Jan Michael Brawner, Jr. v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2004-DR-00913-SCT

JAN MICHAEL BRAWNER, JR.

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 04/12/2002
TRIAL JUDGE: HON. ANDREW C. BAKER
COURT FROM WHICH APPEALED: TATE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MISSISSIPPI OFFICE OF CAPITAL POST-
CONVICTION COUNSEL
BY: WILLIAM S. CLAYTON
ROBERT M. RYAN
LOUWLYNN VANZETTA WILLIAMS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: MELANIE K. DOTSON
DISTRICT ATTORNEY: JOHN W. CHAMPION
NATURE OF THE CASE: CIVIL - DEATH PENALTY - POST
CONVICTION
DISPOSITION: PETITION FOR POST-CONVICTION RELIEF
DENIED - 10/26/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

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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

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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.

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 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, 292 (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

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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.

A reasonable probability is one sufficient to undermine the confidence in the outcome. Id. at

391.

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¶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. Second is when counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing. Id. at 696. This means that the attorney’s

failure to test the prosecution’s case was complete. Id. at 696-97. Finally, where counsel is

called upon to render assistance under circumstances where competent counsel very likely

could not. Id. at 696. Here none of these exceptions are present.

Failure to Request a Change of Venue

¶16. Brawner argues that due to pretrial publicity counsel was deficient in failing to request

a change of venue, pointing to articles appearing in local newspapers and news broadcasts from

Memphis television stations detailing the known facts of the crime. The reports revealed the

location of the crime, the names of the victims and eventually the name of the man arrested and

charged with the crime. Brawner argues that because of the nature of the quadruple homicide

and the size of the community in which it occurred that the media coverage denied him his

right to a fair and impartial jury and that counsel failed in attempting to protect that right via

a change of venue.

¶17. This Court has recognized that the right to a fair trial by an impartial jury is fundamental

and essential to our form of government and that it is a right guaranteed by both the federal and

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state constitutions. Johnson v. State, 476 So. 2d 1195, 1209 (Miss. 1985) (citing Adams v.

State, 220 Miss. 812, 72 So. 2d 211 (1954)). An accused is entitled to fair, unprejudiced,

unbiased individual jurors, who are willing to be guided by the testimony given by the witnesses

and the law as announced by the Court. Johnson 476 So. 2d at 1210. If an unbiased jury is not

impaneled, it does not matter how fair the remainder of the proceedings may be. Fisher v.

State, 481 So. 2d 203, 216 (Miss. 1985). “It is one of the crowning glories of our law that no

matter how guilty one may be, no matter how atrocious his crime, nor how certain his doom,

when brought to trial anywhere he shall nevertheless, have the same fair and impartial trial

accorded to the most innocent defendant.” Id.

¶18. This Court has held that defense counsel is under no duty to attempt to transfer venue;

therefore, the decision not to seek a change of venue would fall within the realm of trial

strategy. Bishop v. State, 882 So. 2d 135, 142 (Miss. 2004); Faraga v. State, 514 So. 2d 295,

307 (Miss. 1987). As we have stated:

The fact that there has been widespread publicity in a county about a particular
crime does not necessarily mean that a prudent defense counsel will want to
have the case tried in another county. There must be a weighing of the odds.
Most of the judges and trial lawyers of this state are aware of a statistical
distinct disparity between counties in the willingness of juries to impose the
death penalty. For some reason, also, some counties appear more “conviction
prone” than others. We are also aware of defense lawyers who, in hindsight, have
profoundly regretted a circuit judge sustaining their change of venue motion.

Faraga, 514 So. 2d at 307. Trial counsel’s decision not to seek a change of venue is beyond our

review. However, even assuming arguendo that trial counsel was deficient in failing to move

for a change of venue Brawner has not proven that he suffered prejudice as a result. See

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Cabello v. State, 524 So. 2d 313, 316 (Miss. 1988) (citing Gilliard v. State, 462 So. 2d 710,

714 (Miss. 1985)). Given the quantum of evidence presented against him, including his own

confession, it is unlikely that a jury in any other county would have reached another verdict.

