Brawner v. State
| Docket Number: | 2004-DR-00913-SCT Linked Case(s): 2004-DR-00913-SCT ; 2004-DR-00913-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 10-26-2006 Opinion Author: Cobb, P.J. Holding: PETITION FOR POST-CONVICTION RELIEF DENIED |
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| Additional Case Information: |
Topic: Death penalty post-conviction relief - Ineffective assistance of counsel - Robbery aggravating factor - Constitutionality of avoiding arrest aggravating factor - Constitutionality of felonious abuse of child aggravating factor - Illegal sentence Judge(s) Concurring: Smith, C.J., Waller, P.J., Diaz, Easley, Carlson, Graves, Dickinson and Randolph, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - DEATH PENALTY - POST CONVICTION |
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| Trial Court: |
Date of Trial Judgment: 04-12-2002 Appealed from: Tate County Circuit Court Judge: Andrew C. Baker Disposition: Jan Michael Brawner was convicted on April 11, 2002, of four counts of capital murder, and subsequent to a sentencing hearing, was sentenced to death. District Attorney: John W. Champion Case Number: CR2001-47-B-T |
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| Party Name: | Attorney Name: | |||
| Appellant: | Jan Michael Brawner, Jr. |
MISSISSIPPI OFFICE OF CAPITAL POSTCONVICTION
COUNSEL |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL |
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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 - Robbery aggravating factor - Constitutionality of avoiding arrest aggravating factor - Constitutionality of felonious abuse of child aggravating factor - Illegal sentence |
| Summary of the Facts: | Jan Michael Brawner was convicted of four counts of capital murder and was sentenced to death. Brawner appealed, and the Supreme Court affirmed his conviction. Brawner has now filed his petition for post-conviction relief. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Brawner argues that counsel was ineffective for failing to request a change of venue, failing to have the entire record transcribed and failing to put on mitigating evidence during the sentencing phase. Brawner argues that because of the nature of the quadruple homicide and the size of the community in which it occurred that the media coverage denied him his right to a fair and impartial jury and that counsel failed in attempting to protect that right via a change of venue. Defense counsel is under no duty to attempt to transfer venue; therefore, the decision not to seek a change of venue would fall within the realm of trial strategy. In addition, Brawner has not proven that he suffered prejudice as a result. Brawner does not claim any specific error arising from the non-transcribed sections of the record, just that counsel was ineffective for failing to have the entire proceeding transcribe. Had Brawner’s trial counsel not ensured that a transcript was made of portions of the trial then it would be possible that their performance would have been deficient, but that is clearly not the present case. In addition, Brawner has failed to demonstrate how the absence of these portions of the transcript has affected his rights. Trial counsel did not present mitigating evidence at sentencing, despite the fact that there were at least three witnesses willing to testify. However, it was Brawner’s choice not to have these witnesses testify. Counsel will not be deemed ineffective for following his client’s wishes, so long as the client made an informed decision. Brawner was fully apprised of the consequences of his choice and made an informed and voluntary decision not to present mitigating evidence. Issue 2: Robbery aggravating factor Brawner argues that use of the robbery aggravating factor during sentencing was inappropriate as it allowed the use of the underlying felony which elevated the crime to capital murder to elevate the sentence to death. The Court has consistently upheld the use of the underlying felony as an aggravating factor during sentencing. Issue 3: Constitutionality of avoiding arrest aggravating factor Brawner argues that the use of the avoiding arrest aggravating factor without a limiting instruction creates a vague, over broad and unconstitutional application of Mississippi’s death penalty statute which results in an unconstitutional sentence. The Court’s decisions have narrowly construed the application of the avoiding arrest aggravating factor only to circumstances where the accused purposefully killed the victim of the underlying felony to avoid or prevent arrest for that felony. In addition, the facts indicate Brawner’s concerted effort to avoid arrest. Issue 4: Constitutionality of felonious abuse of child aggravating factor Brawner argues that our death penalty statute, as applied to felonious child abuse, is unconstitutional. Previously a defendant in Faraga v. State, 514 So. 2d 295 (Miss. 1987), assailed the constitutionality of our capital murder statute by raising an identical argument. In Faraga the Court found that upon reading the statutes in conjunction that they were constitutional. Issue 5: Illegal sentence Brawner argues that since the Court did not possess the entire transcript that any proportionality review which was done was incomplete. Brawner fails to assert specific errors made supported by relevant citations. Appellants and petitioners alleging errors must present a complete record highlighting the alleged errors supported by citation to relevant case law. |
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