UPDATE: Howell appeal judge takes issues under consideration

By Patsy R. Brumfield / Daily Journal

4:05 P.M. POST (FINAL POST)
NEW ALBANY – Marlon Howell’s push for a new trial is in Judge Samac Richardson’s hands after a three-day hearing ended where his 2001 trial began.
His counsel asked for the new trial, at the very least from a jailhouse lineup was “tainted” because Howell did not have an attorney and should have.
The state insists there were no errors, except “harmless” ones, when Howell was tried for the 2000 shooting death of newspaper carrier David Pernell.
The Mississippi Supreme Court ordered an evidentiary hearing over various issues surrounding Marlon Howell’s 2001 conviction for capital murder in Union County.
(Below is a running account of the final afternoon session. Please excuse the typos and other glitches likely as I type rapidly.)
• • •
3:01 – Both sides prepare to make closing statements.
[Below with Waide is a little confusing and hard to hear. I will try to clarify when I speak with him later.]
WAIDE – MOVE COURT ON EXHIBIT 28 … Statement by Tim Kent … KELLY – HE’S ALREADY TESTIFIED … WAIDE – Motion to dismiss hearing or grant new trial because AG’s intimidation of witness. Denial of federal due process law. Further, occurrence during this case about witness Pannell. Would like court to see documents given to us about Pannell, a polygraph. HOOD – No objections to entering polygraph. Says 2 polygraphs conducted on Terkesia Pannell. WAIDE – Factual basis, to grant new trial based on prosecutor’s conduct … also that on 10th …first page indicates she agreed to testify. On 11th, took polygraph. On 12th, took another one. And specifically alluded to her testimony. (told about questions.) Every question is about her testimony. They also are contradictory. No alternative for her. Also, when he goes up to an attorney to say you’re going to be prosecuted, warns him about witnesses to intimidate him about calling them. We think this is very serious. We are going to look for authorities.
HOOD – This is classic situation. Only time court ordered hger not to talk to anyone was yesterday afternoon. Wednesday, we took a break. Court says not to talk to her. She came back and testified. We issued a subpoena for her. Then she became our witness, we had a right to interview her. We did polygraph yesterday and another today. We asked if she lied on witness stand. Wanted to give her one chance to tell the truth. Waide set all this up to go back and interrupt. I asked about three questions. Waide jumped up and said he was going to tell the judge. He said all that … they submitted affidavits and would say weren’t true. As officer of court, I had a duty to warn him about putting on testimony he knows is not true. What’s going to happen to Richardson, I’m going to ask court to make a decision. The Bar? I don’t know. No misconduct on behalf of the state.
JUDGE – We’re through with that. Made your motion and response. I’m not sure it’s incumbent on this court … to.. how can I say… to take that matter up. One, I don’t know about affidavits. If in fact what you say occurred, if it has… that is an issue for … if feel strongly enough to report to Bar … further, if there’s a criminal act … intimidation of officers of court and witnesses. There’s a statute on that. Grand jury meets, get on its docket. Either side, let grand jury have a shot at it. If crime has been committed, should pursue an indictment. Don’t think I have authority to make punishment in this situation. That’s way I see it. Every lawyer has duty to report every ethical violation… and have it investigated. Motion denied.
Ready to proceed? OK. 3:14.
RICHARDSON – I will be brief. Just going to give overview and keep my emotion down to a minimum and be professional in my approach to court. This case has been about things it shouldn’t be. Not about me. About whether Marlon Howell got a fair trial. Most critical issue about most critical witness – no attorney at that lineup. Proven by affidavits, more importantly by one person who said none there … he could not dispute that. After 13 years, we learn that trial court and Supreme Court have labored and made important decisions about case based on fact that was in error. Not for me to say, neglect or improper motive. Chief is officer of the state … his duty is higher than average citizen to testify. His duty is to make certain that what he says is correct. But once he knows he’d made a mistake, it was to take to D.A. and let him know so can notify defense.
First time ever brought to defense was after Mr. Howell had had a hearing before MS Supreme Court. Had lost opportunity to confront witnesses. Put yourself in Duncan Lott’s position. Difficult under best of circumstances, but when material fault fact that is going on and laboring under that, protecting Howell’s 4th, 5th and 6th Amendment rights. Also, in MS, very proud of this case, because it’s extended right of counsel … when someone arrested and jailed under specific charge, right to counsel attaches.
If take it farther, it was so easy for this to happen. All had to do was to ensure that his right was protected. Contend the right enured on May 15 when he was put in that jail. No excuse for them not to … testimony… lawyers show up at 9:45. Lineup in 20-40 feet of where lawyers show up. All had to ask lawyers to assist client. All had to do, or appoint counsel. They proceeded without it. Reason I know they knew… look how long they tried to disprove there WAS counsel there. For 13 years. Only to find there wasn’t a lawyer at that lineup.
Unique situation, but also an egregious situation. Not simply that lawyer wasn’t at a hearing., And ruling on effect on case. In this case, you have incredible situation where 6th amendment right attached, chief testified that Regan Russell was there. Court made its finding based on that evidence.
In MS Supreme Court, finds it will take minimum effort for Lott to call Russell to verify. True. His client told him, I didn’t have a lawyer there. He expressed surprise that chief said lawyer was there. Supreme Court was right – should have picked up phone. Regan Russell … this is a small town … Russell heard that his name was bantered around about being there. He tells the court on stand, at or about time of trial… says can’t say exactly… but I told chief I was not there. That means chief was put o notice at or about time of trial. At that point, he had obligation and duty to report that to D.A. – hey, I may have been wrong. Russell didn’t get put on stand to say he wasn’t there.
What does chief do? Nothing. Nothing. That means we go through motions hearing to correct, trial … aware of recantation of Rice … is no physical evidence linking my client to this crime. Only evidence is Rice, Ray and Brandon Shaw. If ever time for close scrutiny – it’s now. No DNA, gunpowder residue. Gun’s not his. It’s Ray’s. 911 says 2 people in car. Quick Stop lady said that.
But nothing’s done when could be corrected. Goes to MS Supreme Court – finds lineup reasonable… because Howell had attorney present. If I was MSSC, I’d say … something wrong with lineup, lawyer should have said something. Since he didn’t, must not have been there. Another court relies on false testimony under oath. Now has grave impact on his appellate right.
In 2005, I submit Russell’s affidavit saying not there. State takes it and goes … not to Russell … they go to chief. What does he do? He signs another affidavit not Russell, it’s Tpm McDonough. McDonough says he told chief not to do that because he told defense he wasn’t there. I called every lawyer in three counties to make certain. Got affidavits from key people who did criminal work at time.
Based on that, situation where state should have gone further. McDonough affidavit – does state try to find out. No, they stand by it. Chief believes was Russell but still signs affidavit. Did he take it back? No. Misconception has gone this long.
No way, absolutely no way… initial statements say Marlon Howell wasn’t there. They were torn up. No way for his 4th, 5th 6th amendment rights … no way to get a fair trial. Given … look at Rice… committed a felony because I wanted them out of my hair. He didn’t say leave. He just decided to commit a felony signing an affidavit he didn’t believe to be true. Reason? We wanted him to be certain. We said sign this, think on it and we’ll come back with more formal affidavit. If you’re sure, you can execute it.
We treated him with utmost respect. You saw Leonard Sanders. Me. His testimony violates …. case screams for relief.
We ask court to move as soon as possible for a new trial. 3:30
JASON DAVIS – ASST. ATTY GENERAL –
Will address issue of the lineup and whether defense counsel was effective at lineup. This isn’t a typical 5th amendment case. I agree with counsel. But not a 5th amendment case at all. Mr. Howell was clearly not under arrest for capital murder when lineup occurred. Ms Supreme Court said 5th amendment rights do not attach until charge begins. We submit he was not under arrest for capital murder when lineup occurred.
He was not entitled to counsel. (cites cases. Talks about these cases.) Ms Supreme Court has new language where individual has been arrested and looking toward initial appearance. Right to counsel attaches after arrest and at point when initial appearance ought to have been met. When is that?
Lineup issue: We note for record trial counsel did not relinquish its claim about Russell at lineup. Record reflects. Judge stated it was a good lineup after question of whether it was. (tells about how lineup was composed by computer) MSSC says lineup was sufficient. Say counsel heard judge rule lineup was sufficient.
Question becomes when Howell was arrested: 8:30 on evening prior on blue warrant. Taken to lineup mere 14 hours later. Put in lineup. Two hours later was before a judge. This goes back to when his initial appearance ought to have occurred. (cases cited and compares with Howell case) (Notes court rules about initial appearances, within 48 hours or arrest.) Howell brought for initial appearance mere 14 hours after arrest. Also submit under MS Code 99-1-7, tells us when prosecution may commence – after issuance of a warrant or binding over. Record supports that Howell wasn’t under arrest for capital murder – no warrant for that. His 6th amendment right had not attached at this time. MSSC says lineup was sufficient. Where is the violation? Submit there is none.
Beyond this … (cites cases) … we ask that your honor find Howell was not under arrest for capital murder and 6th amendment rights do not attach. But … should you determine he was under arrest for it – and determine he was entitled to counsel – lineup was deemed sufficient. (talks about harmless error – with illegal lineups) He was not under arrest. In these cases … that Rice’s in-court identification of Howell was sufficient. Record notes first ID in court by Rice was after question: Who did you see shoot Mr. Pernell?