Failure to Transcribe the Full Record

¶19. Brawner’s trial counsel ensured that a record was made of the entire trial proceedings,

however for the purposes of appeal they only requested a transcription of portions of the trial

record. Absent from the transcript presented to this Court on direct appeal was the word-for-

word dialogue of voir dire, opening statements and closing arguments during the sentencing

phase. However, at all times Brawner has been aware that there existed audio tapes and a

shorthand record of these missing portions of the transcript. Further, the court reporter at trial

provided Brawner with the audio tapes and informed him that she was willing and remains

willing to transcribe her shorthand notes.

¶20. Brawner does not claim any specific error arising from the non-transcribed sections

of the record, just that counsel was ineffective for failing to have the entire proceeding

transcribe. Brawner asserts that there is no way for counsel on post-conviction relief to

address all possible sources of error unless he has a full and complete transcript and therefore

trial counsel was ineffective.

¶21. The United States Supreme Court has stated that trial counsel has a duty to ensure that

there is a partial transcript of the trial proceedings in order for appellate counsel to properly

perform his role as an advocate for the defendant. Hardy v. United States, 375 U.S. 277, 280,

84 S. Ct. 424, 427, 11 L. Ed. 2d 331 (1963). Trial counsel’s duty cannot be discharged unless

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he has a transcript of the testimony and evidence presented by the defendant and prosecution

and also the court’s charge to the jury. Hardy, 375 U.S. at 282. Had Brawner’s trial counsel

not ensured that a transcript was made of these portions of the trial then it would be possible

that their performance would have been deficient, but that is clearly not the present case.

¶22. The Fifth Circuit in a similar situation stated that the petitioner must show that he was

prejudiced by these omissions and absent support, mere conclusory allegations are insufficient

to raise a constitutional issue. Green v. Johnson, 160 F.3d 1029, 1039 (5th Cir. 1998).

Despite the fact that Brawner has been in possession of audio tapes of the full proceeding and

the court reporter has been willing to transcribe the missing portions of the transcript, he has

yet to demonstrate prejudice. Brawner has failed to demonstrate to this Court how the absence

of these portions of the transcript has affected his rights.

Failure to Present Mitigating Evidence

¶23. Trial counsel did not present mitigating evidence at sentencing, despite the fact that

there were at least three witnesses willing to testify including: Brawner’s mother, sister and

psychiatrist. Each witness would have testified to Brawner’s good character and certain

negative events that occurred during his lifetime. However, it was Brawner’s choice not to

have these witnesses testify. During the guilt phase the prosecutor, defense counsel and the

petitioner had an extensive conversation regarding the presentation of witnesses on Brawner’s

behalf. The relevant sections of the conversation went as follows:

Mr. Walker [defense counsel]: Your Honor, I need to ask [Petitioner] one more
thing, please sir. Mr. Brawner, do you wish for me to try to get you “life” or
“life without parole,” if you are, in fact, found guilty of any of these counts by

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 the jury? In other words, it’s what the lawyers call “put on a mitigation case,”
call your mother as a witness to tell about your background, call Dr. Marsha
Little-Hendren to tell what she found. How do you wish me to proceed, is what
I need to know from you?
The Defendant: As far as life, I don’t feel that I deserve life to live.
***
Mr. Walker: And I told you- you know, you kind of put me in a quandary here,
I’m being asked to do something that I haven’t done in ten capital murder trials,
but I will respect your [Petitioner’s] opinion.
Mr Champion [prosecutor]: David, for the record, is it your recommendation
that he put on mitigating evidence in guilt – in the sentencing phase if we get to
that point?
Mr. Walker: Based upon 18 years as a criminal defense lawyer, based upon ten
capital murder trials, the answer is “yes,” but I qualify that by saying I will honor
[Petitioner’s] order and his instructions.
***
Mr. Walker: Mr. Brawner, a capital murder trial in Mississippi has two parts or
phases. One is where the jury finds the man or lady guilty or not guilty. Do you
understand that now?
The Defendant: Yes, sir.
Mr Walker: And the other part is, if one is found guilty then the jury decides
“life, life without parole, or death.” One of those three options would be the
sentence.
The Defendant: Yes, sir.
***
Mr. Walker: . . . you do not wish to call your mother as a witness [at guilt]
because she knows nothing about the facts that I could bring out and your desire
is that she not testify before the jury and beg you to get life or life without
parole.
The Defendant : That’s right.

