A Mississippi man convicted of four counts of capital murder is now dead. Jan Michael Brawner was put to death last night by lethal injection at the Mississippi Penitentiary in Parchman. MPB’s Daniel Cherry witnessed the execution. Wearing the standard red jumpsuit, convicted murderer Jan Michael Brawner was escorted into the execution chamber around 6 last night. He was strapped securely to the injection gurney, and when asked if he had any last words, he said to the victims' family, quote, "I can’t bring anything back. I can’t change what I’ve done. Maybe this will bring you a little peace." Corrections Commissioner Chris Epps met with Brawner throughout the day. Epps says Brawner never denied the crimes and showed remorse for what he did. "The last conversation I had with the death row inmate Brawner was that, I asked him was he ready to go, and he said he was prepared. And he said he deserved to be executed for what he did."

In 2001, according to court documents, Brawner left his Southaven apartment, and drove an hour to the Tate County town of Sarah to confront his ex-wife at her parents' home. While arguing over custody of their three year old daughter, Brawner shot his former mother in law before turning the gun on his ex-wife. He then shot them both again to make sure they were dead. Brawner's daughter witnessed both of the shootings. He sent the daughter away to watch TV before realizing she could identify him…that’s when he went back and shot his daughter twice in the head. He waited on his former father in law to return home from work and shot him as he walked through the door. John Champion is the District Attorney who prosecuted the case 10 years ago. "He went even so far as to steal the wallet from his ex-father-in-law and took his ex-mother-in-law's wedding ring off, and actually went up to Southaven that night and proposed to his girlfriend and gave her that ring." David Craft is the only family member who came to witness the execution. It was Craft's parents, sister and niece who were killed a decade ago. Tate County Sheriff Brad Lance says the quadruple murder is one of the worst cases he's ever worked. "What we saw, or what I saw tonight was justice for the citizens of Tate County, for the State of Mississippi, and, most importantly, for the victims and the Craft family. We don't have a lot of violent crime in our county. This crime shook our whole community terribly. I hope this brings closure to the Craft family."

Following the execution the family issued a statement saying they will never understand why the killings happened. The statement is read by Dilloworth Ricks, Victims Services Director. "Man has a choice of good and evil. Michael chose evil, while my family chose good. God's peace prevails over this evil because we know in our hearts that my sister and her family dwell in Heaven with the Lord." But not everyone at Parchman was satisfied with the execution. Sister Maureen Delaney of Tutwiler was one of nearly a dozen people who stood outside to protest and pray for Brawner. Sister Delaney says her faith won't allow her to support the death penalty. "I guess some people still think that's the way to do things. Is that if you kill somebody then you execute them too. It's, I think, pretty much an Old Testament mentality of an eye for an eye and a tooth for a tooth. That's not the message of the Gospel to me."

The United States Supreme Court denied Brawner's petition for a stay of execution. Shortly after 6 o'clock, the lethal drug cocktail rushed into Jan Michael Brawner's veins. Brawner's eyes shut, his head drooped to the side, and in a matter of minutes, he breathed his last. At 6:18 he was pronounced dead. District Attorney John Champion hopes this will bring peace to the Craft family. "I've been thinking about this for a while, and I've thought more about David (Craft) and his family, and just hoping it would do them some good to get this behind them."

Immediately after the execution, David Craft appeared to have that peace. With tears in his eyes, he hugged Champion and other law enforcement officers who helped bring Brawner to justice a decade ago.

Huffington Post

PARCHMAN, Miss. -- Mississippi executed a man Tuesday for fatally shooting his 3-year-old daughter, his ex-wife and her parents in a crime in which authorities say he also stole his slain mother-in-law's wedding ring and used it to propose marriage to his girlfriend. Jan Michael Brawner, 34, was pronounced dead at 6:18 p.m. CDT after receiving a chemical injection at the Mississippi State Penitentiary at Parchman. Brawner had admitted to the killings and said he didn't deserve to live after shooting his daughter, Paige, his ex-wife, Barbara Craft, and her parents, Carl and Jane Craft, at their house on April 25, 2001.

In his final statement, Brawner said he wished to apologize to the victims' family, adding he could not change what he had done. "Maybe this will bring you a little peace. Thank you," he said as he lay strapped to a gurney. When the drugs were administered, he appeared to take a deep breath. His mouth opened wide for a moment and then his head tilted to the side. A brother of Brawner's ex-wife witnessed the execution. None of his relatives were present. Kathy Jaco Sigler, Jane Craft's sister, issued a statement afterward saying her family will never understand why the killings happened and referred to Christian scripture. "Man has a choice of good and evil. Michael chose evil while my family chose good. God's peace prevails over this evil because we know in our hearts that my sister and her family dwell in heaven with the Lord," the statement said.

Before the execution, Brawner appeared talkative and said he deserved to die for what he'd done, Corrections Commissioner Chris Epps said. Brawner also said he wasn't on drugs or alcohol when he killed, but snapped under the stress of a divorce and restraining order, according to Epps.

Court records based on Brawner's testimony and statements to police describe the killings and the series of events leading up to them like this: Brawner left his apartment in Southaven, just south of Memphis, Tenn., about 3 a.m. the day before the killings and drove an hour to the Crafts' house because he was having financial trouble and found out his ex-wife planned to stop him from seeing the child. He emptied bullets from a 7-mm rifle in his father-in-law's truck and fled when a dog began barking. He drove back to the house the next day and knocked on the door, but nobody was home. He put on rubber gloves and went through a back door. He took a .22 caliber rifle from the house, then drove to Carl Craft's job and asked if he could go to the house to wait for his ex-wife so he could see his daughter. Carl Craft agreed. Brawner went back to the house. When his ex-wife, her mother and his daughter arrived, Brawner became agitated. He shot his ex-wife's mother first, then shot his ex-wife. She had wounds to her hands from trying to protect herself. He walked across the room to his former mother-in-law and "put her out of her misery." Then he shot his ex-wife again.

The child had blood splatter on her from the shootings and said, "Daddy, you hurt me." He took his daughter to a bedroom and told her to watch television, but decided she could identify him as the killer. He shot her in the chin and head. He killed Carl Craft when he arrived from work. He stole Carl Craft's wallet and took his former mother-in-law's wedding ring off her finger. He gave the ring to his girlfriend and proposed marriage later that day, records show.

Mississippi's governor and the U.S. Supreme Court both declined to stop Tuesday's execution. The Mississippi Supreme Court on Monday refused to stop it.

Mississippi Department of Corrections (Offender Data Sheet)

Mississippi Department of Corrections (Media Kit)

Factual Background of the Case

In December 1997, Jan Michael Brawner married Barbara Craft, and in March 1998, their daughter, Paige, was born. Brawner and Barbara divorced in March 2001, she was awarded custody of Paige, and they lived with Barbara's parents, Carl and Jane Craft, at their home in Tate County.

At the time of the murders, Brawner was living with his girlfriend in Southaven. According to Brawner, they were having financial difficulties, and on top of that, he had also been told by Barbara that she did not want him around Paige. He testified that pressure on him was building because nothing was going right.

On the day before the murders, Brawner left his apartment in Southaven at 3:00 a.m. and headed toward the Crafts’ house, about an hour away. He testified that he thought he might be able to borrow money from Carl, although in a prior statement he said he had planned to rob Carl. While waiting on the Craft’s front steps from approximately 4:00 a.m. until 7:00 a.m., he took a 7-mm Ruger rifle out of Carl's truck and emptied the bullets from it, because “he didn't want to get shot.” A dog started barking, and Brawner hid until Carl went back inside, then ran away, thinking Carl might be getting a gun. He then drove back to his apartment.

Around noon the following day, April 25, 2001, Brawner again drove to the Crafts’ house, and knocked on the door, but no one was home. He then put on rubber gloves that he had purchased earlier that day, entered the house, and took a .22 rifle. He then went to Carl's workplace and asked him if it would be OK to go to the house to wait for Barbara and Paige so that he could see his daughter, to which Carl agreed.

Since Barbara and Paige did not return, Brawner decided to leave, and as he was doing so, Barbara, Paige, and Jane pulled into the drive. After a brief conversation with Jane and Barbara, Brawner became agitated and went to the truck and brought back the rifle that he had taken from the Crafts’ house earlier that day. Just as he told Barbara that she was not going to take Paige away from him, he saw Jane walking toward the bedroom and shot her with the rifle. He said he then shot Barbara as she was coming toward him, and went to where Jane had fallen and “put her out of her misery.” After this, he shot Barbara again and took Paige, who had witnessed the murders, to her bedroom and told her to watch TV. After Brawner determined that Paige would be able to identify him, and in his words, he “was just bent on killing,” he went back into the bedroom and shot his daughter twice, killing her. He then waited in the house until Carl came home from work, and when Carl walked through the door, Brawner shot and killed him.

Brawner stole approximately $300 from Carl's wallet, Jane's wedding ring, and food stamps out of Barbara's purse. He took Windex from the kitchen and attempted to wipe away any fingerprints he may have left. Brawner then returned to his apartment in Southaven, where he gave the stolen wedding ring to his girlfriend, asked her to marry him.

Brawner was suspected of the murders and detained by the police. While he was being held at the Tate County jail, Brawner admitted to the shootings in a statement made to the Chief Deputy of the Tate County Sheriff's Department. Brawner also testified on his own behalf at trial and gave essentially the same account of the events as described above. Jan Michael Brawner was convicted on April 11, 2002, of four counts of capital murder, and subsequent to a sentencing hearing, was sentenced to death.

Execution by Lethal Injection

In 1998, the Mississippi Legislature amended Section 99-19-51, Mississippi Code of 1972, as follows: 99-19-51. The manner of inflicting the punishment of death shall be by continuous intravenous administration of a lethal quantity of an ultra short-acting barbiturate or other similar drug in combination with a chemical para-lytic agent until death is pronounced by the county coroner where the execution takes place or by a licensed physician according to accepted standards of medical practice.

Contents of Syringes for Lethal Injection

Anesthetic - Pentobarbital – 2.0 Gm.
Normal Saline – 10-15 cc.
Pavulon – 50 mgm per 50 cc.
Potassium chloride – 50 milequiv. per 50 cc.

Lethal injection is the world’s newest method of execution. While the concept of lethal injection was first pro-posed in 1888, it was not until 1977 that Oklahoma became the first state to adopt lethal-injection legislation. Five years later in 1982, Texas performed the first execution by lethal injection. Lethal injection has quickly be-come the most common method of execution in the United States. Thirty-five of thirty-six states that have a death penalty use lethal injection as the primary form of execution. The U.S. federal government and U.S. mili-tary also use lethal injection. According to data from the U.S. Department of Justice, 41 of 42 people executed in the United States in 2007 died by lethal injection.

While lethal injection initially gained popularity as a more humane form of execution, in recent years there has been increasing opposition to lethal injection with opponents arguing that instead of being humane it results in an extremely painful death for the inmate. In September 2007 the United States Supreme Court agreed to hear the case of Baze v. Rees to determine whether or not Kentucky’s three drug-protocol for lethal injections amounts to cruel and unusual punishment in violation of the Eighth Amendment to the United State Constitution. As a result of the Supreme Court’s decision to hear this case, executions in the United States came to a brief halt in late September 2007. On April 16, 2008, the Supreme Court ruled in Baze holding that Kentucky’s three-drug protocol for administering lethal injections does not violate the Eighth Amendment. The result of this ruling was to lift the de facto moratorium on executions in the United States. The State of Georgia became the first state to carry out an execution since the Court’s Baze decision when William Earl Lynd was executed by lethal injection on May 6, 2008.

Chronological Sequence of Events of Execution

48 Hours Prior to Execution The condemned inmate shall be transferred to a holding cell.
24 Hours Prior to Execution Institution is placed in emergency/lockdown status.
1200 Hours Day of Execution Designated media center at institution opens.
1500 Hours Day of Execution Inmate’s attorney of record and chaplain allowed to visit.
1600 Hours Day of Execution Inmate is served last meal and allowed to shower.
1630 Hours Day of Execution MDOC clergy allowed to visit upon request of inmate.
1730 Hours Day of Execution Witnesses are transported to Unit 17.
1800 Hours Day of Execution Inmate is escorted from holding cell to execution room.
1800 Witnesses are escorted into observation room.
1900 Hours Day of Execution A post execution briefing is conducted with media witnesses.
2030 Hours Day of Execution Designated media center at institution is closed.

Since Mississippi joined the Union in 1817, several forms of execution have been used. Hanging was the first form of execution used in Mississippi. The state continued to execute prisoners sentenced to die by hanging until October 11, 1940, when Hilton Fortenberry, convicted of capital murder in Jefferson Davis County, became the first prisoner to be executed in the electric chair. Between 1940 and February 5, 1952, the old oak electric chair was moved from county to county to conduct execu-tions. During the 12-year span, 75 prisoners were executed for offenses punishable by death. In 1954, the gas chamber was installed at the Mississippi State Penitentiary, in Parchman, Miss. It replaced the electric chair, which today is on display at the Mississippi Law Enforcement Training Academy. Gearald A. Gallego became the first prisoner to be executed by lethal gas on March 3, 1955. During the course of the next 34 years, 35 death row inmates were executed in the gas cham-ber. Leo Edwards became the last person to be executed in the gas chamber at the Mississippi State Penitentiary on June 21, 1989.

On July 1, 1984, the Mississippi Legislature partially amended lethal gas as the state’s form of execu-tion in § 99-19-51 of the Mississippi Code. The new amendment provided that individuals who com-mitted capital punishment crimes after the effective date of the new law and who were subsequently sentenced to death thereafter would be executed by lethal injection. On March 18, 1998, the Mississippi Legislature amended the manner of execution by removing the provision lethal gas as a form of execution.

