Brown v. State

• Decision Date: 02 September 2004
• Docket Number: No. 2002-DP-01548-SCT.,2002-DP-01548-SCT.
• Citation: 887 So.2d 183
• Parties: XAVIER BROWN v. STATE OF MISSISSIPPI.
• Court: Mississippi Supreme Court

887 So.2d 183

XAVIER BROWN v. STATE OF MISSISSIPPI.

No. 2002-DP-01548-SCT.

In the Supreme Court of Mississippi.

September 2, 2004.

ATTORNEYS FOR APPELLANT: OFFICE OF CAPITAL POST-CONVICTION COUNSEL BY: ANDRE DE GRUY, SCOTT JOSEPH SCHWARTZ

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: MELANIE KATHRYN DOTSON, MARVIN L. WHITE, JR.

DISTRICT ATTORNEY: CLAIBORNE McDONALD

EN BANC.

GRAVES, JUSTICE, FOR THE COURT:

¶1. On February 26, 1998, Felicia Newell was found dead in her car. She had been shot with a nine-millimeter pistol in the parking lot of her apartment building in Hattiesburg. The police had a prime suspect: Felicia's ex-husband Anthony Sims, who had history of threatening violence against her. Felicia was set to testify against him in an upcoming hearing.

¶2. The police found Sims two days later, dead of a prescription drug overdose in a hotel room. The death was ruled a suicide, leaving the police with no leads. The case appeared to be closed.

¶3. Months later a man named Donald Crosby told a friend of Felicia's that she had not been killed by her ex-husband, but by a man named Xavier Brown. Crosby said that Brown had been paid by Sims to murder Felicia and that Sims had committed suicide to avoid the debt he had incurred.

¶4. Then a man named Corey Johnson came forward to the police on June 10, 1999-over a year after the murder. He was engaged to Brown's sister, and told the police that he had ridden with Brown from Laurel, where they lived, to Hattiesburg. He told them he saw Brown murder Felicia with a nine millimeter pistol, and that Brown had threatened his life if he told anyone what he saw.

¶5. Based on the evidence compiled from those two witnesses and a neighbor of Felicia's named James Bigler, who was an eyewitness to the crime, the State secured an indictment of Brown for capital murder and for accepting money to commit the crime-murder-for-hire. His trial began June 18, 2002, in Lamar County, and ended two days later with a verdict of guilty. Brown was sentenced to death by lethal injection for his crimes. He appeals that conviction and the resulting sentence to this Court, arguing fifteen errors in the trial below.

DISCUSSION

¶6. We review with heightened scrutiny any sentence of death and any conviction upon an indictment for capital murder. See Flowers v. State, 842 So.2d 531, 539 (Miss. 2003)

. While we may apply different standards for different questions-for example, a review of the admission of evidence-we always apply a heightened scrutiny. Under this method of review, all 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. Id.

1. Were there too many members of the jury pool with ties to law enforcement or victims of crime to afford Brown a fair trial?

¶7. Brown urges that his right to a fair trial and impartial jury was violated because there were too many jurors with ties to law enforcement. In support he cites Mhoon v. State, 464 So.2d 77, 80 (Miss. 1985), where we dealt with "a novel issue which . . . would [normally] have little merit." In Mhoon, "[o]f the 39 venirepersons considered by the court and not excused for cause, 12 of them were either police officers or related by blood or marriage to current or former police officers." Id. at 80. The empaneled jury included a uniformed policeman as the foreperson and five other jurors who were closely related to law enforcement. Id. One of those jurors improperly withheld her connections to law enforcement. Id.

¶8. We found that the "statistical probability of this situation seems somewhat remote," and found in this unique case that "the sheer number of law enforcement-connected persons in the jury pool, as well as persons selected as jurors, has worked a great hardship on Mhoon." Id. at 80-81. We refused to say "that a person engaged in law enforcement, or related by blood or marriage to one engaged in law enforcement, should be per se excluded from jury service," but instead cautioned that "in a unique factual situation such as this unusual case, the opportunity for undue influence over the opinions of other jurors was too great a risk." Id. at 82.