The State went on to question Brawner whether he understood that failure to present any

mitigating evidence “in all likelihood” would end up in the jury returning a death sentence. To

which Brawner answered “Yes, sir.”

¶24. Brawner now argues that trial counsel’s failure to present mitigating evidence was

ineffective assistance of counsel. To this end Brawner cites Blanco v. Singletary, 943 F.2d

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1477, 1501 (11th Cir. 1991). In Blanco the Eleventh Circuit held that it was ineffective

assistance of counsel for an attorney to blindly follow the defendant’s command not to pursue

mitigating evidence. Id. at 1502. The Eleventh Circuit stated that the lawyer must first

investigate all possible avenues of mitigation and advise his client of those offering potential

merit. Id. Obviously that standard has been met here by trial counsel. However, that

determination need not be reached by this Court. Our own law does not require trial counsel

to go against the fully informed and voluntary wishes of his client to refrain from presenting

mitigating evidence. Burns v. State, 879 So. 2d 1000, 1006 (Miss. 2004). Counsel will not

be deemed ineffective for following his client’s wishes, so long as the client made an informed

decision. Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir. 2000). A defendant may not block

his lawyer’s efforts and later claim the resulting performance was constitutionally deficient.

Id.

¶25. Brawner was fully apprised of the consequences of his choice. He made an informed

and voluntary decision not to present mitigating evidence. Trial counsel prepared a mitigation

case but did not present it based on Brawner’s wishes, despite contrary recommendations.

Trial counsel’s recommendations and the prosecution’s recommendation advised Brawner of

the gravity of his choice. We cannot now find that trial counsel was ineffective for failing to

put on mitigating evidence. To do otherwise, would allow Brawner to create ineffectiveness.

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 II. USE OF THE UNDERLYING FELONY AS AN AGGRAVATING
FACTOR

¶26. Brawner argues that use of the robbery aggravating factor during sentencing was

inappropriate as it allowed the use of the underlying felony which elevated the crime to capital

murder to elevate the sentence to death. Brawner argues that for three reasons the use of this

aggravating factor was inappropriate. First, the underlying felony of robbery was used during

the guilt phase, proven to the jury beyond a reasonable doubt, and therefore, its use at

sentencing creates an “automatic” aggravating circumstance. Second, use of the robbery

aggravating factor violates the mandate issued by the United States Supreme Court in Apprendi

v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Ring v. Arizona,

536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). Third, use of the underlying felony

during sentencing exposes the defendant to double jeopardy.

¶27. Prior to addressing the merits of this issue, we note that it is procedurally barred

pursuant to Miss. Code Ann. Section 99-39-21 (1) because it could have been raised on direct

appeal and was not. Wiley v. State, 750 So. 2d 1193, 1208 (Miss. 1999). Without waiving the

procedural bar, we determine this issue is without merit. Brawner concedes in his brief that

this Court has refused to grant relief based on his first argument that use of the underlying

felony at sentencing constitutes improper doubling. However, he argues that this Court should

follow a series of decisions from Florida which he alleges support his position. Specifically

Brawner cites Barnhill v. State, 834 So. 2d 836 (Fla. 2002); Griffin v. State, 820 So. 2d 906

(Fla. 2002) and Robertson v. State, 611 So. 2d 1228 (Fla. 1993).

