Brewer v. State, 95-DP-00915-SCT.

• Decision Date: 23 July 1998
• Docket Number: No. 95-DP-00915-SCT.,95-DP-00915-SCT.
• Citation: 725 So.2d 106
• Parties: Kennedy BREWER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

725 So.2d 106

Kennedy BREWER v. STATE of Mississippi.

No. 95-DP-00915-SCT.

Supreme Court of Mississippi.

July 23, 1998.

Rehearing Denied October 22, 1998.

Tina Louise Holcombe, Macon, MS; Richard Burding, Columbus, MS; Rhonda R. Hayes-Ellis, Columbus, MS, for Appellant.

Michael C. Moore, Attorney General, Jackson, MS; Marvin L. White, Jr., Asst. Attorney General, Jackson, MS; Leslie S. Lee, Sp. Asst. Attorney General, Jackson, MS, for Appellee.

EN BANC.

BANKS, Justice, for the Court:

¶ 1. This is an appeal from a conviction and sentence to death for the rape and murder of a three-year-old child. Because we find no error of a magnitude requiring reversal, we affirm.

I.

¶ 2. In May 1992, Gloria Jackson lived in a small community close to Brooksville, Mississippi known as Pilgrim's Rest. She resided in a six-room house that contained two bedrooms; however, she only used one of the bedrooms furnished only with a chair, a bed, a dresser and a television. The window in that bedroom was broken out when Jackson initially moved in the house in June 1991. Two doors led to the outside of the house. One door was in the living room and the other one in the kitchen.

¶ 3. During the spring of 1992, three of Jackson's four children lived with her in this house—Christine who was three years old; Keithshawn who was twenty-two months old; and Nicole who was thirteen months old.¹ Jackson was dating the appellant, Kennedy Brewer, during this time. They had been dating for approximately three years before May 1992. Brewer would sleep at Jackson's house "every now and then." During the weekend of May 2, 1992, he came to her house Friday morning at 3:00 a.m. He stayed all day Friday, spent Friday night and was there all day Saturday as well.

¶ 4. On Saturday May 2, Jackson and Brewer had planned to go out together, but Brewer changed his mind. Jackson therefore decided to go out with her sister. She dressed to go out, but before she left Brewer wanted to have sex. Jackson told him to wait until she returned. When Jackson left at 8:00 or 8:30 p.m., Brewer was wearing a pair of light blue overalls, a blue shirt with a black design in it and a pair of black shoes.

¶ 5. As Jackson drove down the road away from her house, she met Dewayne Graham and Leshone Williams walking towards her home. The teenagers lived in houses very close to Jackson's home. She stopped and briefly talked with them. They later went to Jackson's home and spent some time with Brewer and the children. Jackson then went to her sister's house, but her sister was not home. She eventually found her sister at a friend's house, and after a number of stops, they went to a night club.

¶ 6. The owner of the Santa Barbara Club would not allow Jackson in the club because she and Brewer had fought there recently. Thus at 12:09 a.m., she and her sister left the club. Jackson's sister dropped Jackson off at home around 12:30 a.m. Jackson did not knock on her front door because she did not want her landlord to know that Brewer was over there.² Jackson therefore went to the bedroom, pulled back the blanket covering the broken window pane and told Brewer to open the door. He did, and she locked the door by pushing a bent nail over the door's frame.

¶ 7. Brewer returned to the bedroom. He was wearing a pair of Jackson's white shorts. No lights were on in the bedroom, but the television was on. As Jackson walked into the bedroom, she asked about Christine's whereabouts because she wanted to make a pallet on the floor on which the child usually slept. Brewer told her that Christine was in the bed. He then went over, picked up a form wrapped in a blanket and laid the form on the pallet. Jackson did not see a head, any arms or legs on the form that Brewer placed on the pallet. She was not paying much attention.

¶ 8. Brewer then went into the living room and brought back a makeshift light. He plugged the light up and placed it over the dresser. Jackson did not check on her children as she trusted Brewer with them. As Jackson undressed, she and Brewer talked while he ate a hot dog. They then had sex. Afterwards, they got up and Brewer drank his beer as Jackson drank a Champale. Jackson was "a little high." She told Brewer that she was going into another room to douche. He told her to wait until morning, but she refused. According to Jackson, Brewer did not want her to get out of the bed. She nevertheless went into the next room and douched without any source of light. Brewer came into the room and "stood over" her while she washed.