¶9. It is noteworthy that in Mhoon defense counsel attempted to "have the law enforcement-connected persons excused for cause." Id. at 80. That simply did not happen in the case sub judice. Both the prosecution and the defense were allowed twelve peremptory strikes for the general jury pool and two for the alternate pool. Of the twelve strikes the defense was allowed, only seven were used for jurors who had law enforcement experience or were somehow related or connected to persons in law enforcement. Of the two strikes allowed for alternate jurors, none were used to strike jurors with connections to law enforcement. Indeed, juror #6, one of eight struck by the prosecution, had a brother-in-law in law enforcement.

¶10. Moreover, Mhoon involved six persons on the jury with in law enforcement or with strong connections to law enforcement; in the case at hand, there were only five people on the jury with ties to law enforcement.¹ Another difference in Mhoon is that the defense exhausted itself trying to rid that "unusual case" of the statistically improbable number of persons in law enforcement or connected to it. That simply did not occur here. The concern of undue influence on the jury in Mhoon is unique, and we refuse to assume that simply because a person is in law enforcement or connected to those who are that they cannot apply the law fairly and honestly as described in their oath.

¶11. The State argued that Brown was procedurally barred from raising this issue because it was not objected to during voir dire. Brown counters that Mhoon allows a judge to sua sponte ameliorate problems with a jury pool, such as affording counsel additional peremptory challenges or increasing the size of the venire, and so this does not leave a burden on counsel to object. Id. at 81. Brown's argument is incorrect. While Mhoon does allow our trial judges to remedy unique situations of their own accord, this does not mean the attorneys do not have to object.

¶12. After finalizing the jury in the case at hand, the judge asked the attorneys a question: "Are we all together on the 12?" The defense answered immediately in the affirmative. In Mhoon defense counsel tried repeatedly to remedy the situation and was not satisfied with the composition of the jury. Id. at 80. To preserve a challenge under Mhoon, as rare as it may be, one must contemporaneously object or risk waiver under the procedural bar. See Foster v. State, 639 So.2d 1263, 1270 (Miss. 1994)

.

¶13. Brown also urges that the presence of a juror whose friend's daughter was murdered was prejudicial to his fair trial. This juror, like all the jurors who served at Brown's trial, was asked if they could apply the law fairly and impartially, with no regard to past circumstances or events. All responded in the affirmative. In Shell v. State, we declined to establish a per se rule of disqualification where a juror is related to a victim of a similar crime. 554 So.2d 887, 892 (Miss. 1989), reversed in part on other grounds by Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990)

; see also United States v. Jones, 608 F.2d 1004, 1007 (4th Cir. 1979).

¶14. We continue to reject that reasoning. Regardless, in the case in hand the victim of the crime was not a relative of juror #21, but the daughter of a friend. This issue is without merit.

2. Was a juror that was removed for cause qualified to serve?

¶15. Brown alleges that juror #32 was excluded because of his neutral views on the death penalty. The trial judge excused # 32 as "not qualified" for other reasons, but the juror's constant equivocation on the death penalty would have been sufficient.

¶16. When asked by the trial judge during voir dire his feelings on the death penalty, the juror agreed with the judge's characterization that he was "undecided." When the court asked him if his views on the death penalty would prevent or substantially impair his ability to follow the law in deciding the sentence, the juror responded that he would "do [his] best to follow the law." Yet when asked by the State if he could follow the law and vote for the death penalty if it was warranted, he responded "I don't think that I would be able to vote for the death penalty." When the question was rephrased, he stated that "because of my temperament, I don't think that I could vote for the death penalty." When examined earlier in the voir dire by the State the juror said "I don't know if I can . . . make a decision that would terminate somebody's life."

¶17. Juror #32 had initially sought to be excused from jury service because his wife worked and he had a fifteen-year-old daughter at home. When asked later if he could be fair in judging the testimony of police officers, the juror said that he "respect[ed] law officers because of the nature of their job," and "because of their training and the nature of what they do, I think that they . . . [are] more credible than some people would be."

¶18. Along with two other jurors, the trial judge struck juror #32 for cause, without motion from the State or the defense, because "it's obvious [he'd] say anything to get off the jury . . . and I don't think [he's] death-qualified anyway." There was no objection from either side. The judge then went on to say that he was struck for cause "because the answer to the [voir dire] questions are just flat not qualified . . . [a]nd this has nothing to do with death qualification." There was no objection from either counsel.

¶19. Because there was no contemporaneous objection, this issue is procedurally barred. Foster, 639 So.2d at 1270. Notwithstanding that bar, the juror was properly struck.² If jurors provide inconsistent answers regarding their feelings on the stated law of this...