Brown v. State

764 So. 2d 463, 2000 WL 311513
Court of Appeals of Mississippi·Decided March 28, 2000·No. 98-KA-00646-COA·Published·Cited by 29 cases

Opinion

764 So.2d 463 (2000)

Aaron BROWN, Appellant.
v.
STATE of Mississippi, Appellee.

No. 98-KA-00646-COA.

Court of Appeals of Mississippi.

March 28, 2000.
Rehearing Denied June 6, 2000.
Certiorari Denied August 17, 2000.

*465 Edward Blackmon, Canton, Attorney for Appellant.

Office of the Attorney General by Dewitt T. Allred, III, Attorney for Appellee.

BEFORE McMILLIN, C.J., BRIDGES, AND PAYNE, JJ.

McMILLIN, C.J., for the Court:

¶ 1. Aaron Brown has appealed his conviction for murder returned by a Hinds County Circuit Court jury. He raises three issues on appeal. First, he contends that the jury was not properly instructed as to the presumption of innocence and the standard of proof required of the State to overcome that presumption. Secondly, he claims that the prosecuting attorney, in summation, attempted to improperly interject inflammatory and prejudicial social issues into the jury's deliberations. Finally, he claims that the verdict of guilty was against the weight of the credible evidence, entitling him to a new trial. For reasons we will proceed to discuss, we find these issues do not warrant a reversal of Brown's conviction.

I.

Facts

¶ 2. According to the State's evidence, Kenneth Smith was shot to death in the course of an argument in the parking lot of the "Cool Breeze" pool hall. Terri Casnel, the victim's girlfriend, testified at trial that she was a witness to the shooting and said she saw the defendant, Aaron Brown, draw *466 a gun from under his coat and shoot Smith at least three times. (The record indicates that, in fact, Smith was shot four times with a nine millimeter pistol.)

¶ 3. Brown, in his defense, called several witnesses. Rachel Kimbrough, a woman who had been working as a bartender at the Cool Breeze on the night of the shooting, testified that Casnel was inside the building talking to her when the shooting occurred. A police officer who investigated the shooting at the scene reported that Casnel had given a statement to him that she was inside the building when the shooting occurred. Another defense witness, Tracy Bingham, testified that, contrary to Casnel's assertions, he was the sole witness to the shooting, which occurred when he and Smith were talking in the parking lot and they were approached by an unidentified gunman who shot Smith and fled the scene. Brown also called a friend who testified that Brown had picked him up after work and that they had gone to the friend's home for the evening where they remained until after the shooting occurred.

II.

The Weight of the Evidence

¶ 4. We will consider this issue first, since if it is found to have merit, our obligation would be to reverse and remand for a new trial. This would render the remaining issues moot.

¶ 5. A convicted defendant who believes that the weight of the evidence favored a not guilty verdict may assert that belief by filing a new trial motion with the trial court. The trial court is then charged to review all of the evidence in the light most favorable to upholding the verdict. Daniels v. State, 742 So.2d 1140 (¶ 11) (Miss.1999). If the court is convinced that, even viewing the evidence in the light most favorable to the prosecution, a manifest injustice has occurred, the court is obligated to set aside the verdict and order a new trial. White v. State, 732 So.2d 961 (¶ 20) (Miss.1999).

¶ 6. If the court denies the motion, the defendant may seek appellate review of that decision. In that review, the appellate court considers the evidence under the same standard as that imposed on the trial court. Veal v. State, 585 So.2d 693, 695 (Miss.1991). The appellate court must order a new trial if it is satisfied that the trial court abused its discretion in denying the new trial motion. Sturdivant v. State, 745 So.2d 240 (¶ 12) (Miss.1999).

¶ 7. In this case, the critical disputed issue of fact on which this case turned was straightforward. There was no denying that Smith had been shot to death in the Cool Breeze parking lot. The only question was whether Brown was the person who fired the fatal shots. The only evidence presented on that question by the State was the testimony of Terri Casnel, who claimed to have been standing in the doorway of the Cool Breeze when Brown drew a gun and shot Smith repeatedly. Brown's argument that the guilty verdict is against the weight of the evidence is based in large part on the proposition that he succeeded in substantially impeaching Casnel's testimony through the prior inconsistent statement she gave the police on the night of the shooting in which she denied having seen the actual crime committed. Brown also claims that the testimony of the bartender and of the police officer on the scene further supported the proposition that Casnel was inside the bar when the shooting occurred and not in a position to witness the shooting.

¶ 8. Adding additional weight in favor of Brown's innocence, according to his argument, was the testimony of Elmarco McNair that Brown was in his company at home when the shooting occurred, and the testimony of Tracy Bingham that he was an eye-witness to the shooting who could verify that the assailant was not the defendant, Aaron Brown.

*467 ¶ 9. When a criminal case is tried to a jury, the members of the jury act as the finders of fact. McClain v. State, 625 So.2d 774, 781 (Miss.1993). They are charged to listen to the evidence, observe the demeanor of the witnesses, and decide the issue of the credibility of the witnesses and what weight to give to any particular piece of evidence. Bridges v. State, 716 So.2d 614 (¶ 15) (Miss.1998). Unless testimony necessary to support the jury's verdict is so implausible or so substantially impeached as to be unworthy of belief, the jury's decisions in such matters is beyond the authority of a reviewing court to disturb. Boles v. State, 744 So.2d 349 (¶ 8) (Miss.Ct.App.1999).

¶ 10. It is evident in this case that the jurors found Teri Casnel's testimony to be persuasive even in the face of information tending to impeach her veracity. Casnel admitted candidly having made a contradictory statement to police in the immediate aftermath of the shooting, but said that she did so out of fear for her safety. In support of that position, there was evidence that, a short time after giving a statement indicating lack of any knowledge of the assailant, Casnel was taken to police headquarters where she gave a formal statement in which she claimed to be able to identify Brown as the shooter.

¶ 11. Certainly, Casnel's prior inconsistent statement at the scene was admissible to impeach her credibility. M.R.E. 613; Brown v. State, 556 So.2d 338, 341 (Miss.1990). Just as certainly, evidence that she had given a statement implicating Brown on that same evening was admissible to refute an inference of recent fabrication of the version of the facts she gave at trial. M.R.E. 801(d)(1)(B). The testimony of a witness is not necessarily rendered unworthy of belief merely because it has been attacked with some measure of success by one of several means of impeaching the witness's credibility. The impeachment, rather, constitutes information to aid the jury in assessing what weight and worth to assign to that witness's evidence. In this case, we do not think that Casnel's inconsistent statement, for which she offered an expl

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Brown v. State, 764 So. 2d 463, 2000 WL 311513 (Mich. Ct. App. 2000).

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