Branch v. State
| Docket Number: | 2002-DP-01315-SCT Linked Case(s): 2002-DP-01315-SCT2002-DP-01315-SCT2002-DP-01315-SCT |
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| Oral Argument: | 03-31-2004 | |
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| Supreme Court: | Opinion Link Opinion Date: 03-27-2004 Holding: Affirmed. |
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| Additional Case Information: |
Topic: Death penalty direct appeal - Mental retardation - Ineffective assistance of counsel - Disproportionate sentence - Victim impact testimony - Sentencing instructions - Appropriate sentence - Pecuniary gain - Comments by prosecutor - Sentencing options - Constitutionality of section 99-19-101 - Sufficiency of evidence |
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| Party Name: | Attorney Name: | |||
| Appellant: | Lawrence Branch |
James Lappan; Candy Lawson |
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| Appellee: | State of Mississippi | Melanie Kathryn Dotson; Marvin L. White, Jr.; Judy T. Martin |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Death penalty direct appeal - Mental retardation - Ineffective assistance of counsel - Disproportionate sentence - Victim impact testimony - Sentencing instructions - Appropriate sentence - Pecuniary gain - Comments by prosecutor - Sentencing options - Constitutionality of section 99-19-101 - Sufficiency of evidence |
| Summary of the Facts: | Lawrence Branch was found guilty of the crime of capital murder and sentenced to death. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Mental retardation Branch argues that he is mentally retarded and, therefore, cannot be executed for this crime. The burden of proof is on the defendant claiming mental retardation. Branch has displayed no limitations in adaptive skills areas. At the time of the evaluation, Branch was appropriately groomed and properly maintained personal hygiene, possessed a driver’s license, was responsible for buying clothing, groceries, and personal items. He completed school through the 9th grade and attended GED classes. Branch was employed at the time of his arrest. He performed household chores for relatives and people in the neighborhood and helped raise money for the church and community. Under these facts, Branch has not made a prima facie showing that he falls within the category of persons protected under Atkins v. Virginia, 536 U.S. 304 (2002). Issue 2: Ineffective assistance of counsel Branch argues that he was denied effective assistance of counsel. He argues that counsel failed to introduce evidence of mental retardation; failed to introduce evidence of mental-health mitigation; failed to investigate; failed to advocate; failed to prepare penalty phase witnesses; ineffectiveness at charge conference; and additional or cumulative error. Because Branch’s claim for protection under Atkins fails, the claim of ineffective assistance of counsel based upon the failure to introduce the 1985 evaluation must also fail. In addition, trial counsel made a strategic, tactical decision not to introduce the 1985 evaluation. By introducing the school records, defense counsel would have shown that Branch received grades in the range of 71 to 87 in his GED classes. With regard to investigation, this case shows that indeed there was an investigation performed. The record also indicates that the trial counsel filed several pre-hearing motions, put on several witnesses in each phase of the trial, and zealously represented their client. Counsel attempted to persuade the jury to select life imprisonment over the death penalty. Counsel was able to introduce evidence of Branch’s childhood and adolescent life, his activities and interests, as well as Branch’s involvement in his family, neighborhood, and community. Evidence of the statutory mitigating factors were discussed including no significant history of prior criminal history and Branch’s age. Even the victim’s inehusband’s testimony was intended to persuade the jury that life imprisonment would be a more appropriate sentence. With regard to additional mitigating factors, the evidence presented at trial and on this appeal do not warrant including these factors in the jury instructions. During the guilt phase, Branch argues that he received ineffective assistance of counsel by his counsel’s failure to raise a Batson claim; failure to present mental retardation evidence at the suppression hearing and at trial; failure to defend against the DNA and blood evidence found on Johnson’s clothes; and failure of one of his attorneys to withdraw after becoming an authenticating witness. The State used four peremptory challenges during jury selection. Branch has made no prima facie case that the strikes were based upon an impermissible reason, such as race or gender. Throughout the trial, the defense asserted the theory that not only was Johnson the person responsible for the murder, but that the crime was committed at a time when Branch was not present. With regard to the failure of one of his attorneys to withdraw after becoming an authenticating witness, defense counsel is not prohibited from challenging authentication of evidence produced by the defense in the course of reciprocal discovery. Branch argues that his own counsel diminished the jury’s sense of responsibility in making the sentencing decision. A trial counsel is afforded great latitude in closing arguments. The inflammatory remarks made by Branch’s counsel include a reference to putting sick animal to sleep, that a life sentence is no different from death, and that an individual sentenced to death will not die for years to come. While prosecutors may not make such remarks, remarks made by the defense counsel will be perceived more favorably because the jury recognizes that counsel and the defendant are working toward the same goal, to avoid the death sentence. At no point did the defense counsel impermissibly lead the jury to believe that the