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¶28. We have consistently upheld the use of the underlying felony as an aggravating factor

during sentencing. Goodin v. State, 787 So. 2d 639, 654 (Miss. 2001) (citing Walker v. State,

671 So. 2d 581, 612 (Miss. 1995)). The argument is the familiar “stacking” argument. It

contends that it is unconstitutional for the State to elevate murder to capital murder and then,

using the same factor, elevate the sentence to death. As pointed out in Lockett v. State, 517

So. 2d 1317, 1337 (Miss. 1987), this Court has consistently rejected this argument. Goodin,

787 So. 2d at 654; Davis v. State, 684 So. 2d 643, 664 (Miss. 1996). However, this Court has

found impermissible doubling where the trial court in a sentencing proceeding submits as

separate aggravating factors both the fact that the capital murder was committed during the

commission of a robbery and for pecuniary gain. Goodin, 787 So. 2d at 654. In that case the

two aggravating factors essentially comprise one circumstance. Id. (citing Willie v. State, 585

So. 2d 660 (Miss. 1991)).

¶29. The Florida cases cited by Brawner do not stand for the proposition he asserts. Rather,

they stand for the proposition that the use of two aggravating factors which essentially

comprise one circumstance results in impermissible doubling. Barnhill, 834 So. 2d at 851;

Griffin, 820 So. 2d at 914-15; Robertson, 611 So. 2d at 1233. This is identical to our law as

announced in Goodin and Willie. Therefore, this assertion is without merit.

¶30. Brawner’s second argument is that Ring and Apprendi require that the aggravating

factor which the State intends to use at sentencing, as elements of the offense of capital

murder, must be set forth in the indictment. This Court has repeatedly dealt with this argument

14
finding it without merit. Jordan v. State, 918 So. 2d 636, 661 (Miss. 2005). Simply put Ring

and Apperendi have no applicability to Mississippi’s capital murder sentencing scheme. Id.

(citing Berry v. State, 882 So. 2d 157, 172 (Miss. 172)). The State is correct in its assertion

that a defendant is not entitled to formal notice of the aggravating circumstances to be

employed by the prosecution and that an indictment for capital murder puts a defendant on

sufficient notice to what statutory aggravating factors will be used against him. Stevens v.

St at e, 867 So. 2d 219, 227 (Miss. 2003); Smith v. State, 729 So. 2d 1191, 1224 (Miss. 1998).

¶31. The purpose of the indictment is to provide the accused reasonable notice of the

charges against him so that he may prepare an adequate defense. Brown v. State, 890 So. 2d

901, 918 (Miss. 2004). Accordingly, all that is required in the indictment is a clear and

concise statement of the elements of the crime charged. Our death penalty statute clearly

states the only aggravating circumstances which may be relied upon by the prosecution in

seeking the ultimate punishment. Thus, every time an individual is charged with capital murder

they are put on notice that the death penalty may result. Id. (citing Williams v. State, 445 So.

2d 798, 804 (Miss. 1984)). Therefore, this argument is without merit.

¶32. Brawner’s third argument is that use of the underlying felony at sentencing exposed him

to double jeopardy. For this proposition Brawner points to no case law in support. This Court

has held that failure to cite to relevant authority relieves us of the duty of reviewing the issue.

Glasper v. State, 914 So. 2d 708, 726 (Miss. 2005). Without lifting the procedural bar this

argument is also without merit. The United States Supreme Court in Schiro v. Farley, 510

15
U.S. 222, 230, 114 S. Ct. 783, 789, 127 L. Ed. 2d 47 (1994) addressed this issue and

concluded that double jeopardy does not apply.

¶33. The Schiro Court held that double jeopardy applies to prevent three errors it protects

against: (1) a second prosecution for the same offense after acquittal; (2) a second

prosecution for the same offense after conviction and (3) multiple punishments for the same

offense. Schiro, 510 U.S. at 229 (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.

Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969)). These protections stem from the premise that an

accused should not be tried or punished twice for the same offense. Id. (citing United States

v. Wilson, 420 U.S. 332, 339, 95 S. Ct. 1013, 1020, 43 L. Ed. 2d 232 (1975)). Double

jeopardy operates as a bar against repeated attempts to convict, with consequent subjection of

the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he

may be found guilty even though innocent. United States v. DiFrancesco, 449 U.S. 117, 136,

101 S. Ct. 426, 437, 66 L. Ed.2d 328 (1980).

¶34. In the present situation there is no threat of multiple prosecutions for the same offense

or for repeated punishment arising from the same conviction. See Schiro, 510 U.S. at 230.

