Birkhead v. State


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Docket Number: 2007-KA-00666-SCT
Linked Case(s): 2007-KA-00666-SCT ; 2007-TS-00666-SCT ; 2007-KA-00666-SCT ; 2007-KA-00666-SCT

Supreme Court: Opinion Link
Opinion Date: 02-17-2011
Opinion Author: Randolph, J.
Holding: Affirmed.

Additional Case Information: Topic: Capital murder - Peremptory strikes - Admission of death certificate - M.R.E. 902(4) - M.R.E. 803(9) - M.R.E. 803(8) - Right to confrontation - Sleeping juror - Right to remain silent - Jury instruction
Judge(s) Concurring: Carlson, P.J., Dickinson, Lamar, Chandler and Pierce, JJ.
Dissenting Author : Kitchens, J.
Dissent Joined By : Graves, P.J.
Concur in Part, Concur in Result 1: Waller, C.J.
Concur in Part, Concur in Result Joined By 1: Kitchens, J., in part
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 03-08-2007
Appealed from: WASHINGTON COUNTY CIRCUIT COURT
Judge: MARGARET CAREY-MCCRAY
Disposition: The jury found Birkhead guilty of capital murder. Birkhead then renewed his motion for directed verdict, or in the alternative, sought a new trial. The trial court denied his motion. Birkhead was sentenced as a habitual offender and was ordered to serve life without parole in the Mississippi Department of Corrections.
District Attorney: JOYCE CHILES
Case Number: 2003-327

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Richard Earl Birkhead




OFFICE OF INDIGENT APPEALS: LESLIE S. LEE, JUSTIN TAYLOR COOK



 
  • Appellant #1 Brief

  • Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: STEPHANIE BRELAND WOOD  

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    Topic: Capital murder - Peremptory strikes - Admission of death certificate - M.R.E. 902(4) - M.R.E. 803(9) - M.R.E. 803(8) - Right to confrontation - Sleeping juror - Right to remain silent - Jury instruction

    Summary of the Facts: The motion for rehearing is denied, and this opinion is substituted for the previous opinion. Richard Birkhead of capital murder and was sentenced as a habitual offender to life without parole. He appeals.

    Summary of Opinion Analysis: Issue 1: Peremptory strikes Birkhead argues that the trial court erred when it determined the defense had not established a prima facie case of discrimination in the State’s selection of jury members and use of peremptory strikes. As the record is devoid of information regarding the racial makeup of the venire, the final composition of the jury selected, and the race of the additional jurors struck by the State, Birkhead has failed to establish a record of Batson violations. Issue 2: Admission of death certificate Birkhead argues that the trial court abused its discretion in allowing the death certificate into evidence when it showed a purported time of injury. The authenticity of the death certificate is established by M.R.E. 902(4). The certified copy of the death certificate presented in this case fits within the provisions of Rule 902(4). No legitimate debate can be made that a considerable amount of the information contained within any death certificate is hearsay. Similarly, no debate exists that a death certificate is a vital statistic. M.R.E. 803(9) provides a hearsay exception regarding records of vital statistics. Unlike M.R.E. 803(8) regarding public records and reports, Rule 803(9) provides no exclusions to its hearsay exception. Thus, the trial court is not in error for following the rules of evidence and our precedent that a death certificate and the records of vital statistics contained therein are admissible. Issue 3: Right to confrontation Birkhead argues that his constitutional right to confrontation was violated by the admission of the victim’s death certificate into evidence. The Confrontation Clause applies to witnesses against the accused – in other words, those who bear testimony. Thus, introduction of evidence admitted via a hearsay exception does not necessarily foreclose Confrontation Clause scrutiny. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause. Statements are nontestimonial when made in the course of police interrogations under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because – having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial – they are not testimonial. Birkhead offers argument, without proof, that the “time of injury” entry on the death certificate must have been supplied by the police with an eye toward being used in a future criminal proceeding against him. In a proper case, should evidence be developed that “time of injury,” “cause of death,” and/or other relevant death-certificate entries were included or influenced by police officers or prosecutors with an eye toward prosecution, a trial judge would not be in error for redacting such. However, that is not the case here. Under the circumstances of this case, the death certificate is a nontestimonial record of vital statistics, created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial, and, therefore, not subject to a Confrontation Clause analysis. Furthermore, “time of injury” was not an essential element of the charge in this case. Issue 4: Sleeping juror During the testimony of a witness, counsel for the State noticed a juror sleeping. Birkhead failed to raise the issue of the sleeping juror at trial, nor did he raise it in his motion for new trial, which bars the issue from consideration. In addition, the record indicates no further problems with this juror, or any other. Issue 5: Right to remain silent Birkhead argues that his constitutional right to self-incrimination was violated by an investigator’s comment on his choice to remain silent. The trial court gave a curative instruction, to which the defense did not object. Therefore, there was no abuse of discretion by the trial court resulting in a reversible error. Issue 6: Jury instruction During the course of trial, counsel for Birkhead made notes on witness testimony and displayed these notes on an easel before the jury. The State objected to defense counsel displaying the notes. The court gave a limiting instruction regarding attorney notes, and Birkhead objects to this instruction as giving improper prominence to particular portions of evidence. Birkhead is procedurally barred from raising this issue because this is the first time he has raised an objection.


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