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Burnett v. State

Court of Appeals of Mississippi

April 18, 2017

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,
v.
STATE OF MISSISSIPPI, APPELLEE

          DATE OF JUDGMENT: 01/23/2015.

         PEARL RIVER COUNTY CIRCUIT COURT, HON. PRENTISS GREENE HARRELL TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: MICHAEL W. CROSBY, WILLIAM WARREN SATTERFIELD.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER.

          DISTRICT ATTORNEY: HALDON J. KITTRELL.

          BEFORE LEE, C.J., BARNES AND FAIR, JJ.

          FAIR, J.

         ¶1. 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 and affirm.

         FACTS

         ¶2. 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.

         ¶3. 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 into it.

         ¶4. 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.

         ¶5. 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 assault case.

         ¶6. The jury convicted Burnett of two counts of attempted capital murder, and he appeals.

         DISCUSSION

         1. Prosecutor's Arguments / Trial Judge's Comments

         ¶7. 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.

         A. The Prosecutor's Closing Argument Regarding a Second Girlfriend

         ¶8. 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 argument.

         B. The Prosecutor's Argument Regarding Steele's Reward

         ¶9. 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.

         C. Encouraging Steele to Assert His Right Against Self-Incrimination

         ¶10. 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 ...


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