Brawner v. State

• Citation: 947 So.2d 254
• Decision Date: 26 October 2006
• Docket Number: No. 2004-DR-00913-SCT.,2004-DR-00913-SCT.
• Parties: Jan Michael BRAWNER, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

947 So.2d 254

Jan Michael BRAWNER, Jr. v. STATE of Mississippi.

No. 2004-DR-00913-SCT.

Supreme Court of Mississippi.

October 26, 2006.

Rehearing Denied February 8, 2007.

Mississippi Office of Capital Post-Conviction Counsel by William S. Clayton, Robert M. Ryan, Louwlynn Vanzetta Williams, attorneys for appellant.

Office of the Attorney General by Melanie K. Dotson, attorney for appellee.

EN BANC.

COBB, Presiding Justice, for the Court.

¶ 1. This petition for post-conviction relief arises from a quadruple homicide in 2001 in Tate County. 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. Brawner appealed to this Court, and we affirmed his conviction in Brawner v. State, 872 So.2d 1 (Miss.2004). On May 18, 2005, Brawner filed his petition for post-conviction relief pursuant to Miss. Code Ann. Sections 99-39-1 to -29 raising the following eight assignment of errors: three alleging ineffective assistance of counsel for failing to: (1) request a change of venue, (2) prepare a full transcription of the trial, and (3) present mitigating evidence; (4) allowing the underlying felony to be used as a separate aggravating factor during sentencing; (5) unconstitutionality of the avoiding arrest aggravating factor; (6) unconstitutionality of the felonious abuse of a child aggravating factor; (7) failure to include the aggravating factors elevating the charge to capital murder in the indictment and (8) illegal sentence. Finding no merit to any of these arguments, we deny Brawner's petition.

FACTS

¶ 2. The following facts were taken from this Court's opinion on direct appeal. In December 1997, Brawner married Barbara Craft, and in March 1998, their daughter, Paige, was born. Brawner and Barbara divorced in March 2001, she was awarded custody of Paige, and they lived with Barbara's parents, Carl and Jane Craft, at their home in Tate County. Brawner also lived with the Crafts off and on during his marriage to Barbara.

¶ 3. At the time of the murders, Brawner was living with his girlfriend June Fillyaw, in an apartment in Southaven. According to Brawner, they were having financial difficulties, and on top of that, he had also been told by Barbara that she did not want him around Paige. He testified that pressure on him was building because nothing was going right.

¶ 4. On the day before the murders, Brawner left his apartment in Southaven at 3:00 a.m. and headed toward the Crafts' house, about an hour away. He testified that he thought he might be able to borrow money from Carl, although in a prior statement he said he had planned to rob Carl. While waiting on the Craft's front steps from approximately 4:00 a.m. until 7:00 a.m., 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." A dog started barking, and Brawner hid until Carl went back inside, then ran away, thinking Carl might be getting a gun. He then drove back to his apartment.

¶ 5. Around noon the following day, April 25, 2001, Brawner again drove to the Crafts' house, and knocked on the door, but no one was home. He then put on rubber gloves that he had purchased earlier that day, "took the slats out of the back door," entered the house, and took a .22 rifle. He then went to Carl's workplace and asked him if it would be OK to go out to the house to wait for Barbara and Paige so that he could see his daughter, to which Carl agreed.

¶ 6. Since Barbara and Paige did not return, Brawner decided to leave, and as he was doing so, Barbara, Paige, and Jane pulled into the drive. After a brief conversation with Jane and Barbara, Brawner became agitated and went to the truck and brought back the rifle that he had taken from the Crafts' house earlier that day. Just as he told Barbara that she was not going to take Paige away from him, he saw Jane walking toward the bedroom and shot her with the rifle. He said he then shot Barbara as she was coming toward him, and went to where Jane had fallen and "put her out of her misery." After this, he shot Barbara again and took Paige, who had witnessed the murders, to her bedroom and told her to watch TV. 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.

¶ 7. Brawner stole approximately $300 from Carl's wallet, Jane's wedding ring, and 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 Fillyaw, asked her to marry him, and told her that he bought the ring at a pawn shop.

¶ 8. Brawner was suspected of the murders and detained by the police. While he was being held at the Tate County jail, Brawner admitted to the shootings in a statement made to the Chief Deputy of the Tate County Sheriff's Department. Brawner also testified on his own behalf at trial and gave essentially the same account of the events as described above.

¶ 9. Brawner raised the insanity defense at trial, although he testified that he knew at the time of the shootings that his actions 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.

¶ 10. Brawner was represented by the same counsel at trial and on direct appeal. However, now on post-conviction relief he is represented by new counsel from the Mississippi Office of Capital Post-Conviction Counsel.

DISCUSSION

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 11. Brawner argues three reasons why counsel was ineffective: (1) failing to request a change of venue; (2) failure to have the entire record transcribed and (3) failure to put on mitigating evidence during the sentencing phase. This Court has held that an accused is not entitled to errorless counsel rather competent counsel. Stringer v. State, 454 So.2d 468, 476 (Miss.1984). The legal test as to effective assistance of counsel was established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where the United States Supreme Court held that on a claim of ineffective assistance of counsel the benchmark is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Leatherwood v. State, 473 So.2d 964, 968 (Miss. 1985). However, this Court recognizes that there is a strong presumption that counsel's conduct was within the wide range of reasonable professional conduct. Id. at 969. Further, that counsel's actions were the result of strategic decisions. Id. (citing Murray v. Maggio, 736 F.2d 279, 282 (5th Cir.1984)).

¶ 12. The burden of proving ineffective assistance of counsel rests on the defendant to show that counsel's performance was (1) deficient and that (2) the deficient performance prejudiced the defense. Id. at 968. If the defendant fails to prove either component than reversal of his conviction or sentence is not warranted. Cole v. State, 666 So.2d 767, 775 (Miss.1995) (citing Edwards v. State, 615 So.2d 590, 596 (Miss.1993)). In making this determination we view counsel's performance from the totality of the circumstances at the time counsel acted and not through the lens of hindsight. Cole, 666 So.2d at 775 (citing Frierson v. State, 606 So.2d 604, 608 (Miss.1992)).

¶ 13. In order to prove that counsel acted deficiently, the defendant must show specific acts or omissions that he alleges are the result of unreasonable legal assistance. Leatherwood, 473 So.2d at 968. The defendant must prove counsel's performance was deficient using the reasonably effective standard of performance. Id. This means that counsel made errors that were so serious that they were not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000).

¶ 14. Even if the defendant proves that counsel's performance fell below the standard required for a reasonably competent lawyer, he still must prove that he suffered prejudice on account of that deficient performance. The defendant must show that but for counsel's deficient performance that there was a reasonable probability that the result of the proceedings would have been different. Leatherwood, 473 So.2d at 968. It is insufficient to only show that the errors had some conceivable effect on the outcome of the proceeding, because virtually every act or omission of counsel would meet that test. Williams, 529 U.S. at 393, 120 S.Ct. 1495. A reasonable probability is one sufficient to undermine the confidence in the outcome. Id. at 391, 120 S.Ct. 1495.

¶ 15. There are, however, three situations implicating the right to counsel that involve circumstances so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). The first and most obvious is the complete denial of counsel even if only for a critical stage. Id. at 695, 122 S.Ct. 1843. Second is when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing. Id. at 696, 122 S.Ct. 1843. This means that the attorney's failure to test the prosecution's case was complete. Id. at 696-97, 122 S.Ct. 1843. Finally, where counsel is called upon to render assistance under circumstances...