James Brownlee v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KA-01399-COA
JAMES BROWNLEE
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
8/14/2006
HON. ALBERT B. SMITH, III
COAHOMA COUNTY CIRCUIT COURT
RICHARD B. LEWIS
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
LAURENCE Y. MELLEN
CRIMINAL - FELONY
CONVICTION OF TWO COUNTS OF ARMED
ROBBERY AND SENTENCED TO TWO
CONCURRENT FIFTEEN YEAR SENTENCES
WITH EIGHT YEARS SUSPENDED AND
SEVEN YEARS TO SERVE.
AFFIRMED - 01/08/2008
BEFORE LEE, P.J., IRVING AND ROBERTS, JJ.
ROBERTS, J., FOR THE COURT:
SUMMARY OF THE CASE
¶1.
On July 25, 2006, a jury sitting before the Coahoma County Circuit Court found James
Brownlee guilty of two counts of armed robbery. The jury did not recommend a life sentence.
Accordingly, the circuit court sentenced Brownlee to two concurrent sentences of fifteen years with
eight years suspended and seven years to serve. Following unsuccessful posttrial motions for JNOV
and a new trial, Brownlee now appeals. Finding no error, we affirm.
FACTS
¶2.
Brownlee’s conviction is the result of events that transpired at the Isle of Capri Casino in
Coahoma County, Mississippi on March 2, 2006. Twenty-two-year-old Jesse Green had $4,400 in
income tax return proceeds and he was interested in buying a car. His brother, Eric, told him about
a black Camaro Z28 that was for sale and gave him a contact number. Green spoke to a man named
Ricky in Arkansas. They arranged to meet in the parking lot of the Isle of Capri Casino.
¶3.
Green, his brother Jerryco, and Roger Leslie drove to the parking lot and waited for the black
Camaro. When it did not appear, Jerryco went inside the casino to telephone Ricky. While Jerryco
was inside the casino, a white Cadillac pulled up behind Green’s red truck. By Green’s description,
one man suddenly appeared at his window and another man appeared at the driver’s side window
where Leslie was sitting. Both men were armed with pistols. One robber took $400 from Green’s
pocket, and then he “kind of butted” Green in the head with the pistol and said, “That’s not all you
got. You don’t think I’ll kill you?” He took the remaining $4,000. As one armed man attempted
to flee the scene, the other armed man demanded that Leslie give him the keys to Green’s truck.
Once they retrieved the keys, ensuring they could not be followed, the robbers sped away from the
casino against the flow of traffic and headed toward Arkansas. Several other individuals testified
that they witnessed a white Cadillac speeding out of the casino parking lot heading toward Arkansas.
Following the robbery, Green and Leslie reported the incident to a casino security officer who
contacted the police.
¶4.
When Coahoma County Investigator Fernando Bee arrived at the casino he interviewed
Green and Leslie, and the two victims gave Bee descriptions of the robbers and of the white fourdoor Cadillac they were driving. They also gave Bee a partial license plate number of the vehicle;
however, he was unable to match the number. The individual who robbed Green was described as
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having a stocky build, a dark complexion, braids or dreads, a partial gold tooth, and, according to
Green, a chubby face. A day or two after the robbery, Bee received a call from Chief Deputy David
Lawman in Phillips County, Arkansas. Bee met with Lawman in Arkansas and obtained photos of
possible suspects, one of which was Brownlee. After returning to Mississippi, Bee developed a
photo lineup consisting of photos of Brownlee and five other individuals. The following day Green
came to the station to view the lineup and identified Brownlee as the person who robbed him. The
next day, Leslie viewed the same lineup and also identified Brownlee as the robber. Green and
Leslie then signed affidavits against Brownlee and he was arrested in Arkansas soon after. However,
Bee never discovered the white Cadillac, the gun used in the robbery, or any removable gold teeth.
¶5.
At trial, Brownlee took the stand in his defense. He unequivocally stated that he did not rob
Green or anyone else. He claimed he was helping his paraplegic nephew at a gym in Helena,
Arkansas when the robbery occurred. He testified that his family owned a white Cadillac which he
drove, but claimed the white Cadillac on the surveillance video was not his because his car had dark
tinted windows and a dent on the left side and the car in the video did not.
