[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
COURT FROM WHICH APPEALED: MARION COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/21/2011. TRIAL JUDGE: HON. PRENTISS GREENE HARRELL. TRIAL COURT CONVICTED OF DELIBERATE-DESIGN MURDER AND SENTENCED TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A FINE OF $2,500.
FOR APPELLANT: MERRIDA COXWELL, CHARLES RICHARD MULLINS.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE.
BEFORE IRVING, P.J., CARLTON AND MAXWELL, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. The hearsay exception for dying declarations is so firmly rooted in our common law that it was incorporated as a historical exception to the Sixth Amendment right to confront one's accuser. This long-recognized evidentiary exception's interplay with the Confrontation Clause is front and center in Brandon Grindle's appeal of his deliberate-design murder conviction. On appeal, Grindle challenges the trial judge's decision that the shooting victim's nonverbal responses to a police officer's questions about who shot him, made immediately before his death, were admissible as dying declarations. He also claims the admission of these statements violated his Sixth Amendment confrontation right.
¶2. We disagree with Grindle's insistence that the officer's testimony describing the victim's deathbed identification--initially given at a pretrial hearing and later admitted at trial--became retroactively inadmissible because a nurse later testified the victim may have lost consciousness during the officer's interview. We instead find any conflicts raised by the subsequent testimony merely challenged the officer's credibility and reliability, creating an issue for jury resolution. And the nurse's later-given testimony neither altered the fact that the dying declaration, which met all requirements of Mississippi Rule of Evidence 804(b)(2), had already been properly admitted, nor required the judge to sua sponte strike the officer's testimony and give a curative instruction. Thus, we find the trial judge did not abuse his discretion in admitting the victim's dying declaration. And since dying declarations have been accepted under common-law tradition since well before the founding and ratification of America's Constitution, we find applying this exception does not offend Grindle's Sixth Amendment confrontation rights.
¶3. As to Grindle's other claimed errors, none of which were preserved at trial, we find no plain error. We also decline to consider whether Grindle's trial attorney, who does not represent Grindle on appeal, was constitutionally ineffective. We find this issue more appropriate for post-conviction-relief proceedings, where, if Grindle chooses to pursue this avenue, a record on trial counsel's performance can be developed.
¶4. For these reasons and those discussed below, we affirm Grindle's conviction for deliberate-design murder and his life sentence.
Facts and Procedural History
I. Fatal Shooting
¶5. Charles Brown was walking down the street in front of his house when he was shot twice by the driver of a green Ford sport utility vehicle. When officers arrived, Brown was still conscious but bleeding heavily. Paramedics transported
him to the hospital while officers remained at the scene to interview witnesses.
¶6. After interviewing several witnesses, officers determined there had been bad blood between Brown and Grindle. Brown's girlfriend, with whom he had a child, was also the mother of Grindle's daughter. And Grindle believed Brown was mistreating his young daughter. A month earlier, the two fathers had gotten into an argument during which Brown had purportedly pulled a gun on Grindle. But on the day of the shooting, it was Grindle who had a gun.
¶7. Although the actual pistol used to kill Brown was never recovered, two different witnesses testified that on the day of the shooting they saw Grindle riding around in a Ford SUV with a pistol. One of these witnesses, Michael Smith, Grindle's daughter's uncle, was flagged down by Grindle. The two got into a fight about Brown. Smith testified that Grindle reached behind his seat, grabbed a gun, and put it in his lap. Another witness, Terrell Cruz, claimed to have been riding around with Grindle in the SUV earlier that day. He also testified that Grindle had a pistol in the SUV, which he described as a .45 caliber--the same caliber pistol used to shoot Brown.
¶8. Two other witnesses who were in the vicinity of the shooting testified at trial. Oscar Walker saw Grindle drive by in a green Ford Expedition fifteen minutes before the shooting. Walker described hearing gunshots, then seeing the same Ford vehicle drive away. Rashad Newton was also near Brown when he was shot. Newton testified that he saw Grindle's vehicle pull up to Brown and saw Brown start backing away. Shots were then fired from Grindle's vehicle, hitting and ultimately killing Brown.
¶9. While a variety of witnesses implicated Grindle as the killer, Grindle primarily focuses his appeal on Officer Richard Browning, the responding officer who interviewed Brown in the emergency room. The victim, Brown, was intubated at this point and could not speak. But Officer Browning, who was familiar with Brown and Grindle from their prior run-in, testified that he was able to ask Brown a series of questions to which Brown responded by nodding his head affirmatively. The questions were aimed at identifying the shooter. According to Officer Browning, when he asked Brown if Grindle was the person who shot him, Brown emphatically nodded " yes." Shortly after this exchange, Brown died from his wounds.
