                       IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2006-KA-00837-SCT

JAMES BRADLEY BROWN

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                         02/09/2006
TRIAL JUDGE:                              HON. BOBBY BURT DELAUGHTER
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  VIRGINIA LYNN WATKINS
                                          WILLIAM R. LABARRE
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:                        ELEANOR JOHNSON PETERSON
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 08/02/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, P.J., DICKINSON AND RANDOLPH, JJ.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    In this deliberate-design murder case, the Defendant claims the trial court committed

reversible error by improperly admitting evidence and prohibiting questioning regarding a

witness’s informant status.   The defendant also claims that the evidence was legally

insufficient to support his conviction. Finding no reversible error, we affirm the circuit

court’s disposition.
                     STATEMENT OF FACTS AND PROCEEDINGS

¶2.    In the early morning hours of July 25, 2004, Jackson, Mississippi, firefighters were

responding to a 911 report of a business fire on Terry Road, when they were directed by an

unidentified motorist to look behind the Unique Hair Salon. There, they found an automobile

engulfed in flames and the burning body of a man later identified as Edward Lee Nichols

(“Nichols”). An autopsy revealed that Nichols had died of blunt force trauma to the back of

the head.

¶3.    While investigating the crime scene, Detectives Amos Clinton and Eric Smith noticed

a pathway through the woods to the back of a residence on Shiloh Drive, where they found

a gas can and partially burned rags. They also noted that the pathway continued from the

residence to the Rebelwood Apartments.1

¶4.    The police were without suspects until Shanta Payne came forward and identified

James Bradley Brown as the killer. She stated that around 4:30 a.m. on July 25, Brown

knocked on her Rebelwood apartment door and told her that he had killed someone. Payne

also identified another resident of Rebelwood Apartments, Rasheeda Newton, as a potential

witness. The police followed up by obtaining two statements from Newton, one in August

2004 and another in January 2005. Newton would later testify at trial that, although her

August statement was factually accurate, she purposely failed to inform police that Brown

had confessed to her he killed Nichols because, at the time, she was in love with Brown.



        1
        For clarification of the layout of the area, Detective Clinton testified that there is “a beauty
shop, which is on Terry Road. Directly behind the beauty shop is Shiloh Drive, and directly behind
Shiloh Drive is Rebelwood Apartments. It is pretty much at a straight angle. I mean they’re directly
behind one another.”

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Newton testified that, in an effort to clear her conscience, she returned to the police station

two weeks before Brown’s trial and signed another statement specifying that Brown had

knocked on her door around 4:30 a.m. on July 25, 2004. Newton stated that Brown was

“acting all crazy,” and that he had said he “got into it” with Edward Nichols, and he had told

her “the boy was dead.” She also testified that when she told Brown she did not believe he

killed Nichols, he left her apartment and returned with his sister, Shannon Brown, who “told

[Newton] that [Brown] wasn’t lying; that it was all true.”

¶5.    During the investigation, police traced the 911 call to a cell phone registered to James

Butler, who told police he was the driver of the car that intercepted and directed firefighters

to the blaze behind the Unique Hair Salon. Butler testified he saw James Brown running

toward the Rebelwood Apartments between 4:00 and 4:30 a.m. on the morning in question,

and that the day after the murder, Brown confessed to him that he “took about a grand off

[Nichols]” and hit him. Butler further testified that Brown told him he had burned the car

to get rid of his fingerprints at the crime scene.

¶6.    The trial court allowed the State to introduce into evidence a letter Butler testified

Brown wrote him while the two were in jail together.2 According to Butler, the letter was

delivered to him by his cellmate, who was a prison trustee assigned to work in the barber

shop. Butler claimed that, while Brown was getting a haircut, he asked the trustee to deliver

the letter to his cellmate. Butler further testified that, sometime after he received the letter,




       2
        Although the record does not explicitly state why Butler was in jail at this time, his
incarceration is unrelated to the events at issue in this case.

                                               3
Brown acknowledged to him that he authored the letter, which addressed Butler’s testimony

about the murder.