Mississippi Death Row Demographics
Youngest on Death Row: Terry Pitchford, MDOC #117778, age 26
Oldest on Death Row: Richard Jordan, MDOC #30990, age 66
Longest serving Death Row inmate: Richard Jordan, MDOC #30990 (March 2, 1977: 35 Years)

Total Inmates on Death Row = 52
MALE:50
FEMALE: 2
WHITE:22
BLACK: 29
ASIAN: 1

Mississippi State Penitentiary

The Mississippi State Penitentiary (MSP) is Mississippi’s oldest of the state’s three institutions and is located on approximately 18,000 acres in Parchman, Miss., in Sunflower County. In 1900, the Mississippi Legislature appropriated $80,000 for the purchase of 3,789 acres known as the Parch-man Plantation. The Superintendent of the Mississippi State Penitentiary and Deputy Commissioner of Institutions is E.L. Sparkman. There are approximately 868 employees at MSP. MSP is divided into two areas: AREA WARDEN UNITS Area I - Warden Earnest Lee Unit 29 Area II - Warden Timothy Morris Units 25, 26, 28, 30, 31, and 42 The total bed capacity at MSP is currently 4,648. The smallest unit, Unit 42, houses 56 inmates and is the institution’s hospital. The largest unit, Unit 29, houses 1,561 minimum, medium, close-custody and Death Row inmates. MSP houses male offenders classified to all custody levels and Long Term Segregation and death row. All male offenders sentenced to death are housed at MSP. All female offenders sentenced to death are housed at the Central Mississippi Correctional Facility in Pearl, Miss. The majority of the farming activity involving Agricultural Enterprises takes place at MSP. Programs offered at MSP include alcohol and drug treatment, adult basic education, inmate legal assistance, pre-release, therapeutic recreation, religious/faith programs and vocational skills training. Mississippi Prison Industries operates a work program at the MSP and utilizes more than 296,400 inmate man-hours in its textile, metal fabrication and wood working shops. On a monthly average, 190 inmates work in these shops.

INMATES EXECUTED IN THE MISSISSIPPI GAS CHAMBER
Name Race-Sex Offense Date Executed

Gerald A. Gallego White Male Murder 03-03-55
Allen Donaldson Black Male Armed Robbery 03-04-55
August Lafontaine White Male Murder 04-28-55
John E. Wiggins White Male Murder 06-20-55
Mack C. Lewis Black Male Murder 06-23-55
Walter Johnson Black Male Rape 08-19-55
Murray G. Gilmore White Male Murder 12-09-55
Mose Robinson Black Male Rape 12-16-55
Robert Buchanan Black Male Rape 01-03-56
Edgar Keeler Black Male Murder 01-27-56
O.C. McNair Black Male Murder 02-17-56
James Russell Black Male Murder 04-05-56
Dewey Towsel Black Male Murder 06-22-56
Willie Jones Black Male Murder 07-13-56
Mack Drake Black Male Rape 11-07-56
Henry Jackson Black Male Murder 11-08-56
Minor Sorber White Male Murder 02-08-57
Joe L. Thompson Black Male Murder 11-14-57
William A. Wetzell White Male Murder 01-17-58
J.C. Cameron Black Male Rape 05-28-58
Allen Dean, Jr. Black Male Murder 12-19-58
Nathaniel Young Black Male Rape 11-10-60
William Stokes Black Male Murder 04-21-61
Robert L. Goldsby Black Male Murder 05-31-61
J.W. Simmons Black Male Murder 07-14-61
Howard Cook Black Male Rape 12-19-61
Ellic Lee Black Male Rape 12-20-61
Willie Wilson Black Male Rape 05-11-62
Kenneth Slyter White Male Murder 03-29-63
Willie J. Anderson Black Male Murder 06-14-63
Tim Jackson Black Male Murder 05-01-64
Jimmy Lee Gray White Male Murder 09-02-83
Edward E. Johnson Black Male Murder 05-20-87
Connie Ray Evans Black Male Murder 07-08-87
Leo Edwards Black Male Murder 06-21-89

PRISONERS EXECUTED BY LETHAL INJECTION
Name Race-Sex Offense Date Executed

Tracy A. Hanson White Male Murder 07-17-02
Jessie D. Williams White Male Murder 12-11-02
John B. Nixon, Sr. White Male Murder 12-14-05
Bobby G. Wilcher White Male Murder 10-18-06
Earl W. Berry White Male Murder 05-21-08
Dale L. Bishop White Male Murder 07-23-08
Paul E. Woodward White Male Murder 05-19-10
Gerald J. Holland White Male Murder 05-20-10
Joseph D. Burns White Male Murder 05-20-10
Benny Joe Stevens White Male Murder 05-10-11
Rodney Gray Black Male Murder 05-17-11
Edwin Hart Turner White Male 02/08/2012
Larry M. Puckett White Male 02/20/12
William J. Mitchell Black Male 03/22/12
Henry Curtis Jackson Black Male 06/12/12

Source: Mississippi Department of Corrections, Mississippi State Penitentiary

The Mississippi Link

"Inmate denied stay of execution for killing daughter, ex-wife, in-laws," by Monica Land. (June 13, 2012)

PARCHMAN – A death row inmate convicted of killing his 3-year-old-daughter, his ex-wife and her parents was executed Tuesday night despite repeated appeals by his attorney to the Mississippi Supreme Court and the U.S. Supreme Court. Jan Michael Brawner was pronounced dead at 6:18 p.m. at Mississippi State Penitentiary at Parchman.

Prison officials said he Tuesday morning, Brawner had grits, a cinnamon roll and milk for breakfast. For lunch he ate two slices of turkey ham, squash and tomatoes, a salad, white bread, and punch. For his last meal, Brawner requested and ate: One DiGiorno Italian Style Favorites Chicken Parmesan pizza, one DiGiorno Italian Style Favorites Meat Trio pizza, a small salad (lettuce, pickles, black olives, tomatoes, shredded cheddar cheese with Ranch dressing), a small bottle of Tabasco sauce, a half gallon of brewed iced sweet tea and one pint Breyer’s Blast Reese’s Peanut Butter Cup ice cream.

Brawner denied a shower, but requested a sedative. Guards outside his cell said Brawner was “in a good mood and talkative.” He talked about the murders he was convicted of.

The Mississippi Supreme Court denied Brawner’s request to stay Tuesday’s execution and he was the second inmate to die by lethal injection in a week. The Associated Press reported that the court’s decision Monday capped a round of legal briefs filed in Brawner’s case and that Brawner appeared to be the first person executed in the U.S. on a tie vote of judges. The Mississippi Supreme Court voted 4-4 last week to deny a rehearing in the case. Justice Ann Lamar didn’t vote. She was district attorney in Tate County when the slayings occurred. By the time of the trial in April 2002, she was a circuit court judge, though she didn’t preside over the trial. In court procedures, a tie vote usually means an earlier ruling stands. Brawner’s lawyer, David Calder argued that tie votes favor inmates in death penalty cases and that the tie vote had nothing to do with any lower court rulings. Calder asked the justices to suspend court rules that prohibit people from asking a second time for a rehearing and to issue a stay of execution. The court on Monday voted 4-3 against the motion to suspend the rules and against a stay of execution. Calder wanted the court to issue the stay so that he could have a hearing to argue that Brawner’s previous lawyer didn’t do a good job.

Brawner was sentenced to death for the April 25, 2001, shooting deaths of his daughter, Paige, his ex-wife, Barbara Craft, and her parents, Carl and Jane Craft. Brawner killed them in their in Tate County home, stole about $300 and used his former mother-in-law’s wedding ring to propose to his girlfriend the same day, according to court records. Brawner later admitted to the killings.

During the sentencing phase of his trial, he declined to have anyone testify on his behalf with mitigating testimony, which could have been used to sway jurors to spare his life. “As far as life, I don’t feel that I deserve life to live,” Brawner testified at the time. Subsequent lawyers have argued that Brawner’s trial attorney did a poor job by not calling such mitigating witnesses as his mother and a psychiatrist, who could have testified about things that had happened to him in life.

Brawner went to his former in-laws’ home after learning his ex-wife planned to stop him from seeing their child. He gave conflicting statements to police and during testimony, saying at times he wanted to borrow money and at other times that he was going to rob his father-in-law. Court records said he was waiting at the Crafts’ home when his ex-wife arrived with her mother and the child. After becoming agitated he went to his car and got a rifle he had stolen from the house earlier in the day. He shot the former mother-in-law first, then his ex-wife. His daughter, Paige, watched the killings, court records said. “After Brawner determined that Paige would be able to identify him, and in his words, he ‘was just bent on killing,’ he went back into the bedroom and shot his daughter twice, in the chin and head, killing her,” court records said. He shot and killed Carl Craft when he got home from work and stole his wallet and the ring.

Brawner tried to use an insanity defense at trial, but the Mississippi State Hospital and a court-appointed psychiatrist, chosen by the defense, found that Brawner was neither insane nor incompetent to stand trial. On Tuesday, Brawner made several calls to and visited with his lawyers. In his final statement, Brawner said he wished to apologize to the victims’ family, adding he could not change what he had done. “Maybe this will bring you a little peace. Thank you,” he said as he lay strapped to a gurney, the Washington Post reported.

When the drugs were administered, he appeared to take a deep breath. His mouth opened wide for a moment and then his head tilted to the side. A brother of Brawner’s ex-wife witnessed the execution. None of his relatives were present. Brawner requested that his body be released to Mississippi Mortuary Service, in Pearl.

"Prosecutors: Miss. court shouldn’t stay Brawner execution." (June 12, 2012)

JACKSON – The Mississippi attorney general’s office argued Friday that the state Supreme Court should not grant a stay of execution for an inmate scheduled to die by injection today. The Mississippi Supreme Court, in a 4-4 vote decision last week, denied a rehearing on previous arguments in the case of Jan Michael Brawner. In court procedures, a tie vote usually means an earlier ruling stands. But Brawner’s lawyer filed a motion for rehearing and asked for a stay, saying there’s precedent in Mississippi that tie votes in death penalty cases favor inmates. Brawner claims his previous appeals lawyer didn’t do a good job and he wants an oral hearing on the matter. Mississippi’s Attorney General Jim Hood argued Friday that a 4-4 split is binding and that a petitioner can’t file a second motion for rehearing. Brawner’s lawyers were to respond with a rebuttal argument by Monday.

Justice Ann Lamar didn’t participate in the tie vote. She was district attorney in Tate County when the slayings occurred on April 25, 2001. By the time the trial took place in April 2002, she was a circuit court judge, but not the one who presided over the trial.

Brawner, now 34, was convicted of the killings of his 3-year-old daughter, Paige, his ex-wife, Barbara Craft, and her parents, Carl and Jane Craft, at their home in Tate County. Brawner admitted to the killings at trial and told a prosecutor he deserved death. He went to his former in-laws’ home after learning his ex-wife planned to stop him from seeing their child, court records said. He shot his daughter twice so she couldn’t identify him after he killed the others. He also stole $300 and his former mother-in-law’s wedding ring. He gave the ring to his girlfriend and proposed marriage later that day, according to the court records.

ProDeathPenalty.Com

The Silent Voices of Mississippi

Brawner v. State, 872 So.2d 1 (Miss. 2004). (Direct Appeal)

Background: Defendant was convicted in the Circuit Court, Tate County, Andrew C. Baker, J., of four counts of capital murder and sentenced to death. Defendant appealed.

Holdings: The Supreme Court, en banc, Cobb, P.J., held that: (1) trial court did not abuse its discretion in denying defendant's motion to sever capital murder charge, which was based on willful murder of child victim while engaged in commission of felonious abuse and/or battery of child, from other three capital murder charges that were based on willful murder while engaged in crime of robbery; (2) defendant failed to make prima facie showing that State engaged in gender discrimination in its use of peremptory strikes; (3) trial court did not abuse its discretion by admitting photographs of bodies of each of four victims as found by police or allowing such photographs to be displayed using a slide projector; (4) defendant could be convicted of capital murder for murder of child while engaged in underlying felony of child abuse; and (5) sentence of death was not excessive or disproportionate to penalty imposed in similar cases. Affirmed. Graves, J., concurred in result.

EN BANC. COBB, Presiding Justice, for the Court.

¶ 1. Jan Michael Brawner, Jr. was indicted on four counts of capital murder. Count one was for the willful murder of his three-year-old daughter, Candice Paige Brawner, while engaged in the commission of the crime of felonious abuse and/or battery of the child. Counts two, three, and four were identical: willful murder while engaged in the commission of the crime of robbery of his ex-mother-in-law, Martha Jane Craft; his ex-wife, Barbara Faye Brawner; and his ex-father-in-law, Carl Albert Craft.

¶ 2. Brawner was tried before a jury in the Circuit Court of Tate County, Mississippi, and was found guilty on all four counts of capital murder. In a separate sentencing hearing, the jury returned the death penalty on all four counts. Brawner's Motion for Judgment Notwithstanding the Verdict or in the Alternative, for a New Trial was denied, and he then timely appealed to this Court.

FACTS

¶ 3. Brawner was 24 years old at the time of the murders. He was raised by his stepfather in Southaven, Mississippi. Brawner finished the ninth grade, but failed an attempt to obtain a GED, and he had worked mostly as a forklift operator in warehouses. In December, 1997, he married Barbara Craft, and in March of 1998, their daughter, Paige, was born. Brawner and Barbara were divorced in March of 2001, and she was awarded custody of Paige. Thereafter, Barbara and Paige lived with Barbara's parents, Carl and Jane Craft, in their home in Tate County. Brawner had also lived with the Crafts off and on during his marriage to Barbara.

¶ 4. At the time of the murders, Brawner was living with June Fillyaw, whom he met in 2000 through a “date line” on a local radio station. They lived in an apartment in Southaven, and according to Brawner, were having financial difficulties. Brawner had also been told by Barbara that she did not want him around Paige, and he testified that pressure on him was building because nothing was going right.

¶ 5. On the day before the murders, Brawner left his apartment in Southaven at 3:00 a.m. and headed toward the Craft house, about an hour away. He testified that he thought he might be able to borrow money from Carl Craft, although in his prior statement he said he had planned to rob Carl. Brawner parked the U-haul truck he was driving some distance from the house and walked the rest of the way to the house, where he sat on the front steps from approximately 4:00 a.m. until 7:00 a.m. During this time, he took a 7 mm Ruger rifle out of Carl's truck and emptied the bullets from it, because “he didn't want to get shot.” When he heard Carl coming out, he hid behind Carl's truck. A dog started barking, and Carl started looking around for the cause of the dog's barking. When Carl went back inside, Brawner ran away, thinking Carl might be getting a gun. He then drove back to his apartment.

¶ 6. The following day, April 25, 2001, Brawner again drove the U-haul to the Craft house, this time around noon. He knocked on the door, but no one was home. He went to the truck to get some rubber gloves that he had purchased earlier in the day, then using the gloves, “took the slats out of the back door,” entered the house, and took a .22 rifle. He left the same way he came in, putting the slats back into the door. He then went to Carl's place of work and talked to him, asking if it would be OK for him to go out to the house to wait for Barbara and Paige so that he could see his daughter. Carl said yes.

