his friends, ready to begin another night out with his three friends.

Before that night, the lives of Pernell, Rice and Howell had never crossed. On that night, each was going about his own business. And, in a matter of hours, each would experience the same event, and each would be affected in a very different way.

Brandon Shaw, Curtis Lipsey and Adam Ray stopped to pick up Howell before heading to Tupelo. When Howell joined his friends in the car, he told them he needed money to pay his probation officer. (According to the testimony of an officer, probationers had a responsibility to pay a $25-a-month supervision fee as well as $10 for failed drug tests.) Howell had received notices that he needed to pay the fees by the next day. Otherwise, he told his friends, he would be "locked up."

Along the way, the boys stopped at a gas station. "There goes an easy lick," Howell’s friends later testified that he said, referring to a man in the parking lot at a payphone outside a convenience store.

The four boys returned to New Albany and stopped at Shaw’s home where they talked for several hours. Around 4:00 the next morning, Howell, Lipsey and Ray left Shaw’s house and would not return until 5:30 a.m.

At around 5:10 a.m., Rice had just woken up and was watching TV while getting ready for work. Pernell had already begun his shift and was delivering newspapers not far from Rice’s home, located in a predominantly white county. Rice said he heard a horn blow, causing him to peer out his window. He would testify later that he observed Howell and his friends in a dark-colored, late model Oldsmobile stopped behind Pernell’s car.

By that point, Rice had stopped watching television and had started watching the interaction that had begun to transpire. Howell got out of the passenger’s side of the rear car, according to Rice, and approached the driver’s side of Pernell’s vehicle. Rice said he saw a conversation occur and described the events that followed: Howell pulled out a pistol. He shot Pernell. He jumped back in the car. The car sped off.

Around 5:30 a.m., the boys returned to Shaw’s house. Howell hid the gun in Shaw’s backyard and told his friends not to tell anyone what had occurred that night. The next day, however, his friends confessed to authorities. Howell was arrested at approximately 7:30 p.m.; Rice immediately identified him in a lineup of six men of similar height, weight and skin color.

Almost a year later, a jury for the Union County Circuit Court of Mississippi found Howell guilty of capital murder and attempted robbery and sentenced him to death by lethal injection.

Howell filed a direct appeal with the Mississippi Supreme Court, raising 28 issues. Primarily, he claimed the trial court unfairly denied him the possibility of being found guilty of "simple" murder or manslaughter, for which the maximum sentence he could have received would have been life in prison – not the death penalty.

On Oct. 23, 2003, Mississippi's highest court affirmed the trial court’s judgment with a vote of 6-2 (one judge abstained).

In a 91-page opinion that addressed all 28 issues, Justice Charles Easley wrote for the majority that the court found no reversible error and affirmed Howell's death sentence.

In a concurring opinion, Justice William Waller signed onto the conviction and sentence, but spoke out on the issue of indigence, objecting to the trial court’s denying Howell funding for expert services since his lawyer represented him pro bono.

"To deny a defendant what is customarily afforded an indigent defendant simply because counsel is pro bono sends the wrong message to the Bar and will have a chilling effect on attorneys volunteering to represent indigent defendants accused of capital offenses due to the costs associated with defending a capital case," Waller wrote for himself and three other justices.

Justice James Graves penned a dissent, outlining three reasons Howell did not receive a fair trial. The first was the state’s refusal to allow the only two African-Americans jurors to serve at the trial level. In dismissing them, the state cited a criminal record for one and, for the second, objected to his not being forthcoming about an outstanding warrant for his arrest.

Graves said: "Unfortunately in so many cases voir dire has become an exercise in finding race neutral reasons to justify racially motivated strikes…In the case at bar, the defendant was black, the victim was white, the jury seated was all white, and the only two black venire members available for selection were struck by the State."

The second objection Graves raised was that Howell’s attorney was not permitted to individually question jurors who admitted a predisposition in the case.

"To require defense counsel to question jurors regarding their knowledge of Howell’s criminal background, which had been discussed in local newspapers multiple times prior to the start of the trial, would have highly prejudiced Howell’s chances of getting a fair and impartial jury," wrote Graves.

Third, he objected to the fact that, during closing arguments, the trial court permitted the state to refer to Howell’s testifying at trial about his alibi defense.

"[T]he prosecution is prohibited from making a direct comment or reference by innuendo or insinuation to a defendant’s failure to testify on his behalf," Graves wrote. "The prosecution’s statement in closing argument here can only be construed as a comment on Howell’s failure to take the stand and give details concerning his alibi."

Justice Chuck McRae joined Graves in dissent.

Howell sought review from the U.S. Supreme Court, and on June 28, 2004, the Court agreed to hear the case and allowed Howell to have the case heard without costs.

Howell presented the Court with the question of whether, in death penalty cases, a state court can refuse to give a jury the option of finding a defendant guilty of at least one lesser offense if it is recognized by state law and supported by evidence.

Andre de Gruy, director of the Mississippi Office of Capital Defense Counsel who is representing Howell before the Supreme Court, argued the reason Howell was convicted of capital murder was because the jury was faced with the decision of sentencing him to death or setting him free.

In their petition to the Court, Howell's attorneys cited his constitutional 8th and 14th Amendment rights as well as Beck v. Alabama, a 1980 Supreme Court case that was concerned 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."

In addition, Howell’s petition cited a 1984 Mississippi case, supporting the argument that a defendant cannot be charged with a capital offense until he has been proven guilty of the underlying felony.

In accepting the case for review, the Court also asked the parties to address whether Howell properly raised his federal constitutional claim before the Mississippi Supreme Court. If not, the Court would not have jurisdiction to hear the case.

De Gruy argues that the Mississippi Supreme Court was aware of Howell’s federal constitutional rights.

"They knew that this was not only a state claim but also a 14th Amendment claim," he says.

However, Mississippi Attorney General Jim Hood disagrees. Therefore, he argued, the U.S. Supreme Court does not have the jurisdiction to review the case.

"The Mississippi Supreme Court was never asked to consider, much less ‘address,’ the federal constitutional claims now raised by [Howell] before this Court," the State argues, adding, "it is also noteworthy that – even if this Court had jurisdiction of this question (which is disputed) – Beck and the subsequent cases cited by [Howell] do not apply in a case where the evidence fails to support a murder instruction."

With 70 people on death row in Mississippi as of April 1, 2004, according to the Death Penalty Information Center, the argument is that by denying a lesser offense instruction, more individuals are sentenced to die.

On Jan. 24, 2005, the Supreme Court issued a per curiam opinion, dismissing the writ as improvidently granted. The Court's reasoning was that Howell's brief in the Mississippi Supreme Court has failed to properly present his claim as one arising under federal law, in that he did not cite the Constitution or even any cases directly construing it, much less any of the Supreme Court's cases.