PROCEDURAL HISTORY
¶6.
The Coahoma County grand jury returned an indictment against Brownlee on May 30, 2006.
Brownlee pleaded not guilty, and a two-day trial began on July 24, 2006. The jury found Brownlee
guilty of both counts of armed robbery, but was not able to fix a penalty. After a sentencing hearing
on August 14, 2006, the circuit court sentenced Brownlee to two concurrent fifteen-year sentences
with seven years to serve and eight years suspended. Posttrial, Brownlee filed unsuccessful motions
for JNOV and, alternatively, for a new trial. Aggrieved, Brownlee appeals and raises the following
issues:
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I.
WHETHER THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION
FOR DIRECTED VERDICT AND MOTION FOR JNOV.
II.
WHETHER APPELLANT’S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL.
Finding no error, we affirm.
ANALYSIS
I.
WHETHER THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION
FOR DIRECTED VERDICT AND MOTION FOR JNOV, OR IN THE ALTERNATIVE,
A MOTION FOR NEW TRIAL.
¶7.
The standard of review we must employ upon our review of a denial of a motion for directed
verdict or motion for JNOV has been aptly stated as such:
We must, with respect to each element of the offense, consider all of the
evidence–not just the evidence which supports the case for the prosecution–in the
light most favorable to the verdict. The credible evidence which is consistent with the
guilt must be accepted as true. The prosecution must be given the benefit of all
favorable inferences that may reasonably be drawn from the evidence. Matters
regarding the weight and credibility to be accorded the evidence are to be resolved
by the jury. We may reverse only where, with respect to one or more of the elements
of the offense charged, the evidence so considered is such that reasonable and
fair-minded jurors could only find the accused not guilty.
Le v. State, 913 So. 2d 913 (¶163) (Miss. 2005) (quoting Wetz v. State, 503 So. 2d 803, 807 (Miss.
1987)). Such is a high standard for any defendant to overcome, and one which Brownlee fails to do
so here.
¶8.
Brownlee was tried and convicted by a jury on two counts of violating Mississippi Code
Annotated section 97-3-79 (Rev. 2006) which states:
Every person who shall feloniously take or attempt to take from the person
or from the presence the personal property of another and against his will by violence
to his person or by putting such person in fear of immediate injury to his person by
the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction,
shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the
jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the
state penitentiary the court shall fix the penalty at imprisonment in the state
penitentiary for any term not less than three (3) years.
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¶9.
The testimony and evidence before the jury, as laid out above, shows that two witnesses
identified Brownlee out of court from a photo array and also made in-court identifications of
Brownlee as the culprit who robbed Green at gunpoint of $4,400. As to this, Brownlee argues that
the photo lineup was “impermissibly suggestive” because he was the only individual who had dread
locks and cites Dennis v. State, 904 So. 2d 1134 (Miss. 2004) in support. In Dennis, the defendant
made a similar argument and indicated that the suggestive nature of the lineup stemmed from the
facts that his picture was a driver’s license picture while the others were pictures of inmates and that
his image was larger than the others. Dennis, 904 So. 2d at (¶9). The supreme court conceded the
differences identified by Dennis, but found the issue “absolutely devoid of any merit.” Id. at (¶13).
In so doing, the court pointed out that each picture had the same format and the men pictured had
the same complexion. Id. at (¶12).
¶10.
An in-court identification by an eyewitness will not be thwarted by an impermissibly
suggestive pre-trial identification unless under the totality of circumstances “the identification was
so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” Houston v. State, 887 So. 2d 808 (¶17) (Miss. Ct. App. 2004) (quoting Nicholson
v. State, 523 So. 2d 68, 72 (Miss. 1988)). Therefore, we must determine if Greens’s and Leslie’s
photo identifications of Brownlee carried a likelihood of irreparable misidentification. In so doing,
we must apply the factors expounded in Neil v. Biggers, 409 U.S. 188, 199-200,(1972), listed as
follows: (1) the opportunity of the witness to view the accused at the time of the crime, (2) the degree
of attention exhibited by the witness, (3) the accuracy of the witness’ prior description of the
criminal, (4) the level of certainty exhibited by the witness at the confrontation, and (5) the length
of time between the crime and the confrontation.