¶ 7. Brawner went back to the Craft house and waited. When Barbara and Paige did not return, he decided to write a note and leave. About that time Barbara, Paige, and Jane Craft pulled into the drive. Jane asked Brawner if he had been to their house the previous day, and he lied, saying “no.” Barbara informed him that there was a restraining order against him, and he was not supposed to be there. He said he had a book to give Paige, then went to the truck and retrieved the book. At some point when they had all gone into the house, Jane again asked Brawner if he had been at the house the previous day. At this point Brawner became agitated and went to the truck and brought back the rifle that he had taken from the Craft house earlier that day.

¶ 8. When Barbara asked him “what is that,” he said it was her dad's gun. He then told Barbara that she was not going to take Paige away from him. At that moment he saw Jane walking toward the bedroom and shot her with the rifle. He said he then saw Barbara coming toward him, and shot her. He then went to where Jane had fallen and “put her out of her misery.” After this, he went back to where Barbara had fallen onto the couch and shot her again. Brawner recalled Paige looking up at him and holding up her left arm, which was sprayed with blood, and saying “Daddy you hurt me.” Brawner then took her to her bedroom and told her to watch TV, and he went back to the living room and paced. After Brawner determined that Paige would be able to identify him, and in his words, he “was just bent on killing,” he went back into the bedroom and shot his daughter twice, killing her. He then waited in the house until Carl came home from work, and when Carl walked through the door, Brawner shot and killed him.

¶ 9. Brawner stole approximately $300 from Carl's wallet, stole Jane's wedding ring from her finger, and stole food stamps out of Barbara's purse. He took Windex from the kitchen and attempted to wipe away any fingerprints he may have left. Brawner then returned to his apartment in Southaven, where he gave the stolen wedding ring to June Fillyaw, asked her to marry him, and told her that he bought the ring at a pawn shop. June testified at trial that Brawner was not acting unusual that evening, but he seemed tired.

¶ 10. David Craft, Barbara Brawner's brother, found the bodies the following morning. He told police that he suspected Brawner and told them where Brawner lived. When they arrested Brawner, they searched the U-haul and June's car and found the .22 rifle and latex gloves. June also told police that Brawner had given her the ring.

¶ 11. While he was being held in the Tate County jail, Brawner admitted the shootings in a statement made to the Chief Deputy of the Tate County Sheriff's Department, on November 15, 2001, approximately six months after the murders. Brawner completed a jail inmate request form asking to “speak with [chief deputy] Brad Lance whenever possible.” Lance gave Brawner Miranda warnings, after which Brawner gave a taped statement detailing the events of April 24-25, 2001. Brawner's motion to suppress this statement was denied by the trial court and is not an issue on appeal. Brawner also testified on his own behalf at trial and gave essentially the same account of the events as described above.

¶ 12. Brawner raised the insanity defense at trial, although he testified that he knew at the time of the shootings that the shootings were wrong. The trial judge found Brawner competent based on information furnished by the Mississippi State Hospital, which certified Brawner competent to stand trial, and mentally responsible for the acts at the time they were committed. Additionally, a court-appointed psychiatrist, chosen by defense counsel, reported that Brawner was neither insane nor incompetent to stand trial.

DISCUSSION

¶ 13. Convictions of capital murder and sentences of death, when appealed to this Court, are subject to heightened scrutiny. Under this method of review, all bona fide doubts are to be resolved in favor of the accused because “what may be harmless error in a case with less at stake becomes reversible error when the penalty is death.” Balfour v. State, 598 So.2d 731, 739 (Miss.1992). In this case, there are no bona fide doubts. We affirm on all issues.

¶ 14. Brawner raises eight assignments of error on appeal.

I. WHETHER THE TRIAL COURT ERRED IN DENYING BRAWNER'S MOTION TO SEVER COUNT ONE OF THE INDICTMENT.

¶ 15. Brawner filed a motion to sever count one, the willful murder of Candice Paige Brawner while engaged in the commission of the crime of felonious abuse and/or battery of a child. Brawner argues that he did not kill Paige while in the commission of the crime of felonious abuse and/or battery of a child, but simply shot her, killing her, which would constitute simple murder. Brawner argues that counts two, three, and four involve the underlying felony of robbery, which is not found in count one, and thus count one is not based upon the same acts or transactions connected together or constituting parts of a common scheme or plan as required by Miss.Code Ann. § 99-7-2 (Rev.2000). Brawner also asserts that failure to sever count one violated his right to due process and a fair trial pursuant to the Fifth and Sixth Amendments to the United States Constitution and Article 3, Sections 14 and 26 of the Mississippi Constitution of 1890, but he offers no case law that supports this assertion. Additionally, Brawner concedes that capital murder may be charged in a multi-count indictment per Woodward v. State, 533 So.2d 418, 421-23 (Miss.1988).

¶ 16. The State argues that all four murders occurred in the same location and at nearly the same time, and that such murders constitute a common scheme under § 99-7-2. The State also claims that it would be impossible to separate evidence concerning the death of Paige Brawner from the deaths of the others, thus making it impractical to try the cases separately.

¶ 17. The statute that controls multi-count indictments states: (1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan. (2) Where two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding. ... Miss.Code Ann. § 99-7-2 (Rev.2000). In Corley v. State, 584 So.2d 769, 772 (Miss.1991), this Court identified a procedure by which a multi-count indictment may be challenged:

When a defendant raises the issue of severance, we recommend that a trial court hold a hearing on the issue. The State, then, has the burden of making a prima facie case showing that the offenses charged fall within the language of the statute allowing multi-count indictments. If the State meets its burden, a defendant may rebut by showing that the offenses were separate and distinct acts or transactions. In making its determination regarding severance, the trial court should pay particular attention to whether the time period between the occurrences is insignificant, whether the evidence proving each count would be admissible to prove each of the other counts, and whether the crimes are interwoven. See Allman v. State, 571 So.2d 244, 248 (Miss.1990); McCarty v. State, 554 So.2d 909, 914-16 (Miss.1989). Corley, 584 So.2d at 772. Additionally, this Court instructed that if this procedure were followed, the Court would review the trial court's decision under the abuse of discretion standard, giving due deference to the trial court's findings. In Corley, the defendant was charged with two counts of attempting to intimidate witnesses. There were two incidents, on the same day, where Corley allegedly almost ran down different men who were to testify against him in an upcoming trial. Although this Court stated that this was a close call, it held that the trial court did not abuse its discretion in denying the motion for severance.

¶ 18. In the present case, the trial court held a full hearing on the issue. The killings occurred within a few hours and were all part of the common scheme to rob Carl Craft and eliminate any witnesses. Additionally, the murders are interwoven, and the evidence of each murder would be admissible to prove the other murders since all murders occurred at the same place and closely in time. Brawner did not rebut these arguments but simply stated that the killing of the child was not part of any plan or scheme to rob any of the individuals in the Craft home. However, this statement is at odds with Brawner's trial testimony that he killed the child because she could identify him.

¶ 19. In Stevens v. State, 806 So.2d 1031 (Miss.2001), a case similar to the present one, this Court held that four killings which took place in the same home at about the same time, were the result of a common scheme or plan. In Stevens, the defendant was indicted on four counts of capital murder and one count of aggravated assault. The defendant was upset with his ex-wife over the custody and support of their daughter and appeared one day at her home with the alleged intent to kill her. The defendant shot and killed his ex-wife, her husband and 11-year-old son, and the son's 12-year-old friend, who were all in the home at the time. The defendant also shot his daughter in the back with a shotgun, although she was able to escape the home through a window and survived. This Court held that all charges were properly included in a multi-count indictment, as the crimes undisputedly constituted a common scheme or plan.

¶ 20. In Williams v. State, 794 So.2d 1019 (Miss.2001), defendants robbed one woman at gunpoint, then later that evening, robbed and killed another woman, who had no relationship to the first woman. Defendants were charged in a three count indictment with conspiracy, robbery, and capital murder. This Court held that the trial court did not err in trying count two (armed robbery of first woman) and count three (capital murder of second woman) together. “The crimes constituted a common scheme or plan to rob individuals that evening.” Id. at 1025. Based on these cases, it is clear that in the present case, there was a common scheme or plan to rob at least one of the individuals and kill anyone who might be in the home at the time. Thus, the trial court did not abuse its discretion in denying the motion to sever. II. WHETHER THE TRIAL COURT ERRED IN OVERRULING BRAWNER'S OBJECTIONS TO THE STATE'S EXERCISE OF CERTAIN PEREMPTORY CHALLENGES.

¶ 21. According to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and its progeny, parties may not exercise peremptory strikes for unconstitutionally discriminatory reasons. In this case, the jury was composed of nine women and three men. Nevertheless, Brawner asserted a gender-based objection to the State's peremptory challenges of female jurors during the jury selection process. Similarly, the State objected to Brawner's use of peremptory strikes against males. The selection process and peremptory challenges from the record are depicted in the table below:

Juror # State Defense Jurors Selected or and Sex Strike Strike Reason for Challenge # 7-female D1 # 14-male D2 Knows David Craft, a family member of deceased victims # 32-male S1 # 37-male Juror # 1 # 38-female S2 Juror pregnant. The previous week a pregnant juror had problems with the lack of air conditioning in the courtroom. # 65-male D3 Crime victim, family members are in law enforcement # 68-female S3 Juror stated “four deaths are enough” # 79-female Juror # 2 # 81-female Juror # 3 # 86-female Juror # 4 # 91-female Juror # 5 # 105-male D4 Previously a juror and found a defendant guilty # 107-female D5 Previously a juror and found a defendant guilty # 108-female S4 Juror's brother was convicted of murder # 111-male D6 Crime victim # 112-female Juror # 6 # 120-female S5 Stated she thinks life w/o parole is worse than death # 122-female S6 Information from outside source (local law enforcement) said she would not make a good juror in a death penalty case # 123-male Juror # 7 # 127-female Juror # 8 # 157-female D7 # 169-female S7 Relative in law enforcement expressed concern as to whether she could consider the death penalty # 171-female D8 # 172-female Juror # 9 # 176-female S8 Not employed, stated it would be a hardship for her to sit on the jury # 189-male S9 Son was prosecuted by State # 193-female S10 Preferred the next juror up, also a female # 209-female D9 # 211-male D10 # 212-male D11 # 220-female Juror # 10 # 237-not in record S11 # 243-male D12 # 254-not in record S12 # 261-male Juror # 11 # 262-female Juror # 12

¶ 22. During the initial selection of 12 jurors, the State struck three females and one male, tendering seven females and five males. Brawner asserted that this was a prima facie showing of gender bias against female jurors and challenged the strikes based on J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). Because seven of the 12 tendered jurors were female, the judge declined to find a prima facie showing of gender bias. Out of caution, however, the judge granted the State's request to show on-the-record the non-discriminatory purpose for each strike (see reasons in table above). The defense then struck four males and two females from the tendered jurors, and the State objected that the defense had struck every white male that had been tendered. The judge then asked the defense to give the reason for each strike and found that even though there seemed to be some bias, it was too weak to find a pattern of gender discrimination.

¶ 23. The State next tendered one male and five females, striking one male and five females during the process, and the defense renewed its J.E.B. gender challenge. The State again, “out of an abundance of caution” requested and was allowed to give reasons for its strikes. The defense offered rebuttal to five of the State's strikes. First, Brawner argued that juror number 38, who is pregnant, had not shown that the baby would be born during the trial or that the pregnancy would impact her ability to be a juror. The State countered that a pregnant juror the previous week had had a hard time with the heat, because the court room was not air conditioned. Next, Brawner argued that jurors 108 and 176 were struck because they were unemployed and that the State was being inconsistent because it allowed other jurors who were retired, thus unemployed, to be seated. The State countered that an additional reason for striking juror 108 was because her brother had been convicted of murder. Finally, the State struck jurors # 122 and # 169 based on “outside information” provided by law enforcement officials who knew these potential jurors and thought they might be biased against the death penalty. Brawner noted that after juror # 122 was questioned under oath by both parties and the judge, she expressed no qualms about the death penalty. Brawner argues that the State's use of “second hand hearsay” evidence restricted his ability to rebut the State's reason for striking such a juror.

¶ 24. The State offered an additional reason for striking so many females: namely, that there were 13 out of 15 female jurors in a row at one point, thus the State had little choice but to strike female jurors. The judge again found no pattern of gender discrimination.

¶ 25. The proper analysis to determine if purposeful discrimination in the jury selection process has occurred was set out in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and has been reiterated by this Court in numerous cases. See Berry v. State, 728 So.2d 568 (Miss.1999); Randall v. State, 716 So.2d 584 (Miss.1998); McFarland v. State, 707 So.2d 166 (Miss.1998). Batson requires, as step one, that the defendant make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. In step two, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. The Batson procedure then authorizes the defendant to rebut the “prosecutorial explanations, if he is able to do so.” Chisolm v. State, 529 So.2d 635, 638 (Miss.1988). Finally, in step three, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. The trial judge must “make an on-the-record factual determination that each reason proffered by the State for exercising a peremptory challenge is, in fact, race neutral.” Hatten v. State, 628 So.2d 294, 295 (Miss.1993). In other words, the trial judge must determine whether the reason given is a pretext for discrimination. See Hernandez v. New York, 500 U.S. 352, 363, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality).

¶ 26. Although Batson and Hatten concerned racial discrimination, this Court held in Bounds v. State, 688 So.2d 1362 (Miss.1997), that all of the case law following and interpreting Batson also applies to J.E.B. and gender discrimination issues, and race-neutral reasons for striking a juror are also permissible gender-neutral reasons. Id. As with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of intentional discrimination before the party exercising the challenge is required to explain the basis for the strike. J.E.B., 511 U.S. at 145, 114 S.Ct. 1419. When an explanation is required, it need not rise to the level of a “for cause” challenge; rather, it merely must be based on a juror characteristic other than gender, and the proffered explanation may not be pretextual. See Hernandez, 500 U.S. at 362-63, 111 S.Ct. 1859. The trial court's decision is accorded great deference on review, and this Court will reverse only where the decision is clearly erroneous. Puckett v. State, 788 So.2d 752, 756 (Miss.2000); Collins v. State, 691 So.2d 918, 926 (Miss.1997).