The sentencing phase of a capital murder trial is one part of the whole trial which includes the

guilt phase. The use of the underlying felony at sentencing does not expose the defendant to

double jeopardy. Therefore, Brawner’s arguments under Issue II are without merit.

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 III. CONSTITUTIONALITY OF THE AVOIDING ARREST
AGGRAVATING FACTOR

¶35. Brawner argues that the use of the avoiding arrest aggravating factor without a limiting

instruction creates a vague, over broad and unconstitutional application of Mississippi’s death

penalty statute which results in an unconstitutional sentence. Since this issue could have been

raised on direct appeal and was not it is procedurally barred. Notwithstanding the procedural

bar, we address the merits.

¶36. This Court has addressed this exact argument numerous times and found it without

merit. Doss v. State, 882 So. 2d 176, 195 (Miss. 2004); Wiley v. State, 750 So. 2d 1193

(Miss. 1999); Puckett v. State, 737 So. 2d 322, 362 (Miss. 1999); Carr v. State, 655 So. 2d

824, 854 (Miss. 1995); Walker v. State, 671 So. 2d 581, 611 (Miss. 1995); Chase v. State,

645 So. 2d 829, 858 (Miss. 1994). Briefly stated, our death penalty statute does not equate

every murder with an attempt to eliminate witnesses, but rather narrowly defines to whom the

avoiding arrest aggravating factor may be applied. Wiley, 750 So. 2d at 1207.

¶37. As the Fifth Circuit has noted, our decisions have narrowly construed the application

of the avoiding arrest aggravating factor only to circumstances where the accused purposefully

killed the victim of the underlying felony to avoid or prevent arrest for that felony. Gray v.

Lucas, 677 F.2d 1086, 1109-10 (5th Cir. 1982). Unequivocally this Court has said:

Each case must be decided on its own peculiar facts. If there is evidence from
which it may be reasonably inferred that a substantial reason for the killing was
to conceal the identity of the killer or killers or to ‘cover their tracks' so as to
avoid apprehension and eventual arrest by authorities, then it is proper for the
court to allow the jury to consider this aggravating circumstance.

17
Wiley, 750 So. 2d at 1206 (citing Chase, 645 So. 2d at 858)). Therefore, this argument is

without merit.

¶38. In turning to whether the present case is appropriate for the avoiding arrest aggravating

factor, this Court employs a deferential standard of review. It is this Court’s role to inquire

into whether there was credible evidence to support the jury’s finding of the aggravating factor.

Wiley, 750 So. 2d at 1206. The following facts were admitted in support of the jury’s finding.

Brawner confessed that it was his intent to rob the Crafts and Barbara. For that purpose he

purchased and wore rubber gloves and broke into the Crafts’ home earlier that day to steal

Carl’s rifle. He entered the Crafts’ home the second time for the sole purpose of robbing the

inhabitants. It was not until after he had entered the home that he realized he would not be able

to “get away with” the robbery without eliminating the witnesses. Barbara had gunshot wounds

to her hands which indicated that she received them in a defensive posture. The only reason

he shot his daughter, Paige was because she had witnessed him shoot Jane and Barbara and he

feared that she would identify him to the police.

¶39. After he shot Jane, Barbara and Paige, he waited for Carl to come home before shooting

him as he walked in the door. Brawner then stole Carl’s wallet, Jane’s wedding ring and food

stamps from Barbara’s purse. Afterwards, he wiped down the crime scene with Windex to

eliminate evidence. After taking the money from Carl’s wallet he disposed of the wallet so that

it could not be found. Later, when confronted by the police he told them that he had bought the

ring from a pawn shop.

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¶40. These facts indicate Brawner’s concerted effort to avoid arrest. This Court has held that

use of gloves in the commission of an underlying felony is evidence of the accused’s intent

to avoid arrest. See Chase, 645 So. 2d at 857. Further, this Court has recognized that where

the victim of the crime knew the defendant and would have subsequently been able to identify

him, that the victim’s murder provides credible evidence in support of the jury’s finding. See

Puckett, 737 So. 2d at 362. This Court has also recognized defensive wounds on the victim,

indicating that they were not aggressive to the defendant provide evidence of the defendant’s

intent to avoid arrest. See Doss, 882 So. 2d at 193. These facts combined with the others and

most notably Brawner’s confession that he entered with the purpose of robbing the victims

provide credible evidence to support the jury’s finding. Id. This issue is without merit.