¶7.    The defense called Markia Felder, who testified that Brown was with her on the night

in question. Joseph Nix, a passenger in James Butler’s car on July 25, also testified for the

defense and disputed Butler’s identification of Brown as the person running from the crime

scene to Rebelwood Apartments. Brown’s sister, Shannon Brown, testified that she never

went to Rasheeda Newton’s apartment the night of July 25. Brown testified on his own

behalf, after which the defense rested.

¶8.    The jury found Brown guilty of deliberate-design murder, and the trial judge

sentenced him to life imprisonment. Following post-trial motions, Brown timely perfected

this appeal.

                                          ANALYSIS

¶9.    Brown presents for our review the following assignments of error: (1) the trial court

erred in its denial of full impeachment of James Butler; (2) the trial court erred in admitting

a letter purportedly from James Brown; (3) the trial court erred in admitting testimony of a

statement allegedly made by James Brown; (4) the trial court abused its discretion in

admitting a gas tank found near the scene; and (5) the evidence was insufficient to support

the jury verdict.

¶10.   When reviewing evidentiary rulings made by the trial court, this Court employs an

abuse of discretion standard. Peterson v. State, 671 So. 2d 647, 655 (Miss. 1996) (citing

Baine v. State, 606 So. 2d 1076, 1078 (Miss. 1992); Wade v. State, 583 So. 2d 965, 967

(Miss. 1991)). This Court must first determine if the proper legal standards were applied. Id.

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at 655-56 (citing Baine, 606 So. 2d at 1078). Where error involves the admission or

exclusion of evidence, this Court "will not reverse unless the error adversely affects a

substantial right of a party." Ladnier v. State, 878 So. 2d 926, 933 (Miss. 2004) (quoting

Whitten v. Cox, 799 So. 2d 1, 13 (Miss. 2000)).

       Evidence of a plea agreement

¶11.   Prior to addressing the issues presented on appeal, we address Brown’s assertion that

evidence of a plea deal Butler received after the conclusion of Brown’s trial should be

considered at this stage of review. However, this evidence will not be considered on appeal

per our Order dated January 17, 2007, in which this Court refused to allow the appellant’s

motion to supplement the record with that evidence. Brown chose to ignore such ruling and

referenced this improper material throughout his brief. The State has moved to strike that

information.

¶12.   “This Court will not consider matters that do not appear in the record, and it must

confine its review to what appears in the record.” Pulphus v. State, 782 So. 2d 1220, 1224

(Miss. 2001) (citing Robinson v. State, 662 So. 2d 1100, 1104 (Miss. 1995)). This Court has

stated, "we have on many occasions held that we must decide each case by the facts shown

in the record, not assertions in the brief, however sincere counsel may be in those assertions."

Robinson, 662 So. 2d at 1104. Asserted error grounded in facts outside the record may not

be presented on direct appeal, but is more appropriately presented in a petition for post-

conviction relief.   We grant the State’s motion to strike, and we must disregard all

improperly-included evidence in making today’s findings.




                                               5
       Denial of full impeachment

¶13.   During discovery, Brown learned that Butler was an informant for the Hinds County

Sheriff’s Department. In an effort to show Butler’s bias toward law enforcement, Brown

attempted to introduce evidence of Butler’s relationship as an informant. The trial judge

refused to allow the evidence, holding that the Sheriff’s Department was totally different

from the Jackson Police and Fire Departments, and that Butler’s relationship with the

Sheriff’s Department did not affect his credibility as a witness. On appeal, Brown asserts

that he was denied his right to fully impeach Butler on his relationship with the Hinds County

Sheriff’s Department.

¶14.   Brown cites Banks v. Dretke, 540 U.S. 668, 124 S. Ct. 1256, 157 L. Ed. 2d 1166

(2004), for the proposition that his conviction should be remanded because the jurors were

unaware that Butler was a confidential informant for the Hinds County Sheriff’s Department.

However, that case is hardly instructive here. In Banks, the State actively concealed the

witness’s paid informant status and allowed that witness to testify untruthfully on the stand

without correction. The United States Supreme Court held that where the State conceals

impeaching material in its possession, it is incumbent on the State to set the record straight.

