Joe Lee Brunner v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00469-COA
JOE LEE BRUNNER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
06/28/2007
HON. BOBBY BURT DELAUGHTER
HINDS COUNTY CIRCUIT COURT
WILLIAM R. LABARRE
VIRGINIA LYNN WATKINS
OFFICE OF THE ATTORNEY GENERAL
BY: LISA LYNN BLOUNT
FAYE PETERSON
CRIMINAL - FELONY
CONVICTED OF COUNT I, HOUSE
BURGLARY, AND SENTENCED TO FIFTY
YEARS; COUNT II, AGGRAVATED
ASSAULT, AND SENTENCED TO FORTY
YEARS; COUNT III, ARMED ROBBERY,
AND SENTENCED TO EIGHTY YEARS;
AND COUNT IV, AUTO THEFT, AND
SENTENCED TO TEN YEARS, WITH ALL
SENTENCES TO RUN CONSECUTIVELY
IN THE CUSTODY OF MISSISSIPPI
DEPARTMENT OF CORRECTIONS
AFFIRMED – 11/03/2009
EN BANC.
CARLTON, J., FOR THE COURT:
¶1.
On June 27, 2007, a Hinds County jury found Joe Lee Brunner guilty of house
burglary, aggravated assault, armed robbery, and auto theft. Brunner timely appeals his
convictions and sentences, alleging the following assignments of error: (1) the trial court
abused its discretion in denying Brunner’s requested jury instruction, and (2) the evidence
was insufficient to support his convictions. We find no error and affirm the trial court’s
judgment.
FACTS
¶2.
On the morning of March 7, 2006, Lorea May, eighty-one years old, saw her husband
Otho May off to his job as a roofing contractor before she returned to bed. That same
morning the Mays’ adult daughter, Marilyn May, left for classes at the University of
Mississippi Medical Center. As Lorea drifted back to sleep, she noticed an intruder coming
out of a bedroom across the hall from her bedroom. The intruder then entered her bedroom
and began rummaging through a bowl of keys. The light was on in the hall, but not in
Lorea’s room. With her head down, Lorea pretended to sleep for approximately ten minutes
as she watched the intruder. Lorea was not wearing her eyeglasses at any time while the
intruder was inside her home.
¶3.
When the intruder walked back into the hallway, Lorea asked him what he was doing.
The intruder responded that Otho had sent him to get the keys to the couple’s Cadillac. The
intruder told Lorea that Otho was outside. Lorea told the intruder to bring Otho into the
house. Lorea then retrieved a gun from her husband’s nightstand, but the intruder quickly
wrenched the gun away from her.
¶4.
The intruder then began beating Lorea in the head with an unknown object. Lorea
begged for her life. At this point, the intruder demanded and took Lorea’s purse along with
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the gun and a set of keys. He then pushed Lorea’s walker away from her and ripped the
bedroom telephone from the wall. After he left, Lorea dragged herself to another room and
called 911. Before Lorea left her home in an ambulance, she told Detective Perry Tate of the
Jackson Police Department that her attacker once worked for her husband, but she gave no
name. As the investigation commenced, Otho informed law enforcement that he recently had
fired an employee, Brunner, for stealing on the job. Law enforcement then developed
Brunner as a suspect.
¶5.
Hours later, Lorea identified Brunner as her attacker from a photographic lineup. At
trial, Lorea again identified Brunner as her attacker. Lorea testified at trial that Brunner had
worked for Otho in his roofing business, but she had seen Brunner only on one other
occasion when Otho took money to Brunner.
¶6.
Otho testified that Brunner worked for him off and on for approximately five or six
years in his roofing business and that he considered him a “good worker.” Otho also testified
that Brunner stopped at the Mays’ home on more than one occasion to obtain his pay, but
Brunner never entered the home. Otho stated that at no time did he suggest to Lorea that
Brunner was the one who had assaulted her; she identified Brunner on her own from a
photographic lineup.
¶7.