We know issues of Rice’s ID … MS Supreme Court has already determined issues of his reliability are foreclosed from argument. .. that court can proceed to an analysis. 3:40.
HOOD – I’m not here to argue what my colleague said about law … following the law. The facts of the matter … if their rule is correct, anybody can go through lineup and must have a lawyer first…chicken and egg. Must have charge to get a lawyer. MSSC decision – seems pretty clear. Cases where warrant issued and lineup, that’s where our Supreme Court says entitled to counsel.
My issues – no recantation. No withholding of exculpatory evidence. Third that trial counsel was not ineffective for failure to pursue exculpatory evidence. Remember being Supreme Court clerk, thought about what happened in a trial. I know now why MSSC says re-canted testimony should be viewed very unfavorably. Our view, theirs are not favorable. Base it on testimony. Talking to Judge Coleman during recess – rely on him for impressions of his witnesses when he made these decisions in this courtroom.
Take testimony of Charles Rice … he was same as at trial, no change in his identification as person who committed the crime. They came out, he says they badgered him right beFore he was to get married. Did it again, he says. Saw his reaction to cross-examination. Trying to tell the truth.
As to Pannell-Gaines, I’ve seen a lot of witnesses – I’ve tried over 100 – I don’t think I’ve ever seen a witness go back and forth so much like jelly. She answered contradictory. Her testimony was totally unreliable. Second, if you look at affidavits … looking at what she said wasn’t true. She struck only two exculpatory statements – only ones she could provide. (JUDGE TELLS HIM HE’S OVER TIME …. SORRY, WROTE IT DOWN WRONG. HOOD CAN GO BACK FOR A FEW MORE MINUTES.)
JUDGE – GOT 5 MORE MINUTES.
HOOD – Brandon Shaw, a strong witness. Nothing to gain by testifying. Lengthy cross – reaffirmed his testimony. Said defense wrote out statement, got him to sign it after badgering. No re-cantation in this case.
No withholding exculpatory evidence withheld – Pannell said Shaw told her Ray and Lipsey committed the murder.
Trial counsel was not ineffective about exculpatory evidence, with prejudice. Trial transcript says … opening statement… defense counsel says Pannell will say defendants never came into the room. Only way to know that is to have talked to her. Counsel did his job and was prepared. But she’s such a bad witness. Second, all her testimony was hearsay and not exculpatory. Reasonable possibility it would not have changed the outcome. Answer is no. Her testimony was not admissible. Counsel has not proven this case on any of the issues.
Their claim should be denied.
2 more minutes…. We think court should rule on – some suggestions … no re-cantation, no withholding evidence, trial counsel was not ineffective. But if finds no attorney available … then we submit there is no arrest, was there on a blue warrant. Within a few hours he was brought before a magistrate for initial hearing. No attachment of 6th amendment right to counsel. We think, use harmless evidence in this case. 3:52
MATT RICHARDSON – We contend his right to counsel had attached. Clear, based on documents introduced … and Tim Kent testimony that he was arrested for capital murder the night of the 15th. He said didn’t want him to resolve his parole issue and leave. Purpose of booking, in effect he was under arrest. (cites cases.. definition of arrest) He was being held on capital murder. Next day… must go before judge without unnecessary delay, not to exceed 48 hours. Only one excuse for delay is lack of access to a judge. Testified they had court starting at 10 a.m. He could have been appointed counsel. They chose not to do that. Had lineup. Howell was wearing different shoes… lineup was used throughout trial…. Look at closing arguments, they talk about the lineup.
If that’s not enough about error the Ms Supreme Court, says Rice’s testimony was crucial to state’s case. No way to be harmless for Mr. Howell. (cites cases) when lineup is in violation of 6th amendment rights … no one should have been allowed to say “lineup” in this entire trial, It tainted the trial and the appeal. State still won’t concede that he didn’t have a lawyer. Mr. Howell should be granted a new trial.
JUDGE – 3:56 – CONCLUDES THE HEARING. Will work on this across next few weeks.
KELLY – One matter, neglected to submit affidavit. Live testimony is it.
RICHARDSON – Will ORDEr a transcript. Wanted to alert the court about that.
RECESS. 3:58
• • •
NEW ALBANY – Attorney General Jim Hood tried to intimidate a rebuttal witness today in defense attorney Jim Waide’s presence, Waide told Judge Samac Richardson after an afternoon break.
Waide said Hood bluntly asked former witness, Terkesia Pannell, if she knew what perjury was and that she’d failed a polygraph.
That’s clearly intimidation, Waide insisted.
Waide was present when Hood questioned her because defense attorneys insisted that’s what Hood would do, when he re-questioned Pannell.
Later in the day, defense investigator Leonard Sanders, on repeat testimony, insisted Death Row inmate Marlon Howell’s main attorney, Billy Richardson, never offered anyone money for their sworn statements.
Howell’s counsel seeks a new trial for him or to have the Union County capital murder conviction overturned because of alleged constitutional rights violations.
The evidentiary hearing was ordered by the Mississippi Supreme Court.
Senior Judge Samac Richardson of Rankin County, no relation to Howell’s lead counsel Billy Richardson of North Carolina, is presiding over the hearing, which began Wednesday, after all the circuit district’s judges declined to participate.
Attorney General Jim Hood was the case’s district attorney when it came to trial. On the state’s team with him are current D.A. Ben Creekmore, Assistant D.A. Kelly Luther and Assistant A.G. Jason Davis.
Attorney Richardson is assisted by Tupelo attorneys Jim Waide and Rachel Pierce Waide, with support from the Mississippi Innocence Project based at the University of Mississippi.
Howell, who was seated at his counsel table, was sentenced to death after his conviction for the May 15, 2000 shooting death of David Pernell, a Daily Journal newspaper carrier. His co-defendants insisted he killed Pernell but later recanted. They were sentenced to prison on other charges.
(Please forgive the typos and other glitches likely as I type rapidly.)
• • •
1:02 P.M. – Judge returns.
KELLY CALLS JIM NANCE
NANCE – Corrections supervisor, MDOC. 16 years. Involved with Marlon Howell situation. Never supervised him. (Involved with his arrest?) Yes. (When?) May 16, 2000. (Records about that?) Assigned to Union County and also supervise about 70 counties. (Records? … when arrested him, what authority?) As a field officer, MDOC. (Documents to do so?) Yes. Field officer’s warrant, blue warrant. (Allegation in document?) Yes. (Hands him document, what is it?) Warrant for arrest for probation violation issued against Marlon Howell by me, May 15, 2000. (Involved taking him into custody?) Yes, had that warrant at time. (Probation violation, what?) Stated, failure to avoid vicious habits, not paying various court fees. (Anything else going on?) Officer Chuck Mullins had started a warrant on his person, failed to sign it. This was original warrant by Mullins. I signed it. Also, a citation for contempt of court for him. For court-ordered monies.
(Kelly – Separate from MDOC fees?) Yes. (Failure to avoid vicious habits. What is that?) Reference to a positive drug test. Failed drug test 5/5/2000. (Once incarcerated on that, did police have authority to release him?) No. (If arrested 5/15 … could he be released?) MDOC could withdraw warrant or taken to court, which could release him if wanted to. (Would fee payment relieve him of obligation?) Only one condition. Other conditions stated. (Cites document number for judge.) 1:10
RICHARDSON to question. (Earlier that day, Howell was in court on probation matter?) NO sir, he was there on issue of court-ordered fees. (Warrant typed and ready to go about that time or before?) Not sure when original warrant was there by Mullins. (But everything you’re talking about was done prior to May 15 when he was in court?) I don’t know when original warrant was in court. (I understand, but original allegations were before then?) Yes. (You were there that day?) Not sure.
(Shows him Exhibit 42 … you had other people in court that day you supervised?) I was there, I believe. (What is this important to? Court proceedings?) Appears to. (Shows Howell in court that morning?) Yes. (Warrant for?) Just for court costs, court-ordered money that’s all. Not in court for supervision or drug testing fees. Separate issues. (Customary when talk about …) If there for violation of probation. MDOC did not bring this forward, the court brought it. (Judge continued it?) Yes, the court-ordered moneys. Not sure I was there that day. Possibility. Not normally there on day for citations of contempt. I don’t have a record of that day, myself. 1:15
KELLY – REDIRECT
(KELLY – Does MDOC have anything to do with court costs?) No sir. (Document – citation. What is this?) I’ve seen it in the file. Probation file. (What is alleged in citation?) Failed to pay remainder of $594. Nothing to do with MDOC. (Does MDOC have anything to do with preparation of document?) No sir. (Other charges?) Yes – habits, supervision fees. (Remember anything about Howell’s citation?) I don’t know for sure if I was there. (Remember any comments about Howell before court?) No sir. (Were you his supervising officer?) No (Know who Marlon Howell was?) Only from past experience. Saw him come in to report to house arrest officer. No contact with him. (Normally not at court days? Why not?) That is a court proceeding that MDOC not usually involved in.
HOOD – Before we rest, have some polygraph results … RICHARDSON – OBJECTION… OBJECTION… DO NOT COMMENT OVER OUR OBJECTION.
