Brown v. State

• Decision Date: 09 August 2001
• Docket Number: No. 1998-DR-01266-SCT.,1998-DR-01266-SCT.
• Citation: 798 So.2d 481
• Parties: Sherwood Dwayne BROWN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

798 So.2d 481

Sherwood Dwayne BROWN v. STATE of Mississippi.

No. 1998-DR-01266-SCT.

Supreme Court of Mississippi.

August 9, 2001.

Rehearing Denied October 25, 2001.

David L. Walker, Southaven, Attorney for Appellant.

Office of the Attorney General, by Marvin L. White, Jr., Jackson, Attorneys for Appellee.

EN BANC.

McRAE, Presiding Justice, for the Court:

¶ 1. This post-conviction relief case was filed by Sherwood Dwayne Brown raising approximately sixty-eight issues and subissues which will be addressed here. After due consideration we deny the applications for leave to seek post-conviction relief.

¶ 2. Brown was convicted of killing three victims, thirteen-year-old Evangela Boyd along with Verline Boyd and Betty Boyd. All three victims had suffered severe chop wounds to the head inflicted by a sharp instrument. All three convictions were affirmed on direct appeal by this Court under Brown v. State, 690 So.2d 276 (Miss. 1996). A more thorough review of the facts may be found there.

¶ 3. After the bodies were discovered, investigators found bloody shoe-prints on the porch and similar prints on the property leading to a nearby road in the direction of Sherwood Brown's home. The Sheriff called Brown that afternoon at his place of work and told him that the police wanted to speak with him. Brown left the premises and checked into a Memphis hotel. In checking the residence of Brown, the police found a shoe print on the floor that appeared to match those found at the crime scene. On January 8, 1993, Brown called a friend, James Coleman Jones, and asked him to come to the motel. Jones was indicted the following year on theft charges and gave his testimony against Brown as a part of a plea agreement. According to Jones's testimony, Brown, thinking that Betty Boyd would be away, went to the Boyd home to see young Evangela Boyd and to have sex with her. Brown further told Jones that Betty Boyd was at home, that they became involved in an argument, and that Brown struck her with some sort of blade. He then proceeded to beat Evangela Boyd and have sex with her. Jones stated, that after hearing the story, he told Brown to turn himself in and later told the sheriff where Brown could be found.

¶ 4. Brown was arrested on January 11, 1993, at his aunt's home. Brown's shoes, clothing, two guns, and an ax were confiscated. Brown's size 12 Fila running shoes tested positive for the presence of blood and also matched the prints found at the crime scene. Brown was indicted as a habitual offender in the killings of Betty Boyd and Verline Boyd in violation of Miss.Code Ann. § 97-3-19(1)(a). Brown was further indicted as a habitual offender in the killing of Evangela Boyd while in the commission of the crime of felonious abuse and/or battery of a child as defined by Miss.Code Ann. § 97-5-39(2), all in violation of Miss.Code Ann. § 97-3-19(2)(f). Brown was convicted and sentenced to consecutive life prison terms without parole for the murders of Betty Boyd and Verline Boyd. Brown was also convicted of the murder of Evangela Boyd and sentenced to death.

¶ 5. Post-conviction proceedings are for the purpose of bringing to the trial court's attention facts not known at the time of judgment. Smith v. State, 477 So.2d 191, 195 (Miss.1985). The Mississippi Uniform Post Conviction Collateral Relief Act, Miss.Code Ann. §§ 99-39-1 to -29 (2000), provides a procedure limited in nature to review those matters which, in practical reality, could not or should not have been raised at trial or on direct appeal. Turner v. State, 590 So.2d 871, 874 (Miss.1991). In his application for leave to seek post-conviction-relief, Brown presents four categories of claims: prosecutorial misconduct; ineffective assistance of counsel; conflict of interest; and miscellaneous errors.

I. Prosecutorial Misconduct

1. Coercing False Testimony from James Coleman Jones.

¶ 6. Brown contends that police and the district attorney pressured Jones to say that Brown had confessed to the crimes but that his five recorded recollections contain enough discrepancies to show his testimony was fabricated. Brown argues that Jones had a motive to lie since he had been indicted and offered a plea bargain. The record reflects that the defense was fully aware of the existence of all of Coleman Jones's statements and their inconsistencies. The prosecutor noted on the record:

I'm not trying to belabor the point, but there are things in these documents or statements which exculpate Mr. Brown and things which inculpate Mr. Brown, and only the jury can decide what to believe from Coleman Jones and what not to believe.