Additionally, at trial, Deputy Milton Twiner, with the Jackson Police Department,
testified that on March 8, 2006, at approximately 9:40 a.m., he responded to a request from
a rural resident to investigate the abandonment of a black Cadillac. The resident reported
that a six-foot tall, slender, black male had left the Cadillac near the front of her home. Law
enforcement soon identified the abandoned car as the Mays’ missing Cadillac. Shortly after
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investigating the abandoned Cadillac, Deputy Twiner received a report concerning a stolen
pickup truck from the parking lot of the local Walmart, a parking lot easily accessible on foot
from the location where the Cadillac was found.
¶8.
At trial, Brunner testified in his own defense. During his testimony, Brunner stated
that he “rented” the Cadillac on March 7, 2006, from Clinton Pierre, a former employee of
Otho’s and a known drug user. Brunner testified that he gave Pierre $50 and a gram of
powder cocaine for the car rental. Brunner’s girlfriend, Leshandre Martin, also testified that
Brunner obtained the Cadillac from Pierre on March 7, 2006. Martin testified that she,
Brunner, and their five-month-old infant rode around in the Cadillac and visited people from
Jackson to Hazlehurst for most of the day on March 7, 2006.
¶9.
Brunner stated that the next day, on March 8, 2006, he rode with Pierre to Hazlehurst
in the hopes of renting the Cadillac again. Brunner testified that upon reaching Hazlehurst,
the Cadillac stopped running. In response, Brunner admitted that he left the Cadillac and
walked to Walmart and “stole [a] truck and . . . went back to Jackson.” Brunner also testified
that either late in the evening on March 7, 2006, or early in the morning on March 8, 2006,
he first learned that Jackson Police Department detectives were looking for him. He testified
that he waited until March 14, 2006, to surrender to law enforcement.
¶10.
On June 28, 2007, a jury found Brunner guilty of all charges against him. The trial
court sentenced Brunner to fifty years on Count I, house burglary;1 forty years on Count II,
1
See Miss. Code Ann. § 97-17-23 (Supp. 2008).
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aggravated assault;2 eighty years on Count III, armed robbery;3 and ten years on Count IV,
auto theft.4 Because the victim in this case was over age sixty-five, Brunner’s sentences on
Counts I, II, and III were enhanced.5 All the sentences were ordered to run consecutively in
the custody of the Mississippi Department of Corrections (MDOC).
¶11.
Brunner timely appeals his convictions and sentences, alleging the following
assignments of error: (1) the trial court abused its discretion in denying Brunner’s requested
jury instruction, and (2) the evidence is insufficient to support his convictions. Finding no
error, we affirm the trial court’s judgment.
DISCUSSION
I.
¶12.
Brunner’s Requested Jury Instruction
Brunner argues that the trial court committed reversible error in refusing to grant his
requested instruction, which he claims provided the jury with the “heart of his defense
theory, that of misidentification.” In turn, the State argues that the jury instructions which
were given, taken as a whole, presented Brunner’s theory of misidentification and that the
trial court committed no error when it denied Brunner’s requested jury instruction.
¶13.
We apply the following standard of review for challenges to jury instructions: “In
determining whether error lies in the granting or refusal of various instructions, the
instructions actually given must be read as a whole[; w]hen so read, if the instructions fairly
2
See Miss. Code Ann. § 97-3-7(2) (Supp. 2008).
3
See Miss. Code Ann. § 97-3-79 (Rev. 2006).
4
See Miss. Code Ann. § 97-17-42 (Supp. 2008).
5
See Miss. Code Ann. §§ 99-19-351 to -357(Rev. 2007).
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announce the law of the case and create no injustice, no reversible error will be found.”
Davis v. State, 909 So. 2d 749, 752 (¶11) (Miss. Ct. App. 2005) (citation omitted).
Moreover, “[a] defendant is entitled to have jury instructions given which present his theory
of the case; however, this entitlement is limited in that the court may refuse an instruction
which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without
foundation in the evidence.” Smith v. State, 802 So. 2d 82, 88 (¶20) (Miss. 2001) (citations
omitted).