¶ 9. Once in bed, Jackson laid down on the outside. Her twenty-two-month-old toddler was sleeping next to the wall, and the youngest child was at the foot of the bed. Brewer was in the middle of Jackson and the twenty-two-month-old baby. Brewer told Jackson he wanted to sleep on the outside. She refused to move.

¶ 10. The next morning Jackson woke up around 7:00 a.m. due to Brewer's attempts to initiate sex. She told him to stop and the youngest child began to cry. Jackson asked Brewer to fix a bottle for the baby. He left the bed and went into the kitchen. He returned with the bottle and got back in bed. By this time, Jackson noticed that the baby was "soaking wet." She again asked Brewer to pass her a Pamper. He obliged. During the two times he got up from the bed, he did not mention anything about Christine.

¶ 11. Brewer began to question Jackson about her car—how long Jackson's sister would have her car. Jackson told him that she would have to call her sister. She recalled that Brewer had also asked about the car when she returned home earlier that morning. Jackson left the bed at 7:30 a.m. It was daylight at this time, just as it had been light outside when Brewer left the bed to get a bottle and Pamper. Immediately upon leaving the bed, Jackson noticed that Christine was not on the pallet. She asked Brewer about Christine's whereabouts. He replied, "I don't know." She looked in the other room, but the child was not there. Brewer was showing "no concern at all." Jackson then went outside—unlocking the door first—and asked her neighbor if Christine was over there. She was not.

¶ 12. Shortly after that, some of Jackson's neighbors came over and helped searched for the missing child. During this time, Brewer "was just standing in the room." The search moved to the outside of the house; however, all of the windows and doors in the house were locked and the child would have been unable to open any of the windows or doors by herself. Jackson called the police. She and Brewer were taken to jail that day. Jackson was eventually charged with accessory to murder after the fact, but the charges were dropped. She remained in jail for seven months. While in jail, Jackson and nearby Brewer talked. On one occasion— the first day they were taken into custody— Jackson took off her shoe, hit Brewer in the face with it and asked him what had he done to her daughter. About a week after their arrest, Jackson screamed from her cell to Brewer that when he went to prison other inmates were going to do him the way he did her baby. Brewer replied, "It need to been you dat [I] kilt."³

¶ 13. Brewer was indicted for Christine's murder on September 15, 1992. The indictment alleged that he murdered Christine while engaged in the crime of sexual battery. At his trial, Jackson testified to the preceding account of events. Additionally, she testified that she did not notice any blood on Brewer's crotch area, nor on herself after having sex with him. As far as she could recall, Brewer did not leave the bed after they went to sleep. The blanket Jackson found on the floor at 7:30 a.m. Sunday morning was the same blanket that Jackson observed Brewer place on the floor earlier that morning, except at 7:30 a.m. the blanket was spread out. She did not notice any blood on the blanket. She did not look for any. According to Jackson, Brewer was not acting nervous when she arrived home at 12:30 a.m., but he was later that day.

¶ 14. Dewayne Graham testified for the State. He lived very close to Jackson in Pilgrim's Rest. He had known Brewer for a couple of years, and he is Jackson's first cousin. On May 3, 1992 around 8:00 or 8:30 p.m., Graham and his friend, Leshone Williams, were walking toward their homes when they ran into Jackson. After talking to her for a few minutes, they went to their grandmother's house where they stayed for about five or ten minutes. They then went to Jackson's house and visited with Brewer for about twenty minutes, after which they returned to their homes to do chores. After finishing their chores, the teenagers returned to Jackson's house and hung out with Brewer. Brewer was then wearing a pair of white shorts. They watched television in the bedroom. All of the children were in the bed. Christine was sleeping at the foot of the bed. Graham and Williams stayed at Jackson's home until about 11:50 p.m. The teenagers were certain it was close to midnight when they left because "Soul Train" was coming on as they arrived at their own homes.

¶ 15. Leshone Williams' testimony was consistent with that of Graham. The only addition was that when they returned to Jackson's home the second time, all of the children were alive because they were playing upon their arrival. The children fell asleep about five minutes after Williams and Graham came into the bedroom.

¶ 16. Jackson's landlord, R. Bell Williams, testified that after Jackson called the police Jackson said something to Brewer and he responded, "Didn't I tell you I laid that damn gal on that pallet." Bell Williams did not see Brewer go down to the creek that morning when people began to search for the child.

¶ 17. Bud Permenter, a deputy sheriff with the Noxubee County Sheriff's Department, arrived on the scene at about 9:30 a.m. Upon his arrival, there were approximately forty to sixty people at the house. Some people were searching for the missing child, and some were just standing around. After...