The credibility of any witness, even a convicted felon, is for a jury to decide. Swington v. State, 742 So.2d 1106, 1111 (Miss.1999). In fact, Jones was cross-examined by the defense about his conflicting stories. The issue was known to the defense at the time of trial and is now procedurally barred from further review pursuant to Miss.Code Ann. § 99-39-21(1). Brown has failed to show cause for failing to raise the matter on direct appeal or demonstrate actual prejudice to the defense. The procedural bar must therefore remain in place. Cole v. State, 666 So.2d 767, 773 (Miss.1995).

2. Improper Argument to the Jury.

¶ 7. Brown claims that the prosecutor improperly argued to the jury during his opening statement that sex was the motive for the crime and then failed to prove that a sexual assault occurred. As a practical matter, Brown was charged with murder while committing the felonious abuse and/or battery of a child and the State was not required to prove a sexual assault. Brown failed to object at trial or raise the issue on direct appeal and the matter is procedurally barred from collateral review pursuant to Miss.Code Ann. § 99-39-21(1). Lockett v. State, 614 So.2d 888, 893 (Miss.1992).

3. Prior Bad Acts.

¶ 8. Brown argues that the prosecutor asked the sheriff on direct examination why he suspected Brown and that the sheriff improperly responded, "we have had problems out of Sherwood before." Trial counsel made a motion for mistrial which was denied and thereafter raised on direct appeal. This Court expressly upheld the trial court's decision to admonish the jury to disregard the comment rather than declare a mistrial. Brown, 690 So.2d at 288. Pursuant to Miss.Code Ann. § 99-39-21(2), the doctrine of res judicata applies, and the issue is barred from further review. Williams v. State, 669 So.2d 44, 52 (Miss.1996).

4. Bite-Mark Evidence.

¶ 9. Brown claims that the prosecutor improperly relied on Dr. Michael West, a dentist, to take impressions from the teeth of Evangela Boyd and thereafter allowing another dentist to testify concerning these impressions and the bite-mark on Brown's arm. Brown asserts that such evidence was unreliable because of this Court's first decision in Howard v. State, 697 So.2d 415, 429 (Miss.1997) which held that testimony concerning "bite marks in soft, living flesh has not been scientifically accredited at this time." On petition for rehearing, the Court retracted its comment on the scientific reliability of bite-mark evidence and held only that the testimony of a bite-mark expert was for the jury to weigh. Howard v. State, 701 So.2d 274 (Miss.1997). The Court held that where such evidence was admitted, "it should be open to the defendant to present evidence challenging the reliability of the field of bite-mark comparisons." Id. at 288. The contention that the State committed an act of prosecutorial misconduct by employing such an expert is unsupported. This issue is without merit and is denied.

5. Closing Argument.

¶ 10. Brown argues that the prosecutor improperly attested to the veracity of the State's witnesses during his closing argument at the guilt phase. The issue is procedurally barred from review as it could have been raised on direct appeal. Miss.Code Ann. § 99-39-21(1). Without waiving the bar, the issue is without merit. The transcript shows that the prosecutor said, "Now, I know Bill Ellis, and I know these other investigators, and I know they do the very best they can. I know if that hadn't been said, it wouldn't have been written down in his report. I know that." The overall context shows that the prosecutor was responding to defense criticism of the quality of the investigators' work. This Court has held that the prosecution is entitled to argue the credibility of its witnesses after it has been challenged. Taylor v. State, 672 So.2d 1246, 1269 (Miss.1996). This argument is both procedurally barred and without merit.

6. Aggravating Circumstance.

¶ 11. Brown claims that the prosecutor inaccurately argued to the jury during opening statement that Brown had committed the capital crime while under a sentence of imprisonment because his suspended sentence had been vacated. This issue could have been raised at trial and on direct appeal and is now procedurally barred from further review. Miss.Code Ann. § 99-39-21(1).

¶ 12. Brown was convicted of aggravated assault in 1986 and sentenced to ten years in prison. The sentence was suspended, and Brown was placed on probation. In 1988, one year of the suspension was revoked, but the remainder of the sentence was never vacated. This is evidenced by the denial of his motion for post-conviction relief in 1995 in which he attacked the revocation of his probation. It has been held that one who is under a suspended sentence is "under sentence of imprisonment" for purposes of finding the aggravating circumstance listed at Miss. Code Ann. § 99-19-101(5)(a). Evans v. Thigpen, 809 F.2d 239, 241 (5th Cir.1987). The issue is additionally without merit.

7. Reimposition of Suspended Sentence.

¶ 13. Brown also claims that the prosecution improperly held him in custody following his arrest by having the aforementioned suspended sentence re-imposed. This related issue is also procedurally barred pursuant to Miss.Code Ann. § 99-39-21(1) for failure to raise it at trial and on...