¶14.
“On the specific issue of jury instructions dealing with eyewitness identification, the
supreme court has stated that ‘the general instruction given to the jury to the effect that the
State has the burden of proving each element of the offense charged beyond a reasonable
doubt,’ includes the misidentification issue.” Id. (citing Robinson v. State, 473 So. 2d 957,
963 (Miss. 1985)).6
¶15.
Here, in five of the given jury instructions – specifically, instructions C-4, C-7, C-9,
C-11, and C-13 – the trial court instructed the jury that the State bore the burden of proving
each element of each offense charged beyond a reasonable doubt, which included the
identity of the perpetrator. Specifically, the State possessed the burden of proving beyond
on a reasonable doubt that on March 7, 2006, Brunner committed the crimes of house
burglary, aggravated assault, armed robbery, and auto theft. See Smith, 802 So. 2d at 88
(¶20). Moreover, the jury instructions in this case extended beyond the general instructions
required by the supreme court in Smith regarding the State’s burden of proof, as instruction
6
See also Clubb v. State, 350 So. 2d 693, 697 (Miss. 1977); Hines v. State, 339
So. 2d 56, 58 (Miss. 1976); Ragan v. State, 318 So. 2d 879, 882 (Miss. 1975)).
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C-2 warned the jury to also “consider the witness’[s] ability to observe the matters as to
which he or she has testified . . . .” See id.
¶16.
Instruction C-2 provided the following:
You, as jurors, are the sole judges of the credibility of the witnesses and
the weight their testimony deserves. You should carefully scrutinize all the
testimony given, the circumstances under which each witness testified, and
every matter in evidence that tends to show whether a witness is worthy of
belief. Consider each witness’[s] objectivity, state of mind, demeanor and
manner while on the stand. Consider the witness’[s] ability to observe the
matters as to which he or she has testified, and whether he or she impresses
you as having an accurate recollection of these matters. Consider the extent
to which it is contradicted by other evidence in the case. Inconsistencies or
discrepancies in the testimony of a witness, or between the testimony of
different witnesses, may or may not cause the jury to discredit such testimony.
Two or more persons witnessing an incident or transaction may see or hear it
differently; and innocent misrecollection, like failure or recollection, is not an
uncommon experience. In weighing the effect of a discrepancy, always
consider whether it pertains to a matter of importance or an unimportant detail,
and whether the discrepancy results from innocent error or intentional
falsehood. After making your own judgment, you will give the testimony of
each witness such credibility, if any, as you may think it deserves.
Again, instruction C-2 extended beyond the general instruction required by the supreme court
in Smith, as it also instructed the jury to determine the credibility and weight of the witness’s
testimony. See id.
¶17.
We note that defense counsel’s proffered instruction D-10, which the trial court
refused, reads as follows:
In evaluating the identification testimony of a witness you should
consider your assessment of the credibility of any witness in general, and
should also consider, in particular, whether the witness had an adequate
opportunity to observe the person in question at the time or times about which
the witness testified.
You may consider in that regard, such matters as the length of time the
witness had to observe the person in question, the prevailing conditions at that
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time in terms of visibility or distance and the like, and whether the witness had
known or observed the person at earlier times. You may also consider the
circumstances surrounding the identification itself, including, for example, the
manner in which the defendant was presented to the witness for identification,
and the length of time that elapsed between the incident in question and the
next opportunity the witness had to observe the defendant. If, after examining
all of the testimony and evidence in this case, you have a reasonable doubt as
to the identity of the defendant as the perpetrator of the offense charged, you
must find Joe Brunner Scott [sic] not guilty.
¶18.
In reading the jury instructions as a whole, in light of Smith, we find that the
instructions encompassed the issue of misidentification. See id. The instructions placed the
burden on the State to prove beyond a reasonable doubt that Brunner committed each
element of the offenses charged. Additionally, instruction C-2 warned the jury to “[c]onsider
the witness'[s] ability to observe the matters as to which he or she has testified . . . .”
