AVERALD D. BURNETT, JR. A/K/A JUNIOR BURNETT A/K/A JR A/K/A AVERALD BURNETT, JR. A/K/A AVERALD D. BURNETT A/K/A AVERAL DAN BURNETT, JR. A/K/A AVERAL DAN "JUNIOR" BURNETT A/K/A AVERAL D. BURNETT, JR., APPELLANT,
STATE OF MISSISSIPPI, APPELLEE
OF JUDGMENT: 01/23/2015.
RIVER COUNTY CIRCUIT COURT, HON. PRENTISS GREENE HARRELL
ATTORNEYS FOR APPELLANT: MICHAEL W. CROSBY, WILLIAM WARREN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LAURA HOGAN TEDDER.
DISTRICT ATTORNEY: HALDON J. KITTRELL.
LEE, C.J., BARNES AND FAIR, JJ.
Averald "Junior" Burnett was convicted of two
counts of attempted capital murder after he allegedly
attempted to hire a jailmate to kill his estranged wife and
his stepdaughter. He had been in jail at the time on the
accusation that he had forcefully raped the sixteen-year-old
stepdaughter. On appeal, Burnett contends he did not receive
a fair trial because of certain evidentiary rulings and
comments from the trial judge. We find no reversible error
Although the rape of his stepdaughter had allegedly occurred
in Lamar County, Burnett was housed in the Pearl River County
jail because he was formerly a police officer in Lamar
County. In jail, Burnett met Russell Steele, a fellow inmate.
Steele testified that he had held himself out to be a killer
for hire, and Burnett offered to bail him out and pay him to
kill Burnett's estranged wife and stepdaughter. Steele
accepted, and Burnett drew him a map to his house, gave him
descriptions of his wife and stepdaughter's schedules and
sleeping arrangements, as well as other information that
would be of use for Steele in finding and killing them.
Burnett had his girlfriend bail Steele out and give him some
money, which was supposed to be a down payment on the murder.
She gave Steele $300 of the $500 promised. Steele used the
money to go on a bender, and the next day he called the
police and reported what Burnett had tried to do.
A short time later, Burnett's girlfriend called him at
the jail, frightened by Steele's calls demanding more
money. The conversation was recorded, and Burnett told his
girlfriend to tell Steele to "do what he said he would
do or we're going to revoke his bond and he's going
to come back and see [Burnett]." From this conversation
and other recordings, the investigating officers determined
that the girlfriend was not privy to the murder plot, and she
testified to that effect at trial. The girlfriend said
Burnett told her to bail out Steele because he was in danger
from the other inmates and Burnett did not want to be drawn
Investigating officers questioned Burnett, who claimed he had
drawn the map for his divorce attorney and that it must have
been taken from his belongings in the cell he shared with
approximately twenty other men. He also admitted he may have
talked about some details of his home life - his dog, for
example - but he could not explain how Steele knew things
like the layout of the inside of his home, the schedules of
his wife and stepdaughter, and where Burnett's wife
parked her car. Burnett claimed he was still devoted to his
wife and that he planned to reconcile with her.
Burnett did not testify at trial, but the theory of his
defense was that he had bonded out Steele under pressure from
a jailhouse gang as part of a scheme to get "green
dot" cards for contraband cell phones. Steele had
instead blown the money and then invented the murder-for-hire
story as a way to get financial support from the police and
to curry favor with prosecutors in his own pending aggravated
The jury convicted Burnett of two counts of attempted capital
murder, and he appeals.
Prosecutor's Arguments / Trial Judge's
Burnett complains of several comments made by the judge over
the course of the trial and of arguments and objections made
by the prosecutor that, taken in the aggregate, denied him a
fair trial. His arguments on this issue are rather cursory
and largely consist of pointing to the arguments or comments
and asserting that they were erroneous. We will address them
in order roughly from the least to the most prejudicial.
The Prosecutor's Closing Argument Regarding a Second
Burnett contends that the prosecutor argued facts not in
evidence during his closing argument - that Burnett was
simultaneously involved with three women, his wife and two
girlfriends. Burnett claims there was no evidence in the
record of a second girlfriend. This assertion is simply
incorrect, as Burnett's wife testified that Burnett had
two girlfriends "that she knew of" during the
relevant time. She named the second girlfriend in her
testimony, and the prosecutor repeated it during the closing
The Prosecutor's Argument Regarding Steele's
Burnett next complains about the prosecutor's arguments,
some of which were made in the presence of the jury,
regarding whether Steele had asked for or received a reward
for his testimony against Burnett. There is little dispute
regarding whether Steele requested or received a reward
relating to his pending charges; in fact, during the police
interview Steele had rejected a suggestion from one of the
interviewing officers that they might try to help him with
his pending charges, though Burnett argued that Steele might
still expect leniency as a result of his testimony. Burnett
focused his arguments on the undisputed fact that the
officers put Steele up in a hotel room for a few days and
gave him a small amount of money for food. The officers said
they did this because they needed to keep track of Steele
during their investigation, but Burnett pointed out that
Steele apparently had no money and no place to go, and thus
several days of food and shelter was a benefit Steele
received as a result of implicating Burnett. From our review
of the record, it appears that the prosecution and the
defense disagreed about whether this constituted a benefit or
reward and were "talking past each other" at times
in their arguments. But it is apparent that this disagreement
about how to characterize what Steele received was laid bare
before the jury and that the prosecutor's
characterizations were arguments, based in fact, and created
little danger of confusion.
Encouraging Steele to Assert His Right Against
During Steele's cross-examination, Burnett's attorney
asked Steele a series of questions that were ambiguous as to
whether they referred to what Steele had claimed while in
jail with Burnett, or were regarding things Steele had
actually done. At that point, the trial court stopped the
cross-examination so Steele could consult with his attorney.
Steele later invoked ...