¶10. After a day of being sought by the police, Grindle turned himself in. He was charged with killing Brown by deliberate design without authority of law--i.e., " first-degree murder." Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2006).
II. Motion in Limine
¶11. Before trial, Grindle filed a motion in limine to exclude Officer Browning's testimony about the emergency-room exchange with Brown. The State conceded Brown's affirmative responses were hearsay, but argued they were admissible as statements under belief of impending death--commonly referred to as " dying declarations." M.R.E. 804(b)(2). Grindle's counsel disagreed and argued Brown's alleged nodding did not meet the criteria of a dying declaration.
¶12. At the motion hearing, Officer Browning testified about his interaction with Brown in the emergency room. While doctors were trying to save Brown's life, Officer Browning asked Brown if he could hear him. When Brown nodded " yes," Officer Browning further inquired if Brown knew who shot him. Brown gave another affirmative nod. Officer Browning
followed up by asking if it was the same person Brown had trouble with earlier--a reference to the altercation with Grindle a month earlier. Again, Brown nodded " yes." Officer Browning then asked if that person was " Grindle," to which Brown gave a final nod. At some point after this exchange, Brown began to decline rapidly and, within minutes, died.
¶13. Grindle's attorney cross-examined Officer Browning, honing in on Brown's condition at the time the interview. Counsel asked Officer Browning about Brown's " Glasgow score"  and his responsiveness level. Throughout questioning, Officer Browning remained consistent that he believed Brown could understand him and was responding to his questions. Grindle rested without calling any witnesses or offering any evidence to contradict Officer Browning's testimony.
¶14. The trial judge held that Brown's nodding, while nonverbal, met the criteria of a " dying declaration" and denied Grindle's motion to exclude Officer Brown's recitation of his questioning of Grindle. And though he ruled Officer Browning's testimony was admissible, the judge informed Grindle he was free to offer evidence challenging the credibility of Officer Browning's testimony at trial. Thus, ultimately the jury would weigh the credibility of Officer Browning's testimony.
A. Officers' Testimony
¶15. In addition to the witnesses pointing to Grindle as the shooter, the State also called the officers who investigated Brown's murder.
¶16. One of them, Officer Chris Brumfield, searched Grindle's vehicle the day after the shooting. He was looking for both a gun as well as shell casings to compare with those found at the scene, but found neither. The State asked Officer Brumfield, without objection by Grindle, if Grindle had been found in possession of a .45 caliber pistol when he was arrested five months after the shooting. Officer Brumfield answered " yes," but clarified that the Mississippi Crime Lab had ruled out the possibility that the gun seized in Grindle's later arrest was the one used to shoot Brown.
¶17. The State also called Officer Browning, whose trial testimony about his hospital interview with Brown mirrored his testimony from the motion in limine hearing.
B. Nurse's Testimony
¶18. Kayla Breland, the registered nurse who was in the emergency room while Brown was being treated, also testified in the State's case. Breland confirmed that Officer Browning was in the emergency room that evening. But she could not recall if any conversation took place, as she was busy with Brown's medical treatment. On cross-examination, Grindle's counsel questioned Breland about her responsibility for monitoring Brown's brain functioning though observing his verbal communication, eye response, and movement. Breland's records showed she gave him a low Glasgow score when he arrived that decreased as the minutes passed. Breland testified that Brown's score meant he could not verbally communicate or control his bodily movements. But on redirect, Breland testified Brown " possibly could have" nodded his head in response to Officer Browning's questions. Grindle's counsel neither renewed her objection to Brown's dying declaration
in light of Breland's testimony nor asked for any instruction limiting Officer Browning's testimony.
¶19. Grindle chose not to testify but called several defense witnesses.
¶20. After deliberating, the jury found Grindle guilty of deliberate-design murder. He was sentenced to life imprisonment. Grindle filed a post-trial motion, which was denied, then timely appealed. Grindle then obtained new counsel who have thoroughly and vigorously pursued his appeal.
¶21. Grindle seeks a new trial, claiming that one preserved and numerous unpreserved errors require reversal of his conviction. He argues the evidence of both Brown's dying declaration and Grindle's second arrest were admitted in error, the jury was wrongly instructed, and the State made improper remarks during closing ...