¶19.
This issue lacks merit.
II.
¶20.
Sufficiency of the Evidence
Brunner contends the State failed to prove beyond a reasonable doubt that he entered
the Mays’ home on March 7, 2006, and committed the crimes for which he was charged
because of the “extraordinarily weak identification of Lorea. . . .” In turn, the State argues
that legally sufficient evidence exists in the record to support the jury’s verdict.
¶21.
In reviewing an issue of legal sufficiency, the Court does not “ask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable doubt.” Bush v.
State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307,
315 (1979)). Rather, the Court will “view the evidence in the light most favorable to the
prosecution and determine whether a rational juror could have concluded beyond a
reasonable doubt that all elements of the crime were satisfied.” Readus v. State, 997 So. 2d
8
941, 944 (¶13) (Miss. Ct. App. 2008) (citation omitted). “The proper remedy for insufficient
evidence is for the Court to reverse and render.” Id. (citation omitted).
¶22.
In addressing this assignment of error, we note that factual disputes at trial “are
properly resolved by the jury and do not mandate a new trial.” Jones v. State, 791 So. 2d
891, 895 (¶12) (Miss. Ct. App. 2001) (quoting Benson v. State, 551 So. 2d 188, 193 (Miss.
1989)).
In this case, the State presented evidence that Brunner committed the crimes at
issue. In turn, Brunner put forth his theory of misidentification both through his direct
testimony and through his vigorous cross-examination of Lorea regarding her ability to
recognize her attacker.
In viewing the evidence in the light most favorable to the
prosecution, we find ample evidence in the record to support the jury’s guilty verdicts.
¶23.
Specifically, we note the following facts. Brunner testified that he worked for Otho
and that Otho fired him for stealing on the job. Weeks later, on March 7, 2006, an intruder
severely beat and robbed Lorea and stole the Mays’ Cadillac. Brunner testified that on the
same day Lorea was beaten and robbed, he “rented” a Cadillac which law enforcement later
identified as the Mays’ stolen Cadillac. Brunner further testified that on March 8, 2006, he
drove the rented Cadillac to Hazlehurst and stole a pickup truck from a Walmart parking lot.
¶24.
In turn, Lorea testified that on March 7, 2006, she saw an intruder in her home.
Though she was not wearing her eyeglasses at the time of the attack, Lorea observed the
intruder in her bedroom for at least ten minutes. The intruder then severely beat Lorea on
the head; when she begged for her life, the intruder demanded that she give him her purse.
The intruder then took Lorea’s purse, a gun, and a set of the Mays’ keys.
¶25.
At trial, defense counsel vigorously cross-examined Lorea about her vision and her
9
ability to see and identify her attacker without her eyeglasses. On her way to the emergency
room, Lorea identified her attacker as someone who had once worked for her husband.
Several hours later at the hospital, Lorea identified Brunner, based upon her own independent
recollection, in a photographic lineup provided by law enforcement.
¶26.
We have carefully reviewed the record in this case. We note that any factual disputes,
such as Lorea’s ability to see her attacker, fell within the province of the jury. Jones, 791 So.
2d at 895 (¶12). Finally, in examining the evidence in a light favorable to the prosecution,
we find that a rational juror could find Brunner guilty of the crimes charged beyond a
reasonable doubt. See Readus, 997 So. 2d at 944 (¶13).
¶27.
This issue lacks merit.
¶28. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, HOUSE BURGLARY, AND SENTENCE OF FIFTY
YEARS; COUNT II, AGGRAVATED ASSAULT, AND SENTENCE OF FORTY
YEARS; COUNT III, ARMED ROBBERY, AND SENTENCE OF EIGHTY YEARS;
AND COUNTY IV, AUTO THEFT, AND SENTENCE OF TEN YEARS, WITH ALL
SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF MISSISSIPPI
DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO HINDS COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND
ROBERTS, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. MAXWELL, J., NOT PARTICIPATING.
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