Brown v. State
| Docket Number: | 2005-CT-00108-SCT Linked Case(s): 2005-KA-00108-COA ; 2005-KA-00108-COA ; 2005-CT-00108-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-26-2008 Opinion Author: DICKINSON, J. Holding: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS REVERSED AND REMANDED. |
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| Additional Case Information: |
Topic: Aggravated assault & Shooting into dwelling - Prosecutorial misconduct - Sanctions - M.R.A.P. 36 - M.R.A.P. 2 - M.R.A.P. 28(k) - M.R.A.P. 40(c) - M.R.A.P. 38 Judge(s) Concurring: SMITH, C.J., WALLER, P.J., CARLSON AND LAMAR, JJ. Concur in Part, Concur in Result 1: DIAZ, P.J. without separate written opinion. Concur in Part, Dissent in Part 1: DIAZ, P.J. without separate written opinion. Concurs in Result Only: GRAVES AND RANDOLPH, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY Writ of Certiorari: yes Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 12-10-2004 Appealed from: WASHINGTON COUNTY CIRCUIT COURT Judge: Betty W. Sanders Disposition: CONVICTION OF COUNT I AGGRAVATED ASSAULT AND COUNT II SHOOTING INTO A DWELLING HOUSE AND SENTENCED TO TEN YEARS ON COUNT I AND FIVE YEARS ON COUNT II, TO RUN CONCURRENTLY, WITH ONE YEAR TO SERVE ON EACH COUNT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE REMAINDER SUSPENDED AND SENTENCED TO SERVE FIVE YEARS SUPERVISED PROBATION AND FINED $1,000. District Attorney: Joyce Ivy Chiles Case Number: 2003-228 |
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| Note: | This opinion reverses the previous opinion by the Court of Appeals. The Court of Appeals opinion may be found at http://www.mssc.state.ms.us/Images/Opinions/CO37387.pdf | |
| Party Name: | Attorney Name: | |||
| Appellant: | KENNETH BROWN |
PHILLIP BROADHEAD |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE McCRORY |
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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: | Aggravated assault & Shooting into dwelling - Prosecutorial misconduct - Sanctions - M.R.A.P. 36 - M.R.A.P. 2 - M.R.A.P. 28(k) - M.R.A.P. 40(c) - M.R.A.P. 38 |
| Summary of the Facts: | Kenneth Brown was convicted of aggravated assault and shooting into a dwelling house. He was sentenced to concurrent terms of imprisonment of ten and five years, with one year to serve on each count, and the remainder suspended with five years supervised probation. He appealed, and the Court of Appeals affirmed the convictions and taxed the costs of the appeal to Washington County. As a sanction for his inappropriate conduct during closing argument, the Court of Appeals ordered the prosecutor personally to reimburse Washington County for all costs of the appeal. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Issue 1: Prosecutorial misconduct Brown argues that, due to the prosecutor’s misconduct during closing argument when he continued to use “send the message” arguments although he was repeatedly called down by the trial judge for blatantly violating the rule against making inappropriate statements to the jury, the trial court should have granted a mistrial. Depending upon the facts and circumstances of each case, “send-a-message” arguments may – standing alone – constitute reversible error. An inquiry must be made whether defense counsel objected. A second inquiry is whether it appears, in examining the surrounding circumstances, that defense counsel invited the comment. The court must then determine whether the remarks were improper, and if so, whether the remarks prejudicially affected the accused’s rights, i.e., it must be clear beyond a reasonable doubt that, absent the prosecutor’s inappropriate comments, the jury would have found the defendant guilty. In this case, Brown’s counsel repeatedly objected, and there is nothing whatsoever in the record which indicates that he invited the inappropriate comments. The prosecutor’s remarks were indeed improper. He violated the rules five times and, in the process, attempted to mislead the trial judge as to the prevailing law. Furthermore, the evidence against Brown was hardly overwhelming and certainly not enough so to overcome the prejudice engendered by the prosecutor’s numerous inappropriate statements to the jury during closing argument. Therefore, Brown’s conviction must be reversed. Issue 2: Sanctions Taxation of costs on appeal is governed by M.R.A.P. 36. Where an appeal is decided by an appellate court, subsection (a) of Rule 36 provides only for the assessment of costs against the appellant or the appellee, “unless otherwise ordered.” The “otherwise ordered” language is authority, under appropriate circumstances, to tax part or all of the costs of appeal to the winning party. Subsection (b) provides that the State of Mississippi or any of its agencies, or officers, or political subdivisions are fair game for costs. But it says nothing of taxing costs to any of these entities outside their official capacities. Furthermore, the provision presupposes that such official entities are parties to the litigation. Because the prosecutor, in his individual capacity, was not a party to the litigation, Rule 36 provides no authority for taxation of costs against him, personally. The Court of Appeals’ authority to sanction is governed by several of the Mississippi Rules of Appellate Procedure, none of which are applicable here. Rule 2(a) which allows the Court of Appeals to dismiss an appeal where certain procedural requirements are not followed is inapposite to this case, as the prosecutor’s conduct is unrelated to procedural requirements for prosecuting the appeal. Rule 2(b) allows the Court of Appeals to issue sanctions for failure to comply with these rules or any order issued pursuant to these rules. Such is not the case here. Rules 28(k) and 40(c) do not apply, since they allow sanctions for disrespectful language in a party’s brief or motion for rehearing. Rule 38, which allows an award of sanctions for frivolous appeals in civil cases, also is inapplicable. Thus, the Court of Appeals’ order requiring the prosecutor to reimburse Washington County for the costs of appeal is reversed. |
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