Eddie Lee Howard

Case record: Eddie Lee Howard, Jr.

Background

Eddie Lee Howard, Jr. was a forty-one year old male. He was convicted and sentenced to death on two separate occasions by a jury for raping and murdering Georgia Kemp, an eighty-two year old female, in 1992.

The offence

On February 2, 1992, Georgia Kemp, an eighty-two year old female and a resident of Columbus, Mississippi, was murdered during the course of the crime of rape. The indictment charged that the murder occurred during the course of the crime of rape.

Georgia Kemp’s body was found on the bedroom floor, lying on her left side near the bed.

Firefighters discovered a smoldering fire in the living room that had burned two holes in the floor of the home after a neighbor observed smoke coming from the Kemp residence. Investigators determined the fire was set intentionally.

Investigators found nylon stockings around the ankles of the victim and two stab wounds to the chest. An autopsy revealed extensive bruising on Georgia Kemp’s face and neck and that bleeding occurred under the scalp. Testimony suggested the bruises were consistent with an attempt to choke the victim and a struggle with her assailant. The stab wounds were determined to be the cause of death.

The autopsy also revealed bruises and scrapes to the skin of the vaginal vault, injuries said to be “consistent with forced sexual intercourse.” Bite marks were found on the victim’s right breast, and also between her neck and shoulder and the back of her right arm. A butcher knife with blood on it was lying on the bed.

The phone was off of the receiver and the phone line had been cut.

Investigation

Following the neighbor’s observation of smoke, the Columbus Fire Department arrived at the Kemp residence. The firefighters entered and found the front door standing open.

Arrest

On August 13, 1992, a Lowndes County grand jury indicted Eddie Lee Howard on a charge of capital murder in the death of Georgia Kemp. The indictment charged that the murder occurred during the course of the crime of rape committed on February 2, 1992.

On February 6, 1992, apparently without a warrant, Columbus police detained Eddie Lee Howard and took him to a dentist’s office, where he was forced to allow impressions to be made of his mouth. The police retained these impressions and took from Howard a partial denture.

Following comparisons by investigators of the impressions made of Howard’s teeth to bite marks on the victim’s body, the defendant was arrested on February 8, 1992, for the murder of Ms. Kemp.

Trial

Indictment and commencement

Trial on the charge began on May 9, 1994, with Howard acting as his own counsel.

Guilt phase

The jury returned a guilty verdict on May 12, 1994.

During the guilt phase, the State relied heavily upon the testimony of a dentist, Dr. Michael West, who testified that he matched one of the bite marks to the impressions of Howard’s teeth.

The State presented no blood, semen, or other evidence to prove that Howard had committed rape, and relied upon circumstantial evidence of bruises and bites upon the victim.

Howard questioned witnesses, including questioning the firemen who discovered the victim’s body about the fire department’s hiring practices, and questioned a witness as to whether it was unusual for an elderly person such as the victim to have a driver’s license. The appellate description of Howard’s appellate brief noted that Howard “rarely questioned anyone directly, preferring instead ‘to propound asides to them, much as in a Shakespearean play.’”

Howard gave examples of quips, including:

• “two wrongs don't make a right . . . the Wright brothers made an airplane.” The trial judge noted the incoherent approach of the defense and told Howard that he could see that he was just “leafing through the file . . . calling witnesses whose names appear.”

At the close of the presentation of evidence, Howard gave a rambling closing statement in which he questioned why the young girl who first reported the smoke coming from the victim’s house had not been doing her homework, reiterated his theory that his own family members killed Ms. Kemp and were framing him, and then suggested that one of the jurors might have committed the crime.

The jury deliberated for approximately thirty-five minutes before returning a guilty verdict.

Voir dire and jury composition issue

During voir dire, Howard exercised no peremptory challenges, nor any challenges for cause. He objected to the removal of several potential jurors after the prosecutor offered to protect Howard’s interest through challenging the jurors for cause. These panel members included:

• the wife of a Columbus policeman who had discussed the case with her husband and admitted that she could not be impartial;
• a female who was previously a rape victim; and
• the father-in-law of the officer who carried out the criminal investigation leading to the murder charge.

William Coleman eventually became the foreperson of the jury.

Sentencing phase

During the sentencing phase, Howard refused to say anything to the jury. He made no opening or closing statement, made no objections, submitted no mitigating evidence, and submitted no jury instructions. When the trial judge asked him if he had anything to say, he responded:

• “I don't have no argument. Shit [sic] planned before I even got to Columbus.”

After a one-hour sentencing hearing, the jury deliberated for ninety minutes and sentenced Howard to death.

Sentencing

After the jury returned a death sentence on May 12, 1994, the trial court sentenced Howard to die by lethal injection and set an execution date of June 27, 1994.