JUDGE – What do you intend to do with it? HOOD – Consider calling a witness. JUDGE – YOU DO THAT.
WAIDE – Somebody ought to be in there with the Attorney Gen. Considering everything that’s gone on here. JUDGE – YESTERDAY, allowed it because of confusion. Not going to allow that. RICHARDSON – Did the court not say we couldn’t bring a witness that … didn’t we do a general sequester for all witnesses? HOOD – SHE’S BEEN released.
JUDGE – SHE HAS NOT BEEN RELEASED. HOOD – She was up there during a break, we said can’t talk to her.
JUDGE – My position on that – brief says no witness shall discuss testimony with any other witness. Rule invoked and she’s sequestered. Does not restrict lawyers from talking to witness. Same oath, ethical considerations as officer of the court not to tell somebody what to say on the witness stand. Certainly can discuss issues of case with your witness, except while on witness stand. I know of no restrictions. Just can’t tell them what to testify to.
WAIDE – Only exception. This is a witness relating to contradictory testimony. (Judge – I didn’t know who witness is.) HOOD – Terkesia Pannell is who this is. This is a rebuttal witness. Trying to interview her on rebuttal.
RICHARDSON – Clearly they polygraphed her. Not on record. That’s what they did. It will intimidate her.
WAIDE – throughout hearing, lots of concerns about intimidating witnesses. This one while on stand did say contradictory or confused things. Your honor was concerned and said neither of us to talk to her. She’s subject to being influence when she’s not been talked to.
JUDGE – WHEN I SAID WHAT I SAID, I DID not want it to appear undue influence on that particular witness. Concerning intimidation … undue influence, it’s been about police intimidation. This being same witness, even tho rebuttal, I don’t want record to show any intimidation from either side. I don’t want that chance out there. Not sayng you would. (to Hood) Better to follow same procedures with this witness.
HOOD – Ask Bailiff to go and me … I only have a couple of questions. Or in chambers. I’ve never been prevented from calling a rebuttal witness. Only reason for that ruling yesterday on her was that we took a break. It’s part of the state’s case is to rebut. I should be able to see in private, not with defense attorney there.
WAIDE – Here … to get to the truth. We’ve got a witness instructed not to talk to anybody. Reasons for your honor’s instructions.
JUDGE – Just like yesterday. Put the witness on. (Hood – so defense counsel can go with him. Is Waide allowed to ask questions?) No. He’s there to observe. 1:28
(PAUSE WHILE HOOD TALKS TO PANNELL IN WITNESS ROOM… WITH WAIDE PRESENT)
1:32 – HOOD, WAIDE BACK IN COURTROOM
WAIDE – Would like to relate what happened in witness room. He said to her, do you know penalty for perjury? She kept repeating she told truth. He confronted her and said she failed the polygraph. He was trying to intimidate her and I stopped it. (Judge – to Hood, are you a witness? Richardson – no. Waide – we can call him in rebuttal.)
RICHARDSON – Asks for a few minutes to go over everything that’s happened. Judge grants them time to confer out of courtroom. 1:34
1:42 – WAIDE – We’re ready to proceed, we have rebuttal. We remove the motion.
WAIDE – CALL LEONARD SANDERS
SANDERS – Richardson’s investigator. (Still under oath, judge says.)
(WAIDE – Background stated earlier. Said you interviewed several witnesses. On each occasion, was someone else present?) Had someone else every time. That’s right. (Show him Brandon Shaw’s affidavit – Exhibit 31 – Is that your notarization and signature?) Yes it it. (Aug. 3, 2005 – your sig?) Yes. (Present when eh signed it?) Yes, I was. (Remember whether you saw Shaw on this or another occasion?) Saw him 2 times. (Remember first time?) He says essentially what’s here. No recorded. Just notes. (Remember where it was signed?) Think … at his apartment in Sherman, MS. (First time?) At detail shop in New Albany.
(Your best memory – when signed it?) On second visit, I believe. (In independent memory of first meeting?) He was at work at car wash. As I recall, he wanted to wait until he had a break, which we did. Billy Richardson, Joel Morris and me. (Ask to talk to him?) Yes. (Tell judge what happened.) Billy Richardson principally did interview. I didn’t ask anything. What’s reflected in affidavit, what he said. On second occasion, chiefly to get it signed. (Remember how long interview lasted?) I don’t … second was not long. First might have been 30-40 minutes, not sure. (While there, did you see any intimidation of him?) Not at all.
(Was money ever discussed in those interviews?) No it didn’t. (Did you see Richardson give him money?) No. Nothing like that occurred. (Remember whether … did he read it before he signed it or what?) It was read to him. Whether he read to himself, I don’t recall. (Who?) Billy Richardson read it to him. Heard him do so. Before he signed it. (Signature at bottom of statement?) Don’t recall. I was present when he signed it. Not sure if had my notary with me then.
(What’s your practice of swearing?) I know he was asked if contents were true, to the best of his knowledge. Don’t recall if we asked him to raise hand and swear.
(What about Charles Rice?… HOOD – OBJECT. We asked Rice about whether he was pressured.)
(Waide – shows him 2 statements, one handwritten other typed. Are these yours?) Yes. June 7, 2005 and June 9, 2005 dates. (Notary stamp on both?) Yes. Went to both. (Who present?) Billy Richardson, Joel Morris, his wife or fiancee and me.
(Where interviews?) Yes. At residence off Hwy 370 in Itawamba County… East Union. Near Tippah and Union. Wife, if she was his wife then. (Remember purpose of handwritten and then typed? Why handwritten copy?) As I recall, handwritten was when we first interviewed him. Didn’t have notary with me at that time. He signed. Second, was to give cleaner copy basically. Had notary with me on second. Went back to my office and stamped first one. I’m sure I asked him if he understood and approved contents. (Was it read to him too?) Yes.
(Exhibit 23 – Affidavit of Pannell … 3-4 pages. Were you present when she wa sinterviewed?) Yes. Interview was Joel Morris and me, made notes. Richardson not at first interview. (At time …) I don’t recall his being at second interview. He probably was, but can’t say positively. Sure he was at first. (Any difference in two statements?) No, no difference. In fact, second she signed – done from first. (Are these statements she told you?) Yes, she did. Because preparation was from notes of first interview. (Did you do anything to intimidate or threaten her?) No. (Tell her to change her story?) No. In fact, she seemed very comfortable talking to us.
(When she was giving affidavit… did you know if it was her personal knowledge or that someone told her?) I do remember. She stated it as if she witnessed these events. Nothing said about hearing from someone else. (Questions and answers?) Just what’s in affidavit. Nothing different. 1:58
HOOD – (Anybody talk to you before you came to testify today?) No. (Not since you testified the other day?) We met briefly yesterday afternoon, and when they got to point about other things, I stopped them. Said I don’t want to hear it. We talked about these affidavits. Haven’t been told what any other witness has said. (Your paid to be here?) I hope so. (How much?) Normal rate $70/hour. (How much total?) I don’t know… probably $30,000-$40,000… I really don’t know.
(You said both times with Brandon Shaw … said each 20-3o mins?) First was, not second. (In Sherman?) Probably 15 minutes. (See his mother and wife in Sherman?) His mother, I don’t remember anyone else. (Can’t dispute he had witnesses there?) I think his mother was there. Can’t dispute it. (How many with you then?) Took two – Richardson and Morris. (At car wash, same 3 folks?) That is correct. (You say 20-30 minutes?) Max 45 minutes. I had no reason to time it. (He was washing cars?) Not while we were talking to him. (Tell him who you were, who working with or on behalf of?) I didn’t. Billy Richardson did the talking.
(Did you hear Richardson say he was representing Marlon Howell?) Yes. I know he did. I can’t say exact words. We would make clear who we were and why there. (Did you introduce yourself?) I’m sure I did. (Did you?) I would have to say I did because that would be the routine. I don’t remember that. I know he was made aware who we were representing. (Routine as notary… you can’t say for sure?) That’s right. (Can’t remember if you swore him in, but remember introducing yourself to Brandon Shaw?) I’m not notarizing the contents, only his signature. Knew they were aware of the contents. (You don’t say you’re a notary?) Yes, I did.
(Document shows … writing at bottom and stamp. Put that after left?) Stamp on there after I left. Written while I was there. (Write that before or after he signed it?) I wrote it out and he signed it. (Remember that?) That’s what I would do, period. If I don’t have seal with me, I would write it out and place seal on when I get back to office. (You’re talking generally about what you do. What happened that day? You swore you wrote it out before Brandon Shaw signed it?) As far as I remember doing it, I don’t. It would be an exception if I didn’t.
(Who wrote that statement?) Billy Richardson. His handwriting. (You say he read it back to Brandon Shaw?) Yes. If you saw his handwriting, you can see why he read it back to him. (But when he read, do you know if it was on the paper or he just said something?) I know it contains what he said. (Were you there the whole time during this interview? In their presence?) Yes. (Did they walk around building?) That’s where we were. Don’t remember if he was washing cars when we got there or not. It’s been 8 years.