¶ 27. As explained in Randall v. State, 716 So.2d 584, 587 (Miss.1998), to determine if a prima facie case of discrimination has been shown, “the pivotal question is whether the opponent of the strike has met the burden of showing that proponent has engaged in a pattern of strikes based on race or gender, or in other words ‘the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ ” Id. (quoting Batson, 476 U.S. at 94, 106 S.Ct. at 1721). In the present case, the trial judge twice found that the defense did not make a prima facie showing of gender discrimination. In reviewing the trial court's determination, we agree that there was no prima facie showing that the State engaged in a pattern of strikes based on gender. The initial 36 jurors in the jury pool, from which the twelve jurors were ultimately selected, consisted of 22 females and 12 males (the gender of two of the prospective jurors is not clear from the record), or slightly more than 60% female. From these, a jury of nine females and 3 males was selected, or 75% female. Upon the tender of the first twelve prospective jurors, seven female and five male, the State used four strikes to eliminate three women and one man. Upon the second tender of five women and one man, the State struck five women and one man. In total the State tendered 12 women and six men. Although the State struck substantially more women than men, the fact that the selected jury incorporated a proportionally larger percentage of women than were in the venire contradicts the claim of gender discrimination.

¶ 28. Notwithstanding the finding that a prima facie showing of gender bias had not been made, the judge nevertheless allowed the State to offer, for the record, its gender-neutral reasons for striking females.FN1 We view this as a good practice for two reasons. First, if it becomes necessary to remand for a Batson hearing, this record would be invaluable assistance to the trial judge and would allay the difficulties caused by lost or misplaced documentation and faded memories, which may lessen the credibility of a party. Second, if on appeal this Court determines that a prima facie case has been made, this procedure gives the Court a complete record for reviewing the issue of pretext. As revealed in Lockett v. State, 517 So.2d 1346, 1349 (Miss.1987), this practice has been allowed since a few days after Batson was decided in 1986. However, as held in Stewart v. State, 662 So.2d 552, 559 (Miss.1995), “a trial judge does not have the authority to invoke a Batson hearing on his own initiative,” without the opposing party first making a prima facie showing of discriminatory purpose. FN1. This procedure differs from that identified in Hernandez, in which the State offered neutral reasons without the trial judge first finding that a prima facie case has been made. Hernandez, 500 U.S. at 359, 111 S.Ct. 1859 (“Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.”).

¶ 29. In Puckett v. State, 737 So.2d 322, 334-35 (Miss.1999), this Court stated that the voluntary action of the State in providing race or gender neutral reasons for its strikes without a finding of a prima facie showing of purposeful discrimination does not lessen the burden on the defendant to establish the prima facie case. “Upon review, this Court ‘must first ... determine[ ] that the circumstances of the State's use of peremptory challenges against minority venire persons created an inference of purposeful discrimination.’ ” Id. (quoting Thorson v. State, 653 So.2d 876, 898 (Miss.1994)).

¶ 30. Where a trial judge finds that there is no prima facie showing of discrimination, but then allows the opposite party to make a record for appeal by stating their reasons for the strikes, the trial judge must ensure that the record is complete by allowing a rebuttal and by making specific on-the-record factual findings for each strike as required by Hatten.

¶ 31. Although in the present case we have held that there was no prima facie showing of discriminatory purpose in the peremptory strikes made by the State, we nevertheless address the issue of using outside information as the basis for striking jurors. We have upheld this practice in previous cases. FN2 However, we feel compelled to address the practice of striking potential jurors in criminal trials based on information gathered from outside sources, often law enforcement officers, when those sources are not revealed or are not available for questioning. In addressing the gender-neutral reasons offered by the prosecution for striking female jurors in one case, we stated: FN2. See Hughes v. State, 735 So.2d 238 (Miss.1999) (“[o]ur information was that [the female juror] is related to a victim in a pending capital murder case here in Itawamba County, and law enforcement feels that at this time because of that she is unstable.”). See also Snow v. State, 800 So.2d 472, 482 (Miss.2001); Brown v. State, 749 So.2d 82, 87 (Miss.1999); Lockett, 517 So.2d at 1352. Clearly, none of these reasons per se violates Batson, and so the analysis moves to step three in order to determine whether, under the totality of the circumstances, the reasons offered by the State were mere pretexts for unlawful discrimination. Here they clearly were not. The determination of pretext, like the other Batson elements, hinges to a large extent on credibility. Purkett, 514 U.S. at 769, 115 S.Ct. 1769.FN3 Furthermore, as this Court stated in Mack v. State, the relative strength of the prima facie case will color to a degree the determination of the pretext. Mack v. State, 650 So.2d 1289, 1298 (Miss.1994). FN3. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). Hughes v. State, 735 So.2d 238, 252 (Miss.1999). In this same light, we listed a number of possible acceptable race-neutral bases for peremptory strikes in Appendix I of Lockett. Even though Lockett was decided prior to our Hatten requirement for on-the-record factual determinations, we stated that “our opinion should not be construed to limit legitimate, racially neutral reasons to the reasons in this case or to hold these reasons to be automatically race-neutral in any other case.” Lockett, 517 So.2d at 1352 (emphasis added). While we do not hold today that our trial judges should conduct a “mini-hearing” within a Batson hearing each time a peremptory challenge is exercised based on information gained from outside sources, we do depend on the trial courts to exercise caution to ensure that peremptory challenges based on information from outside sources is credible and supported by on-the-record factual findings to this effect and that a complete record is made on this issue. If in doubt about the validity of outside information, the trial court should do what is necessary to ensure the proposed reasons are non-pretextual. This may include questioning the outside source on the record.

¶ 32. We find no error in the trial court's J.E.B. analysis. No prima facie case of gender discrimination was shown by Brawner. It is not necessary to review each gender neutral reason offered by the State for its strikes.

III. WHETHER THE TRIAL COURT ERRED IN DENYING BRAWNER'S ORE TENUS MOTION TO ABOLISH THE USE OF PEREMPTORY CHALLENGES IN CRIMINAL CASES. [11]

¶ 33. During the selection of the jury, Brawner raised this motion ore tenus asking the trial court to abolish the use of peremptory challenges in criminal cases. The trial court denied the motion. This issue was raised in Snow v. State, 800 So.2d 472, 483 (Miss.2001), where Snow asserted that the racial and gender restrictions on peremptory challenges are not enforceable under the three-step analysis provided by Batson, and, therefore, that the appropriate remedy is the abolition of peremptory challenges. This Court stated: No court, this Court included, has held the allowance of peremptory challenges to be unconstitutional despite the argument made by Justice Marshall in Batson to that end and we decline to take that opportunity here, where the issue is presented for the first time on appeal. See Batson, 476 U.S. at 104, 106 S.Ct. 1712 (Marshall, J., concurring)(writing that peremptory challenges should be eliminated in order to end racial discrimination in the jury-selection process because Batson could not do so alone). Snow, 800 So.2d at 483-84.FN4 Unlike Snow, Brawner brought up this issue during trial and in his post trial motions. Brawner argues that Justice Sullivan of this Court also supported restrictions on peremptory challenges, advocating their complete elimination in his concurring opinion in Thorson v. State, 653 So.2d 876, 896-97 (Miss.1994). Additionally, Brawner argues that a prosecutor may easily assert a purported race-neutral or gender-neutral reason for striking a potential juror, but it is difficult for the trial judge to determine if the reason given is in good faith. FN4. In his concurring opinion in Batson, Justice Marshall strongly advocated abolishing peremptory challenges in criminal cases, saying “the inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system.” Batson, 476 U.S. at 107, 106 S.Ct. at 1728, 90 L.Ed.2d at 94.

¶ 34. The U.S. Supreme Court has stated that the right of peremptory challenge is not a constitutional guarantee. Batson, 476 U.S. at 108, 106 S.Ct. at 1729, 90 L.Ed.2d at 95 (citing Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187 (1948)). However, notwithstanding Justice Marshall's concurring opinion, the Batson majority upheld the use of peremptory challenges. Additionally, in J.E.B. the Court maintained this position stating “[o]ur conclusion that litigants may not strike potential jurors solely on the basis of gender does not imply the elimination of all peremptory challenges.” J.E.B., 511 U.S. at 143, 114 S.Ct. at 1429. Brawner concedes that in the almost 20 years since Batson was decided no court, including this Court, has adopted Justice Marshall's position. Additionally, Brawner has not cited any authority that would persuade this Court that the abolition of peremptory challenges would necessarily secure a more fair or impartial jury for a defendant, and the potential exists that it would have the opposite effect. As Chief Justice Hawkins stated in his specially concurring opinion in Hatten v. State, 628 So.2d 294 (Miss.1993), “[a] structure centuries in the building should hardly be radically altered, much less demolished, without painstaking study.” Id. at 305. Therefore, we decline to make such a sweeping change.

IV. WHETHER THE TRIAL COURT ERRED IN DENYING BRAWNER'S MOTION IN LIMINE TO EXCLUDE OR IN THE ALTERNATIVE TO LIMIT THE INTRODUCTION OF PHOTOGRAPHIC EVIDENCE VIA SLIDE PROJECTOR.

V. WHETHER THE TRIAL COURT ERRED IN DENYING BRAWNER'S MOTION IN LIMINE TO EXCLUDE OR IN THE ALTERNATIVE LIMIT THE INTRODUCTION OF PHOTOGRAPHIC EVIDENCE.

¶ 35. Because these issues are intertwined, we will analyze them together. Brawner filed a Motion in Limine to Exclude or in the Alternative to Limit Introduction of Photographic Evidence. He also filed a similar motion regarding introduction of photographic evidence via a slide projector. Brawner argued that, since there was no dispute as to what or who the photos depicted, where the photos were taken or the manner of death, admitting them or enlarging them using a slide projector would be irrelevant and inflammatory. The trial court granted the motion to limit photographic evidence, requiring the State to seek the court's ruling on the photographs to be introduced, but subsequently allowed each of the State's photographs to be admitted. The trial court denied the motion to restrict the use of a slide projector, stating that use of a projector is a modern day practice that has been used in the courtroom for at least a quarter of a century to display evidence. The court also noted that attempting to limit the size of the displayed image had in the past produced blurry and useless photos.

¶ 36. The denial of a motion in limine is reviewed for an abuse of discretion. McDowell v. State, 807 So.2d 413, 421 (Miss.2001). A motion in limine should be granted only when the trial court finds two factors are present: (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury. McGilberry v. State, 797 So.2d 940, 942 (Miss.2001).

¶ 37. In support of his argument against admitting the photographs, Brawner cites Sudduth v. State, 562 So.2d 67 (Miss.1990), in which this Court noted that “photographs of the victim should not ordinarily be admitted into evidence where the killing is not contradicted or denied, and the corpus delicti and the identity of the deceased have been established.” Id. at 70. We also stated that “photographs of bodies may nevertheless be admitted into evidence in criminal cases where they have probative value and where they are not so gruesome or used in such a way as to be overly prejudicial or inflammatory.” Id. See Brown v. State, 690 So.2d 276, 289 (Miss.1996); Alexander v. State, 610 So.2d 320, 338 (Miss.1992). Also, the admissibility of photographs rests within the sound discretion of the trial court. Jackson v. State, 672 So.2d 468, 485 (Miss.1996); Griffin v. State, 557 So.2d 542, 549 (Miss.1990). Moreover, the decision of the trial judge will be upheld unless there has been an abuse of discretion. This standard is very difficult to meet. In fact, the “discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Brown, 690 So.2d at 289; Holly v. State, 671 So.2d 32, 41 (Miss.1996).

¶ 38. The photos in question depict: the body of Carl Craft (exhibit 3); the body of Jane Craft (exhibit 12); and the body of Paige Brawner (exhibit 15). Each of these pictures shows the bodies as they were found by police, and there was only one picture of each of the victims submitted. Brawner argues that there were other, less gruesome and inflammatory photographs, that could have been used instead of these, to which the State counters that there were other, more gruesome, photographs that were not introduced. The State also claims that as long as the court determines that a photograph is admissible, it is the State's choice as to which photographs are used, not the choice of the defendant.

¶ 39. As stated in Sudduth, 562 So.2d at 70, photographs of bodies may be admitted where they have probative value and where they are not so gruesome or used in such a way as to be overly prejudicial or inflammatory. In this case, the photographs have substantial probative value. They identify the victims and show them as they were found at the scene of the murders. They help corroborate the State's assertion of the cause of death. More importantly, they help the jury to determine the credibility of Brawner's statements to police and his testimony on the witness stand. The use of the slide projector helped the jury to follow the testimony of the crime scene examiner as to the positions of the bodies and related physical evidence.

¶ 40. This Court has frequently upheld the admission of photos depicting bloody gunshot wounds. See, e.g., Walker v. State, 740 So.2d 873, 880-88 (Miss.1999); Miller v. State, 740 So.2d 858, 864-65 (Miss.1999); Manning v. State, 735 So.2d 323, 342 (Miss.1999) (affirming admission of “bloody,” “close-up” photos of one victim's body face down in pool of blood and knife wound to another's throat); Jordan v. State, 728 So.2d 1088, 1093 (Miss.1998); Williams v. State, 684 So.2d, 1179, 1198 (Miss.1996) (affirming admission of photos of victim's excised larynx, heart, vaginal and anal area, as well as photos of stab wound to victim's chest and heart); Jackson v. State, 684 So.2d 1213, 1230 (Miss.1996) (affirming admission of photos of four dead children stabbed in neck, chest, and face).

¶ 41. In Woodward v. State, 726 So.2d 524, 537 (Miss.1997), we stated that “the use of a projector to enhance the testimony of a witness is within the discretion of the trial court, and is encouraged-to the extent it ‘aids the jury in understanding the witness or other evidence.’ ” Id. (quoting Jenkins v. State, 607 So.2d 1171, 1176 (Miss.1992)). We qualified this by saying the manner of use may not be for the purpose of inflaming the jury. In Woodward, a photo of the deceased as she was found by police, was admitted over the defendant's objection, as evidence supporting a “heinous, atrocious, or cruel” aggravating factor. This photo was left showing on the projector after the authenticating witness finished testifying, and while the jurors exited the courtroom, and the defendant moved for a mistrial based on the State's attempt to inflame the jury. This Court found that the trial court did not abuse its discretion in denying the defendant's motion for a mistrial.

¶ 42. Here, the photographs in question were shown on a screen between 24 and 30 feet from the jury, and they were enlarged to approximately 40? x 60?. The photos were those of the crime scene as found by police. The record shows that the photos were displayed for approximately 30 seconds each. There is no evidence in the record that the jury was inflamed from this presentation of the photos. Neither does Brawner cite a case supporting his assertion that the mere presentation of photographs in this manner is inflammatory. In summary, these photographs have probative value in accurately depicting the scene of a gruesome crime. They are not unduly prejudicial, and the trial court did not abuse its discretion by admitting them into evidence or allowing them to be displayed using a slide projector.

