By Patsy R. Brumfield / Daily Journal
4:45 P.M. POST
NEW ALBANY – Marlon Howell’s death-appeal hearing will resume at 9 a.m. Friday with additional witness by the state.
Howell’s counsel wrapped up its testimony by mid-afternoon, seeking to gain a new trial or 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 and Assistant D.A. Kelly Luther.
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.
• • •
4:17 – STATE CALLS THERESA EDWARDS,
EDWARDS – Justice Court clerk. Questioned by Creekmore
(Creekmore – asks her questions about Justice Court.) All in same complex. (Shows her schematic of justice complex, court and jail relationships – asks her about the set up. Also her responsibilities as the clerk.) Supervises 5 employees, including herself. Court every Tuesday, except 5th Tuesday. (Asks her about court order) Civil starts 9 a.m. Starts 10 a.m. with criminal guilty pleas, then go into trials. (Shows her document) May 16, 2000. Certified by her. (Shows her another document) Abstract of the court, May 16, 2000. Record of what happened that day. She certified. (Appearances by Lipsey, Ray and Howell.) Yes.
(Asks about computer generated affidavits.) Computer automatically generates cause number. (Order indicates consecutive entry into computer?) Yes. (Does it put a time when entered?) No, it doesn’t. (To get into computer, officer would have to come before you or a deputy?) Yes, they swear affidavit is true and correct. Enter information and computer generates record. (Is one day more than any other day?) Probably Tuesday, court day. Civil part starts at 9 a.m. (Ever start criminal before 10 a.m?) No sir. (Later?) If civil runs over. Not criminal docket before 10 a.m. (Asks her about procedures in court.)
(All individuals come before judge?) Yes. (Later than 10 a.m. when criminal trial matters are called?) Yes sir. (Howell, Lipsey and Ray – how handled, compared to 10 am. when criminal docket called?) Depends on when they were called. (Back to court day … know if routinely if criminal begins at 10 a.m., when do officers appear?) About 9:45. (With respect to Lipsey, Ray and Howell – how many cause numbers on May 15, 2000 prior to those three cases being called up, and entered onto the computer?) Yes. Looks like about 50 cases entered before that. (Is it possible number entered before another?) It’s possible, improbable. (Why?) Most officers are in the courtroom. Would take about hour and a half to enter information to get to those cause numbers …. [related to Lipsey, Ray and Howell]. 4:39 excused
HOOD – That’s all on short list. Others not yet available. Can be here in the morning.
RICHARDSON – No problem doing those tomorrow.
JUDGE – Agrees. Back in morning about 9 a.m.
• • •
3:45 P.M. POST
NEW ALBANY – Arresting authorities insist Marlon Howell was officially charged with capital murder after a lineup identification, not before, Union County testimony stated today.
Former Police Chief Tim Kent, now New Albany’s mayor, and MBI investigator Mickey Baker voiced certainty about Howell’s official charge date of later in the day of May 16, 2000, which matters because Howell apparently had no attorney in an identification lineup about 10 a.m.
Lack of an attorney is one appeal issue for the Death Row inmate accused in the shooting death of David Pernell about 5 a.m. May 15, 2000.
Today’s opening session halted abruptly about 11 a.m. when Howell’s lead attorney, Billy Richardson of North Carolina, claimed Attorney General Hood threatened him with a criminal charge of suborning perjury, specifically, paying a witness to lie.
The evidentiary hearing was to focus on the defense appeal for a new trial or to have the Union County conviction thrown out because Howell’s constitutional rights were violated.
Senior Judge Samac Richardson of Rankin County, no relation to Billy Richardson, is presiding over the hearing, which began Wednesday, after all the circuit district’s judges declined to participate.
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 and Assistant D.A. Kelly Luther.
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 was sentenced to death after his conviction for the 2000 shooting death of David Pernell, a Daily Journal newspaper carrier. His co-defendants insisted he killed Parnell but later recanted. They were sentenced to prison on other charges.
• • •
(Below is a running account of this afternoon’s proceedings. Please forgive the typos and other glitches likely as I type rapidly.)
1:08 P.M. – JUDGE returns.
WAIDE – We made our motion for the record. Ready to proceed.
Rachel Waide – CALLS MIRIAM HILL
HILL – [I will call Rachel Waide “Rachel” to avoid confusion with her husband and co-counsel.] (Rachel to question) Miriam C. Hill. Of myrtle, is substitute teacher. Related to Marlon, his sister. Attended his trial. Was a witness. (Were you in witness room?) Yes. (Observe interaction between Brandon Shaw and …?) Yes. In room, when go in chairs to left and right. I was in right. Shaw and Pannell sitting im middle and another man at end. (Conversations?) I wasn’t, They were. She was saying, I am not going to lie, tell them I saw Marlon. Shaw was trying to nudge her. she didn’ tknow who I was but Brandon did. Wanted her to say all these guys came to her house. (Then what?) At break, they left, then back in there. Saw Jim Hood, did a hand gesture toward her. Went to his office and don’t know what was said. (What kind of gesture?) Come to me, come here. Motioned to the young lady. Me and Tonya, telling me what was happening. WEnt to Mr. Lott, he said OK. Didn’t see Pannell afterwards. 1:12
(Kelly Luther to question for state) (Did Pannell testify?) To best of knowledge, no. Said she wasn’t going to lie. (Did she lie?) I don’t know if she testified. Only know what she said in witness room. (Know what conversation between Pannell and Hood?) No, I don’t know. (Howell is brother?) Yes. (Would like to help him?) No, I’m just here to tell the truth.
(RACHEL – Asked relation. Do you understand you are under oath?) I do. (Impacted because he is your brother?) No. JUDGE – FINALLY EXCUSED? No objections. 1:15
RACHEL WAIDE – Some exhibits to be offered, Exhibits 4 and 28, 35. If they agree, won’t have to call him. HOOD – Object, we intend to call him. RACHEL – Could expedite. JUDGE – EVIDENTLALY,T they intend to call him.
JIM WAIDE – Calls Charles Rice. [I will call him Waide.]
RICE – (To be questioned by Waide. Rice is a white man.) Lives Haleyville, Ala., three years. Carpenter. (Know why you’re here… eyewitness at trial in 2001?) Yes sir. (Signed several different affidavits?) Yes sir. (Reverse order. When is last time you signed a statement? Showing court a voluntary statement. Shows to state. Shows it to Rice.) (Remember signing that?) Yes. (Dated April 3, 2013?) Yes. (No problem testifying about May 15, 2000 and would take a lie detector and what saw at trial is true.) Right. Two reps of AG’s Office came to my home and that I would need to return to testify about what I saw that morning.
