Brown v. State
| Docket Number: | 2004-DR-01772-SCT Linked Case(s): 2004-DR-01772-SCT ; 2004-DR-01772-SCT ; 2004-DR-01772-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 11-09-2006 Opinion Author: Graves, J. Holding: Leave to Seek Post-Conviction Relief, Denied. |
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| Additional Case Information: |
Topic: Death penalty post-conviction relief - Ineffective assistance of counsel - Procedural bars - Notice of aggravators - Cruel and unusual punishment - Disproportionate sentence - Actual innocence exception - Perjured testimony - Preservation of evidence Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Diaz, Easley, Carlson, Dickinson and Randolph, JJ. Procedural History: PCR Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 06-20-2002 Appealed from: Lamar County Circuit Court Judge: Keith Starrett District Attorney: CLAIBORNE McDONALD Case Number: 99K-909P |
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| Party Name: | Attorney Name: | |||
| Appellant: | Xavier Brown |
MISSISSIPPI OFFICE OF CAPITAL POSTCONVICTION
COUNSEL: LOUWLYNN VANZETTA WILLIAMS, WILLIAM J. CLAYTON,
ROBERT M. RYAN |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: MELANIE K. DOTSON THOMAS, MARVIN L. WHITE, JR. |
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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 post-conviction relief - Ineffective assistance of counsel - Procedural bars - Notice of aggravators - Cruel and unusual punishment - Disproportionate sentence - Actual innocence exception - Perjured testimony - Preservation of evidence |
| Summary of the Facts: | Xavier Brown was convicted of capital murder and sentenced to death by lethal injection. His conviction and sentence were affirmed on appeal. Brown has filed a Petition for Post-Conviction Relief. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Brown argues his counsel had a duty to investigate and present mitigating evidence and that counsel’s failure to present a defense in the guilt-innocence phase of the trial as well as during the sentencing phase was deficient performance which prejudiced Brown. In the Response to Petition for Post Conviction Relief with Exhibits, the State includes excerpts of trial testimony which shows defense counsel made a record at trial that Brown instructed him not to call witnesses during the sentencing phase of trial. These are the same witnesses that Brown now asserts would have informed the trial court of the evidence Brown offers to support his claim of ineffective assistance. The State argues that Brown’s defense counsel cannot be held at fault for the lack of presentation of any mitigation evidence during sentencing because they followed Brown’s instructions. Brown refused to change his mind on this issue even after being informed by his counsel and the judge that this decision could be detrimental to his case. The trial record shows that Brown was well-informed by his counsel during his trial and Brown participated in his trial. Brown had a clear opportunity to object to what he now contends is a lack of investigation and presentation of mitigating evidence during the trial. Overall, Brown has not identified errors which would have adversely affected his conviction or sentence. Issue 2: Procedural bars Brown argues that his post-conviction claims are not barred by res judicata or prohibited by the imposition of procedural bars, because his claims are not only meritorious but are of such a nature and substance that the application of procedural bar and res judicata would be erroneous. Brown has not submitted any newly discovered evidence in support of his claims. It is clear that a petitioner seeking post conviction relief must prove that new evidence has been discovered since the close of trial and that it could not have been discovered through due diligence before the trial began. Furthermore, Brown fails to show how the cases he has cited allow him to disregard the procedural bars or guarantees him the right to effective post conviction relief counsel. Issue 3: Notice of aggravators Brown argues that aggravators must be considered as elements of the crime and this requires that they be included in the charging indictment and found by the jury beyond a reasonable doubt. This argument was rejected on direct appeal. Therefore, it is now procedurally barred by res judicata. Issue 4: Cruel and unusual punishment Brown argues that his Eighth Amendment rights have been violated due to the “death row phenomenon,” an allegedly cruel and unusual condition caused by the extended delay in carrying out his execution. The Supreme Court has flatly rejected claims of defendants suffering from the death row phenomenon. Issue 5: Disproportionate sentence Brown argues that, considering his intent to commit the crime, his relative mental state and culpability, his sentence was disproportionate. This claim was considered and rejected on Brown’s direct appeal. Issue 6: Actual innocence exception Brown argues that he is innocent of all charges and the Court is obligated to extend an actual innocence exception to his procedural default of the claims set forth in his post-conviction relief brief. As Brown failed to raise actual innocence based on the claim that he did not match the description of the murderer on direct appeal, any such argument is now procedurally barred. Issue 7: Perjured testimony Brown argues that the State’s primary witnesses gave perjured testimony during his trial. Brown’s failure to adequately raise this issue at trial or on direct appeal bars him from raising the issue in his petition for post-conviction relief. Issue 8: Preservation of evidence Brown argues that because the State did not introduce it at trial, the State failed to preserve the nine millimeter pistol allegedly used to kill the victim. This issue is barred since Brown failed to raise this issue at trial or on direct appeal. In addition, the record shows that the State did in fact preserve the weapon. |
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