responsibility for determining the appropriateness of defendant’s death lay anywhere other than in the jury. Branch argues that because the errors were committed by his own counsel, there was no meaningful adversarial testing of prosecutor’s case. The Court must look to the entire performance of counsel to determine whether he or she was competent and conscientiously fulfilled the role as advocate. Here, trial counsel challenged the State’s evidence at all stages of this case by filing and arguing numerous pre-trial motions, throughout the trial itself, throughout the sentencing hearing, and through posttrial motions. Issue 3: Disproportionate sentence Branch argues that the sentence imposed was arbitrary, excessive, and disproportionate. There is no evidence supporting a finding that the sentence imposed was a result of passion, prejudice, or any arbitrary factor. The evidence supports the jury’s finding of the statutory aggravator that the crime was committed for pecuniary gain in that in his statement Branch admitted holding the victim down while he took money from her pocket. Nor is this sentence excessive or disproportionate when comparing the facts and circumstances of the case with those of other cases. Issue 4: Victim impact testimony Branch argues that the court erred when it permitted the testimony of the victim’s sister. Victim impact testimony has been found to be admissible at sentencing. In addition, the Legislature has provided that with the permission of the courts, an oral victim impact statement may be used at any sentencing hearing. Here, the evidence offered was proper and necessary to a development of the case and true characteristics of the victim and could not serve in any way to incite the jury. Issue 5: Sentencing instructions Branch argues that the court erred in its refusal of three instructions offered by defense and that this error was not cured by giving defense latitude in the summation. Because the instructions provided by the trial court fairly and adequately stated the law, this issue is without merit. Furthermore, the defense was not entitled to the rejected instructions. Branch also argues that by failing to give one of the instructions, the court erred in advising the jury as to the proper burden of proof that the aggravating circumstances are sufficient to warrant death. This same argument has previously been rejected. Branch also argues that the jury was not given a definition of “mitigating circumstances” which is not a commonly understood principle or that it has a technical meaning particular to the law. The instruction given in this case, which paralleled the language of section 99-19-101, sufficiently informed the jury as to mitigating circumstances. Issue 6: Appropriate sentence Branch argues that he was denied the due process guarantee that a life sentence is presumed over the death penalty because he was forced to prove himself ineligible for death, thereby shifting the burden from the State to Branch. However, Branch is not entitled to an instruction that life is the presumed sentence in that the sentencing instruction given in this case was sufficient. The jury was properly instructed as to their duty in determining the sentence to be imposed, and the aggravating circumstance, pecuniary gain, was proved beyond a reasonable doubt. Issue 7: Pecuniary gain Branch argues that since his conviction under section 97-3-19(2)(e) makes him eligible for the death penalty, then the State relies on that conviction as proof of the aggravating factor of pecuniary gain. Evidence of the underlying crime can properly be used to both elevate the crime to capital murder and as an aggravating circumstance. Branch also argues that the court erred by instructing the jury that “The capital offense was committed for pecuniary gain during the course of a robbery,” because this permitted the jury to give double weight to the motive for the robbery in reaching its penalty decision. This exact instruction has been found proper in prior cases. Issue 8: Comments by prosecutor Branch argues that the prosecutor committed plain reversible error during his summation at both the guilt and sentencing phases by making improper comments. The test to determine whether an improper argument by a prosecutor requires reversal is whether the natural and probable effect of the improper argument of the prosecuting attorney is to create an unjust prejudice against the accused as to result in a decision influenced by the prejudice so created. Even if the comment were construed as error, it would be harmless in light of the court’s instructions that counsel’s arguments are not evidence and that if the argument has no basis in the evidence, the jury should disregard the argument. In addition, the prosecutor’s remarks were responsive to defense counsel’s remarks in summation. Issue 9: Sentencing options Branch argues that the court erred when it failed to advise the jury of the three sentencing options of life imprisonment, life without parole, and death. Section 47-7-3(1)(f) denies parole eligibility to any person charged, tried, convicted, and sentenced to life imprisonment under the provisions of section 99-19-101. Issue 10: Constitutionality of section 99-19-101 Branch argues that the capital sentencing mechanism of the State of Mississippi is facially unconstitutional in that the death penalty constitutes cruel and unusual punishment. This section has already been determined to be constitutional in numerous cases. Issue 11: Sufficiency of evidence Branch argues that the capital murder conviction was not supported by the evidence. The evidence includes the testimony of the witnesses who saw Branch and Johnson together throughout the evening, the blood evidence, the items found at Johnson’s home, and Branch’s confession. Reasonable, fair-minded jurors could find beyond a reasonable doubt that Branch was guilty of robbery and capital murder. |
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