Brawner v. State, No. 2002-DP-00615-SCT.

CourtUnited States State Supreme Court of Mississippi
Citation872 So.2d 1
Docket NumberNo. 2002-DP-00615-SCT.
PartiesJan Michael BRAWNER, Jr. v. STATE of Mississippi.
Decision Date29 April 2004

David L. Walker, Batesville, Tommy Wayne Defer, attorneys for appellant.

Office of the Attorney General by Judy T. Martin, Marvin L. White, Jr., attorneys for appellee.

EN BANC.

COBB, Presiding Justice, for the Court.

¶ 1. Jan Michael Brawner, Jr. was indicted on four counts of capital murder. Count one was for the willful murder of his three-year-old daughter, Candice Paige Brawner, while engaged in the commission of the crime of felonious abuse and/or battery of the child. Counts two, three, and four were identical: willful murder while engaged in the commission of the crime of robbery of his ex-mother-in-law, Martha Jane Craft; his ex-wife, Barbara Faye Brawner; and his ex-father-in-law, Carl Albert Craft.

¶ 2. Brawner was tried before a jury in the Circuit Court of Tate County, Mississippi, and was found guilty on all four counts of capital murder. In a separate sentencing hearing, the jury returned the death penalty on all four counts. Brawner's Motion for Judgment Notwithstanding the Verdict or in the Alternative, for a New Trial was denied, and he then timely appealed to this Court.

FACTS

¶ 3. Brawner was 24 years old at the time of the murders. He was raised by his stepfather in Southaven, Mississippi. Brawner finished the ninth grade, but failed an attempt to obtain a GED, and he had worked mostly as a forklift operator in warehouses. In December, 1997, he married Barbara Craft, and in March of 1998, their daughter, Paige, was born. Brawner and Barbara were divorced in March of 2001, and she was awarded custody of Paige. Thereafter, Barbara and Paige lived with Barbara's parents, Carl and Jane Craft, in their home in Tate County. Brawner had also lived with the Crafts off and on during his marriage to Barbara.

¶ 4. At the time of the murders, Brawner was living with June Fillyaw, whom he met in 2000 through a "date line" on a local radio station. They lived in an apartment in Southaven, and according to Brawner, were having financial difficulties. Brawner had also been told by Barbara that she did not want him around Paige, and he testified that pressure on him was building because nothing was going right.

¶ 5. On the day before the murders, Brawner left his apartment in Southaven at 3:00 a.m. and headed toward the Craft house, about an hour away. He testified that he thought he might be able to borrow money from Carl Craft, although in his prior statement he said he had planned to rob Carl. Brawner parked the U-haul truck he was driving some distance from the house and walked the rest of the way to the house, where he sat on the front steps from approximately 4:00 a.m. until 7:00 a.m. During this time, he took a 7 mm Ruger rifle out of Carl's truck and emptied the bullets from it, because "he didn't want to get shot." When he heard Carl coming out, he hid behind Carl's truck. A dog started barking, and Carl started looking around for the cause of the dog's barking. When Carl went back inside, Brawner ran away, thinking Carl might be getting a gun. He then drove back to his apartment.

¶ 6. The following day, April 25, 2001, Brawner again drove the U-haul to the Craft house, this time around noon. He knocked on the door, but no one was home. He went to the truck to get some rubber gloves that he had purchased earlier in the day, then using the gloves, "took the slats out of the back door," entered the house, and took a .22 rifle. He left the same way he came in, putting the slats back into the door. He then went to Carl's place of work and talked to him, asking if it would be OK for him to go out to the house to wait for Barbara and Paige so that he could see his daughter. Carl said yes.

¶ 7. Brawner went back to the Craft house and waited. When Barbara and Paige did not return, he decided to write a note and leave. About that time Barbara, Paige, and Jane Craft pulled into the drive. Jane asked Brawner if he had been to their house the previous day, and he lied, saying "no." Barbara informed him that there was a restraining order against him, and he was not supposed to be there. He said he had a book to give Paige, then went to the truck and retrieved the book. At some point when they had all gone into the house, Jane again asked Brawner if he had been at the house the previous day. At this point Brawner became agitated and went to the truck and brought back the rifle that he had taken from the Craft house earlier that day.