(So, admit not putting Shaw under oath?) Say I probably did not. I asked him, are contents true to the best of your knowledge. (If he told you about somebody committing murder, would you have written it down?) Sure. (Don’t you remember he said it was not Ray or Lipsey to murder, it was Howell?) No. (But you remember parts now?) Yes. If he’d said remembered …. who shot, I would have remembered that. (Did Billy say something about man on death row?) Words to that effect. (Brandon didn’t want to talk.) Not true, he wanted to keep working until he had chance for a break. He was doing something with a vehicle. (So Morris. Is he here?) No. (From N.C.?) Yes. (Did he introduce himself to Shaw?) I don’t remember, but I know the three of us were done by each of us or Billy.
(Small talk about beginning of conversation?) A few minutes, probably. 2-3-5 I don’t know. (How many times did you see Shaw?) Two. (Sure?) Yes. (Another investigator?) One, I suppose. (Morris?) Had that one, now he has another. WAIDE – INTERRUPTING.
(How many investigators did he have working on case?) Three, I know of. (So, you don’t know how many times Billy R. went to talk to him?) No. (What about other investigators?) I’m quite certain that I know. (You don’t know how many went to Brandon, you just know how many times you went?) Correct. (You said you believed Shaw signed statement on second time?) It was the second time. (Any females there at any time with Shaw, brought by defense counsel?) No. (So, now … think about it. .. did meeting go beyond 45 minutes?) If you want me to be exact, I cannot. I had no reason … didn’t have a stopwatch. (Making notes?) Not at that meeting., (At second?) No. At first, I may or may not. But at second, I did not.
(Se when asked yesterday about your statement… when you stopped them… did you not go back to files about statements?) No, only looked at affidavits. (Billing records for that day?) Don’t think I have them from 8 years ago. (What did y’all do that day when interviewing Shaw?) I don’t remember every day 8 years ago. (Remember this?) Yes. (Don’t remember if interviewed anybody else?) No I don’t. (Remember conversation about death penalty with Brandon Shaw?) The main thrust was to find out what Shaw knew back in 2000. Little about Marlon Howell. May have been mentioned but not dwelling on it. Just trying to get the facts, the thrust of the meeting. (Don’t recall Billy to say he’d pay him for his time?) No, nothing about money or payment was mentioned. (What about helping him?) No.
(On Charles Rice, two interviews?) Actually, three if you count … with Kent present. (At both, not one in New Albany… You brought your files of statements?) Yes, I did. (Who told you to do that?) Nobody. (Referring to Exhibit 4 – for defense) Sixteen, I believe. (Rice statement, handwritten? Did you write that?) No. I don’t recall. (Who was there?) Same as already said. Melody, Joel Morris, Billy R and me. (Who’s Melody?) Rice’s wife. (Was woman with you?) His daughter was here at some point. Don’t think she was at this, but not sure. Billy Richardson’s daughter. Maybe female secretary of his. Don’t remember which one. (Stamp on bottom. Did he sign with stamp?) No. (Did you swear him under oath, raise right hand?) Probably not. He …
(How long there when got his statement,… somebody to write it?) He agreed to sign it. We were there maybe an hour. In afternoon. (Did you stay til dark?) I don’t think so. (Are you confused?) No. (Rice said you stayed until dark?) I would dispute … (Did he say he was getting married?) Yes, said in near future. Again, don’t profess to remember everything. Said married soon. (Was he trying to get rid of y’all?) No. (Call you and tell you to comer over there?) No, he did not. (Did you call and say coming?) I don’t remember. We had hard time to find him. (Dodging you?) Don’t think he knew we were looking for him. (He says it lasted until dark.) I can’t dispute it but I don’t know what time we got there. Said mid-afternoon we got there. I don’t remember the time. No reason to remember. We had trouble finding him.
(Second affidavit – typewritten of Charles Rice. Taken June 9, 2005 – two days later. Why go back when he was about to hve a wedding?) He made comment like he was getting married … wasn’t a big deal. Living with woman several months. Was not like the wedding you or I had. (Why say that?) With bridesmaids and flowers. I took it he was going to justice court judge or something. He said … interpreted it that way. He didn’t make a big deal of it. (Any difference in first statement and second one?) Not much difference. (What reason for going back and doing it again?) I don’t know the reason. Probably to have cleaned up copy. (Whole lot better than Brandon Shaw. You can read this.) Agree. (Just trying to figure out why you’d go back.) (Did you put Rice under oath to sign?) Probably not. But I made sure he understood the contents.
(Are you talking about general practices or advising him he was sworn under oath?) I am not going to say I remember it, but I don’t think I ever notarized anyone’s signature without advising him.
(Look at statement …. D Exhibit 22 – Terkesia Pannell statement Sept. 15, 2006. Is that what you have?) I do, but not September. (February 15, 2006.) ( You were there?) Yes. (Who else?) Joel Morris, Billy R and me. (This one taken… how many times y’all saw her?) Two times. We made notes first time and affidavit prepared from those notes. Then we went back. (When first time?) Not precisely, within a few days. Don’t recall how long it lasted. Less than an hour. (Meeting?) Her apartment in Tupelo. (Bring notes with you?) No. I didn’t bring anything but these affidavits. (You have file on this case?) Yes. (Only interview that day in Tupelo?) In this case. I might have had others. (Would you hours billed show how long it lasted?) Would show how much I charged for that day. Not how long actually with her. (She met with you as long as she wanted?) Sure it was less than an hour. She was very cooperative. We introduced ourselves. Gave us information, we made notes and left. (Talked to her about death penalty?) No. We mentioned but spent little time discussing. She knew what we were there for. We made her aware when we first arrived.
(When she signed affidavit. Did you read it to her?) I think Billy R did. (Did give her chance to read it?) Yes. (She said a lot of it was not true. Does that surprise you?) Yes, it does. (Did she ever say anything of benefit to the state of Mississippi?) She was not very complimentary of way state handled this manner. (Exculpatory evidence … would ahve helped us? Say Marlon was at her house that night?) Yes, she said he was there but she was not there when he came back after shooting. (Where are notes from her interview?) I have not seen them. I don’t have them. (Would it help if you knew what they said before?) Yes. But if you look for truth, we didn’t are what she said before. She gave these comments. We did not put words in her mouth. (You don’t care what she said before – that’s way to tell if she’s telling the truth.) Yes.
(You testify … more important than sitting on your couch.) I understand but what she said before didn’t matter to me. (Don’t you think when talking to law enforcement, it would be important what said? Heighten your awareness for the truth?) Truthfulness is truthfulness. (Don’t know if she was telling truth that day or not?) I don’t know if anybody’s telling truth. She seemed honest, totally aware of our purpose. She told us to the best of her ability – what it seemed like. (Never observed her saying something that wasn’t true?) I am not sure …
(Hood – when you went out and interviewed these three – Rice, Pannell and Shaw – did you ever go back and read trial transcripts?) No, I have not. (Ever read statements to law enforcement?) I don’t think I have, not any of them. (So, Richardson was asking questions?) WAIDE – REPETITIVE. SUSTAINED. (Did you ask any questions?) With Terkesia, I asked most. Some with Rice. Brandon, I did not. (You don’t know what said previously?) Yes. (Did you or Billy R provide these witnesses of transcript of prior testimony prior to asking questions?) I didn’t. I have no reason to believe Billy R did. Not in my presence, no. 2:40
HOOD – Your honor, that’s all we have.
JUDGE – ANY REDIRECT? WAIDE – NO.
JUDGE – Court reporter needs a break. Lawyers organize your thoughts. No more witnesses? RECESS 2:41
• • •

11:50 POST
NEW ALBANY – State witness Brandon Shaw said he didn’t consider it a bribe when a defense attorney offered him $20 “for his time” to get a statement when he stopped work at his car wash.
But later, Shaw said the attorney told him he’d do “whatever it takes” for another statement later.
Shaw is a state witness in an evidentiary hearing, which began Wednesday, about whether Death Row inmate Marlon Howell will get a new trial or have his 2001 conviction overturned on constitutional issues.
Howell was convicted in the 2000 shooting death of David Pernell in New Albany.
(Brandon Shaw continues on witness stand. Below is rest of running account of questions and testimony. Please excuse the typos and glitches likely as I type rapidly.)
10:03 – JUDGE BACK.
(Hood continues questions – To Shaw … Adds him Exhibit 16. May 16, 2000… How did you give that statement. What happened/) WAIDE – Asks who he’s talking about. HOOD – That’s not proper. (HOOD – What time of day when gave statement?) 2:13. (How to police dept.?) I went there, drove there. I wanted to get everything clear… I didn’t have anything to do with it. What I heard, took …. Got home and dropped Marlon off. Talked to Kecia brother, girlfriend. Said trying to get Curt and get to bottom. Man had been killed. (Then?) Don’t remember… but we all got together, talking. They said don’t know why he shot him. JUDGE – STILL SAYING THEY. SAY WHO TALKING ABOUT.
SHAW – Me, Curt talking – he shot him, said trying to rob him. I begged them to come with me and tell law enforcement. They didn’t. I was leaving, they ran and jumped in with me. We all came down there. (What do?) Give statement. (What tell them?) Talking, what happened. I told them. Took him home. They put me in police car and lineup in a few minutes. Called Blue Mountain, had to cross over to different county and pick him up. Showed them where I dropped him off. Later, somebody picked him up.