VI. WHETHER THE TRIAL COURT ERRED IN DENYING BRAWNER'S MOTION TO QUASH THE CAPITAL MURDER COMPONENT OF COUNT ONE OF THE INDICTMENT. VII. WHETHER THE TRIAL COURT ERRED IN GRANTING INSTRUCTION C-16.

¶ 43. Both of these questions deal with the same issue, so will be analyzed together. Brawner filed a motion to quash the capital murder component of count one of the indictment, challenging the underlying felony of child abuse. Additionally, Brawner objected to sentencing instruction C-16, charging the aggravator of felony child abuse, arguing that there was no evidentiary basis for felonious child abuse and/or battery of a child. Brawner argues that the autopsy report prepared by Dr. Steven Hayne noted that Paige had two gunshot wounds and that each gunshot would have been fatal independent of the other. He asserts that since there was no underlying child abuse causing death, the charge should be simple murder. The State relies on Faraga v. State, 514 So.2d 295 (Miss.1987), and Stevens v. State, 806 So.2d 1031 (Miss.2001), to contend that under Mississippi law, the intentional act of murdering a child by any manner or form constitutes capital murder.

¶ 44. The Mississippi statute governing when a killing shall be capital murder states in pertinent part: (2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases: ... (f) When done with or without any design to effect death, by any person engaged in the commission of the crime of felonious abuse and/or battery of a child in violation of subsection (2) of Section 97-5-39, or in any attempt to commit such felony; ... Miss.Code. Ann. § 97-3-19(2)(f) (Rev.2000). Subsection 2 of Section 97-5-39 reads as follows: (2) Any person who shall intentionally (a) burn any child, (b) torture any child or, (c) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse and/or battery of a child and, upon conviction, may be punished by imprisonment in the penitentiary for not more than twenty (20) years. Miss.Code. Ann. § 97-5-39 (Rev.2000) (emphasis added). In Faraga, the defendant was indicted for capital murder in the killing of a two month-old-child. Faraga took the child and threw him onto the hood of a car, then twice threw the child to the pavement. The child died of head wounds received during this episode. Faraga argued that the statutes were passed by the Legislature to deter persistent child abuse, and in his case there was a single act and no pattern of abuse. This Court dismissed this argument stating that “Faraga's act of throwing a child to the pavement which resulted in skull fractures and broken bones clearly was intended to be classified as felonious abuse of a child under Miss.Code Ann. § 97-5-39(2).” 514 So.2d at 302. The Court also said “[t]he intent of the Legislature was that serious child abusers would be guilty of capital murder if the child died” and clarified that the abuse need not be dispensed over a period of time. Thus, if conduct fits the description of felonious child abuse, and the child subsequently dies, it is capital murder. Id. at 302. In Stevens, the facts are not as evident as in Faraga that felonious child abuse occurred. As discussed previously, the Stevens shot everyone in his ex-wife's home when he came to kill his ex-wife. We found that it was the “intent of the Mississippi Legislature under Miss.Code Ann. § 97-5-39(2) that the intentional act of murdering a child by any manner or form constitutes felonious child abuse and, therefore, constitutes capital murder under Miss.Code Ann. § 97-3-19(2).” FN5 806 So.2d at 1044. Here, Brawner shot his daughter's grandmother as his daughter watched, then shot his daughter's mother as she watched. He again shot both the grandmother and the mother two additional times, all as Paige looked on. He then shot his daughter twice. Shooting Paige fits the description of felony child abuse in that it is a strike to the child in a manner as to cause serious bodily harm. Therefore, we reject Brawner's assertion that the killing of Paige Brawner was not capital murder. FN5. Taken to the extreme, the felonious child abuse statute might incorrectly be applied to the act of a person who purposefully kills a 17 year old minor, as in a gang fight or a barroom brawl. However, our holdings in Stevens and in the present case do not extend the statute this far. Faraga, Stevens, and this case all involve small children. We urge the Legislature to clarify the intent of § 97-5-39(2).

VIII. WHETHER THE SENTENCE OF DEATH IMPOSED BY THE JURY IN COUNTS 1, 2, 3 & 4 OF THE INDICTMENT IS EXCESSIVE OR DISPROPORTIONATE TO THE SAME PENALTY IMPOSED IN SIMILAR CASES.

¶ 45. Brawner asserts that Miss.Code Ann. § 99-19-105(3) (Rev.2000) requires the Court to perform a proportionality review if it affirms a death sentence in a capital case. He also requests the Court to reverse the death sentence for Count one based on his arguments in Issues VI and VII. Brawner cites no authority to support his contention that the death penalty is disproportionate in this case.

¶ 46. This Court must review the death sentence in accordance with Miss.Code Ann. § 99-19-105(3), which states: (3) With regard to the sentence, the court shall determine: (a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; (b) Whether the evidence supports the jury's or the judge's finding of a statutory aggravating circumstance as enumerated in Section 99-19-101; (c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; and (d) Should one or more of the aggravating circumstances be found invalid on appeal, the Mississippi Supreme Court shall determine whether the remaining aggravating circumstances are outweighed by the mitigating circumstances or whether the inclusion of any invalid circumstance was harmless error or both. Miss.Code Ann. § 99-19-105(3).

¶ 47. There is nothing in the record to suggest that the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor. In addition, Brawner has not argued to the contrary. There is evidence supporting the finding of aggravating factors. The following aggravating factors were found by the jury, and we find there is sufficient evidence supporting them: the capital offense was committed by a person under sentence of imprisonment (four counts); the offense was committed while the defendant was engaged in the commission of robbery (three of the four counts); and the offense was committed for the purpose of avoiding or preventing lawful arrest (four counts).

¶ 48. The death penalty has been held not to be disproportionate in cases similar to this one. See Stevens v. State, 806 So.2d 1031 (Miss.2001) (defendant shot and killed his ex-wife, also shot and killed two children and the ex-wife's husband who were in the home at the time, and shot his teenage daughter, who was not killed); McGilberry v. State, 741 So.2d 894 (Miss.1999) (16-year-old defendant robbed and killed four members of his own family); Brown v. State, 690 So.2d 276 (Miss.1996) (defendant chopped to death three members of a family); Jackson v. State, 684 So.2d 1213 (Miss.1996) (defendant stabbed and killed four children during attempted robbery of his mother's home).

¶ 49. There are other cases, where fewer persons, and no children, were killed, which have sustained this test: Manning v. State, 765 So.2d 516 (Miss.2000) (defendant murdered two elderly women by means of beating them unconscious with iron and slashing their throats with kitchen knife, while robbing them of approximately $12); Brown v. State, 682 So.2d 340 (Miss.1996) (defendant who shot store clerk four times during commission of armed robbery). See also Doss v. State, 709 So.2d 369 (Miss.1997) (death sentence was proportionate where defendant robbed and shot victim); Cabello v. State, 471 So.2d 332, 350 (Miss.1985) (death sentence was proportionate where defendant strangled and robbed victim); Evans v. State, 422 So.2d 737, 739 (Miss.1982) (death sentence was proportionate where defendant robbed and shot victim).

¶ 50. In view of these and other cases (see Appendix), we cannot say that the death penalty is disproportionate in the current case where Brawner killed his ex-wife, mother-in-law and father-in-law during the commission of a robbery, then shot and killed his own three-year-old daughter because she could identify him.

CONCLUSION

¶ 51. For these reasons, we affirm the trial court's judgment.

¶ 52. COUNTS I THROUGH IV: CONVICTIONS OF CAPITAL MURDER AND SENTENCES OF DEATH BY CONTINUOUS INTRAVENOUS ADMINISTRATION OF A LETHAL QUANTITY OF AN ULTRA SHORT ACTING BARBITURATE OR OTHER SIMILAR DRUG IN COMBINATION WITH A CHEMICAL PARALYTIC AGENT, AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

Brawner v. State, 947 So.2d 254 (Miss. 2006). (PCR)

Background: Defendant was convicted in the Circuit Court, Tate County, Andrew C. Baker, J., of four counts of capital murder and sentenced to death. Defendant appealed, and the Supreme Court affirmed, 872 So.2d 1. Defendant filed petition for post-conviction relief.

Holdings: The Supreme Court, Cobb, P.J., held that: (1) defendant failed to demonstrate how the absence of portions of the transcript of his trial had affected his rights and thus could not prevail on claim that counsel's failure to have the entire proceeding transcribed constituted ineffective assistance of counsel; (2) counsel's failure to put on mitigating evidence was not ineffective assistance of counsel, as counsel was following defendant's wishes; (3) court could use robbery as aggravating factor during sentencing; (4) indictment was not required to list aggravating factor upon which the state intended to rely at sentencing; (5) use of the underlying robbery felony as aggravator at sentencing did not expose defendant to double jeopardy; (6) evidence was sufficient to support finding of avoiding arrest aggravating factor; and (7) single act could constitute capital murder by felonious abuse of a child. Petition denied.

EN BANC.
COBB, Presiding Justice, for the Court.

¶ 1. This petition for post-conviction relief arises from a quadruple homicide in 2001 in Tate County. Jan Michael Brawner was convicted on April 11, 2002, of four counts of capital murder, and subsequent to a sentencing hearing, was sentenced to death. Brawner appealed to this Court, and we affirmed his conviction in Brawner v. State, 872 So.2d 1 (Miss.2004). On May 18, 2005, Brawner filed his petition for post-conviction relief pursuant to Miss.Code Ann. Sections 99-39-1 to -29 raising the following eight assignment of errors: three alleging ineffective assistance of counsel for failing to: (1) request a change of venue, (2) prepare a full transcription of the trial, and (3) present mitigating evidence; (4) allowing the underlying felony to be used as a separate aggravating factor during sentencing; (5) unconstitutionality of the avoiding arrest aggravating factor; (6) unconstitutionality of the felonious abuse of a child aggravating factor; (7) failure to include the aggravating factors elevating the charge to capital murder in the indictment and (8) illegal sentence. Finding no merit to any of these arguments, we deny Brawner's petition. FACTS

¶ 2. The following facts were taken from this Court's opinion on direct appeal. In December 1997, Brawner married Barbara Craft, and in March 1998, their daughter, Paige, was born. Brawner and Barbara divorced in March 2001, she was awarded custody of Paige, and they lived with Barbara's parents, Carl and Jane Craft, at their home in Tate County. Brawner also lived with the Crafts off and on during his marriage to Barbara.

¶ 3. At the time of the murders, Brawner was living with his girlfriend June Fillyaw, in an apartment in Southaven. According to Brawner, they were having financial difficulties, and on top of that, he had also been told by Barbara that she did not want him around Paige. He testified that pressure on him was building because nothing was going right.

¶ 4. On the day before the murders, Brawner left his apartment in Southaven at 3:00 a.m. and headed toward the Crafts' house, about an hour away. He testified that he thought he might be able to borrow money from Carl, although in a prior statement he said he had planned to rob Carl. While waiting on the Craft's front steps from approximately 4:00 a.m. until 7:00 a.m., he took a 7-mm Ruger rifle out of Carl's truck and emptied the bullets from it, because “he didn't want to get shot.” A dog started barking, and Brawner hid until Carl went back inside, then ran away, thinking Carl might be getting a gun. He then drove back to his apartment.

¶ 5. Around noon the following day, April 25, 2001, Brawner again drove to the Crafts' house, and knocked on the door, but no one was home. He then put on rubber gloves that he had purchased earlier that day, “took the slats out of the back door,” entered the house, and took a .22 rifle. He then went to Carl's workplace and asked him if it would be OK to go out to the house to wait for Barbara and Paige so that he could see his daughter, to which Carl agreed.

¶ 6. Since Barbara and Paige did not return, Brawner decided to leave, and as he was doing so, Barbara, Paige, and Jane pulled into the drive. After a brief conversation with Jane and Barbara, Brawner became agitated and went to the truck and brought back the rifle that he had taken from the Crafts' house earlier that day. Just as he told Barbara that she was not going to take Paige away from him, he saw Jane walking toward the bedroom and shot her with the rifle. He said he then shot Barbara as she was coming toward him, and went to where Jane had fallen and “put her out of her misery.” After this, he shot Barbara again and took Paige, who had witnessed the murders, to her bedroom and told her to watch TV. After Brawner determined that Paige would be able to identify him, and in his words, he “was just bent on killing,” he went back into the bedroom and shot his daughter twice, killing her. He then waited in the house until Carl came home from work, and when Carl walked through the door, Brawner shot and killed him.

¶ 7. Brawner stole approximately $300 from Carl's wallet, Jane's wedding ring, and food stamps out of Barbara's purse. He took Windex from the kitchen and attempted to wipe away any fingerprints he may have left. Brawner then returned to his apartment in Southaven, where he gave the stolen wedding ring to Fillyaw, asked her to marry him, and told her that he bought the ring at a pawn shop.

¶ 8. Brawner was suspected of the murders and detained by the police. While he was being held at the Tate County jail, Brawner admitted to the shootings in a statement made to the Chief Deputy of the Tate County Sheriff's Department. Brawner also testified on his own behalf at trial and gave essentially the same account of the events as described above.

¶ 9. Brawner raised the insanity defense at trial, although he testified that he knew at the time of the shootings that his actions were wrong. The trial judge found Brawner competent based on information furnished by the Mississippi State Hospital, which certified Brawner competent to stand trial, and mentally responsible for the acts at the time they were committed. Additionally, a court-appointed psychiatrist, chosen by defense counsel, reported that Brawner was neither insane nor incompetent to stand trial.

¶ 10. Brawner was represented by the same counsel at trial and on direct appeal. However, now on post-conviction relief he is represented by new counsel from the Mississippi Office of Capital Post-Conviction Counsel.

DISCUSSION I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 11. Brawner argues three reasons why counsel was ineffective: (1) failing to request a change of venue; (2) failure to have the entire record transcribed and (3) failure to put on mitigating evidence during the sentencing phase. This Court has held that an accused is not entitled to errorless counsel rather competent counsel. Stringer v. State, 454 So.2d 468, 476 (Miss.1984). The legal test as to effective assistance of counsel was established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where the United States Supreme Court held that on a claim of ineffective assistance of counsel the benchmark is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). However, this Court recognizes that there is a strong presumption that counsel's conduct was within the wide range of reasonable professional conduct. Id. at 969. Further, that counsel's actions were the result of strategic decisions. Id. (citing Murray v. Maggio, 736 F.2d 279, 282 (5th Cir.1984)).