(They said?) No, trial was back up on appeal and I would be needed. (Talk about questions about your identification?) Not in no great length. (Tell you about an N.C. lawyer?) No, just June 8 statement. (Let me go in order. Oct. 19, 2007? Exhibit 18. Shows it to him – affidavit… read over it.) Yes sir. (Remember it?) Yes sir. (Ask about last one. When you came today, did you get a subpoena?) Yes, I did. Gentleman, lady came to my house. (Where have you been today?) In cubicle over there. Came myself. (Talked to anybody about your identification?) No. (Spoke with DA?) Night I arrived, Tuesday afternoon. State paying your hotel, Don’t see anything wrong with it.
(Exhibit 18 – says trial testimony was true. That earlier statements … had you made an earlier statment about doubts?) Yes sir. Earlier one, pressured. Came to house, was getting married, mass confusion. Wanted to get married. Kept asking questions, non stop. (Exhibit 18 – affidavit … Mr. Kent and Creekmore present?) Yes sir. (What happened?) Met at City Hall, called and asked me to come. Police called. (Who was present?) Yes, police officer, D.A. (Defense lawyers there too?) Yes. (Remember Leonard Sanders?) I don’t. (Investigator for defense?) Can’t remember. (Remember being asked if you lied at trial?) Yes. (Did Creekmore ask?) Yes. (Your education?) High school diploma, degree. (You would know trouble if you lied in court?) Yes I do. (False about Howell… you could be prosecuted?) Yes. (Did Creekmore or enforcement.. made it clear?) Yes. (What trouble for?) Perjury. (Who told you that?) It was brought up, doubts I’d say anything. I don’t want to make a name. (At first trial, you positively identified him, in lineup?) Remember. (So, when testified, going back to lineup?) I don’t understand.
(Remember at trial, when you testified, you told how you picked him out in lineup? Third one?) Yes, (Called by law enforcement, said had arrest?) I don’t remember that. LUTHER – OBJECT. WAIDE – I’ll move along
(When you signed affidavit, several people there… when Creekmore ask you if you lied at trial… did you think about perjury?) I told him no. (All you can remember from Creekmore?) Not particularly.
(Further affidavits – this Exhibit 7 – typewritten affidavit. See that?) Yes sir. (Read over it.) HOOD – Identify? (Exhibit 17 affidavit) It was handwritten. (Let’s talk about this one. Not sworn at this time? Investigator for defense?) Yes. (Do you now that if you gave false statement before notary you could be charged with perjury?) Think you could. (This June 9, 2005, true?) No. (So, you did lie?) Right. (Knew you weren’t telling truth when gave statement?) Yes. Was about to get married and confused about a lot of things on my mind. (Excuse you from lying under oath?) No, no excuse. (When gave affidavit, you were lying?) Statement that I had known Marlon, no I did not know him.
(Your statement Howell live in neighbhood?) Yes, true. (Based on that and darkness in the morning… it was dark?) No, I saw clearly. It was 5:15, 5:10. Wasn’t dark (So you lied when you said it was dark?) Yes. LUTHER- OBJECT… MS SUPREME COURT HAS RULED ALREADY. JUDGE – But this is like a fork in the road. You are right on that fork, but other is challenging his credibility here, based on these things. To say he wasn’t truthful in affidavit, no matter what he said.
(Waide – I’M NOt trying to embarrass you. Says, based on similar sizes of Lipsey or Howell … did you know them before?) No. (D oyou know Lipsey, ever seen him?) No. (Did somebody say he was in the car that night? Lipsey?) Hearsay, yes. (Could you see somebody in car?) Wasn’t paying attention to the car. Saw what was going on. (When called 911 said 2 people in the car? Lie?) No, was true. LUTHER – OBJECT.
(Waide – SAYS I hae a real and reasonable doubt that Howell is the man I saw? Were you lying?) Yes. (Next, wish to recant identification from lineup.) (You said talking to finacee, true?) No, false. (Investigator didn’t make that up?) We were sitting there. Never … (You said you were lying when said talked with fiancee?) Yes. Didn’t include her in everything. (When you put in affidavit … after conversations with her and much thought… more certain of accuracy of statement?) No, I was lying. (Graph 5 – no Howell rep asked about his identification before went to stand or knew him before?) They brought to my attention he was in the neighborhood. (Did Howell’s atty talk to you before trial?) No.
(Waide – this June 9, 2005 statement… how many people there when you gave it?) Three from defense, me and fiancee. (What else going on, besides getting married?) I was jusst getting married. (Only reason lying?) I had other things to do. (Two days before .. June 7 2005, you signed statement, notarized. Exhibit 16?) Yes sir. Handwritten was on 9th, got married on 8th. (Testimony about getting married.. about handwritten statement?) What now? (You said talked to defense investigator that getting married… handwritten statment?) Yes. (But signed, typewritten on 9th, you were married?) Yes sir.
(Waide – So Exhibit 16 – you signed handwritten statement … saying real and substantial reasonable doubt that Howell is man I saw that morning. Signed it. Then got married. Next day you signed typed statement?) Yes sir. (You had two days to think about it. Signed it anyway? Even though knew you were lying?) Yes sir. (And lied two days before?) Yes. (You had no doubt whatsoever about your identification?) NO sir.
(Mr. Rice, let’s go to a different area. You identified … know about the car, whose it was…. nevermind. You described the car?) Yes. LUTHER – Relevance? Waide – some testimony at trial was false and wanted … think it’s relevant on that issue about where he was to learn how to identify the car. JUDGE – LEAVE IT ALONE.
(Exhibits 16, 17 – admit into evidence.) (Exhibit 18) LUTHER – OBJECT. JUDGE – SAME RULING – OVERRULED.
(Waide – Mr. Rice, you testify today that any affidavits about doubting identification were false?) Yes sir. (100% certain of that … that you identified Howell?) Yes. No doubt. (When police talked to you about it … they said that you said in 911, only 3 people in car?) OBJECT – OVERRULED (Didn’t you… somebody say, what about you’ve already told 911 there were 2 people involve?) OBJECT – PLOWED UP GROUND. Waide – credibility in question… says 100% certain of 3 people in car. Goes to credibility. He lied. JUDGE – That’s clear.
(Waide – Isn’t it true, when you signed handwritten… that investigator and others said they wanted to give you a couple of days to think about it, type it up and bring it back?) They said they’d type and come back. (Did you tell investigator that you didn’t have time to talk because of wedding?) No. 1:50 p.m.