IV. CONSTITUTIONALITY OF THE FELONIOUS ABUSE OF A
CHILD AGGRAVATING FACTOR

¶41. This Court addressed on direct appeal whether it was appropriate for the jury to

consider the felonious abuse of a child aggravating factor:

Here, Brawner shot his daughter's grandmother as his daughter watched, then
shot his daughter's mother as she watched. He again shot both the grandmother
and the mother two additional times, all as Paige looked on. He then shot his
daughter twice. Shooting Paige fits the description of felony child abuse in that
it is a strike to the child in a manner as to cause serious bodily harm. Therefore,
we reject Brawner's assertion that the killing of Paige Brawner was not capital
murder.

Brawner, 872 So. 2d at 16. Now on post-conviction Brawner asserts that our death penalty

statute, as applied to felonious child abuse, is unconstitutional. He claims that when reading

Miss. Code Ann. Section 95-5-39(2)(c) (felonious child abuse) in conjunction with Miss.

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Code Ann. Section 97-3-19(2)(f) (capital murder) the result is an automatic implication of a

capital crime regardless of how or in what manner the child suffers death.

¶42. This issue could have been raised on direct appeal and it was not. Therefore, it is

procedurally barred. However, without raising the procedural bar, since Brawner challenges

the constitutionality of our capital murder regime, we address the merits. This Court found

in Stevens v. State, 806 So. 2d 1031, 1044 (Miss. 2001) that the Legislature intended under

Miss. Code Ann. Section 95-5-39(2)(c) that the intentional act of murdering a child, no matter

the manner in which it was performed, constitutes felonious abuse of a child under Miss. Code

Ann. Section 97-3-19(2)(f). It is the Legislature’s prerogative to define crimes and set

punishments as long as they remain within the limits of the United States Constitution and our

own. Id. In that regard, we found that the Legislature intended that there need be only one act

to constitute capital murder by felonious abuse of a child. Id. (citing Brown v. State, 690 So.

2d 276, 291 (Miss. 1996)).

¶43. Previously a defendant in Faraga v. State, 514 So. 2d 295 (Miss. 1987), assailed the

constitutionality of our capital murder statute by raising an identical argument. In Faraga this

Court found that upon reading the statutes in conjunction that they were constitutional.

Faraga, 514 So. 2d at 302. As it was in Faraga, Brawner’s argument is without merit.

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 V. AGGRAVATING FACTORS NOT LISTED IN INDICTMENT

¶44. Brawner here repeats his argument from Issue II, with regard to the applicability of Ring

and Apprendi, except now he includes all aggravating factors. For the reasons stated in Issue

II this Issue is also without merit.

VI. ILLEGAL SENTENCE

¶45. Brawner argues that since this Court did not possess the entire transcript that any

proportionality review which was done was incomplete. In every death penalty direct appeal

this Court is required to review the proportionality of the sentence to the crime for which the

defendant was convicted. See Miss. Code Ann. § 99-19-105(3)(a).1 On direct appeal this

Court conducted the following proportionality review:

Brawner asserts that Miss. Code Ann. § 99-19-105(3) (Rev.2000)
requires the Court to perform a proportionality review if it affirms a death
sentence in a capital case. He also requests the Court to reverse the death
sentence for Count one based on his arguments in Issues VI and VII.
Brawner cites no authority to support his contention that the death
penalty is disproportionate in this case. This Court must review the death
sentence in accordance with Miss. Code Ann. § 99-19-105(3), which states: (3)
With regard to the sentence, the court shall determine: (a) Whether the sentence
of death was imposed under the influence of passion, prejudice or any other
arbitrary factor; (b) Whether the evidence supports the jury's or the judge's
finding of a statutory aggravating circumstance as enumerated in Section 99-19-
101; (c) Whether the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and the defendant;
and (d) Should one or more of the aggravating circumstances be found invalid
on appeal, the Mississippi Supreme Court shall determine whether the remaining
aggravating circumstances are outweighed by the mitigating circumstances or

1
(3) with regard to the sentence, the court shall determine:
(a) whether the sentence of death was imposed under the influence of
passion, prejudice or any other arbitrary factor.

