Facts
In 2000, Hugh David Pernell, a newspaper carrier, was shot and killed in his car on Broad Street in New Albany while running his newspaper route. The shooting occurred in front of Charles Rice’s house. Rice would later tell law enforcement that he had heard two cars on the street in front of his house at around five o’clock in the morning.
Rice looked out his window and saw two vehicles, one behind the other, stopped in the street. A man exited the rear car and approached the driver’s side window of the front vehicle. After some commotion, the man pulled a pistol and shot the driver of the front vehicle. The shooter then got back in the passenger seat of the rear vehicle and left the scene. Pernell suffered a single gunshot wound to the chest and died at the scene. Rice told officers that the shooter was a young black male who had fled the scene in a late model, dark colored Oldsmobile.
The investigation revealed that Curtis Lipsey, Adam Ray, and Marlon Howell had been riding around together throughout the previous night and the early morning hours of the day of the shooting. Ray’s grandmother owned a dark Oldsmobile Cutlass. Upon questioning, Ray and Lipsey implicated Howell. Howell was arrested and claimed that he had no involvement in the murder. After Howell’s arrest, Rice identified Howell in a police line-up.
A Lorcin .380 caliber pistol was found in the bushes behind Brandon Shaw’s house. Forensic testing indicated that the bullet that killed Pernell was fired by this Lorcin pistol. Shaw testified that Howell, Ray, and Lipsey had come to his house in the dark Oldsmobile Cutlass in the early morning hours after the shooting. Shaw and Lipsey testified that they had seen Howell with an object wrapped in a shirt under his arm.
Shaw and Lipsey testified that they had seen Howell walking out from behind the house where the pistol was later found. Shaw told the police chief that he had seen Howell go behind the house carrying something. While at Shaw’s house, Adam Ray told Shaw and others that Marlon had shot somebody.
After the shooting, Howell got a ride to Blue Mountain with Shaw, and during the drive, Howell told Shaw not to tell anyone what had happened. The State alleged that Howell had killed Pernell in a robbery attempt. Marcus Powell testified that Howell had told him on the night of the killing that he needed money to pay his probation officer and that he was going to have “to make a sting” in order to get the money. Shaw also testified that Howell had commented on robbing a man at a gas station earlier that night.
Ray and Lipsey pleaded guilty to manslaughter and armed robbery in the killing of Pernell. At Howell’s trial, Lipsey testified that Howell had shot Pernell, and Lipsey also corroborated Powell’s testimony that Howell had said that he needed money in order to pay his probation officer the next day or else they would not see him around anymore. Lipsey also testified that Howell had flashed the car’s lights at Pernell to get Pernell to pull over.
Howell was convicted and sentenced to death. In this post conviction relief matter, one of the issues Howell raised was that the state coerced Ray and Lipsey into providing false statements. MSC affirmed (however, his PCR was granted as to other unrelated issues).
Analysis
Howell claims that law enforcement officials improperly threatened Ray and Lipsey and that both Ray and Lipsey were intoxicated at the time their statements were taken. However, the statements Ray and Lipsey provided to law enforcement officers were never entered into evidence at trial.
In his post conviction affidavit, Ray claims that he was too intoxicated on the night in question to know who shot Pernell and that the police tricked him into implicating Howell. Ray never claims in his affidavit that Howell did not shoot the victim.
The only indication of any coercion in Ray’s affidavit is his statement that he would not have told the police anything if the police had not told him that Howell was implicating him in the shooting. Even if the police did attempt to trick Ray by claiming that Howell was cooperating with law enforcement officials, this fact alone would not entitle Howell to any relief.
There is no requirement that law enforcement officials be absolutely honest when interrogating a suspect. The U.S. Supreme Court in Illinois v Perkins, 496 U.S. 292 (1990), said that ploys to mislead a suspect or lull him into a false sense of security are permissible during police questioning, as long as they do not rise to the level of compulsion or coercion.
Howell also now claims that Curtis Lipsey was coerced into implicating him. Again, the only evidence offered of any coercion is that law enforcement officials told Lipsey that Howell had given a statement that Lipsey was the shooter. As discussed above, such action on the part of law enforcement was not impermissible.