LUTHER QUESTIONS RICE
(Luther – you were asked if anybody told you about … you said in 2000, if I’m not sure I don’t say?) Yes, to be sure. (How many times were you told that?) All my life. Police, once. Morning of lineup, chief told me. If not positive, don’t pick somebody else out. (Has anybody in law enforcement, D.A. etc., ever asked you to say anything that wasn’t true?) No. (Asked about whether seen Howell before. Had you ever?) Not to my knowledge, no sir. (Affidavit, handwritten – how long … how many people there?) Three. (How long in your house?) 2 1/2-3 hours. (Had they worn you out?) Yes sir. (Who wrote affidavit?) Female of defense, I think. (Testified at trial, saw shooting Parnell? Who?) Yes, Marlon Howell. (Picked him out of lineup?) Yes sir. (Why … if anything contrary, what was the reason for it?) I don’t understand. (Exhibit 22 – also handwritten exhibit … did you sign those? Why?) Yes, get them out of house … I wanted to get married. Get it over with. Already signed one.
(Ever try to make you feel sorry for Howell?) No sir, well kind of… murder. Did I doubt what I saw. A lot of reasons why I could doubt it. But, yeh. (Reaffirm testimony today?) Yes sir. 1:55 p.m.
WAIDE – No re-direct. … (finally excused)
WAIDE … We don’t have any more witnesses, but we’d like a few minutes to make sure about anything else. (Richardson – asks if state will call Shaw?) Luther says we will.
Defense attorneys confer about if they have anything else to present.
Waide – Petitioner rests.
2:06 – LUTHER – STATE CALLS TIM KENT.
KENT – Mayor of New Albany. Before was 11-year policeman and investigator. (Luther – May 15, 2000 recall?) Yes. Six months as investigator. (Tell me how came in contact with Marlon Howell in regard to murder of Mr. Parnell?) I was called out about 5 a.m. Patrol said shooting. Got there, said had eye witness. During day, we had a call from Bee-Quick employee that someone tried to hide a car behind house that morning. She said someone talked to her husband, said it was Curtis Lipsey. I went to his house, wasn’t at home. Asked his wife to tell him to come to Police Dept. and see me. About 5 p.m., he came there and asked about the car hiding. First he said no. Then I said it’s time to be honest. Known him all his life, not to start lying. Suddenly, he said, Marlon shot that guy and me and Adam saw it. WAIDE – OBJECT. NO RELEVANCE. LUTHER – HARD FOR ME TO STOP HIM.
JUDGE – Just answer question he asks.
(Luther – Take statements from Ray and Lipsey?) I did. (Implicate Howell?) Yes. (Pick up Howell?) Yes. (Picked up?) Warrant from MDOC. (When did you charge him with capital murder?) Yes. (Conduct lineup where Howell was in?) Yes. (When murder?) Monday May 15. (When brought to police dept. taken into custody?) Around 8 p.m. May 15, brought in for questioning. (What happened?) He spent night in Union County Jail. We put him in jail on the warrant, then to hold until we could get a lineup next morning. (When lineup?) Around 10 a.m. next morning. (At lineup … prior were you prepared to charge him?) I wasn’t. Not for capital murder. (Anybody charge him with capital murder before?) No.
WAIDE – Question about … issue of whether he was under arrest. They cannot now try to say what MSSC said. That testimony is out. LUTHER – I’m not familiar with any order that Supreme Court has made about that question. (Richrdson – Aug. 29, 2007, ruling. Granted, motion of clarification. That arrest was on May 15. Wording clear.) (Another prosecutor … opinion of MSSC doesn’t say that. Effect is picked up on probation violation.) JUDGE – Copy of that order you’re talking about?
RICHARDSON – Exhibit 29-30 in notebook. JUDGE – Motion 29th. RICHARDSON – ORDER ON 30th. (Other prosecutor … ) JUDGE – Says date of arrest and lack of counsel. RICHARDSON – Date of arrest of established by date of opinion. WAIDE – Under the opinion, and I agree with counsel … about date of arrest … however, it one of three issues remanded, to determine if counsel was at lineup. It’s immaterial. Supreme Court would not have sent it back if it didn’t matter. Why we’re here. JUDGE – LET ME LOOK AT ONE OTHER THING.
HOOD – Not in opinion that defendant was under arrest at the time. These documents attached to it … doesn’t clarify when under arrest.
JUDGE – Here’s my take: No. 1, wish MSSC had been a little clearer in what portion they were granting. Order really doesn’t state what part granting. Maybe I’m looking at the wrong order. Just a minute. … All say several motions filed, some granted and some dismissed. All says is motion for clarification … that post conviction relief is granted. OK. Now thought about it … A little different viewpoint. Appears filed motion for clarification of amended petition for PCR and record. Granted Aug. 27, 2008. Order allowed the motion for clarification or correction to be … is granted. The motion. Then got to look at the opinion that court rendered at basically same time, Aug. 28, 2008. I don’t know what’s in amended petition?
RICHARDSON – Whole intent of the motion was to establish the arrest date. JUDGE – I DON’T think that’s what they say. RICHARDSON – Last paragraph … JUDGE – Wish it was all clearer. Motion granted, but then in opinion … they want trial court to conduct hearing about issues in the amended petition. RICHARDSON – i was confused by it too. Asked retired NC justices about it too … what I was asking about in this situation, to look at whole contest. To look at earlier petitions. Couldn’t change finding of fact without evidentiary hearing, that is your job. One thing in original hearing – was attorney present? New evidence that there wasn’t an attorney. Was he there or not? At very least, ask court to take the motion up out of order and we’ll go from there.
HOOD – On next to last page, they ask to vacate the sentence. JUDGE – POINT I made earlier. Even if they granted the amended motion of clarification, look at Graph 82-86, see is recitation of what I’ve heard here over past 2 days. Last sentence of 86, they talk about possible attorneys or not, say thus find these issues to have merit – meaning whether lawyer was there and hearing required on these issues – whether counsel was ineffective at lineup or had no attorney. If thought he didn’t have one, how can they say that?
RICHARDSON – They made finding, was lawyer in original appeal. JUDGE – I UNDERSTAND THAT. LUTHER – Side issue about ineffective counsel, part is whether it made a difference, had a lawyer or whether he’d been arrested, other issues. JUDGE – I TEND to agree with you. Don’t think order settles anything. Don’t know any other way to approach it without MSSC order saying find no counsel present, I don’t see that. They tell me to conduct hearing on that issue, is what I think.
LUTHER (TO KENT)
(You took a statement from some people, at some point carried him to jail?) On MDOC warrant along with suspicion of capital murder. (At that point, did you decide about charge?) No. (Well, really all wehad was statements of two co-conspirators. Felt eye witness would pick him out of lineup and to wait and see if that happened. (Continue with normal procedure from there? After arrest?) Yes, on booking sheet, so jail will know what to put on his file when he got down there. (Is this document?) Yes. (What is date?) May 15, 2000. Says 0/15/2000. Marlon Howell. At 9:40 p.m.
