Brown v. State
| Docket Number: | 2002-DP-01548-SCT Linked Case(s): 2002-DP-01548-SCT |
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| Oral Argument: | 07-21-2004 | |
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| Supreme Court: | Opinion Link Opinion Date: 09-02-2004 Opinion Author: Graves, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Death penalty direct appeal - Jurors with ties to law enforcement - Challenge for cause - Cautionary instruction - Sua sponte limiting instruction - M.R.E. 404(b) - M.R.E. 105 - Hearsay - M.R.E. 801(c) - Declarant’s state of mind - M.R.E. 803(3) - Crime laboratory report - M.R.E. 803(8) - Expert opinion - M.R.E. 701 - Perjury - Sufficiency of evidence - Indictment - Pecuniary gain - Previous conviction - Sentencing instructions - Sympathy - Aggravating circu
mstances - Sentencing options - Section 47-7-3(1)(f) - Proportionality of death sentence Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL |
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| Trial Court: |
Date of Trial Judgment: 06-20-2002 Appealed from: Lamar County Circuit Court Judge: Keith Starrett Disposition: Convicted of capital murder. District Attorney: Claiborne McDonald Case Number: 99K-909P |
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| Party Name: | Attorney Name: | |||
| Appellant: | Xavier Brown |
OFFICE OF CAPITAL POST-CONVICTION
COUNSEL
BY: ANDRE DE GRUY
SCOTT JOSEPH SCHWARTZ |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: MELANIE KATHRYN DOTSON MARVIN L. WHITE, JR |
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| Topic: | Death penalty direct appeal - Jurors with ties to law enforcement - Challenge for cause - Cautionary instruction - Sua sponte limiting instruction - M.R.E. 404(b) - M.R.E. 105 - Hearsay - M.R.E. 801(c) - Declarant’s state of mind - M.R.E. 803(3) - Crime laboratory report - M.R.E. 803(8) - Expert opinion - M.R.E. 701 - Perjury - Sufficiency of evidence - Indictment - Pecuniary gain - Previous conviction - Sentencing instructions - Sympathy - Aggravating circu mstances - Sentencing options - Section 47-7-3(1)(f) - Proportionality of death sentence |
| Summary of the Facts: | Xavier Brown was convicted of capital murder and for accepting money to commit the crime. He was sentenced to death by lethal injection for his crimes. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Jurors with ties to law enforcement Brown argues that his right to a fair trial and impartial jury was violated because there were too many jurors with ties to law enforcement. Simply because a person is in law enforcement or connected to those who are does not mean that they cannot apply the law fairly and honestly as described in their oath. Of the twelve strikes the defense was allowed in this case, only seven were used for jurors who had law enforcement experience or were somehow related or connected to persons in law enforcement. Of the two strikes allowed for alternate jurors, none were used to strike jurors with connections to law enforcement. In addition, the defense answered affirmatively when the judge asked the attorneys whether they were all together on the jurors after finalizing the jury. Brown also argues that the presence of a juror whose friend’s daughter was murdered was prejudicial to his fair trial. There is no per se rule of disqualification where a juror is related to a victim of a similar crime. Here, the juror indicated that she could apply the law fairly and impartially, with no regard to past circumstances or events. Issue 2: Challenge for cause Brown argues that one of the jurors was improperly excluded because of his neutral views on the death penalty. While the judge excused the juror as not qualified for other reasons, the juror’s constant equivocation on the death penalty would have been sufficient. In addition, the issue is procedurally barred, because there was no contemporaneous objection. Issue 3: Cautionary instruction Brown argues that the court erred by not granting a cautionary instruction that a witness was an accomplice to the murder. The granting of a cautionary instruction regarding the testimony of an accomplice witness is discretionary with the court. The court should determine if the witness was in fact an accomplice and if the testimony was without corroboration. The record shows that the witness was only a passive observer. He testified that Brown asked him to go for a ride with him, that they drove to Hattiesburg, that he realized Brown had shot someone, and that Brown pulled the gun on him and ordered him to drive away from the scene of the crime. Therefore, the court did not abuse its discretion in denying the instruction. Issue 4: Limiting instruction Brown argues that he was prejudiced by testimony that he threatened a witness and that the judge erred by admitting it. Wherever M.R.E. 404(b) evidence is offered and there is an objection which is overruled, the objection shall be deemed an invocation of the right to MRE 403 balancing analysis and a limiting instruction. The limiting instruction is supposed to issue sua sponte from the bench. Here, the court did weigh the evidence through Rule 404(b) and found that the evidence was part of the single transaction of the murder. Although the sua sponte limiting instruction was not given, it is not per se prejudicial to a defendant if a jury simply hears an isolated instance of a crime or bad act in the course of a trial. The burden should properly be upon trial counsel to request a limiting instruction. Today, the requirement that a judge issue a sua sponte limiting instruction is abandoned since M.R.E. 105 clearly places the burden of requesting a Rule 404(b) limiting instruction upon counsel. The rule is controlling, and to the extent that other cases contradict that plain language they are overruled. Issue 5: Hearsay Brown argues that hearsay was admitted over his objection, ultimately violating his right to confrontation of witnesses and costing him a fair trial. If a statement is offered to prove the fact that it was made, and not to prove the truth of its