¶ 12. The burden of proving ineffective assistance of counsel rests on the defendant to show that counsel's performance was (1) deficient and that (2) the deficient performance prejudiced the defense. Id. at 968. If the defendant fails to prove either component than reversal of his conviction or sentence is not warranted. Cole v. State, 666 So.2d 767, 775 (Miss.1995) (citing Edwards v. State, 615 So.2d 590, 596 (Miss.1993)). In making this determination we view counsel's performance from the totality of the circumstances at the time counsel acted and not through the lens of hindsight. Cole, 666 So.2d at 775 (citing Frierson v. State, 606 So.2d 604, 608 (Miss.1992)).

¶ 13. In order to prove that counsel acted deficiently, the defendant must show specific acts or omissions that he alleges are the result of unreasonable legal assistance. Leatherwood, 473 So.2d at 968. The defendant must prove counsel's performance was deficient using the reasonably effective standard of performance. Id. This means that counsel made errors that were so serious that they were not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000).

¶ 14. Even if the defendant proves that counsel's performance fell below the standard required for a reasonably competent lawyer, he still must prove that he suffered prejudice on account of that deficient performance. The defendant must show that but for counsel's deficient performance that there was a reasonable probability that the result of the proceedings would have been different. Leatherwood, 473 So.2d at 968. It is insufficient to only show that the errors had some conceivable effect on the outcome of the proceeding, because virtually every act or omission of counsel would meet that test. Williams, 529 U.S. at 393, 120 S.Ct. 1495. A reasonable probability is one sufficient to undermine the confidence in the outcome. Id. at 391, 120 S.Ct. 1495.

¶ 15. There are, however, three situations implicating the right to counsel that involve circumstances so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). The first and most obvious is the complete denial of counsel even if only for a critical stage. Id. at 695, 122 S.Ct. 1843. Second is when counsel entirely fails to subject the prosecution's case to meaningful adversarial testing. Id. at 696, 122 S.Ct. 1843. This means that the attorney's failure to test the prosecution's case was complete. Id. at 696-97, 122 S.Ct. 1843. Finally, where counsel is called upon to render assistance under circumstances where competent counsel very likely could not. Id. at 696, 122 S.Ct. 1843. Here none of these exceptions are present. Failure to Request a Change of Venue

¶ 16. Brawner argues that due to pretrial publicity counsel was deficient in failing to request a change of venue, pointing to articles appearing in local newspapers and news broadcasts from Memphis television stations detailing the known facts of the crime. The reports revealed the location of the crime, the names of the victims and eventually the name of the man arrested and charged with the crime. Brawner argues that because of the nature of the quadruple homicide and the size of the community in which it occurred that the media coverage denied him his right to a fair and impartial jury and that counsel failed in attempting to protect that right via a change of venue.

¶ 17. This Court has recognized that the right to a fair trial by an impartial jury is fundamental and essential to our form of government and that it is a right guaranteed by both the federal and state constitutions. Johnson v. State, 476 So.2d 1195, 1209 (Miss.1985) (citing Adams v. State, 220 Miss. 812, 72 So.2d 211 (1954)). An accused is entitled to fair, unprejudiced, unbiased individual jurors, who are willing to be guided by the testimony given by the witnesses and the law as announced by the Court. Johnson 476 So.2d at 1210. If an unbiased jury is not impaneled, it does not matter how fair the remainder of the proceedings may be. Fisher v. State, 481 So.2d 203, 216 (Miss.1985). “It is one of the crowning glories of our law that no matter how guilty one may be, no matter how atrocious his crime, nor how certain his doom, when brought to trial anywhere he shall nevertheless, have the same fair and impartial trial accorded to the most innocent defendant.” Id.

¶ 18. This Court has held that defense counsel is under no duty to attempt to transfer venue; therefore, the decision not to seek a change of venue would fall within the realm of trial strategy. Bishop v. State, 882 So.2d 135, 142 (Miss.2004); Faraga v. State, 514 So.2d 295, 307 (Miss.1987). As we have stated: The fact that there has been widespread publicity in a county about a particular crime does not necessarily mean that a prudent defense counsel will want to have the case tried in another county. There must be a weighing of the odds. Most of the judges and trial lawyers of this state are aware of a statistical distinct disparity between counties in the willingness of juries to impose the death penalty. For some reason, also, some counties appear more “conviction prone” than others. We are also aware of defense lawyers who, in hindsight, have profoundly regretted a circuit judge sustaining their change of venue motion. Faraga, 514 So.2d at 307. Trial counsel's decision not to seek a change of venue is beyond our review. However, even assuming arguendo that trial counsel was deficient in failing to move for a change of venue Brawner has not proven that he suffered prejudice as a result. See Cabello v. State, 524 So.2d 313, 316 (Miss.1988) (citing Gilliard v. State, 462 So.2d 710, 714 (Miss.1985)). Given the quantum of evidence presented against him, including his own confession, it is unlikely that a jury in any other county would have reached another verdict. Failure to Transcribe the Full Record

¶ 19. Brawner's trial counsel ensured that a record was made of the entire trial proceedings, however for the purposes of appeal they only requested a transcription of portions of the trial record. Absent from the transcript presented to this Court on direct appeal was the word-for-word dialogue of voir dire, opening statements and closing arguments during the sentencing phase. However, at all times Brawner has been aware that there existed audio tapes and a shorthand record of these missing portions of the transcript. Further, the court reporter at trial provided Brawner with the audio tapes and informed him that she was willing and remains willing to transcribe her shorthand notes.

¶ 20. Brawner does not claim any specific error arising from the non-transcribed sections of the record, just that counsel was ineffective for failing to have the entire proceeding transcribe. Brawner asserts that there is no way for counsel on post-conviction relief to address all possible sources of error unless he has a full and complete transcript and therefore trial counsel was ineffective.

¶ 21. The United States Supreme Court has stated that trial counsel has a duty to ensure that there is a partial transcript of the trial proceedings in order for appellate counsel to properly perform his role as an advocate for the defendant. Hardy v. United States, 375 U.S. 277, 280, 84 S.Ct. 424, 427, 11 L.Ed.2d 331 (1964). Trial counsel's duty cannot be discharged unless he has a transcript of the testimony and evidence presented by the defendant and prosecution and also the court's charge to the jury. Hardy, 375 U.S. at 282, 84 S.Ct. 424. Had Brawner's trial counsel not ensured that a transcript was made of these portions of the trial then it would be possible that their performance would have been deficient, but that is clearly not the present case.

¶ 22. The Fifth Circuit in a similar situation stated that the petitioner must show that he was prejudiced by these omissions and absent support, mere conclusory allegations are insufficient to raise a constitutional issue. Green v. Johnson, 160 F.3d 1029, 1039 (5th Cir.1998). Despite the fact that Brawner has been in possession of audio tapes of the full proceeding and the court reporter has been willing to transcribe the missing portions of the transcript, he has yet to demonstrate prejudice. Brawner has failed to demonstrate to this Court how the absence of these portions of the transcript has affected his rights. Failure to Present Mitigating Evidence

¶ 23. Trial counsel did not present mitigating evidence at sentencing, despite the fact that there were at least three witnesses willing to testify including: Brawner's mother, sister and psychiatrist. Each witness would have testified to Brawner's good character and certain negative events that occurred during his lifetime. However, it was Brawner's choice not to have these witnesses testify. During the guilt phase the prosecutor, defense counsel and the petitioner had an extensive conversation regarding the presentation of witnesses on Brawner's behalf. The relevant sections of the conversation went as follows: Mr. Walker [defense counsel]: Your Honor, I need to ask [Petitioner] one more thing, please sir. Mr. Brawner, do you wish for me to try to get you “life” or “life without parole,” if you are, in fact, found guilty of any of these counts by the jury? In other words, it's what the lawyers call “put on a mitigation case,” call your mother as a witness to tell about your background, call Dr. Marsha Little-Hendren to tell what she found. How do you wish me to proceed, is what I need to know from you? The Defendant: As far as life, I don't feel that I deserve life to live. * * * Mr. Walker: And I told you-you know, you kind of put me in a quandary here, I'm being asked to do something that I haven't done in ten capital murder trials, but I will respect your [Petitioner's] opinion. Mr Champion [prosecutor]: David, for the record, is it your recommendation that he put on mitigating evidence in guilt-in the sentencing phase if we get to that point? Mr. Walker: Based upon 18 years as a criminal defense lawyer, based upon ten capital murder trials, the answer is “yes,” but I qualify that by saying I will honor [Petitioner's] order and his instructions. * * * Mr. Walker: Mr. Brawner, a capital murder trial in Mississippi has two parts or phases. One is where the jury finds the man or lady guilty or not guilty. Do you understand that now? The Defendant: Yes, sir. Mr Walker: And the other part is, if one is found guilty then the jury decides “life, life without parole, or death.” One of those three options would be the sentence. The Defendant: Yes, sir. * * * Mr. Walker: ... you do not wish to call your mother as a witness [at guilt] because she knows nothing about the facts that I could bring out and your desire is that she not testify before the jury and beg you to get life or life without parole. The Defendant: That's right. The State went on to question Brawner whether he understood that failure to present any mitigating evidence “in all likelihood” would end up in the jury returning a death sentence. To which Brawner answered “Yes, sir.”

¶ 24. Brawner now argues that trial counsel's failure to present mitigating evidence was ineffective assistance of counsel. To this end Brawner cites Blanco v. Singletary, 943 F.2d 1477, 1501 (11th Cir.1991). In Blanco the Eleventh Circuit held that it was ineffective assistance of counsel for an attorney to blindly follow the defendant's command not to pursue mitigating evidence. Id. at 1502. The Eleventh Circuit stated that the lawyer must first investigate all possible avenues of mitigation and advise his client of those offering potential merit. Id. Obviously that standard has been met here by trial counsel. However, that determination need not be reached by this Court. Our own law does not require trial counsel to go against the fully informed and voluntary wishes of his client to refrain from presenting mitigating evidence. Burns v. State, 879 So.2d 1000, 1006 (Miss.2004). Counsel will not be deemed ineffective for following his client's wishes, so long as the client made an informed decision. Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir.2000). A defendant may not block his lawyer's efforts and later claim the resulting performance was constitutionally deficient. Id.

¶ 25. Brawner was fully apprised of the consequences of his choice. He made an informed and voluntary decision not to present mitigating evidence. Trial counsel prepared a mitigation case but did not present it based on Brawner's wishes, despite contrary recommendations. Trial counsel's recommendations and the prosecution's recommendation advised Brawner of the gravity of his choice. We cannot now find that trial counsel was ineffective for failing to put on mitigating evidence. To do otherwise, would allow Brawner to create ineffectiveness.

II. USE OF THE UNDERLYING FELONY AS AN AGGRAVATING FACTOR

¶ 26. Brawner argues that use of the robbery aggravating factor during sentencing was inappropriate as it allowed the use of the underlying felony which elevated the crime to capital murder to elevate the sentence to death. Brawner argues that for three reasons the use of this aggravating factor was inappropriate. First, the underlying felony of robbery was used during the guilt phase, proven to the jury beyond a reasonable doubt, and therefore, its use at sentencing creates an “automatic” aggravating circumstance. Second, use of the robbery aggravating factor violates the mandate issued by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Third, use of the underlying felony during sentencing exposes the defendant to double jeopardy.

¶ 27. Prior to addressing the merits of this issue, we note that it is procedurally barred pursuant to Miss.Code Ann. Section 99-39-21(1) because it could have been raised on direct appeal and was not. Wiley v. State, 750 So.2d 1193, 1208 (Miss.1999). Without waiving the procedural bar, we determine this issue is without merit. Brawner concedes in his brief that this Court has refused to grant relief based on his first argument that use of the underlying felony at sentencing constitutes improper doubling. However, he argues that this Court should follow a series of decisions from Florida which he alleges support his position. Specifically Brawner cites Barnhill v. State, 834 So.2d 836 (Fla.2002); Griffin v. State, 820 So.2d 906 (Fla.2002) and Robertson v. State, 611 So.2d 1228 (Fla.1993).

¶ 28. We have consistently upheld the use of the underlying felony as an aggravating factor during sentencing. Goodin v. State, 787 So.2d 639, 654 (Miss.2001) (citing Walker v. State, 671 So.2d 581, 612 (Miss.1995)). The argument is the familiar “stacking” argument. It contends that it is unconstitutional for the State to elevate murder to capital murder and then, using the same factor, elevate the sentence to death. As pointed out in Lockett v. State, 517 So.2d 1317, 1337 (Miss.1987), this Court has consistently rejected this argument. Goodin, 787 So.2d at 654; Davis v. State, 684 So.2d 643, 664 (Miss.1996). However, this Court has found impermissible doubling where the trial court in a sentencing proceeding submits as separate aggravating factors both the fact that the capital murder was committed during the commission of a robbery and for pecuniary gain. Goodin, 787 So.2d at 654. In that case the two aggravating factors essentially comprise one circumstance. Id. (citing Willie v. State, 585 So.2d 660 (Miss.1991)).

¶ 29. The Florida cases cited by Brawner do not stand for the proposition he asserts. Rather, they stand for the proposition that the use of two aggravating factors which essentially comprise one circumstance results in impermissible doubling. Barnhill, 834 So.2d at 851; Griffin, 820 So.2d at 914-15; Robertson, 611 So.2d at 1233. This is identical to our law as announced in Goodin and Willie. Therefore, this assertion is without merit.

¶ 30. Brawner's second argument is that Ring and Apprendi require that the aggravating factor which the State intends to use at sentencing, as elements of the offense of capital murder, must be set forth in the indictment. This Court has repeatedly dealt with this argument finding it without merit. Jordan v. State, 918 So.2d 636, 661 (Miss.2005). Simply put Ring and Apprendi have no applicability to Mississippi's capital murder sentencing scheme. Id. (citing Berry v. State, 882 So.2d 157, 172 (Miss.2004)). The State is correct in its assertion that a defendant is not entitled to formal notice of the aggravating circumstances to be employed by the prosecution and that an indictment for capital murder puts a defendant on sufficient notice to what statutory aggravating factors will be used against him. Stevens v. State, 867 So.2d 219, 227 (Miss.2003); Smith v. State, 729 So.2d 1191, 1224 (Miss.1998).