(Luther – WHO PREPARED IT?) I did. (Ever talk to him that night?) No. (Put in jail, not at bottom?) Says information – charged with capital murder and parole violation. (Why say that?) Had been my experience … one time we put guy in on public drunk and was murder suspect and he bonded out before we could question him. I didn’t want him out before we could do a lineup. That’s happened before. His parole officer sometimes decides they’re free to go. Nothing else to hold him on. (First time Howell told he was chrged with capital murder?) When served warrant? Probably 11-12 o’clock. Had lineup about 10 a.m. Had to type affidavit and get warrant. (What first? Lineup or affidavit for warrant?) Lineup first. Prior, well I wasn’t real comfortable with what we had so far. Thought it would be better to have more evidence.
(When type them?) Maybe a few days after, maybe synopsis of case. Did that, I’m sure. Probably 2-3 … normally secretary would type out. I’d add information, if I got it, to add to the report. (Shows documents to Richardson – Hands to Kent to identify.) Part of my reports, narrative. (Dates?) I didn’t see any. This is 6/29. I don’t have dates on other two. Final is 6/29/2000. (Based on your investigation?) Yes. (How long are these reports?) Final, maybe 3/4 of a page. Six months. (During ivnestigation, bring anybody else in?) Yes, Chief Grisham came out. Asked MHP Mickey Baker to look at it. Felt better with their experience, I didn’t have much at that point.
(Put hin in jail on suspicion of capital murder and parole violation?) Yes. WAIDE – OBJECTION. JUDGE – SUSTAINED. (Shows him 6/29 report … any info about how Howell was brought to jail etc.?) Yes. Lst line, taken to Union Detention and booked on capital murder. (Charged then?) No, suspicion … in my mind then and now … being booked and charged are two different things. Booked is like suspicion. Wasn’t charged at that time. Jailed on parole violation and suspicion of capital murder.
(Another document … any reference to charge?) Yes says around 8:30 p.m. … arrest in Blue Mountain … brought back, charged with capital murder with Adam Ray and Curtis Lipsey. (Document before arraignment, lineup?) After. (Third document … identify?) Yes. Assume it was prepared first, it’s shortest one. Couldn’t swear to it. No date. (Prepared before Howell lineup?) After. (Before affidavit?) After (Before initial appearance?) After. (Based on testimony of Adam Ray and Curtis Lipsey, did you ….?) No. (When had those statement from them, did anyone call Justice Court clerk or judge to open up after hours for affidavit signed?) No sir. (Know whether Howell had attorney at lineup?) No, I can’t remember.
(Include any information, signed affidavit on Howell?) Yes. (Information about lineup in affidavit?) I don’t remember. I don’t know. (Hands him document … type that after lineup?) Yes. (After Rice i.d. him?) Yes. (Why didn’t include in his affidavit?) I don’t know, can’t answer that. Probably inexperience. (Any doubt that lineup before had affidavit signed?) No doubt. (Introduce three reports of Kent.) NO OBJECTION FROM PETITIONER. 2:51 P.M. (Luther – Another document … identify?) Arrest warrant I served Mr. Howell. May 16, 2000. I put date in there once I served it on return. (Date of warrant?) May 16, 2000. (Type that?) It was generated from Justice Court by a deputy clerk. Served same date. Right. (Affidavit … date?) May 16, 2000. (Intro affidavit chargeing Howell with capital murder.) NO OBJECTION
All done at same date. (Another document – identify?) Arrest warrant from Justice Court for Adam Ray. Dated May 16, 2000. Served… I did. Dated it May 15. Not correct. Was served same as rest of them, on a Tuesday. (Another document?) Warrant for Curtis Lipsey, May 16, 2000. Showed May 15, 2000. Not correct. Same thing… issued 16th so impossible to serve on 15th. Also remember serving him and Ray at same time. (On 15th, doing what?) Had been up about 30 hours at this point. (When did you commit to begin Marlon Howell’s prosecution?) After lineup and positive identification. (Prior?) I wasn’t. TENDER WITNESS 2:58
RICHARDSON – We will be brief.
(Richardson – May I mark an exhibit? Shows to Kent. Identify?) Appears to be statement from Charles Rice about lineup. (Did you fill that out?) I didn’t type it out. I wrote it out. (Created from your notes?) Yes. (Include as much detail as you can for later memory?) Right. (About lineup … one thing in notes, who was at lineup?) Right. (Anywhere on document the name of a lawyer representing Howell?) No. (You say can’t remember?) No. (Never able to say a lawyer there?) No. I’ve tried to recall, I can’t. (Luther showed you documents typed from your notes. On ech one, said arrested or chrged with capital murder on May 15, right?) One says he was booked. (Different from booked and charged?) I do now, moreso than then. (If bonded on out probation violations, he couldn’t bond out with your capital murder note on there?) Yes. (And so you placed him under arrest for capital murder?) Never told him that. Was my intent.
(Another document – 28 – your writing?) YES. Signature. (Read it) On 5/15/2000 Howell brought to PD … read rights and charged with capital murder. Questioned by me about David Parnell’s murder. He said had gone to Corinth night before 5/14 and stayed until Monday morning. Asked who stayed with. He said girl, couldn’t remember name or address. Brought to Jail booked on capital murder. (On warrant next day, you were so concerned about having more evidence, why not put that in warrant?) Inexperience, I assume. I had this from Mr. Rice. Wish I had, but I didn’t.
(Time change that evening… possible you started docs on 15th and made notes on 16th? On arrest and affidavits?) Couldn’t be possible. (Clear memory about it?) Well, not like 12 years ago. One thing, I know got lineup done first. Then, hard to get affidavit typed and warrant issued before 10 a.m. That’s what I’m going with. My memory’s not clear. (If you were a judge you’d take this to, would have been available by 10 a.m. on 15th?) Normally. Would have been there. (Nothing to prevent you from getting warrant on 15th?) Other than his not being there. I don’t think I would have went int here to sign warrant before court. (Document … identify? Printed and booked May 15?) Yes, it appears that way. I don’t know anything about this document except came from jail. (Where got info to write capital murder?) From my booking sheet. RICHARDSON – THAT’S ALL WE HAVE.
