Brown v. State
| Docket Number: | 2010-KA-00248-COA Linked Case(s): 2010-KA-00248-COA ; 2010-CT-00248-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-07-2011 Opinion Author: Lee, C.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Capital murder - Juror misconduct - URCCC 3.12 - Right to remain silent - Aiding and abetting instruction Judge(s) Concurring: Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Non Participating Judge(s): Russell, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-19-2009 Appealed from: Harrison County Circuit Court Judge: Lawrence P. Bourgeois, Jr. Disposition: Convicted of Capital Murder and Sentenced to Life in the Custody of the Mississippi Department of Corrections District Attorney: Cono A. Caranna, II Case Number: B-2402-06-167 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Mark Kee Brown |
LISA D. COLLUMS, LESLIE S. LEE, HUNTER NOLAN AIKENS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS |
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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: | Capital murder - Juror misconduct - URCCC 3.12 - Right to remain silent - Aiding and abetting instruction |
| Summary of the Facts: | Mark Brown was found guilty in of capital murder and sentenced to life. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Juror misconduct On the final day of trial, one of the jurors sent a note to the trial court that another juror had told the entire jury panel that she had contacted a friend who had served as a juror on the trial of a co-defendant to find out what the verdict was in that trial. The judge ultimately struck two of the jurors and replaced them with the alternate jurors. The juror who had written the note was not stricken. Brown argues that replacing the jurors was inadequate because the entire jury was already tainted. URCCC 3.12 allows the judge to declare a mistrial only when the harm done would render the defendant without hope of receiving a fair trial. Once the trial judge became aware of the potential juror misconduct, the trial judge investigated the matter by polling each juror individually. The two jurors involved were stricken and replaced with the alternate jurors. The judge found the other jurors were not exposed to outside information and that the juror who had written the note could remain impartial. Thus, this issue is without merit. Issue 2: Right to remain silent Brown takes issue with an exchange that took place during cross-examination. The trial judge found that the question at issue did not ask whether Brown chose to exercise his right to remain silent but whether Brown had given an alibi. A defendant has the right to remain silent following arrest, and not have that silence used against him. The test to determine whether reversal is required as a result of a prosecutor’s improper comment at trial is whether or not the natural and probable effect of the statement is to create an unjust prejudice against the accused so as to result in a decision influenced by prejudice. Brown’s defense was that he was at his girlfriend’s house at the time of the murder babysitting several children while she was at work. He testified on direct examination as to his alibi. The record is unclear when Brown was read his Miranda rights. However, any questions regarding Brown’s post-arrest, pre-Miranda silence did not violate Brown’s due-process rights. As far as Brown’s silence after he was given the Miranda warning, no unjust prejudice was created. The questioning was not used as substantive proof of Brown’s guilt, and it was not revisited in the closing argument. Issue 3: Aiding and abetting instruction Brown argues that the trial court improperly granted a jury instruction on aiding and abetting. No objection was made at trial to this jury instruction, but Brown argues that this instruction was plain error because it allowed the jury to find him guilty if he committed “any act which is an element of the crime . . . .” While the jury instruction could have misled the jury, any confusion caused was cured by reading the instructions as a whole. Thus, any error was harmless. |
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