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Brown v. State

Court of Appeals of Mississippi

September 24, 2019

CHRISTOPHER BROWN A/K/A CHRISTOPHER DALTON BROWN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 04/13/2018

          WARREN COUNTY CIRCUIT COURT TRIAL HON. M. JAMES CHANEY JR. JUDGE:

          ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF GEORGE T. HOLMES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE

          DISTRICT ATTORNEY: RICHARD EARL SMITH JR.

          BEFORE CARLTON, P.J., WESTBROOKS AND C. WILSON, JJ..

          CARLTON, P.J.

         ¶1. A Warren County jury found Christopher Brown guilty of attempted murder and armed carjacking. Brown was sentenced to terms of thirty-five years for attempted murder, and thirty years, with twenty years to serve, for armed carjacking, to be served consecutively in the custody of the Mississippi Department of Corrections (MDOC). Brown was also sentenced to serve five years of post-release supervision.

         ¶2. Brown appeals, asserting that he received ineffective assistance of counsel when his lawyer conceded Brown's guilt on the carjacking charge in his opening and closing arguments.

         ¶3. Brown also asserts that his case should be reversed and remanded for a new trial because a cautionary instruction was not given to the jury on their use of interview transcripts at trial. Recordings of two of Brown's police interviews were admitted into evidence and played at trial. The interviews were transcribed and the jurors were given copies of the transcripts to use in following the recordings while they were played. Brown asserts that the trial court erred when it failed to give an unrequested cautionary instruction to the jury that the recordings, not the transcripts, were the primary evidence of what occurred during the interviews. Alternatively, Brown asserts that he received ineffective assistance of counsel when his lawyer failed to request such a cautionary instruction.

         ¶4. For the reasons addressed below, we deny Brown's ineffective-assistance-of-counsel claims without prejudice to his right to pursue relief on these alleged errors in a petition for post-conviction relief. Additionally, we find no merit in Brown's assertion that he is entitled to a new trial because the trial court did not, sua sponte, issue a cautionary instruction to the jury about the interview transcripts. As such, we affirm Brown's convictions and sentences.

         STATEMENT OF FACTS AND COURSE OF PROCEEDINGS

         ¶5. On March 5, 2016, an injured man was found lying in the parking lot of Blackburn Motor Company in Vicksburg, Mississippi. The record reflects that the injured man was identified as Jonathan Thomas. He had been shot in the left hand and in the left side of his face and his 2014 silver Honda Accord was missing. On March 12, a week after Thomas was shot, Brown and Christopher Livingston were arrested in Las Cruces, New Mexico. They were implicated in Thomas's shooting and the theft of Thomas's car.

         ¶6. On July 27, 2016, Brown and Livingston were jointly indicted for attempted murder and armed carjacking.

         ¶7. Brown was interviewed three times while in police custody. On March 12, 2016, Sergeant Chase Thouvenall of the Dona Ana County Sheriff's department interviewed Brown after his arrest in New Mexico. This interview was recorded but not transcribed. On March 16, 2016, Jeff Merritt and Curtis Judge, investigators with the Vicksburg Police Department, interviewed Brown in New Mexico. This interview was recorded by audio and video and was transcribed. On March 22, 2016, Investigator Merritt and Troy Kimble, who was an officer with the Vicksburg Police Department at the time, interviewed Brown in Vicksburg, Mississippi. This interview was conducted, recorded, and transcribed in two parts.

         ¶8. During most of Part One of the March 22 interview, Brown denied shooting Thomas and said that Livingston shot Thomas twice, just as Brown had stated in his March 16 interview. At the end of Part One, however, Brown confessed to shooting Thomas. The record reflects that the officers then ended Part One and gave Brown time "to collect himself." Part One of Brown's March 22 statement was recorded by audio and video and was transcribed. Later that same day, Investigator Merritt and Officer Kimble continued the interrogation (Part Two of the March 22 interview) and Brown confessed that he shot Thomas and took his car. There is only an audio recording of Part Two, and it was transcribed.

         ¶9. Thomas died on December 30, 2017. The prosecutor and defense counsel stipulated that the March 5, 2016 shooting did not cause Thomas's death.

         ¶10. Brown filed a number of motions that were heard prior to his March 2018 trial, including Brown's motion to sever his trial from Livingston's trial because each defendant had given statements exculpating themselves while inculpating their co-indictee in Thomas's shooting. The trial court granted Brown's severance motion, and Brown was tried separately from his co-indictee, Livingston.

         ¶11. Brown also moved to suppress the confession he gave on March 22, 2016. Brown asserted that the confession was coerced. The trial court denied this motion. Additionally, Brown moved, in limine, to redact portions of the police interviews referencing a prior conviction for shoplifting and other parts of these interviews that "mention other crimes, prison gang membership, drug trafficking, and working for a drug cartel." The trial court granted this motion. The recordings were edited, and the transcripts were redacted, in accordance with the trial court's order.

         ¶12. The three-day trial began on March 19, 2018. The State's first witness was Vicksburg police officer Eric Perkins who testified that he found an injured man lying in the Blackburn Motor Company parking lot on March 5, 2016. Officer Perkins testified that he believed that the man was alive based upon movements of his right arm. He identified the man as Jonathan Thomas by looking in the injured man's wallet.

         ¶13. Penny Jones, Patrol Commander Manager with the Vicksburg Police Department, testified that when she arrived on the scene Thomas had already been taken to the hospital, so she went to the hospital and observed that he had injuries to his left eye and cheek areas. She testified that Thomas was not responsive.[1] Captain Jones testified that she also interviewed Thomas's family members and learned that Thomas drove a 2014 silver Honda Accord. She testified that a nationwide "Be On The Lookout" (BOLO) was entered on the car.

         ¶14. Curtis Judge, an investigator with the Vicksburg Police Department, testified that when he arrived on the scene, he noticed a pool of blood near a red Ford truck and took photos of the scene. Investigator Judge testified that later that day he went to the hospital and observed what he believed were gunshot wounds to Thomas's left hand and to his face.

         ¶15. Sergeant Benjamin Martin of the Dona Ana County Sheriff's Department was the State's next witness. He testified that he spotted the 2014 silver Honda Accord in Las Cruces, New Mexico, and pursued the vehicle. The vehicle ultimately jumped a curb, and the occupants fled. Sergeant Martin testified that he apprehended Livingston, and then turned the case over to an investigator in his office, Investigator Chase Thouvenall. Investigator Thouvenall testified that he confirmed that the Vehicle Identification Number (VIN) of the recovered car was Thomas's silver Honda Accord. He also testified that he interviewed Livingston, who told him that Brown could be found in "Tent City, " a charity outreach place where people generally would go to get their lives back on track. Investigator Thouvenall testified that he found Brown at Tent City, and Brown took him to a site where Brown told Investigator ...


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