LUTHER – RE-DIRECT
(LUTHER – Asked about timing of warrant, affidavit and lineup?) Affidavit guessing noon Tuesday. Warrant, same time. (On warrant, did you put date on it?) No. (Who did?) Deputy clerk assume computer generates it automatically. (Was warrant before or after lineup?) OBJECITO – OVERRULED. … (Was Howell free to go on parole violation?) He could have been if probation officer would have signed it. Not if on suspicion of capital murder. (Ever held somebody on suspicion but not charged them?) Yes. EXCUSE WITNESS 3:12
LUTHER – CALL MICKEY BAKER
BAKER – MBI, WITH MHP 32 years. Most of it with MBI, criminal investigation bureau, 16-17 years of those 32. (Luther – recall Union County incident in May 2000?) Yes sir. (Date?) Afternoon of May 15, 2000. Call from New Albany PD investigator. Told us about murder and asked for our help. We did. Role – NAPD mostly handled. We assisted in whatever way they asked. Took statements. (From Terkesia Pannell?) Yes. (Document – identify?) Statement from Terkesia Pannel on March 14, 2001 …(intimidated?) No sir. (Signed it?) She did. I read it back to her. Interviewed her, reduced into writing, read it back to her. Always say it’s your statement, if something must change, tell me. She made some changes … about midway on first page … wrote about Brandon. (Urge her to say anything that wasn’t true?) No sir.
(She give info first-hand?) No, most is what she was told by somebody else. (Report?) I did. (Luther has report – WAIDE – this is lengthy, I didn’t get one.) (They take a look.) WAIDE – THIS HAS all the details about why he thought Howell guilty. Nothing relevant. JUDGE – For limited purpose of establishing date he was charged. LUTHER – That’s all.
(Luther – hands him document. Identify?) Statement I prepared May 16, 2000. Signed by Tim Kent as witness, and Charles Rice. (Present at lineup?) Yes. (Recollection time?) 10 a.m. began, completed about 10:10. (Prepared document after?) Yes, time 10:17 a.m. Completed 10:45 a.m. (Rice identifies Howell in lineup?) That’s correct. (What did law enforcement do after lineup? Know about affidavits?) No notations, but sometime in afternoon May 16. (Before or after lineup?) Yes. not completely sure, no charges filed at that point. (Prepare report ..?) Yes sir. (Shows him document … ?) My report. Last lines … shows charged May 16 after lineup. LUTHER – MOVE TO INTRO REPORT FOR LIMITED PURPOSES OF TIME
WAIDE – Asks to take a look at it. Refers to date of charge. No objections.
WAIDE – Questions Baker. (When say date charged … two different ways to charge or more? Right?) Yes. (Then affidavit, somebody can go out and charge someone with a crime?) Yes. Affidavit must come before warrant. (When say, what date was he charged?) My experience … I didn’t take people before judge. My usual practice, take before justice court judge … different from grand jury. Justice judge, usually waits until gets through with everything else. (When you say “charged,” refer to warrant or affidavit?) Time affidavit signed, then warrant issued, and I hand warrant to that person and say he’s charged. That’s my definition. What I’ve used.
(Waide – if have probable cause … you could arrest person right there?) That’s correct. (In this case, reason Howell taken into custody?) I was in Tupelo at time, but understand was a suspect in murder case and taken into custody on parole violation. (Reason was present for a lineup? Picked up?) Yes. (Picked up on 15th, because of suspicion of capital murder and parole violation?) I wouldn’t consider someone charged without affidavit. (Wouldn’t question him without warning of his rights?) Right. (Certain constitutional rights attach when someone’s in custody?) Right. (Pannell – tells you what Brandon Shaw told her?) Yes. (Was Shaw a central person in this murder case? A material witness against Howell?) I was in witness room for entire trial. Doesn’t know if Shaw testified. (Pannell had been talking to Shaw?) Correct. (Once he testified, Pannell could be a possible witness if he told her something different?) Yes. OBJECTION – BEYOND AREA OF EXPERTISE. Waide – withdraw.
(Exhibit 22 – identify?) Affidavit of Terkesia Pannell. (Glance through for her contacts with Brandon Shaw? Correct?) Yes. (Assuming she was with Shaw night of murder?) She said. (Was a witness?) Yes. (All she really knows is what Shaw told her?) What she told me. Her entire statement … wasn’t inconsistent from any other statements I took. (Assuming Shaw told Pannell, for example, that Curt told Adam to take gun and hide it … ?) Not what she told me. (Assuming she signed affidavit like that … you can’t really say, without hearing evidence, whether Pannell might have been an important witness or not?) Her statement, a year later, was consistent with other statements. Can only say what I know of. If difference, somewhere she lied to somebody. (Agree that based on what she told you, she purports to have some knowledge of what Shaw said?) Not what she said to me. But she was quoting what he told her.
LUTHER – 3:40 – (Asks couple of other questions.. excuses him.) 3:43.
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11 A.M. POST
NEW ALBANY – Marlon Howell’s death-case hearing came to an abrupt pause at 11 a.m. after defense counsel claimed Attorney General Jim Hood threatened its lead counsel with committing a crime related to a witness.
Tupelo attorney Jim Waide told Judge Samac Richardson that during the first break today Hood told lead counsel Billy Richardson to “lawyer up” because Hood had a witness who would say someone was paid for testimony.
“I’m very shook up about this, your honor,” Richardson told the judge.
He insisted that Hood tried to intimidate him and said he wasn’t sure how this was going to impact his role in seeking a new trial for Howell.
Hood denied his comments to Richardson were so threatening, saying he had a witness who was going to say somebody got paid.
As the judge gave them time to work out the issues, Hood revealed the witness to be Brandon Shaw, previous witness Terkeshia Pannell’s former boyfriend.
Waide agreed to the presence of an AG investigator while they question Shaw about what he intends to say on the stand.
(See hearing report below.)
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10:40 – WAIDE – Serious matter. Will ask for ruling. Motion will be to strike state defendant and grant new trial on grounds that AG is attempting to intimidate Ms. Pannell by informing Richardson that he should lawyer up because he was going to be charged with suborning perjury. Mr. Richardson said during break Mr. Hood told him that during break. Ask if he did that, he said something to that effect. I asked him basis. Here’s the basis of motion – need to tell court… nobody her has any extensive knowledge until last few days. Mr. Richardson is one who learned about it long ago, investigated. Spent thousands of his own dollars. He asked me to be co-counsel. Just got acquainted in past few days. They’ve done a lot of the legal work. Depending on Richardson, man’s life is at stake. To be intimidated by AG, charged with perjury in middle of the hearing. Maybe Hood has a witness that will say something – but why in middle of hearing on man’s life and tell him you need to law up to be charged with suborning perjury, unless he had some grounds. This is particularly concerning because we have this witnesses… last two … circumstances are a concern. Then a lawyer who tried to defend is subject to intimidate. It’s a serious matter, ask you … I don’t know what the remedy is., Counsel has got to be worried about this when he’s suppose to be here worried about Mr. Howell. Totally inappropriate, don’t know what remedy is except to allow Mr. Howell a new trial or to start over. That’s my motion, like your honor to take this under advisement.