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¶11.
The photo lineup in the case sub judice was a grouping of six pictures of men. As in Dennis,
they were of the same complexion, appeared to be of the same age group, and the size of the image
of each man was roughly equivalent. While Brownlee is the only individual in the lineup with dread
locks, other individuals could reasonably be said to have the same or similar hairstyle, especially
given the less than stellar detail of the photos in the array. Additionally, Green was able to view his
robber’s face for a full four minutes. He testified that Brownlee exited a white Cadillac and, all of
a sudden, was in his window with a gun. He identified Brownlee exactly as he did to the police.
Namely, he described Brownlee as having braids and a chubby face. When asked if he would ever
forget Brownlee’s face, Green responded, “No, sir, never will.” Green was shown the lineup
approximately two weeks after the robbery and Bee testified that when Green identified Brownlee
from the photo lineup his only hesitation stemmed not from uncertainty that Brownlee was the
robber, but from his confusion of the numbers used in the photo indicating height. As such,
Brownlee’s claim that Green’s pre-trial identification was somehow tainted is without merit.
¶12.
As to Leslie’s out-of-court identification, we reach the same conclusion. Leslie testified that
he observed Brownlee rob Green and gave a description to Bee that the robber was slim with
“dreads”, and he identified Brownlee in the photo lineup the day after Green. Based upon the record
before us, we cannot say Leslie’s identification of Brownlee from the photo lineup “was so
impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” “Short of finding that under all the circumstances, there is a very substantial
likelihood of irreparable misidentification from the identification of an accused made under
suggestive and unnecessary police identification procedures, evidence of such an identification is
for the jury to weigh.” McNeal v. State, 405 So. 2d 90, 93 (Miss. 1981).
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¶13.
The jury heard the testimony of Green and Leslie. Specifically, they testified that Brownlee
was the individual that robbed Green of $4,400. There was testimony that the robber had a partial
gold tooth and neither Green nor Leslie recalled the Cadillac having tinted windows. However, the
jury heard testimony of the cosmetic appeal of removable gold teeth and Brownlee’s claim that his
Cadillac had dark tinted windows.
The jury is charged with the responsibility of weighing and considering conflicting
evidence, evaluating the credibility of witnesses, and determining whose testimony
should be believed. The jury has the duty to determine the impeachment value of
inconsistencies or contradictions as well as testimonial defects of perception,
memory, and sincerity. It is not for this Court to pass upon the credibility of
witnesses and where evidence justifies the verdict it must be accepted as having been
found worthy of belief.
Houston v. State, 887 So. 2d 808, 816 (¶38) (Miss. Ct. App. 2004) (quoting Smith v. State, 821 So.
2d 908 (¶4) (Miss. Ct. App. 2002)). In the case sub judice, the jury was instructed in accordance
with the Biggers factors enumerated above, and after hearing the testimony of all witnesses and
Brownlee himself, found him guilty. Viewing all evidence in a light most favorable to the verdict,
we cannot say that given such evidence “reasonable and fair-minded jurors could only find the
accused not guilty.” We find Brownlee’s argument without merit.
¶14.
Turning our focus to the trial court’s denial of Brownlee’s motion for new trial, we are
concerned with the weight of the evidence rather than its sufficiency. When reviewing the weight
of the evidence the following standard must be utilized:
A motion for a new trial is addressed to the sound discretion of the trial judge
who may grant a new trial if he deems such is required in the interest of justice or [if]
the verdict is contrary to law or the weight of the evidence. The trial judge should not
order a new trial unless he is convinced that the verdict is so contrary to the
overwhelming weight of the evidence that to allow it to stand would be to sanction
an unconscionable injustice.
In reviewing this claim, this Court must accept as true the evidence favorable
to the State. This Court will reverse only when it is convinced that the trial judge has
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abused his discretion. Further, where there is conflicting testimony, the jury is the
judge of the credibility of the witnesses.
