Brawner v. State
| Docket Number: | 2002-DP-00615-SCT Linked Case(s): 2002-DP-00615-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 04-29-2004 Opinion Author: Cobb, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Death penalty direct appeal - Severance of count - Peremptory challenges - Gender bias - Photographic evidence - Aggravator of felony child abuse - Section 97-5-39(2) - Disproportionate sentence Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Carlson and Dickinson, JJ. Non Participating Judge(s): Diaz and Randolph, JJ. Concurs in Result Only: Graves, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - DEATH PENALTY - DIRECT APPEAL |
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| Trial Court: |
Date of Trial Judgment: 04-12-2002 Appealed from: Tate County Circuit Court Judge: Andrew C. Baker Disposition: Appellant was convicted of four counts of capital murder and sentenced to death. Case Number: CR2001-47-B-T |
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| Party Name: | Attorney Name: | |||
| Appellant: | Jan Michael Brawner, Jr. |
DAVID L. WALKER
TOMMY WAYNE DEFER |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JUDY T. MARTIN MELANIE K. DOTSON 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 direct appeal - Severance of count - Peremptory challenges - Gender bias - Photographic evidence - Aggravator of felony child abuse - Section 97-5-39(2) - Disproportionate sentence |
| Summary of the Facts: | Jan Brawner, Jr. was convicted of four counts of capital murder. The jury returned the death penalty on all four counts. Brawner appeals. |
| Summary of Opinion Analysis: | Issue 1: Severance Brawner argues that the court erred in denying his motion to sever count one, the willful murder of Candice Paige Brawner while engaged in the commission of the crime of felonious abuse and/or battery of a child, because he did not kill the child while in the commission of the crime of felonious abuse and/or battery of a child, but simply shot her which would constitute simple murder. In making its determination regarding severance, the court should pay particular attention to whether the time period between the occurrences is insignificant, whether the evidence proving each count would be admissible to prove each of the other counts, and whether the crimes are interwoven. In this case, the killings occurred within a few hours and were all part of the common scheme to rob Carl Craft and eliminate any witnesses. Additionally, the murders are interwoven, and the evidence of each murder would be admissible to prove the other murders since all murders occurred at the same place and closely in time. Therefore, the court did not abuse its discretion in denying the motion to sever. Issue 2: Peremptory challenges During the initial selection of 12 jurors, the State struck three females and one male, tendering seven females and five males. Brawner argued that this was a prima facie showing of gender bias against female jurors and challenged the strikes. He now argues that the court erred in overruling his objections to these jurors. To determine if a prima facie case of discrimination has been shown, the pivotal question is whether the opponent of the strike has met the burden of showing that proponent has engaged in a pattern of strikes based on race or gender. Here, there was no prima facie showing that the State engaged in a pattern of strikes based on gender. Although the State struck substantially more women than men, the fact that the selected jury incorporated a proportionally larger percentage of women than were in the venire contradicts the claim of gender discrimination. With regard to the practice of striking potential jurors in criminal trials based on information gathered from outside sources, often law enforcement officers, when those sources are not revealed or are not available for questioning, courts should exercise caution to ensure that peremptory challenges based on information from outside sources is credible and supported by on-the-record factual findings to this effect and that a complete record is made on this issue. Brawner also argues that the court erred in denying his motion asking the court to abolish the use of peremptory challenges in criminal cases. Brawner has not cited any authority that the abolition of peremptory challenges would necessarily secure a more fair or impartial jury for a defendant, and the potential exists that it would have the opposite effect. Issue 3: Photographic evidence Brawner argues that the court erred in allowing photographs to be admitted and in denying his motion to restrict the use of a slide projector. Photographs of bodies may be admitted where they have probative value and where they are not so gruesome or used in such a way as to be overly prejudicial or inflammatory. In this case, the photographs identify the victims and show them as they were found at the scene of the murders, help corroborate the State’s assertion of the cause of death, and help the jury to determine the credibility of Brawner’s statements to police and his testimony on the witness stand. They are not unduly prejudicial, and the court did not abuse its discretion by admitting them into evidence or allowing them to be displayed using a slide projector. Issue 4: Aggravator of felony child abuse Brawner argues that there was no underlying child abuse causing death, and the charge should be simple murder. Section 97-5-39(2) provides that a person who intentionally whips, strikes or otherwise abuses or mutilates any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse. If conduct fits the description of felonious child abuse, and the child subsequently dies, it is capital murder. Here, Brawner shot his daughter’s grandmother as his daughter watched, then shot his daughter’s mother as she watched. He again shot both the grandmother and the mother two additional times, all as Paige looked on. He then shot his daughter twice. Shooting Paige fits the description of felony child abuse in that it is a strike to the child in a manner as to cause serious bodily harm. Issue 5: Disproportionate sentence Brawner argues that the death penalty is disproportionate in this case. There is nothing in the record to suggest that the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor. There is evidence supporting the finding of the following aggravating factors: the capital offense was committed by a person under sentence of imprisonment (four counts); the offense was committed while the defendant was engaged in the commission of robbery (three of the four counts); and the offense was committed for the purpose of avoiding or preventing lawful arrest (four counts). In addition, the death penalty has been held not to be disproportionate in cases similar to this one. Therefore, the death penalty is not disproportionate in the current case. |
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