JUDGE – If I were to grant Mr. Howell as new trial based on this motion, who would be lead counsel a trial? WAIDE – I suspect that I would. He’s already asked me to help. But suspect I would, I would be willing to. JUDGE – Would Richardson participate in new trial? RICHARDSON – …. waide – THAT’S DECiSION of defendant. He asked me to help if there were a new trial. I said I would. But frankly, this is a local jury and … a lot would depend on pursuing facts or say for this hearing. By that time, we’d know what he was talking about, If he indicted Richardson … he could say it was a remark I should not have made.
HOOD – This is classic. I’ve tried many against him. I told him a witness was paid for testimony. If they take stand, will tell the story. I told him … stay on your side. He’s hanging out over there. I said, stay on your side of the courtroom, if witness testifies – you may be subject to suborning perjury. Nothing inappropriate … defense counsel has been accused by witness about being paid. We’re going to get to the bottom of this.
WAIDE – This puts me in an awkward position. First time I’ve heard there’s a witness who says he’s been paid. He wouldn’t tell me who.
HOOD – Wait for this witness. Then if says suborning perjury.. then we’ll have to act.
RICHARDSON – He went further … he told me to get lawyered up and I was going to get charged. If witness says what he will.. you’re in big trouble. Only way I can take that. In 32 years, I’ve never even had a serious Bar complaint … I … this is serious. As for paying Ms. Pannell… statute allows you to pay travel if she must drive or hotel if she has to stay overnight. I can do that in N.C., assuming MS has same thing. Statute allows, I would only do what it allows me to do. Judge, to be accused of a crime in middle of a hearing is a serious matter. If put me out, put him out as well.
JUDGE – I am not going to grant a new trial on this basis. I’ve got some options here. New trial is not one of them.
WAIDE – Can we have her recalled and ask what’s going on with this witness?
HOOD – Don’t know why disrupt proceedings. If he put lying witness, he’s going to be in trouble.
WAIDE – Hood says he stated telling counsel to be careful about witnesses.
HOOD – Told him to realize he may have trouble. If he knows about a witness done something inappropriate …
JUDGE – Statute about intimidation of court officers. But generally, suppose you could file a criminal affidavit against him as officer of the court. Flowing from either side.
RICHARDSON – I’ve got a sacred obligation to this man. Accused of a crime. Not sure I can proceed if I’ve been accused of a crime… IF WE GET candor from AG … what is he accusing me of. I’m shook up judge. I am personally shook up. I’m asking …
JUDGE – LET’S TAKE RECESS UNTIL 1 P.M. SEE WHAT HAPPENS. BRING RESEARCH.
WAIDE – If your honor can direct Hood so I can talk to these witnesses, to talk to them about what situation is. What’s he talking about. Try to check into this. JUDGE – Any problems with that?
HOOD – Would want one of our investigators present, if they do. I would prefer so no intimidation.
WAIDE – No problem. HOOD – IT’S BRANDON SHAW.
LUTHER – Can they handle this during lunch? JUDGE – I DON’T KNOW.
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10:27 A.M. POST
NEW ALBANY – Two women testified today about what they knew surrounding Marlon Howell’s trial and the night a newspaper carrier was shot and killed.
Terkecia Pannell gave lengthy testimony about what she remembered from May 15, 2000, at the home she shared with boyfriend Brandon Shaw in New Albany. She corrected an earlier statement in which she told details about the night David Pernell died.
But now, she admitted she was asleep for some of the details and said her story had come from what Shaw told her. Today, she backed up what she said was her real memory. In that, she said she never saw Howell with a gun and did not see him in the early morning when two other men returned to her home saying someone had been shot and robbed.
A Howell relative told her overhearing a young black woman, during Howell’s trial, tell others she wasn’t going to lie.
Howell’s chief defenders are North Carolina attorney Billy Richardson and Tupelo’s Jim Waide. Prosecutors include Attorney General Jim Hood, who was district attorney when the case came to trial, and current D.A. Ben Creekmore and assistant D.A. Kelly Luther.
Senior Judge Samac Richardson of Rankin County presides over the hearing to determine appeal issues brought before the Mississippi Supreme Court.
Howell was convicted in Union County of the May 15, 2000, shooting death of Daily Journal newspaper carrier David Pernell. He was sentenced to death.
His defenders insist he was not there and not the one who pulled the trigger. They contend that, at a minimum, he should get a new trial because of errors which violated his constitutional rights.
Wednesday’s hearing featured testimony from former New Albany police chief David Grisham, who acknowledge he could not be certain that Howell had an attorney when a police station lineup fingered him as Pernell’s attacker. Conflicting testimony came from a woman, formerly associated with the man near whose home Pernell was shot.
Howell is in the courtroom in red jailhouse pants and a white T-shirt.
• • •
(Below is a running account of the courtroom activity. Please excuse the typos and other glitches likely as I type rapidly.)
9:02 – Richardson asks for conference a judge’s bench. All attorneys listen in.
9:05 – JUDGE – Says he doesn’t think he’s related to defense counsel. (A little laughter ripples.)
TERKESIA PANNELL – (Questions from Luther.) (Says all you know is wht Brandon Shaw told you?) Correct. (You said Marlon and Brandon and others hanging out that day and night?) Yes. (Came back to the house. They left. Did you ever see Curtis Lipsey, Adams Ray or Marlon Howell again?) No. (Ever say them again?) No. I went to bed, it was late. (Were you awakened?) Somebody knocked on door. Don’t know who. (Didn’t talk to them? Don’t know if anybody said anything about killing anybody?) No. (Ever heard anybody say anything about killing anybody that night?) No sir (About robbing?) No sir. (Ever, other than Shaw telling you, hear anyone about…?) No sir.
(Also, yesterday you said, came to court. Don’t know anything about who called you?) No sir. (Wanted to say … never saw Marlon … statement to police earlier, read it and didn’t tell them he had a gun?) Right. (Started going over your affidavit … Exhibit 22.. have you read that?) Yes. (We went over first paragraph …other parts of statement … all correct?) Yes sir. (… keeps reading parts to her. Also that you never saw him with a gun?) No sir. (Before his going out, people there nervous?) Adam and Curtis. Marlon was not with them. He came at one point. I only saw him one time. (Also, they were high?) Yes sir. (… back to statement …first time ever saw Howell?) Yes. (… somebody said they needed money?) Yes. (Don’t know who?) Right (Curtis, Adam came back without Marlon?) Said that but I went to bed, don’t know for sure. (See anything more?) No sir. (So that part about Curt and Adam without Marlon, you don’t know it’s true?) No. (Adam had gun and said we shot a white guy? Don’t know?) I don’t.