Appeals

The Mississippi Supreme Court addressed the appeal as a death penalty case that involved questions of waiver of counsel, right to self-representation, use of standby counsel, and due process of law ensuring a fair trial.

The court reversed and remanded and stated: “Under the circumstances of this case, we are not so assured. Therefore, we are left no alternative but to reverse.”

The disposition stated “REVERSED AND REMANDED - 6/26/97,” with motion for rehearing filed and mandate issued:

• Motion for rehearing: MANDATE ISSUED: 7/17/97
• En banc: EN BANC

The Mississippi Supreme Court held that issues I, X, and XIV were dispositive and required reversal and remand for a new trial:

• Issue I: waiver of counsel/right to self-representation;
• Issue X: counsel participation at closing argument; and
• Issue XIV: testimony from the State’s dental expert, Michael West, claiming to have positively matched Howard’s teeth to a bite mark on the victim’s body being constitutionally unreliable.

Issues raised on appeal (as assigned errors)

PRE-TRIAL ISSUES I. The circuit court erred in permitting Eddie Howard to act as his own attorney at trial. II. Defense attorneys Burdine and Stone failed to provide defendant with constitutionally effective assistance of counsel during pretrial proceedings and this ineffective representation seriously prejudiced Eddie Howard’s defense. III. The trial court erred in failing to summon a special venire despite the absence of a personal waiver by the accused. IV. It was improper for the court to excuse numerous venire members prior to trial outside the presence and without the knowledge or consent of Eddie Howard or his standby counsel. V. Eddie Howard was denied his right to a speedy trial under state and federal law. VI. Mr. Coleman should not have been allowed to serve on the jury, in light of substantial evidence that he was not able to decide the case impartially. VII. The trial judge improperly excused numerous black prospective jurors for cause, despite the absence of evidence of fixed bias or any other basis for removal. VIII. The district attorney used his peremptory challenges to discriminate against venire members on the basis of race and gender.

GUILT PHASE ISSUES IX. The guilt stage instructions were fundamentally flawed. A. It was erroneous and severely prejudicial for the court to deny defendant's request for a limiting instruction directing jurors not to consider evidence of his prior assault with intent to rape convictions as propensity evidence of guilt. B. The circuit court's charge on rape failed to inform jurors that sexual intercourse was an essential element of or otherwise properly define this crime. X. The lower court violated the defendant's right to counsel when it refused his request that his stand by (sic) counsel be allowed to give the defense's closing argument at the guilt innocence phase. XI. The State failed to offer legally sufficient evidence that the victim had been raped, an essential element of the charge. XII. The district attorney engaged in several serious instances of misconduct in his guilt phase summation. A. It was improper for the State to urge jurors to consider hearsay accusations about Eddie Howard biting his girlfriend and threatening another woman as substantive evidence of his guilt. B. The district attorney falsely told jurors that bite mark comparisons were as certain and reliable as fingerprint evidence. C. The prosecutor blatantly and prejudicially misstated the evidence when he told jurors that Eddie Howard had displayed knowledge of the victim's home that could only have been gained through participation in the offense. XIII. The State's pathologist, Steven Hayne, invaded the jury's province and otherwise gave unreliable, improper testimony when he claimed that certain injuries to the victim's vagina were consistent with rape. XIV. Testimony from the State's dental expert, Michael West, claiming to have positively matched Eddie Howard's teeth to a bite mark on the victim's body was constitutionally unreliable, as it is well-established in the scientific community that such comparisons are not possible. XV. It was reversible error to admit State's evidence of dental impressions taken from Eddie Howard because these were the product of an illegal arrest and illegal seizure of his dentures.

SENTENCING PHASE ISSUES XVI. The use of Eddie Howard's prior convictions to establish the “prior violent felony” aggravator was improper, for assault with intent to ravish is not per se a crime involving the use or threat of violence. XVII. The special reliability requirements that attend the use of the death penalty obligated the court to charge standby counsel with the duty to investigate and present mitigating evidence.

Court’s dispositive holdings

The Mississippi Supreme Court reversed and remanded because it held the circuit court erred on the waiver/competency issue, the closing argument/right to counsel issue, and the dental expert/bite mark reliability issue.

Other details

Dates, courts, and people listed

• DATE OF JUDGMENT: 05/12/94
• TRIAL JUDGE: HON. LEE J. HOWARD
• COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
• NATURE OF THE CASE: CRIMINAL - DEATH PENALTY (DIRECT APPEAL)
• NO.: IN THE SUPREME COURT OF MISSISSIPPI NO. 94-DP-00524-SCT
• Attorneys for appellant: ARMSTRONG WALTERS; DONNA S. SMITH
• Attorneys for appellee: OFFICE OF THE ATTORNEY GENERAL BY: MARVIN L. WHITE, JR.; BY: LESLIE STAEHLE
• Lee District Attorney: FORREST ALLGOOD

Standby counsel and related attorneys

During the trial, the trial judge appointed Thomas Kesler and Armstrong Walters to serve as standby counsel at the trial and to assist Howard with procedural matters.