(Hood – remember another time defense lawyer talked to you? Shows him document, transcript.) (Shaw is reading it.) I said I really don’t know where he is. (Date?) March 1, 2001. (Investigator for defense lawyer?) I can’t remember. (Hood – move to introduce transcript, taken by Duncan Lott investigator. Also to number statements.) WAIDE – Asks to speak with Hood … I said don’t object, but would like opportunity to read over and make sure it’s what he told us. JUDGE – SAID he talked to somebody and didn’t know who he was talking to. WAIDE – counsel satisfied.) Judge gives him permission to number the statements, in lower right-hand corner.
(Hood – Second statement, law enforcement … another document, recognize?) Remember, investigator showing it to me, Think it was Monday. (Read date) Thursday … signed it. (Did you write all that?) No, I didn’t. (Hood – move to introduce marked statement from Duncan Lott, the transcript. Total 16 pages, plus cover with Lott letterhead.) (Hood – statement just talked about, dated Aug. 3, 2005. Move to introduce Shaw statement.) WAIDE – No objection, already in. (Hood – Exhibit 18 – 2005 statement. Who did you give it to?) My understanding, Marlon’s lawyer (points to Richardson?) WAIDE – Does he remember who was there. JUDGE – LEADING. (Who was there?) Lawyer, the one with the glasses on. (Hood – Indicates Billy Richardson.)
(Hood – was he there… where?) I can’t remember, he talked to me so many times. (How long talked?) Shhh… 4-5 hours, maybe 6 hours. Long time. (What was longest?) In Sherman. 4-5 hours. (When you signed it?) Believe it was. (He’s reading it, not very well.) Nobody especially Marlon first attorney ever ask me about the case. (HOOD – Said he wants to say something he never said before. Did you say that?) No. (Why did you sign this?) Each time, they came, they were recording or writing. He would be talking, have somebody else writing. Asked me to sign, didn’t say it was statement. Said was to say you talked to me. (Did he say affidavit?) No. (Know what notary is?) Yes. (Have one?) No. Not sworn.
(Hood – Did your read this?) No, not until Monday afternoon when I talked to the detective. (Let’s go through it. First paragraph … your honor, do you have a copy of this?) (Judge says no. WAIDE – SAYS IT’S No. 31.) (Hood – first paragraph.. I’m going to read it to you. You comment on it… Says Marlon had shirt wrapped around his hand, made me think he had a gun he was hiding. Surprised when he got out of car at his house. He had no gun. Is that correct?) It’s true. (When you told him that … did you also say what you saw and observed about him that night?) I told him everything. (Second… I asked Curt and Adam where the gun was at… they said behind house near the shed… how I knew to tell police where it was at. Correct?) No, didn’t say gun was behind the house. I expected myself he might have put it back there. I asked them, they didn’t know. (When saw him?) I was coming out of the house to take him home. (So, that’s not true?) No sir. (Who took that?) WAIDE – OBJECT. OVERRULED.
(Who talking to?) Points to Richardson. (Statement 4 … Never heard Marlon say he shot him.) True. (Never known Marlon to be violent. Did you tell him what Curt said in living room and he didn’t deny it?) Yes sir. (Never known him to be violent.) Correct. (He mentioned only wanting to rob him … meant to say sell someone some fake drugs or trick them. Police never knew this.) WAIDE – OBJECTION, MINE DIFFERENT. (Hood – let’s go to … Never mentioned robbing. Meant to say sell fake drugs or trick them. Is that true?) No. (Why say that?) We talked about that. Guy at convenience store. That was before we got to my house, that night. Night before the murder. (When? Night before murder?) Yes sir.
(Hood – Who talking about … why stuff in there about fake drugs?) Just talking, sometimes writing, sometimes not. (He said couldn’t they just mean to sell fake dope or trick somebody?) I said, he wasn’t meaning it that way. He was meaning to rob somebody. (You mean “easy lick”?) Yes, what he said. (Trying to get you to say something else?) I didn’t tell them this here. I told them … we were riding along. At gas station, I said something to guy at pump. He said, that’s an easy lick, we can rob him. (Continue… I would have said Marlon didn’t mean robbery. Is that true?) No, not true. Didn’t write that, tell them that.
(Hood – robbery with gun?) I didn’t see no gun. (Hood continues – reads.. my girlfriend refused to testify. Police putting pressure on her despite … to do so. Kept trying together to say she heard Marlon say he killed Mr. Pernell. What’s truth?) That’s not true. I don’t know what they said when they talked to her. She told me she told police she didn’t hear anything or see anything. She was in her room. (She says in here … trying to get her to say something. Remember wanting her to testify?) No. I don’t know. Only that at trial, something in the hall or something. (You were in the hallway?) Somewhere.
(If Ms. Pannell were to say she was trying to tell somebody at court that you told her Curt and Adam committed the murder, is that true?) No. Never told me that. (Ever know… see if she talked to defense attorney?) I don’t know. (She tell you anybody told her to leave court?) No sir. (Living together then?) Yes, off and on. (Go to No. 8 – when I took Adam and Curt to police station, they were intoxicated and high … in no condition to give statement or talk. Smell alcohol. True?) That’s a lie. Didn’t tell him that. (Condition?) They weren’t no drunk or high state. They were upset. (At station?) At station, can’t remember time. (What about police statement, time?) 6:03 p.m. (When went?) Think we were there before that. (Maybe mid-day?) Maybe.
(Hood – No. 9 … police kept trying to get me to say I saw a gun and that Marlon shot someone, needed to rob someone. Is that true?) No. Didn’t threaten me. Said no, didn’t see a gun. That he had hand wrapped around. Thought it was a gun. Never said so. (Pressured to make you say something utrue?) Didn’t say that. (… they said Marlon telling on us… made Curt and Adam very mad.) Not correct. Part we said Marlon wasn’t there. Did not tell them that. (No. 11 … facts are I don’t now who shot Mr. Pernell) That’s true, I don’t. (… Adam and Curt said where gun?) No. (… reads more of statement…) Only thing they stated, police, that Marlon and Curt had already gave statement. They asked who else was there. Said positive it wasn’t me. I told them. When they took statement, we went in police car to show where I dropped him off.
(reading … never saw Marlon with gun and didn’t remove hand until we got to house?) True. (Police put pressure you my girlfriend.) Not true. She never told me that. (Document … 4/4/2013) (Hood shows document to Waide then takes it) (Hood – shows to Shaw) One I signed Monday. 4/4/13 … read statement. First closer to what happened. One defense took was not told way I said it. Don’t have problem taking lie detector test, or to testify again about what I said.
(Hood – when you say that defense statement wasn’t told by way I said?) They lied about it. (Intro statement of 4/4/13 of Brandon Shaw.) (Now, at time, if Kecia Pannell said you were on probation at time murder occurred?) That is a lie. (Tell judge what had happened, committed a crime.) I was 16 when charged … grand larceny. Me and friend stayed across tracks in a house. Guy getting RR ties off side of railroad. Him and another loading them up. We seen it, asked what doing. He said, anybody can get them. In daylight, we weren’t trying to steal. Took them and scrapped them. Lady at scrap yard, knows me and could have told me. She called my mom that they were filing charges. Police called and said come talk to them. Didn’t even have time to cash the check.
(Remember if you pleaded guilty to this charge?) I think I did when I was 16. Hired a lawyer, Farese. (How old when pled?) I think 21. (So at time, you weren’t on probation?) No sir. (If Kecia says she peeked out of room and saw somebody, is that true?) WAIDE – OBJECTION. JUDGE – MISSED FIRST PART OF QUESTION. (Hood repeats question … can’t remember. (Did Kecia ever come out?) No. (If she had could she see anybody in living room?) No. (Said you never told her anything about who committed murder. Why did she say that?) I don’t know. (Has she ever lied to you?) Sure, many times. WAIDE – OBJECT. SUSTAINED.
(Live with Pannell how long?) 6-7 years. (Do you have opinion about her truthfulness?) No sir. Problems numerous occasions with different situations. My own daughter … so much conflict between us at time of break-up. Not at time of murder, maybe year later. My wife left and we had so many problems, you know. (You have other convictions?) No.
10:47 – WAIDE TO QUESTION.
(Waide – I met you when … wanted to ask me a question?) Yes. (First, ask something you said. Did police accuse you?) They asked if I was involved. (What told them before that?) Hadn’t told them nothing before. At first, talking to Adam and Curt. Said them separated, me too. (You and Adam are cousins?) Suppose to be. (You and several went to Tupelo that might?) Yes, and Marlon. (Had been out with them before?) Yes. (Friends?) Good friends, drinking, smoking and partying. (Back to what police said – said they asked you if you had something to do with it?) Wanted to now my role in murder. (Tell you anybody accused you?) No. (That Howell said Adam and Curt did it?) He wasn’t there. I told them Howell was involved when he came to my house. They asked if I knew where he stayed. They put me in police car and I showed them where I dropped him off.
(What did police say about your involvement?) Nothing besides taking Marlon home. (Relationship with Adam, Curt … went out and drank and smoked?) We came up from kindergarten together. Went out all the time. Hung around together, them and a couple more friends. (What time did you and Adam, Curt get together that night?) First seen them earlier that night. At house with my Mom, playing cards – lot of folks. Don’t know what time. (Girlfriend? That overheard conversation with lawyer?) Yes. (She’s here?) Yes. (To corroborate?) No, not witness. Just her with me. (She’s in courtroom?) Yes. (But you say she heard about this?) She already knew.