(Luther – statement, don’t know that? Or Adam had a gun?) Correct. (Acting scared, said we shot a white guy. Hear that?) No sir. (… didn’t see Marlon with gun?) Right’s true. (… don’t know what happened after they came back?) I don’t. (… do you know about who shot?…) I now by what Brandon told. (… [working their way through her earlier statement… basically she’s saying she didn’t know anything on her own after she went to bed, although earlier she said she did. She says her then-boyfriend Brandon Shaw told her and that’s why she made the statements.])
(… says Curt was violent person?) Yes, that’s true. (… Curt was in front seat?) Yes, some time earlier in the day. Don’t remember, don’t think Marlon was in car. (Whose car?) Adam or his mom. (Adam driving?) Yes. (… saw two men in front seat?) Yes. (… ever saw the three men in a car together before?) No. (… never saw Adam driving, Curt in front, Marlon in back seat?) No … saw earlier in the day, don’t know what time. IN and out of house the whole day. (… go to bed …) I twas late… 1:30 … (when left last time, were you up?) Yes on my way to bed. (… they left, you don’t know who was riding where?) No I don’t.
(… when saw them, together?) most of the time. (… never saw the three in the car together?) I want to say I do, we were all drinking and partying. Somebody made a run to the beer store… but can’t say saw them. (…telling us can’t say saw them..?) Yes. (Adam and Curt returned … you don’t know?) No sir.
JIM WAIDE … asks … about that statement.
(You say when Adam and Curt came back with gun without Marlon?) I saw Adam and Curt, I remember that. Had to be before I went to bed. (… Looked nervous?) Yes. (… could have been because they were high?) Yes. (… before the shooting?) I don’t know. JIM WAIDE – She can’t know when the shooting took place. (Judge – she knows it happened before or after she went to bed… wouldn’t she know that?) WAIDE -Not in my opinion. I may be mistaken. Don’t argue with court.
(Luther … JUDGE – when ask quesiton, give her some time frame. Luther- I thought I had.) (Luther… testimony, before you went to bed … that you never heard or saw Adam, Curt or say or heard anything about this?) Yes. (… was Marlon drinking that night?) We all was, even I was. (… statement… that Marlon Howell never had a gun?) Yes, that’s the main thing. (Never told anybody different?) No. (… didn’t hear him say anything about killing anyone?) Right. (… never changed that statement?) Right. (… part where told DA something… ever know anything else or was it what Brandon told you?) Yes.
(… did DA call you to stand?) No, just remember talking to someone about the case and giving what I new about the story.. that Marlon didn’t have a gun… like theyw anted me to say he had a gun but I would not move. (… just what Brandon Shaw told you?) Yes. (After you met with whoever about statement… that only knew what Brandon told, except for no gun with Marlon … never heard him say anything about shooting?) RICHARDSON – ASKED AND ANSWERED. JUDGE – SUSTAINED.
(Luther – don’t know who was with them when they came back?) It was night, I don’t know what time it was. (Wash it 5 a.m.?) Oh, no. (When somebody came and knocked?) No. Don’t know when that happened. (…Adam and Curt had a gun?) Don’t know that. (… don’t know if Marlon had a gun?) I didn’t see it. Don’t know who knocked on the door. (… somebody said shot someone? Ever heard that?) Not to my knowledge. ( … never testified to that?) No, didn’t. (… you read the statement and gist of it is correct?) … she’s looking at it … I don’t think that’s correct … (… your statement, same as one before?) Yes. (… did you say anything different to authorities than is in this statement?) Not to my knowledge I didn’t.
(Luther – says … you did read this statement?) I guess it is. (… this affidavit, Exhibit 22. All this green stuff is what’s been marked out?) Yes. (How did you tell is if you didn’t say it?) … (What you told police is in Exhibit 7?) Had to be. (What’s in 7 is what told them?) Yes. ( … reads … I know that’s why they didn’t call me to testify?) Don’t know. (Luther confers with Hood at the side.) 9:40
(Luther – Yesterday, you testified.. when you came to talk about statement in 7, you don’t know?) OBJECT – SUSTAINED. (JUDGE getting ticked off with Luther’s repetition of questions.) (Luther – do you know who prepared this document or who you gave it to?) No sir. (You didn’t prepare it?) Oh, no sir.
LUTHER – MOVES TO INTRODUCE AFFIDAVIT WITH HIGHLIGHTED PORTIONS, WHICH SHE AGREES ARE NOT CONSISTENT WITH HER TESTIMONY. RICHARDSON – OBJECTION. LUTHER – CONTINUES WITH MOTION, TO INTRODUCE MARKED UP AFFIDAVIT. (JUDGE – For identification, I did my own but I will let you introduce it for that.)
RICHARDSON – 9:43 – (This is defense attorney) (When Luther read affidavit and got to Paragraph 3 … one you signed for us. When he read it, you said I can’t be 100% on green marks?) Yes. (Why?) I can’t because I can’t remember times I saw Adam or Marlon. We were drinking. Can’t be sure who knocked on door. (On thing you stated. Adam with gun, his talking? Did you hear that from Brandon?) Yes. (Let’s take it back… remember when Sanders talked to you? Wanted to give statement, then I came and talked to you?) Yes. (We executed statement and you signed it and I read it to you like Mr. Kelly did?) Yes. (Read it out loud and you said it was correct?) Yes.
LUTHER – object, Judge – sustained.
(Richardson – Why are you saying you can’t be 100%?) When knocked in door, got up and went to bathroom. I heard commotion, which I believe it was Adam, Curt and Marlon talking. Didn’t see who was out there. I went to see who was talking .. it’s been a long time. But … she shakes her head. (Who saw?) Brandon, Curt and Adam. (Back then, I asked you long time ago … last time Curt and Adam in your house … was Marlon with them?) No he was not. Were they acting nervous and worried?) They were. (As late as April… when state talked to you, you signed affidavit?) Yes. (You said about statement to us, you wanted to tell the truth… ) HOOD – OBJECTS. (Your honor, I’m asking for leeway, I’m trying to get some clarity. She’s saying she had a hard time remembering)
(When you signed this affidavit, you said standing by your 2006 statement?) Yes. (Memory when signed it, closer to incident than now?) They are. JIM WAIDE – IS THAT MARKED FOR I.D.? (Judge – prefer whoever’s at the podium run the show. Waide apologizes.) (Exhibit 57 – affidavit gave state a few days ago. They asked you to take a polygraph? Are you scared today?) A little nervous, not scared. (Is it your testimony, to stand by affidavit you gave me?) In 2006, yes sir. (So, things you say can’t remember are because of memory or what Brandon Shaw?) OBJECT. (What did Shaw tell you?) He said had been a robbery on north side and Adam and Curt was involved. Said Adam was involved, Curt on passenger side. He said they had shot, robbed somebody. (He ever mention Marlon?) No. (Is that what you want to come clean about?) Yes. (One of the things?) Yes. (Consistent with what you saw that night?) Yes. WAIDE AND RICHARDSON CONFER.
