Rehearing Denied Feb. 13, 2014.
[Copyrighted Material Omitted]
Office of the Public Defender by George T. Holmes, Phillip Broadhead, attorneys for appellant.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
Before DICKINSON, P.J., KITCHENS and CHANDLER, JJ.
¶ 1. This is a direct appeal of Sacory Brown's conviction for burglary of a dwelling. (Brown received a twenty-five year sentence, with eighteen years to serve and seven years suspended with five of those years on post-release supervision). On appeal, Brown argues that the Miranda warning he was given before making an inculpatory statement to the police was insufficient because it did not explicitly inform him of his right to stop talking to the police at any time. He also argues that the twenty-five-year sentence is grossly disproportionate in violation of the Eighth Amendment. Finally, he argues that the evidence supporting the verdict was legally insufficient and the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm Brown's conviction and sentence.
FACTS AND PROCEEDINGS BELOW
¶ 2. On November 8, 2010, Cheryl McFarland was on her cell phone with her husband as she arrived back home from a doctor's visit. She observed a strange red or maroon car in the carport. No one was in the car. Thinking perhaps that missionaries might have stopped by, which was common, she walked around to the front of the house to see if anyone was there. When she observed no one, she walked back around to the carport, where she
observed that the door had been kicked in. She remained on the phone with her husband, reporting her observations to him. At that time, two men came running out the door. One had dreadlocks and the other a very short haircut. The one with dreadlocks came out first, choked her, and threw her across the carport. One of the men (she could not tell which because she was facedown on the carport) kicked her and hit her on the head with what turned out to be a .22 pistol taken from inside the house. The men got into the car and drove away. McFarland was bleeding from the head. Her cell phone had broken in the fall, so she went inside and called her husband from the landline. He called 911.
¶ 3. The .22 pistol was recovered after ambulance personnel observed it when driving away after treating McFarland. The suspects apparently had thrown it into the yard as they drove away. Part of the trigger guard (later found in the carport) was broken off. The police found no fingerprints on the scene matching Brown or his cousin. The checkered handle of the .22 was not analyzed for fingerprints because the investigator believed it was unlikely to yield any prints. McFarland stated that the color of the men's car was in the " red" family, maroon or burgundy, and that she thought it was either a Honda or a Hyundai. After the burglary, she looked up car emblems online and came to believe that the car she had seen was a Hyundai.
¶ 4. Brown was developed as a suspect after the Jones County Sheriff's Department provided the Forrest County investigators with a car tag number associated with a similar recent burglary. That car belonged to Brown's mother, Mary Brown. Investigator Clifford Rutter pulled over Mary Brown while on his way to her house to investigate the lead. The police learned from Mary Brown that her son, Sacory, frequently drove the car. The car was a Mazda. Mary Brown described it as candy-apple red. She agreed to put her son in touch with the police, and later drove Brown to the police station to be interviewed.
¶ 5. On Thursday, November 11, 2010, Investigator Rutter interrogated Brown after reading him the standard " Miranda Warning Form," which contained the following statements:
YOU HAVE A RIGHT TO REMAIN SILENT.
ANYTHING YOU SAY CAN BE USED AS EVIDENCE AGAINST YOU IN COURT.
YOU HAVE A RIGHT TO TALK TO A LAWYER BEFORE QUESTIONING AND HAVE HIM PRESENT DURING QUESTIONING.
IF YOU CANNOT AFFORD A LAWYER, ONE WILL BE APPOINTED FOR YOU BEFORE QUESTIONING, IF YOU WISH.
Brown signed the waiver form in two places, indicating that he understood each of these rights and that he voluntarily waived them. He then handwrote the following statement:
My cousin asked if i would take him & his friend to see a chick. When we arrived my cousin friend went to knock and got no answer. So he decided that he wanted to go in since no one was there. He went in and when he came out, he pushed the lady down and we pulled off. I asked what was they doing and they said nothin just drop his friend off. Then my cousin told me that he didn't get anything. Then I told'em they better not get me in trouble when The dude & Robert went in the dude kicked the door in. My cousin name is Robert Brown when she fell she screamed and they jumped in and we
pulled off. They wanted me to pull off faster then normal.
¶ 6. After writing the statement, Brown was placed under arrest. Seven months after the burglary, McFarland failed to identify Brown in a photo lineup. But at trial, she identified him as the person who came out of the house first and choked her. She reiterated at ...