(That night, ran into Marlon and picked him up?) Yes sir. (How often in Tupelo with Marlon?) Never had. (At some point during night … according to what you said … you stayed at home while other three left?) Early in the morning. I was in bed at that time. First got back from Tupelo, smoking weed and stuff. (Curt and Adam?) Yes, and Marlon. (High?) Yes. (Three left you didn’t go?) Yes, left in blue Cutlass, Adam’s grandmother’s. Me and Kecia got into it… said I spent most of evening with them. (Car in at murder?) Yes, Adam, driving. (Didn’t you partiipate when Adam took car back?) No. (What happened to that car?) I don’t know. (You didn’t follow them?) No. Took them in my brother’s. (You’re saying, after did not go with them, people left. You stayed. Later, then came back?) Early that morning. (Adam said Marlon shot somebody?) Yes sir. (Then Marlon said nothing?) No. (Neither Adam or Curt said they didn’t have anything to do with it?) Well, didn’t say they didn’t have anything to do with it. Adam driving car.
(What did Adam say about Curt?) Curt was on back seat of car. All I know, what they told me. (Adam said Marlon committed murder. Didn’t say anything?) No, all he said was he wanted to go home, asked me to take him home. (Know murder was about 5:15?) I guess. (Didn’t have somebody to pick up at 6:00?) No. ((Whose gun was it?) I don’t know. (You went and told police where gun was?) NO, I didn’t. They went behind looking for it. (You didn’t say back there?) No.
(You took Marlon home … that morning… knowing or beentold he committed a murder?) I was scared. Thought he had a gun. Hadn’t seen it. (When took him home, not scared?) No. (Got home and called police?) No I didn’t. (You didn’t think murder was committed?) Didn’t know, said shot somebody. (You and Adam and Curt dropped Marlon off at house?) Can’t remember both of them in car. (Didn’t you say you took them home?) Yes. (Must have been with you when took Marlon home to Blue Mountain?) Yes, must have been. (So you three knew you dropped off murderer?) Yes. (Three of you, not one suggested calling police?) (You’re telling court you dropped off man people said killed somebody. After you dropped him off …. HOOD OBJECTIONS….. Waide – only said Marlon shot him … as a good citizen, you should call police unless you were involved?) I wasn’t. I said, I don’t now who was involved in what. Never seen the gun. All I know was he had hand wrapped up, assuming he had gun. (After dropped off Marlon, claim you took Adam and Curt home?) Yes.
(What did y’all talk about?) They both said, don’t say nothing. (What were you saying?) Going to let police know, if you don’t turn yourself in. (Being a good citizen?) What? (You were trying to put in on Marlon?) I don’t know. I wasn’t there. Either one could have shot him. I don’t know. I said that a thousand times. I don’t now who shot the man. (Did you tell police that?) Yes. (Did you talk to them about going to police?) Curt and Adam? Yes sir. (What were you talking about?) Curt or Adam … I don’t now. (You went to one of their houses and talked about this?) Yes … not just us. Seems like girls around. (Tell Ms. Pannell what they told you?) Yes sir.
(So, you did tell her you had information about shooting?) No, they told me Marlon shot somebody. (Signed police statement/) Yes sir. (How long .. you and Adam and Curt talked about it?) Not too long. (When talking, did you say… let’s say Marlon did it?) I wasn’t there. He told me. We weren’t discussing. All theys aid was Marlon shot him, don’t know why. (Did you think that by telling police that Marlon did it, it would get you out of trouble?) Didn’t tell them Marlon did it. (Other than telling them Adam was driving car, tell them anything else?) No.
(At trial, you and Pannell?) I said in the hall… long time ago. (What did you see? She was in witness room but didn’t stay for trial?) HOOD – Said he was hallway. (Did Pannell stay for trial?) I don’t know. (Saw her up here?) Yes. (Living together?) Off and on.
(After trial, did y’all talk about trial?) Not really. We talked but no big discussion. (What did you say about the trial?) I don’t know. (Never talked about whether she testified?) I know she didn’t. I don’t remember her being a witness. (She ride with you?) She picked me up at work. (If she left, you wouldn’t have a way home?) NO, work right there. (Remember anything you and Pannell talked about trial?) Not really. no extent.
(Waide – statement DA showed that you gave went over and said a lot wasn’t true? Have you seen it before?) Yes, first time was Monday. One DA gave it to me. (Went over it?) Asked me about it. (When you told them about lawyer?) No, first time I walked to Jimmy Hood… whatever … (when first told lawyer was pressuring you?) An investigator.
(Let me try to understand statements … when lawyer was there, was someone else with him all the time?) Yes. (Same one?) No. (Person with, was taking notes?) Not always doing same thing. (One time gave you $20?) Yes. (Only time money came up?) Only time he ever gave me money. (When you talked to yesterday… you said?) Said me and my brother were sitting here all day Wednesday, yesterday and now…. told them, sure would be nice to get a check sitting here all day. Brother said…. I was making a joke. He never responded to me and smiled. And then, another investigator … I don’t know who everybody is … investigator came down and said to come back Saturday. I said, really? He said no, just playing.
(Where you were then $20 came?) At car wash. (First time met lawyer?) Yes. (How did $20 come about?) Well, he came to me. Didn’t let me know he was a lawyer. Thought he was an investigator. Didn’t know who they were. (Explaining … at car wash… first time to talk to him and someone else… gave you $20?) Yes. (Also asked people up here for money to compensate your time. Did you bring up $20?) He did. He said, here’s $20 for taking up your time. I’m holding you back from doing your business. (You said talked to him 5-6 hours?) Yes sir. (First time, couple of hours?) Yes. (Day you gave statement?) Don’t know any time I gave a statement. (Take $20?) Yes. (Thought you were being bribed?) No, no bribery going on at the time. At time, brother and me washing cars. He came to talk about Marlon trial. Thought that was over. He said naw. Going for re-trial. Never made clear who he was. Said wanted to talk to me. Thought he was investigator. I said didn’t have nothing to say. Kept wanting to talk to me. Told him testified about what happened. Then, he said, don’t you know man’s on Death Row over this. I told them he made me feel kind of guilty. Understanding.. I don’t believe in death penalty. So, I talked to him. He said here’s $20 for your time, before we took any statement of anything. (He was paying you for your time?) At the time, yes. (When you asked investigators up here for money, you were asking for compensation?) No, I was just joking. (How did you know that?) No. Making a joke.
(Did you thnik you were doing something wrong when took $20?) No, he was taking up my time. (Were you paid for false testimony?) I don’t know what me meant. (Were you being bribed to change your story?) No, not my intend. Didn’t intend to lie. (Never intended to give false testimony?) And I never did. (You never said, pay me and i might change my story?) No. sir. (Didn’t intend?) NO sir. (Never been paid for testimony, at no time?) No. (Never offered anything other than the $20?) Yes sir. (Do you have any knowledge about AG saying defense paid you bribe?) (Tell me what you know, if anything, about Hood saying attorney gave a bribe for testimony?) No sir. Don’t now what talking about. Don’t know about charging bribe. All know is when you came in and they were saying something about a charge for a bribe. (Who said that?) I don’t now who, not sure who. Heard talking. (Heard them could be charged with a bribe?) I think you were present when it was said.
(Waide – Statement you gave and said you didn’t say it, written statement… was it after that you talked to the lawyer?) I can’t remember. I didn’t now I was making a statement, just talking to me. (You still don’t now who shot him?) No I don’t. Don’t know who did what. Only know what Adam told me.
(Have you looked at Pannell statements?) No sir. (Do you know if she signed statement … that Adam… that you told her Adam and Kirk shot?) I didn’t tell her that. (Adam said it was Marlon who shot guy?) Yes sir. (How often did you talk to Pannell … several times about what happened that night?) Not really., We never sat down about it. Me and my brother, we did. (You said didn’t turn gun into police?) No sir.
(Waide – show you statement of Mickey Baker .. know him?) Don’t know. (Baker says … Ray said gun was turned in by Brandon Shaw?) Ray wasn’t present. (What do you know about the gun used in the murder?) Nothing. (You didn’t point to gun?) No. (Found at your house?) Yes. (You didn’t know anything about it?) No sir. (So, you don’t now what Pannell said?) No. (Saying it’s a lie?) No, I don’t know what she said. I’m just saying that I told her Adam or Curt shot … she’s lying. I don’t know she would have said that. (Has anybody said Pannell told that you said Adam or Curt shot white guy?) No. (Did anybody tell you she said you told her Marlon shot white guy?) Only thing I know is they said she was giving statement trying to discredit me. One of the detectives. (That Pannell was talking bad about you?) Yes, that she said she was what was going on. (Who?) I can’t remember. I told him I don’t know why she said what she said.
(Today, you testified same as trial?) Yes. (Have you ever looked at trial testimony before today?) Yes, I went on line looking it up. Me and my brother. (So, before today, you knew what you said at trial?) I been knowing, it’s embedded in my head. (You don’t nkow anything about what happened?) Right. (Know they now have pleaded guilty?) Yes.