(quoting Wetz, 503 So. 2d at 812). In reviewing the evidence laid out above, we are convinced the
trial judge did not abuse his discretion in denying Brownlee’s motion for new trial. As such, this
issue is without merit.
II.
WHETHER APPELLANT’S COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL.
¶15.
Brownlee next claims that his trial counsel provided ineffective assistance. Specifically, he
claims his counsel was ineffective by failing to investigate, determine, and call alibi witnesses who
could place Brownlee at Champ’s Health and Fitness Club in West Helena, Arkansas at the time of
the robbery. Further, Brownlee argues his counsel’s failure to file a motion to suppress the photo
lineup was constitutionally ineffective assistance of counsel. In support, Brownlee points to
affidavits from four individuals that indicate Brownlee was at the fitness club between 3:30 p.m. and
5:30 p.m. the day of the robbery.
¶16.
As noted by Brownlee and the State, an ineffective assistance of counsel claim raised on
direct appeal should not be ruled upon by the reviewing court unless the court can say “the record
affirmatively shows ineffectiveness of constitutional dimensions.” Read v. State, 430 So. 2d 832,
841 (Miss. 1983). The Read court explained the proper procedural rules a reviewing court must
follow when presented with an ineffective assistance of counsel claim on direct appeal as follows:
(1) Any defendant convicted of a crime may raise the issue of ineffective assistance
of counsel on direct appeal, even though the matter has not first been presented to the
trial court. The Court should review the entire record on appeal. If, for example,
from a review of the record . . . this Court can say that the defendant has been denied
the effective assistance of counsel, the Court should also adjudge and reverse and
remand for a new trial.
(2) Assuming that the Court is unable to conclude from the record on appeal that
defendant's trial counsel was constitutionally ineffective, the Court should then
proceed to decide the other issues in the case. Should the case be reversed on other
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grounds, the ineffectiveness issue, of course, would become moot. On the other
hand, if the Court should otherwise affirm, it should do so without prejudice to the
defendant's right to raise the ineffective assistance of counsel issue via appropriate
post-conviction proceedings. If the Court otherwise affirms, it may nevertheless
reach the merits of the ineffectiveness issue where (a) as in paragraph (1) above, the
record affirmatively shows ineffectiveness of constitutional dimensions, or (b) the
parties stipulate that the record is adequate and the Court determines that findings of
fact by a trial judge [who was] able to consider the demeanor of witnesses, etc. are
not needed.
(3) If, after affirmance as in paragraph (2) above, the defendant wishes to do so, he
may then file an appropriate post-conviction proceeding raising the ineffective
assistance of counsel issue. Assuming that his application states a claim, prima facie,
he will then be entitled to an evidentiary hearing on the merits of that issue in the
Circuit Court of the county wherein he was originally convicted. Once the issue has
been formally adjudicated by the Circuit Court, of course, the defendant will have the
right to appeal to this Court as in other cases.
Read, 430 So. 2d at 841-42 (internal citations omitted).
¶17.
As we are affirming the lower court’s rulings brought into question by Brownlee, we may
only reach the merits of his ineffective assistance of counsel claim if the parties stipulate the record
is adequate, or we are satisfied the record affirmatively shows ineffectiveness of constitutional
dimensions. Neither condition is satisfied. The parties have made no such stipulation and we cannot
say that the record before us is sufficient, without more, to establish ineffective assistance of counsel.
As such, Brownlee’s claim of ineffective assistance of counsel will not be addressed and it is
dismissed without prejudice so as to preserve his right to renew such a claim on post-conviction
collateral relief if he so chooses.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF
CONVICTION OF COUNT I, ARMED ROBBERY AND SENTENCE OF FIFTEEN YEARS
WITH EIGHT YEARS SUSPENDED, AND COUNT II, ARMED ROBBERY AND
SENTENCE OF FIFTEEN YEARS WITH EIGHT YEARS SUSPENDED, WITH
SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES,
ISHEE AND CARLTON, JJ., CONCUR.
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