substance, it is not hearsay under M.R.E. 801©. Here, the witness was asked why he came forward to the police about a crime which had occurred many months before, and he explained by saying that Brown’s brother had told him to come in. This was offered not for the truth of what Brown’s brother had said, but to explain why Johnson actually came forward. With regard to an investigator’s testimony that two people he interviewed were frightened, M.R.E. 803(3) allows a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition. The testimony of the witness falls within this well-recognized exception. Brown also argues that allowing the investigator to testify about the contents of a crime laboratory report was impermissible hearsay. The report falls within the hearsay exception of M.R.E. 803(8). Issue 6: Expert opinion Brown argues that allowing the investigator to comment that two people he interviewed were frightened was tantamount to his offering expert testimony as an expert in behavioral psychology. M.R.E. 701 limits testimony of lay witnesses to those opinions or inferences which are rationally based on the perception of the witness, helpful to the clear understanding of the testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge. A person does not have to be a behavioral psychologist to determine if another is frightened or scared. Issue 7: Perjury After the trial was over, new evidence was found that proved the key witness against Brown had perjured himself regarding his place of employment. Brown argues that the court erred in denying a new trial based upon the newly discovered evidence. Perjured testimony does not in itself give rise to a new trial. If perjury was committed, the defendant will be entitled to a new trial only if it appears that the perjured testimony will probably change the result if a new trial is granted, the perjury was discovered after the trial, the perjury was not discoverable before the trial by the exercise of due diligence, and the perjury is on an issue that is material to the case and not be merely cumulative or impeaching. Here, the perjury did not touch an issue material to the case. Issue 8: Sufficiency of evidence Brown argues that his conviction was unsupported by the evidence. The State produced three independent witnesses who testified against Brown, one of whom offered eyewitness testimony that he was with Brown when the victim was murdered and that Brown threatened him with death if he told anyone. Therefore, there is sufficient evidence in the record from which a jury could find beyond a reasonable doubt that Brown murdered the victim. Issue 9: Indictment Brown argues that the prosecution must include in the indictment any aggravating factors which it intends to prove at the sentencing phase of the trial, and that because his indictment did not include a statutory aggravating factor or a mens rea element it is constitutionally infirm. All that is required in the indictment is a clear and concise statement of the elements of the crime charged. Every time an individual is charged with capital murder they are put on notice that the death penalty may result. Issue 10: Pecuniary gain Brown argues that using the element of pecuniary gain as an aggravator in his sentencing improperly duplicates an element of the offense that elevated to the crime to capital murder level. The fact that an aggravating circumstance duplicates one of the elements of the crime does not make a sentence constitutionally infirm. Issue 11: Previous conviction Brown argues that the court erred when it instructed the jury that it could consider the fact that he was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person as an aggravating factor. The Court has approved an aggravation instruction that included nearly identical language. Issue 12: Sentencing instructions Brown argues that the court erred in refusing his two proposed instructions for sentencing. The standard of “beyond a reasonable doubt” was articulated with much more caution and emphasis in the instructions given to the jury than in Brown’s rejected instructions. Because the rejected instructions were redundant, they were unnecessary. Issue 13: Sympathy Brown argues that the court’s instruction to the jury to not be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feelings, constituted error because it damaged his presentation of mitigating factors. While a jury may properly consider mitigating evidence—including sympathy—when it deliberates and renders a verdict, it may not consider only sympathy, or passion, or prejudice. Because the given instruction does not make the error of telling a jury to completely disregard sympathy, it is valid. Issue 14: Aggravating circumstances Brown urges that it was error for the court to refuse an instruction that provided jurors “must be convinced beyond a reasonable doubt that the totality of the aggravating circumstances outweigh the totality of the mitigating circumstances” before levying the death penalty. This argument has repeated been rejected by the Court. Issue 15: Sentencing options Brown argues that the judge erred in failing to instruct the jury that there were three statutory sentencing options. The fact that the jury was only given the options of death or life without parole is in accordance with section 47-7-3(1)(f). A defendant on trial for capital murder may only be sentenced to death or life imprisonment without the eligibility of parole. Issue 16: Proportionality of death sentence After reviewing the entire record as well as other death penalty cases, the sentence of death imposed upon Brown was not imposed under the influence of passion, prejudice, or any other factor. The evidence is more than sufficient to support the jury's finding of statutory aggravating circumstances. Additionally, the sentence is not excessive or disproportionate to factually similar cases. Lastly, the mitigating circumstances did not outweigh the aggravating circumstances of the crime, and the jury did not consider any invalid aggravating circumstances. |
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