(When you took them to station, you talked to them already?) Yes. (Did you feel like if somebody was shot for no reason or for robbery, did you know could be convicted of death penalty?) Yes. (You didn’t want friends to get death penalty?) Nobody get it. (Closer to them?) No. Wanted to clarify that I didn’t have anything to do with it. Know I did take him home. So much going on. Had folks threaten me and mad at me. (Who threatened you?) HOOD – OBJECT. NO RELEVANCE TO THIS. (Waide – goes to his credibility.) Judge – don’t now he’s accused anybody in open court.
(When was it you were threatened?) Around time it happened and around trial time. Me and others had been talking about it. Folks mad I said he was at my house. I said I have no reason to lie for Marlon. I wished to God he’d never been at my house. (But you picked him up earlier?) Yes. Lot of us talking they said he was at girlfriend’s house and dad said he was at home. I said at time, neither one of those statements were true. (Everybody drinking and smoking marijuana that night?) Yes, all of us had.
(Still have statement before you? One you signed but said you didn’t read?) Yes. (No. 33, your honor. Paragraph 6 … see that … you say when went to Tupelo earlier, Marlon said something about a “easy lick.” What did he mean?) When he said that was an easy lick … at the pump at the gas station… like he meant he could take him. He meant about robbing him. (Said easy lick?) I didn’t write that. (Smoking at time?) No. Just riding around. Didn’t even have none in the car with us. (Thought you said smoking that night?) We were. We’d been drinking. (Graph 8 of statement… “they” Adam and Kirk were both intoxicated and high. See that?) Yeh. Saying, this statement… not true. (drunk and high?) At some point that night. (But say this statement is a lie?) NO, I’m saying most of this I did not read, he wrote it out. (Read Graph 8… I’m going to read it to you… Is is true you took them to station?) Yes. (Says both intoxicated and high?) I didn’t say that. I do not know. I don’t believe they were. I wasn’t. (They were at time of murder?) I don’t know. I don’t know. HOOD – ARGUMENTATIVE. JUDGE …. RICHARDSON – May I consult with counsel? (They talk)
(Hood – at bottom of statement… see that?) Yes sir. (Did you see the man there during statement. Did you see him sign it?) I don’t remember him signing it. (Did he put pressure on you?) NO pressure. (Man with lawyer … was he also asking you questions?) He was talking to him … (Lst thing you said, no pressure, just asking questions over and over?) Talking about attorney. (Police did, but no pressure?) No. (Police ask questions over and over no pressure?) No, didn’t come at me like you see people on TV. (But lawyer?) The whole ordeal was getting on my nerves. (What’s difference between lawyer and police?) I really didn’t want to talk to lawyers. Wanted to talk to the police. (So, really no difference?) Yes.
(What changed your mind about talking to lawyer?) Started in about Death penalty. (Difference in him and police?) Not too much difference. Getting on my nerves, both of them. Besides handing me $20. 11:39
HOOD – (You said several times about $20 … said at time, didn’t feel it was a bribe.) Didn’t at time. When came to my house in Sherman. He’d been there before, Mom said. When got home, different occasion. He knocked. said I was hard to find. Said needed to talk to me. Same thing? Yeh. We talked it’s hard to find you unless I wave money around. Said he gave somebody money to find out where you live. He made statement like I need to talk to you for statement … I don’t mind paying for it, whatever I got to do. (Ever ask for money?) No sir. (Why not?) I knew I wasn’t going to talk to him. (When came to your house and said he’d pay, what was your impression?) Like he was trying to bribe me. Told you I took it as a bribe.
(Hood – about trial testimony. Where saw that?) Seen it numerous times. (Transcript?) Went on line. Newspaper. (Counsel asks you about defense statement in Tupelo … about that’s a lick or something. Had he said needed money?) Yes sir. Said needs money to pay probation officer, Marlon said. (Paragraph 8 of statement … when took Adam and Curt to police station, they were intoxicated. When was that?) Don’t remember the time. (After lunch?) May have been.
(Hood – this statement written down for defense lawyer.. Exhibit 18 – this paragraph, true or not… that Adam and Curt drunk to police station?) To my knowledge, they weren’t drunk. Talking like me and you are now. (That’s all 11:45)
HOOD – One witness, will be very short. WAIDE – If talking about Ms. Pannell, if they want to interview her again … they have the power to prosecute. They’ve already threatened lawyer. JUDGE – IF YOU HAVE a witness, let’s call her and put on the stand. KELLY – Witness has just arrived, wanted to confer with her. JUDGE – How long intend to examine her? KELLY – 5 minutes. … 10 minutes at outset. JUDGE – LET’S JUST RECESS, it’s about noon. RECESS UNTIL 1 P.M.
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FIRST POST TODAY:
NEW ALBANY – A state witness said this morning that Marlon Howell’s lead attorney paid him for his time as the defense re-investigated the 2000 shooting death that put Howell on Death Row.
Brandon Shaw, the then-boyfriend of a Howell witness, said North Carolina attorney Billy Richardson offered him $20 “for his time” when he first attempted to speak with him about the case a few years ago.
(See below an account of Shaw’s testimony today and Hood’s questions for him.)
Howell’s counsel seeks a new trial for him or to have the Union County capital murder conviction overturned because of alleged constitutional rights violations.
The evidentiary hearing was ordered by the Mississippi Supreme Court.
Senior Judge Samac Richardson of Rankin County, no relation to Howell’s lead counsel Billy Richardson of North Carolina, is presiding over the hearing, which began Wednesday, after all the circuit district’s judges declined to participate.
Attorney General Jim Hood was the case’s district attorney when it came to trial. On the state’s team with him are current D.A. Ben Creekmore, Assistant D.A. Kelly Luther and Assistant A.G. Jason Davis.
Attorney Richardson is assisted by Tupelo attorneys Jim Waide and Rachel Pierce Waide, with support from the Mississippi Innocence Project based at the University of Mississippi.
Howell, who was seated at his counsel table, was sentenced to death after his conviction for the May 15, 2000 shooting death of David Pernell, a Daily Journal newspaper carrier. His co-defendants insisted he killed Pernell but later recanted. They were sentenced to prison on other charges.
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8:50 – Hood has a motion. We ask … that court to produce a witness today. RICHARDSON – We’re not putting her up but I think she is on her way … probably be about 9:30. JUDGE – We;ll wait until 9:30 to see. RICHARDSON – May I inquire about what’s going on. JUDGE – Hood wanted access to Pannell. Asking where she was. Richardson – Why? HOOD – This whole hearing… operating like.. doesn’t follow courtroom procedure. Will not advise him about what I want to talk to the witness about. JUDGE – You’ve already held her to question again. Not improper to recall her.
LUTHER – She was not going to be our first witness. JUDGE – Weren’t going to start until 9 a.m. but if y’all are ready to go. (Attorneys – no objection.) (Judge to take a couple of minutes before starting.)
LUTHER – CALL BENNY KIRK
KIRK – Retired New Albany police officer, retired 6 years ago. (Testifies about law enforcement experience.) In May 2000, was investigator with Tim Kent at NAPD. Called to Pernell shooting scene. (Luther – Was Howell picked up during investigation?) Yes. (Was Howell put in lineup?) Yes, around 10 a.m. May 15? (Prior to that, was he charged with murder?) No. (Affidavit charging with capital murder before lineup?) No. OBJECTION – LEADING. JUDGE – SUSTAINED.
(When charged?) After lineup, about 10 a.m. (When charged?) Some time that afternoon. (How long lineup take?) 20-30 minutes, don’t recall. (Did Howell ahve attorney there?) Don’t recall. (Charged, what does that mean?) Paperwork, warrant, affidavits. (Before his lineup, any affidavits signed?) No. (Warrants?) No. (Why not?) Well, you get your … we needed a lineup. (Prior to lineup, did you have evidence to charge him?) No.
(Did you interview any witnesses?) I was present for some. Didn’t conduct any. (Did you threaten any?) No.
9:00 – JIM WAIDE (Telling counsel that no charge until after the lineup?) Of capital murder, yes. (Held before?) Yes. (Remember when taken into custody?) Uh, we got warrant from MDOC, ppicked up that night after the incident. (Y’all had MDOC warrant for parole violaiton – behind in payments. Know how long you had that warrant?) No sir. (But behind on payments and warrant, not picked up until co-defendants made statement about the murder?) Yes. (How did probation officer picked him up? Who?) Police and Sheriff’s Dept.
(So, once picked him up, was he free to leave?) No, MDOC had hold on him. (Why?) Because MDOC had one. Had to do whatever with parole officer before he could get out. (You had information that he committed the murder?) Yes. (Did you take a statement?) Yes. (You’re not saying you’d take him out before going to the judge?) No. HOOD – He’s a police officer, No foundation he had authority to release somebody from jail. WAIDE – (Without going to the judge, in your experience as police officer … have you ever seen two witnesses say murder and you released somebody?) No. (Didn’t happen in this case?) No. 30 years in law enforcement.
(Your opinion? Based on the codefendant statements, did you have probable cause to hold him for capital murder?) I think we did. (Needed something more solid?) Yes, lineup. (In your eyes, lineup was crucial factor to prosecute?) It helped, yes. (It was crucial, wasn’t it? You didn’t want to go with just two codefendant statements?) Yes. (You wouldn’t want to go to trial with just their statements, wanted something more solid?) Well, common knowledge to get all you could. LIne up is one of them.
9:06 – LUTHER (ASKED ON CROSS IF HOWELL WAS PICKED UP on probation violation for failure to pay his fees. Show you document, see if familiar. WAIDE – No objection.)