9:52 – JUDGE says he has 2-3 questions.
(Judge – TRYING TO understand sequence of events. When went to bed?) After 1 a.m. (At some point, Brandon … came to bed?) Right. (Then knock?) Correct. (Heard you say didn’t know who because didn’t see them?) Yes. (But you told Richardson … real simple question? Did you see somebody?) I did … remember going to bathroom. I know. (But you said you didn’t.) But I went to the bathroom. After knock, I got up. (Did Brandon leave after knock?) Yes. Gone an hour or hour-half. (When whoever came back and knocked … did you say you didn’t know what was being discussed?) No, just remember seeing Adam … (Do you know aht discussed?) No sir. (Know how much you had to drink that night?) No sir. Smoking marijuana. (I think that’s all I have.)
(LUTHER – You said bathroom within bedroom?) Yes. (Didn’t have to leave?) But I remember looking out door. (Bedroom where?) Soon as open BR door, it’s living area, could see front door. (Judge is thinking… asks to excuse witness?) Richardson – may want her to remain. Reserve right to recall her. Hood – would like her to be available. Judge – you’re not finally excused. Instructs her not to talk to anybody about this. 9:59
RACHEL WAIDE – Call Tonya Peterson. [At least 2 dozen in courtroom audience]
PETERSON – Lives Tiplersville, works accounts payable at company. Related to Howell, on his mother’s side. Like me and his mother are 2nd or 3rd cousins. (Rachel – at his trial? Why?) Yes, moral support for family. (At trial, did you hear anything about witnesses?) Yes. We took recess and I was by wter fountain. Woman came out and approached older woman. She seemed upset. She kept saying, I’m ready to go … they don’t need me because I said I’m not going to lie… they say he was there and I know he wasn’t. She kept saying I’m ready to go. Two men came out in black suits. She said, I’m not going to lie. Soon after, I saw … (Rachel – describe her more?) Been so long. She was black girl. (Men?) Didn’t know. Been so long. (After heard exchange between women then men?) Remember girl saying, I’m not going to lie. To lady and two men right behind, speaking to all. (After that?) She walked off. Then I told … (Go ahead) Marioan came out and I told her. She said we need to tell somebody. Me and Marion went to Rev. Howell, her father and he said to tell it. A few minutes later … three men came out. One was Marlon’s attorney, we told what I heard and saw. He said OK. Never saw anything else or heard anything else.
(Rachel – Who is Miriam?) Miriam Howell, Marlon’s sister. James Howell his father. (Other than that exchange with the attorneys and Miriam, tell anybody else?) No ma’am. (After, long after… did you talk about this?) Yes. Mr. Billy… a lawyer… (She’s pointing to Billy Richardson.) (Met with him? Did he ask you to sign statement?) Yes. (Showing her Exhibit 23 … recognize it?) Yes ma’am. (Did you read over it?) Yes. (Read it when you signed it in 2012?) Yes. (Is it true and accurate?) Yes. (Intro 23) LUTHER – OBJECT.. HASN’T BEEN TESTIFIED TO DURING TRIAL.
(Rachel – whenever we bring live witness with affidavit, court has allowed it. Witness just said it was correct and signed.) OBJECT. Judge – that’s why we have cross-examination… to Luther. (Rachel – Exhibit 23 admitted? Judge -yes.)
(Show you the exhibit again. Word prosecutor still left in. Why?) The two guys had something to do with the reason for her… she said wasn’t going t lie. Assumed they had something to do with her. (Why thought prosecutors?() Can’t remember their faces. (At some time recently, did someone from DA’s office or AG’s office, and ask for another statement?) Yes. (Circumstances?) They came in and asked questions. He showed me same affidavit. I said that’s me and then lady … can’t remember first names, gave me a card. he Kept asking questions over and over. Told same thing. Asked if would put in writing. But I said I’d do briefly because was on her job. He came back and said his boss said he needs you to say that”they” you weren’t sure who you were talking about. I said I don’t remember. I asked if I can meet you somewhere to notarized. Later, met at Ripley Sheriff’s department. I asked to see statement before signing.
(Who is he? Initial investigator?) Yes. (Describe him?) White guy. (You said he said boss?) He said, my boss said …. to put in affidavit that she said she wasn’t going to lie. Boss says to say you don’t know who “they” were? I said sure, wasn’t going to lie. I don’t know. (Shows her affidavit … what?) Affidavit I signed that day after work. (When I look at April 2 affidavit and Exhibit 23…. 23 is longer?) Yes. (More info in 23 or other?) IN 23. (Explain why?) Because I said on my job … said could meet later, wrote up with I remember.
10:16 – (Rachel – look at Exhibit 58 … true copy you signed April 2, 2013?) Yes. LUTHER – OBJECT. JUDGE – OVERRULED. (Rachel – no more questions.)
LUTHER TO CROSS-EXAMINE
(LUTHER – here for the trial?) Yes. (Marlon’s family?) Yes. (Any religious beliefs about the death penalty?) I don’t understand. (Any beliefs about death penalty?) I mean … to me it is wrong. I don’t make the rules. (You were here for trial … not in witness room?) No. (Didn’t hear Ms. Pannell?) No sir. (She didn’t take stand and lie?) I don’t remember her… uh uh … really don’t remember. (If she left probably didn’t) Yes. (Who did she tell what to?) Remember the little lady and two men. Don’t know who she told. (But you know reported what she said to Rev. Howell?) Yes.
(Luther – know what Pannell was talking about?) No sir.
(Rachel – You were asked about death penalty… is ay or your testimony or affidavit, affected in way about your personal views?) No ma’am. (You said earlier, you went to talk to Marlon’s lawyers.) Yes. (This female you identified talking to older lady and then to two men… did you see her talk to Marlon’s lawyers?) No maam. 10:21 – EXCUSED
RACHEL – MY CO-COUNSEL SAYs THEY’D LIKE TO RETAIN HER. (Judge – OK).
JUDGE – 10 MINUTE RECESS.
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