Id. at 675-76. Here, no impeaching material was concealed S the defense was fully aware

that Butler had cooperated with the Hinds County Sheriff’s Department well in advance of

trial. Moreover, we find James Butler’s status as a confidential informant to the Hinds

County Sheriff’s Department irrelevant to this case. Such information does not have “the

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence. M.R.E. 401

                                              6
(emphasis added). Because the Hinds County Sheriff’s Department had no involvement with

the case before us, Brown’s assertion is unfounded. Rule 402 of the Rules of Evidence

specifically provides that “[e]vidence which is not relevant is not admissible.” See Johnson

v. Fargo, 604 So. 2d 306, 309 (Miss. 1992) (“A trial judge has the discretion to exclude

irrelevant evidence”). Accordingly, the trial court did not abuse its discretion by excluding

evidence of James Butler’s relationship with the Hinds County Sheriff’s Department, as it

was not the investigating law enforcement agency in Brown’s case.

       Admission of letter without authentication

¶15.   Brown asserts that the trial court committed error in admitting the letter Brown

allegedly wrote to Butler while in prison. Specifically, Brown claims that the letter presented

at trial was not properly authenticated, was not the original, and that a chain of custody

between Brown and Butler had not been established.

¶16.   Rule 901 of the Mississippi Rules of Evidence governs the authentication of

documents in our trial courts. Specifically, subsection (a) of that Rule states that “the

requirement of authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter in question is what its

proponent claims.”     The Rule goes on to explain that a written document may be

authenticated by a lay witness familiar with handwriting not acquired for purposes of

litigation, or by an expert by comparing specimens that have been previously authenticated.

See M.R.E. 901(b)(2), (3). Rule 901 further provides that testimony of a witness with

knowledge is sufficient authentication that a matter is what it is claimed to be. M.R.E.

901(b)(1).


                                              7
¶17.   Butler testified that, after the trustee delivered the letter from Brown to him, Brown

acknowledged that he wrote the letter. Accordingly, the letter was sufficiently authenticated

under Rule 901(b)(1). The trial court did not err in overruling the defendant’s objection to

introduction of the letter on the basis of authenticity.

¶18.   Under Mississippi Rule of Evidence 1003, a duplicate is admissible to the same extent

as the original unless a genuine question is raised as to the authenticity of the original, or if

in the circumstances it would be unfair to admit the duplicate in lieu of the original. Butler

stated on the stand that the letter presented in court was an exact duplicate of the original,

which was in his attorney’s possession during trial. The defense offered no reason why it

would be unfair to admit the duplicate in lieu of the original, and the letter was sufficiently

authenticated as noted above. Therefore, the trial court properly admitted the letter.

¶19.   Brown also argued that a chain of custody was never established to connect him with

the letter. “Whether a chain of custody has been properly established is left to the discretion

of the trial court.” Brown v. State, 682 So. 2d 340, 350 (Miss. 1996) (citing Nalls v. State,

651 So. 2d 1074 (Miss. 1995); Wells v. State, 604 So. 2d 271 (Miss. 1992)). Although the

trial judge did not explicitly overrule the chain of custody objection made by the defense, the

judge did acknowledge that in light of the defendant’s admission that he wrote the letter and

because Butler testified that the trustee specifically noted that the letter came from Brown,

the letter was admissible. We agree with the trial court’s disposition regarding chain of

custody and find that the trial court’s discretion was not abused in accepting witness

testimony that the letter was what Butler claimed it to be. Thus, this assignment of error is

without merit.

                                               8
       Admission of statement made to police

¶20.   After being arrested and advised of his Miranda rights, Brown invoked his right to

remain silent. However, according to Detective Clinton’s testimony, while the detectives

were handling procedural matters related to his arrest, Brown spontaneously asked Detectives

Clinton and Smith how they could help him “if he was the individual that was responsible

for Edward Nichols’s death.” Brown’s attorney objected to the introduction of that statement

on the basis that it would be an indirect comment on the defendant’s right to remain silent.