(Luther – Document, recognize?) Warrant for violation of probtion on Marlon Howell. (What is alleged in it?) Non-payment for fees. (Was part of this screening for drug use?) WAIDE – OBJECTION. (Failure to pay fees, no matter what?) Yes. (Did you or NAPD have any authority to release him from that probation warrant?) No. (Did Howell … you were asked about having two statements again, then release from jail. What would you have done if Rice said he wasn’t the one?) We would have investigated more. WAIDE – OBJECTION TO SAY HE’S ASKING… LEADING. JUDGE – SUSTAINED.
(What had Rice done.. did he came forward?) Yes. He gave description of what person looked like. (Why lineup?) WAIDE – OUTSIDE THE SCOPE OF HIS KNOWLEDGE. Luther – placed importance of lineup in cross examination, whether Kirk had authority about arrest JUDGE – OVERULED.
(WHY DO LINEUP?) To make sure…. (Would you have signed warrant, affidavit charging Howell if all you had was statement from co-defendants?) Yes sir. (Prepared to sign affidavits before?) Myself? No.
9:11 – STATE CALLS BRANDON SHAW. Hood to question.
SHAW – 32. Self-employed, tears down houses. TEstified during trial. (Hood – Tell judge briefly your role night of murder.) They had came to my house, I was asleep. Ray knocked and woke us up. Said wanted to talk to him, important. May 15, 2000. In bed with Kesia Pannell. I got up. Heard disturbance. Startled. Adam told me Marlon had shot somebody. Playing? NO, for real. During time, all us present in the room, not one time did Marlon say he did or didn’t. (Appearance?) He was hysterical. His face real red.
JUDGE – Who was present?
SHAW – Adam said he committed murder. Curt confirmed it. Marlon was hysterical like something happened. Pacing back and forth. Hand under his arm. WAIDE – This is all in the record. I don’ thave problem with a summary. But going through every detail… like at trial. HOOD – Ms. Pannell attacked his credibility yesterday. Not going through every detail. JUDGE – OVERRULED.
(HOOD – So, explain what talking about defendant. What was he doing?) He had like his hand under his arm and he was packing back and forward. He had shirt wrapped around his hand. (Then what?) Then, Marlon said take me home, Blue Mountain. (Who was there?) Me, Marlon, Curt, Adam and ….. I was scared I thought he had a gun. Had his hand under his arm, Marlon did. (What do?) As I was going back Adam was behind, Curt too. I told Kecia I have to go. She asked why. I didn’ tell me, just chill out. I know how she is, would have said you’re not going anywhere.
(Why didn’t you want to tell Kecia at that time?) Marlon …he had just shot somebody. I put my clothes on. To living room, I thought I didn’t have tag on my car. Got my brother’s car keys. I didn’t tell him what was going on. Marlon came from around house. I got in other car and took Marlon. Marcus got in car first. To take Marlon home. He said, don’t say nothing.
(Then?) Came back to New Albany. Told them he said not to tell nobody. Curt, and them left. I dropped them off. My brother and Kecia didn’t know what was going on. She was awake when I got back. (In living room, talked to them?) Don’t know. Told her that I took hi home and they said he just shot somebody. (Did you say other shot him?) No. (If she were to say that’s what you told her?) She’d be telling a lie. (If she told court that you said Curt and Adam killed Pernell, that would be a lie?) Yes. sir. WAIDE – That’s question for court. JUDGE – I WON’T JUDGE HER credibility unless he contradcts her. overruled.
(HOOD – If she said she peeped out BR door?) I didn’t see that. WAIDE – LEADING. HE’S NOT SUPPOSE TO NOW WHAT SHE TESTIFIED. JUDGE – to witness, wait. OVERRULED. He said “if she said that.”
(HOOD – IN BR, could you see into livingroom?) No. (How was it set up? If somebody was in living room.) Front about 100 feet across. BR on other side of dining room. BR, door opens. Can’t see directly into living room. Mother had a cabinet… dining room right off BR. She had a big cabinet in dining room and couldn’t see around it into the living room. She’d have to come all the way out of the room to see living room. (So, if opened door, couldn’t see who was there?) No. She’d have to come all the way to the door … to see. (See then?) Not directloy.
(See her come out?) No. (Ask her what was going on?) Didn’t tell her anything. (Now, when you got back and told her. What time was it?) Can’t remember those details. Daylight. (What time?) Don’t know. (Said Kesia was up?) Told .. my brother, Kecia and my brother’s girlfriend. Talked about what happened. I left and went to look for Curt and Adam. Told them I was going to let office now what happened. It was on the new… about the murder.
JUDGE – Mr. Shaw, slow down.
(Hood – When talked with people in house, Kecia… watch TV?) Yes sir. Don’t remember who all was sitting there… about the murder. (Any questions with Kecia about who committed the murder?) I don’t know. (How long were you living with Kecia?) About 6-7 years. Off and on. (Have any children?) A daughter, she’s 11. (What about your parting, your breakup?)( We never got along. (Is she mad at you?) Yeh. (Did she ever lie?) WAIDE- LEADING. SUSTAINED.
(Hood – If she told us that you tole her that Curtis and Adam committed the murder, that’s a lie?) Yes sir. (Why would she lie about that?) I don’t know. Marlon’s lawyer might have paid her. WAIDE – OBJECTION. MOTION TO STRIKE. HE HAS NO KNOWLEDGE ABOUT THIS,. IF HE’S GOT FACTS, HE NEEDS TO TESTIFY TO IT. HOOD – Ask him to make sttements, not talk to witness. JUDGE – He said they might have paid her. SUSTAIN OBJECTION. Supposition, guess work… sustained.
(DID THEY ever offer you money to change your testimony?) Yeh, they tried to bribe me. (Who?) I don’t know name. (How many times did someone came about giving another statement?) About 5 times. (First time, when and where?) At car wash, he came to talk to me. Didn’t want to talk. WAIDE – Ask court to instruct who did what. Who is he talking about, accusations of misconduct. JUDGE – Say who it was, what they looked like, some type of identificaiton?
Shaw – two of them. Only one I remember was guy sitting there in glasses against the wall. Third man down (POINTING TO RICHARDSON) Hood – Indicates Richardson as one who came to talk to him.
(Hood – FIRST TIME, what occurred?) Washing cars, real busy. He kept on wanting to talk to me. About Marlon Howell. (Who was it?) First time didn’t say. Thought it was state investigator. Didn’t want to talk to him. I asked what is this about? Want to get on with my life, I have people who have threatened me. I have never said Marlon shot anybody. I don’t know what he did, only he came to my house. He kept badgering. Then … (How long?) A few minutes. Then said well, need to talk to you, man’s life on line. He’s on death row. I kind of felt guilty. I said he shouldn’t be on death row… but serve life, my opinon. (He? Who talking about?) The lawyer.
(Hood – So, after that?) I stopped washing and we talked. Went on a while, more than hour or two. He said, pulled out wallet. I’ll give you $20 for your time. Lawyer said. (Then what?) We talked. (So, didn’t sign statement hten?) Don’t know. When they talked to me, always writing or recording. He never came by himself. At my house … (Next time?) Can’t say which. Just remember several times. (How many times?) About 5 times.
(Hood – Anybody else present when talked to you?) At shop, brother was there but didn’t hear anything. My wife was there but she didn’t hear anything. Later came to house, Mom and wife there. Can’t remember who else. At Sherman, wife and Mom there too. At Sherman, asked him how found out where I lived. Trying to get away. He said it’s hard to keep up with you. I said, not trying to be found. Spread money around, and people will tell me where you at. (How long ago was this?) In Sherman was 2008. (How long period were these 5 times with Richardson?) I don’t now. A few years.
(Hood – When mother and wife there, any conversation about money?) Yes, sir. He said wanted to talk about it, man’s life at stake. I’m willing to pay for your time. Like I want to get a statement. (How many times said paying?) A few time. Probably every time. (How did you take that?) I felt like he was trying to pay me for a statement that he wanted. Didn’t. (Signed it?) I told you and everybody else, I didnot read that paper. EVery time they came, they were writing down. Not at one time did I ever read what they wrote. He said, just sign this that I talked to you. Never did I read it.
(Hood is showing documents to Waide. Several dozen people in the audience. Includes Howell’s mother.) HOOD – They have this in discovery. WAIDE – Your honor, I can’t recall this. JUDGE – IF NEED to take a recess, I’ll do that. (Waide continues to read documents.)
HOOD – Your honor, it’s 9:40 and no Kecia Pannell. Ask for bench warrant. RICHARDSON – I’m not in charge of that. Will MacIntosh, colleague, she said 9:30. From Tupelo. Takes 20-30 minutes. She should be here any time. We thought they had two more witnesses to put on. JUDGE – AMAYBE YOU CAN contact her. Richardson – We’ll do that now. (MacIntosh leaves courtroom. Waide still reading. Says doesn’t object to any of these.)
(Hood – Document, what is this, when?) 5/16/2000. I signed it. (That your statement to law?) Yes. Move to enter into evidence. WAIDE – NO OBJECTION. Would like about 5 minute recess after direct to look at statements again. (Judge – brings them to bench to talk about it.) JUDGE – SHORT RECESS. 9:46.
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