Howard was initially represented by Richard Burdine. In February 1993, Burdine was replaced by Douglas Stone. Stone served as Howard’s counsel until five weeks prior to the trial.

Dental impressions and experts

Dr. Michael West testified for the State that one of the bite marks found on the victim was a “positive match” to Eddie Howard’s teeth. He testified that the science of dentistry recognized teeth are unique and that bite marks can “be identified back to the perpetrator or biter.” He also stated that bite mark evidence is similar to fingerprint identification.

Howard did not object during the direct examination of the witness and only objected during re-direct when he stood and exclaiming:

• “hocus-pocus stuff.”

Miranda rights and jail statements

While in jail, Howard refused to sign a form waiving his Miranda rights.

Testimony suggested that Howard later asked an investigator to carry him to the crime scene to see if it might bring something back to his memory.

Testimony suggested that after returning to the jail, Howard commented that:

• “the case was solved; that I had the man,” and that Howard said he “had a temper and that's why this happened.”

Howard purportedly also told the investigator that others were involved and that he should continue investigating.

Mental evaluation and competency-related material

The record described an evaluation process connected to competency:

• “Provisional Diagnosis: Because of his lack of cooperation, we have not been able to assign to Mr. Howard even a provisional diagnosis.”

The physician’s report also concluded:

• “Mr. Howard appears to have the sufficient mental ability to consult with an attorney with a reasonable degree of rational understanding. . . . Mr. Howard was not suffering from any major mental disorder at the time of the alleged offenses such that he would not have known the nature and quality of his actions or would not have known that those alleged actions were wrong.”

An attorney Burdine had filed a motion for a psychological evaluation in 1992 stating:

• “is unable to intelligently communicate with his attorney or anyone else, and it is the attorney's impression that the defendant's present mental condition is such that he is unable to cooperate and aid in the preparation of his defense and further, that the defendant has spent time in a mental hospital in the past.”

An affidavit filed by attorney Douglas Stone in February 1993 stated:

• “I have attempted to confer with the defendant, Eddie Lee Howard, and have trouble communicating with him. I feel the defendant, Eddie Lee Howard, is unable to prepare his defense in this cause due to a mental condition.”

During standby counsel statements, Armstrong Walters said:

• “Judge, I'm not sure he's capable of assisting in his own defense much less carrying his own defense out. . . . I do not feel that this defendant is in touch with reality. . . . of all the criminal defendants that I've ever defended and I've been a public defender in this county for two years . . . this defendant is more out of touch with reality than any defendant that I have ever defended or seen in this county.”

Court colloquy quoted regarding mental examination and conspiracy

A colloquy included these questions and answers:

• “Q. You're aware that, of course, one of the things that is normally done at this point is that the defendant in a capital case goes and has a mental examination, isn't that right, Mr. Howard?”
• “A. Sir, I shouldn't even be in this jail, period. I shouldn't even be in this situation. I don't know what ya'll --is--if I'm crazy--if I'm crazy, a whole lot more peoples out there need to be locked up.”
• “Q. Mr. Howard, are you aware or are you not that it is standard operating procedure and it is customary for litigants in capital litigation to go get a mental examination?”
• “A. Dat's (sic) the whole--dat's (sic) what's the whole point of me being placed in this situation. See, dis (sic) thing was pre-planned; like I say, it wasn't nothing but a conspiracy. All this going here, going there; it was a time factor involved. I had to sit in jail two years and three months before I had a trial. All that was planted.”
• “Q. Mr Howard, are you aware or are you not that it is standard operating procedure--”
• “A. Two hundred and seventy days was the time limit by rule of law that I should have been given a fair and speedy trial.”
• “Q. Mr. Howard-- A. Why wasn't I given a trial in two hundred and seventy days?”
• “Q. Mr. Howard, are you aware or are you not that it is standard operating procedure--”
• “A. I'm aware that--”
• “Q. --for capital litigants--”
• “A. --this is a conspiracy; that's what I'm aware of.”
• “Q. Do you know that they customarily seek mental exams to obtain mitigating evidence to assist--”
• “A. Yes, especially when you've been framed up--”
• “Q. Their clients in the sentencing phase?”
• “A. --in a situation whereas all that is required. Yes, I'm aware that it was required by this conspiracy plan.”

Post-reversal status stated

Eddie Lee Howard, Jr. was sentenced to death on two separate occasions by a jury for raping and murdering Georgia Kemp in 1992, including:

• sentenced to death on May 12, 1994; and
• resentenced to death in 2000.