¶ 31. The purpose of the indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense. Brown v. State, 890 So.2d 901, 918 (Miss.2004). Accordingly, all that is required in the indictment is a clear and concise statement of the elements of the crime charged. Our death penalty statute clearly states the only aggravating circumstances which may be relied upon by the prosecution in seeking the ultimate punishment. Thus, every time an individual is charged with capital murder they are put on notice that the death penalty may result. Id. (citing Williams v. State, 445 So.2d 798, 804 (Miss.1984)). Therefore, this argument is without merit.

¶ 32. Brawner's third argument is that use of the underlying felony at sentencing exposed him to double jeopardy. For this proposition Brawner points to no case law in support. This Court has held that failure to cite to relevant authority relieves us of the duty of reviewing the issue. Glasper v. State, 914 So.2d 708, 726 (Miss.2005). Without lifting the procedural bar this argument is also without merit. The United States Supreme Court in Schiro v. Farley, 510 U.S. 222, 230, 114 S.Ct. 783, 789, 127 L.Ed.2d 47 (1994) addressed this issue and concluded that double jeopardy does not apply.

¶ 33. The Schiro Court held that double jeopardy applies to prevent three errors it protects against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction and (3) multiple punishments for the same offense. Schiro, 510 U.S. at 229, 114 S.Ct. 783 (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969)). These protections stem from the premise that an accused should not be tried or punished twice for the same offense. Id. (citing United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 1020, 43 L.Ed.2d 232 (1975)). Double jeopardy operates as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent. United States v. DiFrancesco, 449 U.S. 117, 136, 101 S.Ct. 426, 437, 66 L.Ed.2d 328 (1980).

¶ 34. In the present situation there is no threat of multiple prosecutions for the same offense or for repeated punishment arising from the same conviction. See Schiro, 510 U.S. at 230, 114 S.Ct. 783. The sentencing phase of a capital murder trial is one part of the whole trial which includes the guilt phase. The use of the underlying felony at sentencing does not expose the defendant to double jeopardy. Therefore, Brawner's arguments under Issue II are without merit.

III. CONSTITUTIONALITY OF THE AVOIDING ARREST AGGRAVATING FACTOR [33]

¶ 35. Brawner argues that the use of the avoiding arrest aggravating factor without a limiting instruction creates a vague, over broad and unconstitutional application of Mississippi's death penalty statute which results in an unconstitutional sentence. Since this issue could have been raised on direct appeal and was not it is procedurally barred. Notwithstanding the procedural bar, we address the merits.

¶ 36. This Court has addressed this exact argument numerous times and found it without merit. Doss v. State, 882 So.2d 176, 195 (Miss.2004); Wiley v. State, 750 So.2d 1193 (Miss.1999); Puckett v. State, 737 So.2d 322, 362 (Miss.1999); Carr v. State, 655 So.2d 824, 854 (Miss.1995); Walker v. State, 671 So.2d 581, 611 (Miss.1995); Chase v. State, 645 So.2d 829, 858 (Miss.1994). Briefly stated, our death penalty statute does not equate every murder with an attempt to eliminate witnesses, but rather narrowly defines to whom the avoiding arrest aggravating factor may be applied. Wiley, 750 So.2d at 1207.

¶ 37. As the Fifth Circuit has noted, our decisions have narrowly construed the application of the avoiding arrest aggravating factor only to circumstances where the accused purposefully killed the victim of the underlying felony to avoid or prevent arrest for that felony. Gray v. Lucas, 677 F.2d 1086, 1109-10 (5th Cir.1982). Unequivocally this Court has said: Each case must be decided on its own peculiar facts. If there is evidence from which it may be reasonably inferred that a substantial reason for the killing was to conceal the identity of the killer or killers or to ‘cover their tracks' so as to avoid apprehension and eventual arrest by authorities, then it is proper for the court to allow the jury to consider this aggravating circumstance. Wiley, 750 So.2d at 1206 (citing Chase, 645 So.2d at 858). Therefore, this argument is without merit.

¶ 38. In turning to whether the present case is appropriate for the avoiding arrest aggravating factor, this Court employs a deferential standard of review. It is this Court's role to inquire into whether there was credible evidence to support the jury's finding of the aggravating factor. Wiley, 750 So.2d at 1206. The following facts were admitted in support of the jury's finding. Brawner confessed that it was his intent to rob the Crafts and Barbara. For that purpose he purchased and wore rubber gloves and broke into the Crafts' home earlier that day to steal Carl's rifle. He entered the Crafts' home the second time for the sole purpose of robbing the inhabitants. It was not until after he had entered the home that he realized he would not be able to “get away with” the robbery without eliminating the witnesses. Barbara had gunshot wounds to her hands which indicated that she received them in a defensive posture. The only reason he shot his daughter, Paige was because she had witnessed him shoot Jane and Barbara and he feared that she would identify him to the police.

¶ 39. After he shot Jane, Barbara and Paige, he waited for Carl to come home before shooting him as he walked in the door. Brawner then stole Carl's wallet, Jane's wedding ring and food stamps from Barbara's purse. Afterwards, he wiped down the crime scene with Windex to eliminate evidence. After taking the money from Carl's wallet he disposed of the wallet so that it could not be found. Later, when confronted by the police he told them that he had bought the ring from a pawn shop.

¶ 40. These facts indicate Brawner's concerted effort to avoid arrest. This Court has held that use of gloves in the commission of an underlying felony is evidence of the accused's intent to avoid arrest. See Chase, 645 So.2d at 857. Further, this Court has recognized that where the victim of the crime knew the defendant and would have subsequently been able to identify him, that the victim's murder provides credible evidence in support of the jury's finding. See Puckett, 737 So.2d at 362. This Court has also recognized defensive wounds on the victim, indicating that they were not aggressive to the defendant provide evidence of the defendant's intent to avoid arrest. See Doss, 882 So.2d at 193. These facts combined with the others and most notably Brawner's confession that he entered with the purpose of robbing the victims provide credible evidence to support the jury's finding. Id. This issue is without merit.

IV. CONSTITUTIONALITY OF THE FELONIOUS ABUSE OF A CHILD AGGRAVATING FACTOR

¶ 41. This Court addressed on direct appeal whether it was appropriate for the jury to consider the felonious abuse of a child aggravating factor: Here, Brawner shot his daughter's grandmother as his daughter watched, then shot his daughter's mother as she watched. He again shot both the grandmother and the mother two additional times, all as Paige looked on. He then shot his daughter twice. Shooting Paige fits the description of felony child abuse in that it is a strike to the child in a manner as to cause serious bodily harm. Therefore, we reject Brawner's assertion that the killing of Paige Brawner was not capital murder. Brawner, 872 So.2d at 16. Now on post-conviction Brawner asserts that our death penalty statute, as applied to felonious child abuse, is unconstitutional. He claims that when reading Miss.Code Ann. Section 97-5-39(2)(c) (felonious child abuse) in conjunction with Miss.Code Ann. Section 97-3-19(2)(f) (capital murder) the result is an automatic implication of a capital crime regardless of how or in what manner the child suffers death.

¶ 42. This issue could have been raised on direct appeal and it was not. Therefore, it is procedurally barred. However, without raising the procedural bar, since Brawner challenges the constitutionality of our capital murder regime, we address the merits. This Court found in Stevens v. State, 806 So.2d 1031, 1044 (Miss.2001) that the Legislature intended under Miss.Code Ann. Section 97-5-39(2)(c) that the intentional act of murdering a child, no matter the manner in which it was performed, constitutes felonious abuse of a child under Miss.Code Ann. Section 97-3-19(2)(f). It is the Legislature's prerogative to define crimes and set punishments as long as they remain within the limits of the United States Constitution and our own. Id. In that regard, we found that the Legislature intended that there need be only one act to constitute capital murder by felonious abuse of a child. Id. (citing Brown v. State, 690 So.2d 276, 291 (Miss.1996)).

¶ 43. Previously a defendant in Faraga v. State, 514 So.2d 295 (Miss.1987), assailed the constitutionality of our capital murder statute by raising an identical argument. In Faraga this Court found that upon reading the statutes in conjunction that they were constitutional. Faraga, 514 So.2d at 302. As it was in Faraga, Brawner's argument is without merit.

V. AGGRAVATING FACTORS NOT LISTED IN INDICTMENT

¶ 44. Brawner here repeats his argument from Issue II, with regard to the applicability of Ring and Apprendi, except now he includes all aggravating factors. For the reasons stated in Issue II this Issue is also without merit.

VI. ILLEGAL SENTENCE

¶ 45. Brawner argues that since this Court did not possess the entire transcript that any proportionality review which was done was incomplete. In every death penalty direct appeal this Court is required to review the proportionality of the sentence to the crime for which the defendant was convicted. See Miss.Code Ann. § 99-19-105(3)(a).FN1 On direct appeal this Court conducted the following proportionality review: FN1. (3) with regard to the sentence, the court shall determine: (a) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor. Brawner asserts that Miss.Code Ann. § 99-19-105(3) (Rev.2000) requires the Court to perform a proportionality review if it affirms a death sentence in a capital case. He also requests the Court to reverse the death sentence for Count one based on his arguments in Issues VI and VII. Brawner cites no authority to support his contention that the death penalty is disproportionate in this case. This Court must review the death sentence in accordance with Miss.Code Ann. § 99-19-105(3), which states: (3) With regard to the sentence, the court shall determine: (a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; (b) Whether the evidence supports the jury's or the judge's finding of a statutory aggravating circumstance as enumerated in Section 99-19-101; (c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; and (d) Should one or more of the aggravating circumstances be found invalid on appeal, the Mississippi Supreme Court shall determine whether the remaining aggravating circumstances are outweighed by the mitigating circumstances or whether the inclusion of any invalid circumstance was harmless error or both. Miss.Code Ann. § 99-19-105(3). There is nothing in the record to suggest that the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor.

In addition, Brawner has not argued to the contrary. There is evidence supporting the finding of aggravating factors. The following aggravating factors were found by the jury, and we find there is sufficient evidence supporting them: the capital offense was committed by a person under sentence of imprisonment (four counts); the offense was committed while the defendant was engaged in the commission of robbery (three of the four counts); and the offense was committed for the purpose of avoiding or preventing lawful arrest (four counts). The death penalty has been held not to be disproportionate in cases similar to this one. See Stevens v. State, 806 So.2d 1031 (Miss.2001) (defendant shot and killed his ex-wife, also shot and killed two children and the ex-wife's husband who were in the home at the time, and shot his teenage daughter, who was not killed); McGilberry v. State, 741 So.2d 894 (Miss.1999) (16-year-old defendant robbed and killed four members of his own family); Brown v. State, 690 So.2d 276 (Miss.1996) (defendant chopped to death three members of a family); Jackson v. State, 684 So.2d 1213 (Miss.1996) (defendant stabbed and killed four children during attempted robbery of his mother's home). There are other cases, where fewer persons, and no children, were killed, which have sustained this test: Manning v. State, 765 So.2d 516 (Miss.2000) (defendant murdered two elderly women by means of beating them unconscious with iron and slashing their throats with kitchen knife, while robbing them of approximately $12); Brown v. State, 682 So.2d 340 (Miss.1996) (defendant who shot store clerk four times during commission of armed robbery). See also Doss v. State, 709 So.2d 369 (Miss.1997) (death sentence was proportionate where defendant robbed and shot victim); Cabello v. State, 471 So.2d 332, 350 (Miss.1985) (death sentence was proportionate where defendant strangled and robbed victim); Evans v. State, 422 So.2d 737, 739 (Miss.1982) (death sentence was proportionate where defendant robbed and shot victim). In view of these and other cases (see Appendix), we cannot say that the death penalty is disproportionate in the current case where Brawner killed his ex-wife, mother-in-law and father-in-law during the commission of a robbery, then shot and killed his own three-year-old daughter because she could identify him. Brawner, 872 So.2d at 16-17. Brawner fails to assert specific errors made supported by relevant citations. Brawner's entire argument is based on the premise that since this Court lacked a transcript of voir dire, opening statements and closing arguments that our proportionality review was inherently flawed.

¶ 46. This Court will not sit as a Court of general review. Appellants and petitioners alleging errors must present us with a complete record highlighting the alleged errors supported by citation to relevant case law. Byrom v. State, 863 So.2d 836, 891 (Miss.2003); Randolph v. State, 852 So.2d 547, 558 (Miss.2002) (in the absence of meaningful argument and citation of authority this Court will generally not consider the assignment of error); Moody v. State, 838 So.2d 324, 338 (Miss.App.2002). This is especially so in the present case where Brawner has been in possession of the omitted portions of the transcript for an extended period of time, including a grant of additional time by this Court for this specific purpose, and has failed to allege any specific errors therefrom. Therefore, we find this argument without merit.

CONCLUSION

¶ 47. None of Brawner's arguments have merit. Therefore, we deny his petition for post-conviction relief.

¶ 48. PETITION FOR POST-CONVICTION RELIEF DENIED. SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR.

Brawner v. Epps, 439 Fed.Appx. 396 (Miss. 2011). (Habeas)

Background: After his petition for postconviction relief from capital murder conviction and death sentence was denied at the state level, 947 So.2d 254, defendant petitioned for federal habeas relief. The United States District Court, Northern District of Mississippi, denied petition. Defendant filed motion for certificate of appealability (COA).

Holdings: The Court of Appeals held that: (1) state court's denial of ineffective assistance claim was not attributable to unreasonable application of clearly established federal law; (2) defendant's decision to waive trial counsel's presentation of mitigating evidence at penalty phase of capital murder prosecution was knowing and voluntary; and (3) state court's finding that prosecutor's exercise of peremptory strike against pregnant juror was not discriminatory was not attributable to an unreasonable determination of facts. Motion for COA denied.

PER CURIAM:

Jan Michael Brawner, Jr. challenges the district court's denial of habeas relief. He seeks a certificate of appealability for this court to review his claims of ineffective assistance of counsel and the discriminatory striking of a juror. The motion is DENIED.

FACTUAL AND PROCEDURAL HISTORY

On April 25, 2001, Jan Michael Brawner shot and killed four people in Tate County, Mississippi. He was arrested the next day and charged with four counts of capital murder. Brawner pled not guilty and presented an insanity defense. A jury convicted him on all counts and sentenced him to death.