In a precautionary move, the trial judge required the State to proffer Detective Clinton’s

testimony outside of the jury’s presence to ensure the defendant’s rights were protected. In

declaring the testimony probative of the defendant’s guilty conscience, the trial judge warned

the parties not to mention that the defendant “exercised his right to remain silent or even any

partial invocation of his Miranda rights.” On appeal, Brown asserts that the testimony of

Detective Clinton makes clear that there was no further statement by Brown, otherwise, the

jury would have heard testimony of it. Therefore, Brown asserts the detective’s testimony

was a “back door effort to place before the jury the fact that Mr. Brown remained silent.”

¶21.   In a case similar to this one, during the booking process on a kidnaping charge, the

defendant stated, “I want to know what happens to little girl snatchers in this town.” Hersick

v. State, 904 So. 2d 116, 126-27 (Miss. 2004). This Court found no abuse of discretion

where the trial court ruled the statement was spontaneous and admissible. Indeed, this Court

has determined that volunteered and unprompted statements are admissible, so long as they

are not the result of questioning by officers after a defendant has exercised the right to remain

silent. See Stallworth v. State, 797 So. 2d 905, 912 (Miss. 2001). We find no abuse of


                                               9
discretion in the trial court’s decision to allow Detective Clinton to testify to Brown’s

spontaneous, uncoerced statement, and we applaud the trial judge’s efforts to assure that the

State made no reference to, or comment about, Brown’s right to remain silent. For the

reasons stated, this assignment of error is without merit.

       Admission of gas tank found at residence

¶22.   Brown next asserts that the trial court erred by admitting into evidence the gas tank

found in the vicinity of the crime scene, as it was not relevant. Additionally, Brown claims

that the trial court failed to weigh the gas tank’s probative value against the danger of unfair

prejudice.

¶23.   With few exceptions, this Court has enforced the rule that provides, where no

objection is made at trial to an asserted error, a party is procedurally barred from asserting

the error on appeal. Fleming v. State, 604 So. 2d 280, 294 (Miss. 1992) (holding the absence

of timely objection causes the defendant to be procedurally barred from asserting the alleged

error on appeal). The defense properly preserved, by motion in limine and objection during

trial, its protest to the introduction of the gas tank based on the fact that it was evidence of

arson, an uncharged crime. The trial court overruled the motion in limine and Brown’s

continuing objection on the basis that the gas tank was probative of the defendant’s

concealment of the murder. Before admitting the gas tank into evidence, the judge asked the

defense for any further objections. The defense then objected based on chain of custody,

which the trial judge overruled. The defense never objected to introduction of the gas tank

on the basis that the trial court did not perform a Rule 403 balancing inquiry.




                                              10
¶24.   It is incumbent on the party asserting error to make a contemporaneous objection and

obtain a ruling in order to preserve the objection. Billiot v. State, 454 So. 2d 445, 456 (Miss.

1984), cert. denied, 469 U.S. 1230, 105 S. Ct. 1232, 84 L. Ed. 2d 369, reh. denied, 470 U.S.

1089, 105 S. Ct. 1858, 85 L. Ed. 2d 154 (1985). Thus, the defense is now procedurally

barred from arguing on appeal that the trial court committed reversible error by not

performing a Rule 403 balancing analysis.

       Sufficiency of the evidence

¶25.   Brown claims the evidence presented by the State was insufficient to support a

conviction. This Court’s standard of review for sufficiency of the evidence has been

established as follows:

       Should the facts and inferences considered in a challenge to the sufficiency of
       the evidence ‘point in favor of the defendant on any element of the offense
       with sufficient force that reasonable men could not have found beyond a
       reasonable doubt that the defendant was guilty,’ the proper remedy is for the
       appellate court to reverse and render. Edwards v. State, 469 So. 2d 68, 70
       (Miss. 1985) (citing May v. State, 460 So. 2d 778, 781 (Miss. 1984)); see also
       Dycus v. State, 875 So. 2d 140, 164 (Miss. 2004). However, if a review of the
       evidence reveals that it is of such quality and weight that, ‘having in mind the
       beyond a reasonable doubt burden of proof standard, reasonable fair-minded
       men in the exercise of impartial judgment might reach different conclusions
       on every element of the offense,’ the evidence will be deemed to have been
       sufficient. Edwards, 469 So. 2d at 70.

