Brown v. State
| Docket Number: | 2005-KA-00520-COA Linked Case(s): 2005-KA-00520-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-16-2007 Opinion Author: MYERS, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Attempted burglary - Defective indictment - URCCC 7.06 - In-court identification - Circumstantial evidence instruction - Sufficiency of evidence Judge(s) Concurring: KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Non Participating Judge(s): CARLTON, J. Concurs in Result Only: IRVING, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-20-2004 Appealed from: Forrest County Circuit Court Judge: Michael McPhail Disposition: CONVICTION OF ATTEMPTED RESIDENTIAL BURGLARY OF A DWELLING AND SENTENCED TO A TERM OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIFTEEN YEARS TO BE SERVED AND TEN YEARS SUSPENDED UPON SUCCESSFUL COMPLETION OF FIVE YEARS’ POST-RELEASE SUPERVISION. District Attorney: JON MARK WEATHERS Case Number: 03-600-CR |
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| Party Name: | Attorney Name: | |||
| Appellant: | NEWELL MATTHEW BROWN |
JONATHAN M. FARRIS |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY |
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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: | Attempted burglary - Defective indictment - URCCC 7.06 - In-court identification - Circumstantial evidence instruction - Sufficiency of evidence |
| Summary of the Facts: | Newell Brown was convicted of attempted burglary and sentenced to twenty-five years, with ten years suspended pending successful completion of five years of post-release supervision. Brown appeals. |
| Summary of Opinion Analysis: | Issue 1: Defective indictment Brown argues that the judge erred in overruling his demurrer and motion to quash the indictment against him, because the indictment’s charge of attempted burglary does not set forth the elements of the offense of attempted burglary. Rule 7.06 of the Uniform Rules of Circuit and County Court requires that an indictment shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. The indictment against Brown described the charge of attempted burglary by using the language “a felony denounced by Section 97-17-23, Mississippi Code of 1972,” provided the details of the alleged attempted burglary, and also provided the details concerning the failure to complete the burglary. Thus, the indictment against Brown stated the essential facts, and fully notified him of the nature and cause of the charges brought against him. Issue 2: In-court identification Brown argues that the trial court should have excluded the testimony of the victim because her identification of him was tainted and unduly suggestive. He argues that the use of the show up identification method tainted the victim’s identification of him at trial. A show up identification method in which the accused is brought by an officer to the eyewitness is impermissibly suggestive where there is no necessity for doing so. Here, a show up identification method was not utilized. The facts as adduced at trial indicate that the victim exited her apartment immediately after Brown was apprehended in her backyard. The victim’s identification of Brown resulted from her being at the scene of the arrest only a few minutes from the time she reported the ongoing crime. Assuming arguendo that a show up identification method was unnecessarily used, there was substantial credible evidence supporting the trial court's findings that the in-court identification testimony was not impermissibly tainted. Issue 3: Circumstantial evidence instruction Brown argues that he was entitled to a circumstantial evidence instruction. There is no requirement that a trial judge give instructions on circumstantial evidence where there is direct evidence, such as eyewitness testimony, presented of the crime. Brown argues that all of the evidence presented against him at trial was circumstantial in nature because the victim could not testify that the defendant was the person who removed her window screen. While some of the evidence against Brown is circumstantial in nature, the victim’s testimony as an eyewitness was direct evidence supportive of the jury’s finding of his guilt. She testified that she saw the individual, and could identify his shirt, hair, and body build. She also testified that, upon his apprehension by the police officers, she recognized the suspect in custody as the same individual she had seen in her backyard a few minutes before. Therefore, Brown was not entitled to a circumstantial evidence jury instruction. Issue 4: Sufficiency of evidence Brown argues that the State provided insufficient evidence to convict him of attempted burglary. At trial, several witnesses testified including the victim, the police dispatcher who took her call, and the two responding police officers. Testimony provided that the victim heard someone removing the screen from her bedroom window and breathing heavily and that once the scene was investigated by the victim and the officers, the screen was found removed from the window. The victim further testified to having seen Brown in her backyard shortly after hearing the window screen tampering. Testimony also showed that the police found Brown in her backyard within just a few minutes of the victim’s call to the police department. This evidence was sufficient to support the verdict. |
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