¶ 8. When Barbara asked him "what is that," he said it was her dad's gun. He then told Barbara that she was not going to take Paige away from him. At that moment he saw Jane walking toward the bedroom and shot her with the rifle. He said he then saw Barbara coming toward him, and shot her. He then went to where Jane had fallen and "put her out of her misery." After this, he went back to where Barbara had fallen onto the couch and shot her again. Brawner recalled Paige looking up at him and holding up her left arm, which was sprayed with blood, and saying "Daddy you hurt me." Brawner then took her to her bedroom and told her to watch TV, and he went back to the living room and paced. After Brawner determined that Paige would be able to identify him, and in his words, he "was just bent on killing," he went back into the bedroom and shot his daughter twice, killing her. He then waited in the house until Carl came home from work, and when Carl walked through the door, Brawner shot and killed him.

¶ 9. Brawner stole approximately $300 from Carl's wallet, stole Jane's wedding ring from her finger, and stole food stamps out of Barbara's purse. He took Windex from the kitchen and attempted to wipe away any fingerprints he may have left. Brawner then returned to his apartment in Southaven, where he gave the stolen wedding ring to June Fillyaw, asked her to marry him, and told her that he bought the ring at a pawn shop. June testified at trial that Brawner was not acting unusual that evening, but he seemed tired.

¶ 10. David Craft, Barbara Brawner's brother, found the bodies the following morning. He told police that he suspected Brawner and told them where Brawner lived. When they arrested Brawner, they searched the U-haul and June's car and found the .22 rifle and latex gloves. June also told police that Brawner had given her the ring.

¶ 11. While he was being held in the Tate County jail, Brawner admitted the shootings in a statement made to the Chief Deputy of the Tate County Sheriff's Department, on November 15, 2001, approximately six months after the murders. Brawner completed a jail inmate request form asking to "speak with [chief deputy] Brad Lance whenever possible." Lance gave Brawner Miranda warnings, after which Brawner gave a taped statement detailing the events of April 24-25, 2001. Brawner's motion to suppress this statement was denied by the trial court and is not an issue on appeal. Brawner also testified on his own behalf at trial and gave essentially the same account of the events as described above.

¶ 12. Brawner raised the insanity defense at trial, although he testified that he knew at the time of the shootings that the shootings were wrong. The trial judge found Brawner competent based on information furnished by the Mississippi State Hospital, which certified Brawner competent to stand trial, and mentally responsible for the acts at the time they were committed. Additionally, a court-appointed psychiatrist, chosen by defense counsel, reported that Brawner was neither insane nor incompetent to stand trial.

DISCUSSION

¶ 13. Convictions of capital murder and sentences of death, when appealed to this Court, are subject to heightened scrutiny. Under this method of review, all bona fide doubts are to be resolved in favor of the accused because "what may be harmless error in a case with less at stake becomes reversible error when the penalty is death." Balfour v. State, 598 So.2d 731, 739 (Miss.1992). In this case, there are no bona fide doubts. We affirm on all issues.

¶ 14. Brawner raises eight assignments of error on appeal.

I. WHETHER THE TRIAL COURT ERRED IN DENYING BRAWNER'S MOTION TO SEVER COUNT ONE OF THE INDICTMENT.

¶ 15. Brawner filed a 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. Brawner argues that he did not kill Paige while in the commission of the crime of felonious abuse and/or battery of a child, but simply shot her, killing her, which would constitute simple murder. Brawner argues that counts two, three, and four involve the underlying felony of robbery, which is not found in count one, and thus count one is not based upon the same acts or transactions connected together or constituting parts of a common scheme or plan as required by Miss.Code Ann. § 99-7-2 (Rev.2000). Brawner also asserts that failure to sever count one violated his right to due process and a fair trial pursuant to the Fifth and Sixth Amendments to the United States Constitution and Article 3, Sections 14 and 26 of the Mississippi Constitution of 1890, but he offers no case law that supports this assertion. Additionally, Brawner concedes that capital murder may be charged in a multi-count indictment per Woodward v. State, 533 So.2d 418, 421-23 (Miss.1988).

¶ 16. The State argues that all four murders occurred in the same location and at nearly the same time, and that such murders constitute a common scheme under § 99-7-2. The State also claims that it would be impossible to separate evidence concerning the death of Paige Brawner from the deaths of the others, thus making it impractical to try the cases separately.

¶ 17. The statute that controls multi-count indictments states:

(1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each
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