Bush v. State, 895 So. 2d 836, 843 (Miss. 2005).

¶26.   When reviewing a case for sufficiency of the evidence, the relevant question is

whether “any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Id. at 843 (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979)).



                                              11
¶27.   Brown was indicted and convicted under Miss. Code Ann. Section 97-3-19(1)(a)

(Rev. 2006). The statutory definition of deliberate-design murder is as follows: “The killing

of a human being without the authority of law by any means or in any manner shall be

murder. . .when done with deliberate design to effect the death of the person killed, or of any

human being.” Miss. Code Ann. § 97-3-19(1)(a) (Rev 2006). This Court has enumerated

the elements the prosecution is required to prove beyond a reasonable doubt as: (1) the

defendant killed the victim; (2) without authority of law; and (3) with deliberate design to

effect his death. Dilworth v. State, 909 So. 2d 731, 736 (Miss. 2005). Brown asserts that the

State failed to adduce evidence sufficient to satisfy the deliberate-design element as required

by law.

¶28.   “[D]eliberate design to kill a person may be formed very quickly, and perhaps only

moments before the act of consummating the intent.” Gossett v. State, 660 So. 2d 1285,

1293 (Miss. 1995) (quoting Windham v. State, 520 So. 2d 123, 127 (Miss. 1987)). This

Court has acknowledged that deliberate-design connotes an intent to kill and may be inferred

through the intentional use of any instrument which, based on its manner of use, is calculated

to produce death or serious bodily injury. Wilson v. State, 936 So. 2d 357, 364 (Miss. 2006)

(internal citations omitted). In Wilson, this Court found sufficient evidence to convict the

defendant of deliberate-design murder where the victim had been beaten and repeatedly

stabbed by the defendant. This Court also has recognized that shooting a victim with a gun

constituted deliberate-design murder. See Jones v. State, 710 So. 2d 870 (Miss. 1998);

Hawthorne v. State, 835 So. 2d 14 (Miss. 2003).




                                              12
¶29.     Nichols’s cause of death was officially noted as “blunt force trauma” to the head. Dr.

Steven Hayne, a forensic pathologist, testified that, based on the autopsy and his report

prepared incident thereto, Nichols sustained multiple blows to the head, chest, abdomen and

back. Dr. Hayne further testified that the amount of force necessary to produce the victim’s

injuries was unlikely to have been inflicted without an object and most likely was made by

contact with a blunt object. Indeed, James Butler alleged that Brown told him the day after

the murder that he had hit Nichols. Butler testified, “He never told me what he hit him with

or what did he do or did he shoot him or anything. He just said he had hit him.” Rasheeda

Newton likewise testified that Brown told her he had “got[ten] into it” with Nichols and that

the boy was dead. Thus, based on the testimony and evidence presented, we find that the

State produced enough evidence for a jury to find a “deliberate design” beyond a reasonable

doubt.

¶30.     As to the remaining elements, the prosecution put forth corroborating testimony of

three witnesses that Brown had confessed to killing Edward Lee Nichols. Additionally, the

State presented a witness who identified Brown running from the direction of the crime scene

toward Rebelwood Apartments and who later received correspondence from Brown

regarding the crime. Moreover, the State introduced the spontaneous statement of Brown to

Detectives Clinton and Smith regarding whether they could do anything for him if he killed

the victim. A competent jury could have determined that, on the basis of all the evidence,

James Bradley Brown was the person responsible for Nichols’s death. Therefore, this issue

is without merit.




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                                    CONCLUSION

¶31.   For the reasons stated herein, we find that the State proved all the elements of

deliberate-design murder by legally sufficient evidence. Moreover, we find that the trial

court did not abuse its discretion in the admission and exclusion of evidence in this case.

Therefore, finding no reversible error, we affirm James Bradley Brown’s murder conviction

and sentence.

¶32. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED.

     SMITH, C.J., WALLER, P.J., EASLEY, CARLSON, GRAVES, RANDOLPH
AND LAMAR, JJ., CONCUR. DIAZ, P.J., CONCURS IN RESULT ONLY.




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