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whether the inclusion of any invalid circumstance was harmless error or both.
Miss. Code Ann. § 99-19-105(3).
There is nothing in the record to suggest that the sentence of death was
imposed under the influence of passion, prejudice or any other arbitrary factor.
In addition, Brawner has not argued to the contrary. There is evidence supporting
the finding of aggravating factors. The following aggravating factors were found
by the jury, and we find there is sufficient evidence supporting them: the capital
offense was committed by a person under sentence of imprisonment (four
counts); the offense was committed while the defendant was engaged in the
commission of robbery (three of the four counts); and the offense was
committed for the purpose of avoiding or preventing lawful arrest (four counts).
The death penalty has been held not to be disproportionate in cases
similar to this one. See Stevens v. State, 806 So. 2d 1031 (Miss. 2001)
(defendant shot and killed his ex- wife, also shot and killed two children and the
ex-wife's husband who were in the home at the time, and shot his teenage
daughter, who was not killed); McGilberry v. State, 741 So.2d 894 (Miss.
1999) (16-year-old defendant robbed and killed four members of his own
family); Brown v. State, 690 So. 2d 276 (Miss. 1996) (defendant chopped to
death three members of a family); Jackson v. State, 684 So. 2d 1213 (Miss.
1996) (defendant stabbed and killed four children during attempted robbery of
his mother's home).
There are other cases, where fewer persons, and no children, were killed,
which have sustained this test: Manning v. State, 765 So. 2d 516 (Miss. 2000)
(defendant murdered two elderly women by means of beating them unconscious
with iron and slashing their throats with kitchen knife, while robbing them of
approximately $12); Brown v. State, 682 So. 2d 340 (Miss. 1996) (defendant
who shot store clerk four times during commission of armed robbery). See also
Doss v. State, 709 So. 2d 369 (Miss. 1997) (death sentence was proportionate
where defendant robbed and shot victim); Cabello v. State, 471 So. 2d 332, 350
(Miss. 1985) (death sentence was proportionate where defendant strangled and
robbed victim); Evans v. State, 422 So. 2d 737, 739 (Miss. 1982) (death
sentence was proportionate where defendant robbed and shot victim).
In view of these and other cases (see Appendix), we cannot say that the
death penalty is disproportionate in the current case where Brawner killed his
ex-wife, mother-in-law and father-in-law during the commission of a robbery,
then shot and killed his own three-year-old daughter because she could identify
him.

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Brawner, 872 So. 2d at 16-17. Brawner fails to assert specific errors made supported by

relevant citations. Brawner’s entire argument is based on the premise that since this Court

lacked a transcript of voir dire, opening statements and closing arguments that our

proportionality review was inherently flawed.

¶46. This Court will not sit as a Court of general review. Appellants and petitioners alleging

errors must present us with a complete record highlighting the alleged errors supported by

citation to relevant case law. Byrom v. State, 863 So. 2d 836, 891 (Miss. 2003); Randolph

v. State, 852 So. 2d 547, 558 (Miss. 2002) (in the absence of meaningful argument and

citation of authority this Court will generally not consider the assignment of error); Moody v.

State, 838 So. 2d 324, 338 (Miss. 2002). This is especially so in the present case where

Brawner has been in possession of the omitted portions of the transcript for an extended

period of time, including a grant of additional time by this Court for this specific purpose, and

has failed to allege any specific errors therefrom. Therefore, we find this argument without

merit.

CONCLUSION

¶47. None of Brawner’s arguments have merit. Therefore, we deny his petition for post-

conviction relief.

¶48. PETITION FOR POST-CONVICTION RELIEF DENIED.

SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON
AND RANDOLPH, JJ., CONCUR.

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