Brawner's convictions and sentence were affirmed on direct appeal by the Mississippi Supreme Court. Brawner v. State, 872 So.2d 1 (Miss.2004) [ Brawner I ]. That court later denied Brawner's petition for post-conviction relief. Brawner v. State, 947 So.2d 254 (Miss.2006) [ Brawner II ]. In January 2007, Brawner filed an application under 28 U.S.C. Section 2254 with the United States District Court for the Northern District of Mississippi. The court denied relief. Brawner v. Epps, No. 2:07–CV–16, 2010 WL 383734 (N.D.Miss. Jan. 27, 2010); see also Brawner v. Epps, No. 2:07–CV–16, 2010 WL 2090327 (N.D.Miss. May 21, 2010) (denial of motion to amend judgment). These opinions contain a full recounting of the facts and proceedings in this case. Consequently, our restatement of the facts will be limited.

The district court declined to issue a certificate of appealability (“COA”). Brawner then timely moved in this court for a COA on two issues: (1) whether his trial attorneys were constitutionally ineffective in their failure to investigate mitigating evidence, and (2) whether the prosecutor committed constitutional error in using a peremptory strike to remove a pregnant juror. We refuse to grant a COA on either issue.

DISCUSSION

Federal habeas review of state convictions is governed by the Anti–Terrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C. § 2254. This court must be “highly deferential” to state court rulings. Paredes v. Thaler, 617 F.3d 315, 318 (5th Cir.2010) (citation omitted). We analyze whether the final state court's resolution of each claim was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

“Claims of ineffective assistance of counsel involve mixed questions of law and fact and are governed by § 2254(d)(1).” Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir.2010) (citation omitted). A state court decision is an unreasonable application of the law when it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Id. at 352 (citation and quotation marks omitted). Under this standard, we will not issue a writ solely because we conclude the state court made an erroneous decision. Paredes, 617 F.3d at 319. That decision must be “so clearly incorrect that it would not be debatable among reasonable jurists.” Murphy v. Johnson, 205 F.3d 809, 813 (5th Cir.2000) (citation and quotation marks omitted).

Claims of discriminatory juror selection present pure questions of fact that are reviewed under Section 2254(d)(2). Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006). Under this standard, the state court findings of fact are presumed to be correct, and the petitioner has the burden of rebutting the presumption of correctness by “clear and convincing evidence.” Id. at 338–39, 126 S.Ct. 969 (quoting 28 U.S.C. § 2254(e)(1)). “Deference does not by definition preclude relief.” Miller–El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

As to Brawner's ineffective assistance of counsel claim, we consider whether jurists of reason could debate the district court's determination that the Mississippi Supreme Court's resolution was not an unreasonable application of clearly established federal law. As to Brawner's claim of discriminatory juror striking, we consider whether jurists of reason could debate the district court's determination that the Mississippi Supreme Court's resolution was not an unreasonable determination of the facts.

I. Ineffective Assistance of Counsel
A. Background and the Parties' Arguments

At trial, Brawner was represented by David Walker, Tate County's part-time public defender. Walker was assisted by a law clerk, Tommy Defer, who at the time had graduated from law school but failed the bar exam. He later passed the exam and was sworn into practice the morning of Brawner's trial. He was immediately appointed co-counsel for Brawner. Defer cross-examined four witnesses during the guilt phase of the trial.

An ineffective assistance of counsel claim is to be evaluated by examining whether the attorney acted reasonably “considering all the circumstances.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4–1.1 to 4–8.6 (2d ed. 1980) (“The Defense Function”), are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Id. at 688–89, 104 S.Ct. 2052. We will examine similar standards to guide us.

Brawner's central argument for ineffective assistance is that neither Walker nor his unlicensed law clerk investigated mitigating evidence that could have been presented at the sentencing phase. Brawner alleges that the law clerk had been delegated the responsibility to prepare for the sentencing phase but itemized only 92.5 hours of work on the case, 39 of which were spent in the multi-day trial. The clerk allegedly spent no time investigating mitigating evidence. (Walker did not keep time records.) In addition, Brawner alleges that his trial team did not request or otherwise utilize an investigator or mitigation specialist as recommended by the American Bar Association Guidelines then in effect. See Am. Bar Ass'n Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases § 11.4.1(D)(7) (1989) (“ABA Guidelines”); see also id. § 8.1 cmt.

As a result of these failures, Brawner claims he was denied counsel under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), or in the alternative denied effective assistance of counsel under Strickland. Brawner contends that a thorough investigation of mitigating evidence and presentation of such findings to the jury during the sentencing phase could have persuaded a reasonable juror not to impose the death penalty. The district court summarized the mitigating evidence as including: (1) a prior diagnosis of depression and Post Traumatic Stress Disorder (“PTSD”); (2) that [Brawner] suffers from a learning disorder; (3) that his family moved frequently due to their financial woes brought on by drug and alcohol abuse; (4) that he was exposed to drug and alcohol abuse; (5) that he and his sister were exposed to physical abuse; (6) that as a child he received beatings to keep him silent when he witnessed his father repeatedly rape his younger sister; (7) that he was admitted to Parkwood Hospital at the age of fourteen for huffing gasoline and was diagnosed with Polysubstance Abuse; (8) that his school records reflect a marked drop in performance during the height of abuse in the home; and (9) ... that he ultimately dropped out of school in the ninth grade and failed to obtain his GED. Brawner, 2010 WL 383734, at (omitting footnote stating Brawner's father was convicted of sexually battering Brawner's sister and served 7.5 years at the Mississippi State Penitentiary). Brawner also claims additional mitigating evidence would be found in “the circumstances of his marriage and divorce”—which was finalized the month before the murders—and the multiple car accidents Brawner had the year before the murders, which may have caused brain damage. Id. at *7.

In response, the State of Mississippi argues that Brawner at all times was represented by a licensed attorney. The State also contends that Brawner waived his right to a thorough investigation of mitigating evidence by repeatedly requesting the death penalty. Therefore, it argues, Brawner was not prejudiced by any failure to investigate mitigating evidence.

The state trial court record reveals that Brawner was questioned carefully on the record several times about issues relevant to this appeal. Brawner was asked whether, should the jury return a guilty verdict, he wanted defense counsel to put on a case in mitigation that might cause the jury to sentence him to life without parole. Counsel stated that the witnesses would include Brawner's mother to discuss his difficult childhood, and a psychiatrist to testify as to her findings. Brawner responded that “I don't feel I deserve to live.” Additional on-the-record comments from Brawner appear in the Mississippi Supreme Court's opinion that denied post-conviction relief. Brawner II, 947 So.2d at 263–64. Among the more relevant excerpts are comments from his counsel that counsel had never previously failed to put on a case in mitigation and had recommended to Brawner that one be offered for him. Brawner then had explained to him on the record that a capital case consisted both of a guilt phase and one on sentencing. Brawner agreed with his counsel's question that he did not “wish to call your mother as a witness [at guilt] because she knows nothing about the facts that I could bring out and your desire is that she not testify before the jury and beg you to get life or life without parole.” Id. at 263.

B. The State Court's Resolution

The Mississippi Supreme Court denied Brawner's ineffective assistance claim. “Trial counsel did not present mitigating evidence at sentencing, despite the fact that there were at least three witnesses willing to testify....” Id. The attorney's decision was based on “Brawner's choice not to have these witnesses testify.” Id. After reviewing and quoting the trial transcripts, the court found that Brawner had repeatedly sought the death penalty and “made an informed decision” to waive his attorney's presentation of mitigating evidence. Id. at 264. Our own law does not require trial counsel to go against the fully informed and voluntary wishes of his client to refrain from presenting mitigating evidence. Burns v. State, 879 So.2d 1000, 1006 (Miss.2004). Counsel will not be deemed ineffective for following his client's wishes, so long as the client made an informed decision. Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir.2000). A defendant may not block his lawyer's efforts and later claim the resulting performance was constitutionally deficient. Id.

Brawner was fully apprised of the consequences of his choice. He made an informed and voluntary decision not to present mitigating evidence. Trial counsel prepared a mitigation case but did not present it based on Brawner's wishes, despite contrary recommendations. Trial counsel's recommendations and the prosecution's recommendation advised Brawner of the gravity of his choice. We cannot now find that trial counsel was ineffective for failing to put on mitigating evidence. To do otherwise, would allow Brawner to create ineffectiveness. Id. at 264 (paragraph numbering omitted). The federal district court held the state court's resolution to be a reasonable application of clearly established law.

The Mississippi Supreme Court did not explain its reasoning in rejecting Brawner's argument that delegation of the mitigation issue to a law clerk resulted in a complete denial of counsel. The court said that “complete denial of counsel ... for a critical stage” would warrant relief, but found this situation was not present. Id. at 261. The federal district court more thoroughly addressed this argument. It concluded that Walker did not delegate the entire case to his law clerk. Because Walker had “filed motions, argued motions, directed and cross-examined witnesses, delivered opening and closing statements, and objected throughout trial.” Brawner, 2010 WL 383734, at *11. We agree the state court did not unreasonably apply clearly established federal law to the issue of a complete denial of counsel.

C. The Role of Waiver in Ineffective Assistance Claims

Ineffective assistance of counsel claims have two components. “First, the defendant must show that counsel's performance ... fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052. “Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. This standard applies to capital sentencing procedures. Id. at 686–87, 104 S.Ct. 2052. As we discussed earlier, we consider the first factor, objective reasonableness, by looking to “prevailing professional norms” such as the ABA Guidelines. Id. at 688, 104 S.Ct. 2052. The second factor, prejudice, arises when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052.

A thorough investigation of mitigating evidence is necessary for effective representation of death-eligible defendants. See id. at 690–91, 104 S.Ct. 2052; Wiggins v. Smith, 539 U.S. 510, 521–22, 524–25, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 390, 395–99, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052. This duty was briefly discussed in the ABA Guidelines in effect at the time of Brawner's trial, which stated: “Counsel's duty to investigate is not negated by the expressed desires of a client.” ABA Guidelines § 11.4.1 cmt.FN1 FN1. The current ABA Guidelines “discuss the duty to investigate mitigating evidence in exhaustive detail.” Bobby v. Van Hook, –––U.S. ––––, 130 S.Ct. 13, 17, 175 L.Ed.2d 255 (2009).

The Supreme Court has granted habeas relief when post-conviction investigations of mitigating evidence reveal substantially more evidence about the defendant's family and social history than trial counsel discovered, and the failure to introduce that evidence was prejudicial. See Wiggins, 539 U.S. at 525, 527–28, 123 S.Ct. 2527. If defense counsel chose not to investigate, that decision “must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

Notwithstanding this well-established duty, defendants may later excuse their attorney's inadequacies, if any, in investigating and presenting mitigating evidence. See Amos v. Scott, 61 F.3d 333, 348 (5th Cir.1995). In Amos, the defendant alleged ineffective assistance for “his counsels' failure to investigate and prepare mitigating evidence about his background and mental health.” Id. at 347. The state habeas court found the defendant had “strongly opposed having any witnesses testify on his behalf during the punishment phase of his trial.” Id. at 348. The district court held that there was no prejudice from a potential failure to investigate more thoroughly because the defendant “would not have permitted those witnesses to testify anyway, so what they might have said is academic.” Id.

On appeal, Amos argued that despite his desire that members of his family not testify, he had not insisted that no witnesses should be called and no investigation and presentation of mitigating evidence occur. Id. at 348–49. This court disagreed, holding that Amos had made it clear that he wanted no one to testify on his behalf, and therefore the state court's finding to that effect should be accepted. Id. at 349. Even if interviews of some of the family would have revealed the abuse Amos had suffered as a child, that possibility did not matter because Amos did not want to present mitigation testimony. Id.FN2 FN2. In one pre- Strickland case, a defendant argued ineffective assistance of counsel for his attorney's failure to investigate possible witnesses for the sentencing phase and the defendant's life history. Autry v. McKaskle, 727 F.2d 358, 360 (5th Cir.1984). There was substantial evidence, though, that the defendant had displayed “strong resistance to a life sentence,” turned down the state's offer of a life sentence, and turned down an offer of a 40–year sentence. Id. at 361. The district court concluded “that Petitioner's rejection of all plea bargain offers permits an inferentially drawn conclusion that Petitioner preferred the risk of a death sentence to the certainty of an extended term of imprisonment,” and denied the ineffective assistance of counsel claim. Id. (emphasis omitted).

We affirmed. The defendant's decision was “a knowing one,” supported by testimony, and therefore his attorney was “ethically bound to follow [his] wishes.” Id. at 362–63 (citing the ABA Standards Relating to the Defense Function (1970)). Brawner makes a similar argument that although he did not want his mother to “beg” for his life, his lawyer misinformed him of other available options for mitigation, and Brawner never intended to waive the investigation or presentation of all mitigating evidence. Brawner did allow one witness to testify during mitigation, as compared to Amos's opposition to “having any witnesses testify on his behalf.” Id. at 348.

To obtain relief on a claim such as this, the petitioner must show both that the attorney was constitutionally ineffective and that the ineffectiveness prejudiced him at trial. Id. at 347. A court may deny relief “based solely on a petitioner's failure to meet either prong of the test.” Id. at 348 (citation omitted). As we held in Amos, a defense attorney following his client's informed and voluntary decision that a mitigation case not be presented does not commit professional error because such conduct is following the client's informed wish, and is not prejudicial because the evidence would not have been introduced over the defendant's objection. Id.

The Mississippi Supreme Court denied Brawner's habeas claim in part by relying on one of our decisions in which the state court rejected a similar post-conviction ineffective assistance claim when the petitioner had not wanted any members of his family at the trial. See Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir.2000). We affirmed the denial of relief. Id. at 749. “Counsel will not be deemed ineffective for following their client's wishes, so long as the client made an informed decision.” Id. (citing Autry v. McKaskle, 727 F.2d 358, 361 (5th Cir.1984)); see also Sonnier v. Quarterman, 476 F.3d 349, 362 & nn. 5–6 (5th Cir.2007) (collecting cases).

Brawner argues that the Mississippi Supreme Court did not rule on either Strickland prong, thus permitting de novo review. We disagree. Although that court declined to rule whether counsel was ineffective, that was because Brawner could not establish prejudice after he knowingly directed his attorney not to present mitigating evidence. Brawner II, 947 So.2d at 261; cf. Porter v. McCollum, ––– U.S. ––––, 130 S.Ct. 447, 451 n. 6, 175 L.Ed.2d 398 (2009). Regardless of the quality of investigation, there was no prejudice because any relevant evidence would not have been introduced. We agree with the state court's reasoning with one caveat. A necessary component of our analysis is that Brawner's decision not to allow a mitigation case to be presented was a voluntary and knowing one. We will address that issue next.

D. Whether Brawner's Waiver Was Knowing and Voluntary

The cases we have just discussed lack a consistent standard by which to evaluate the sufficiency of the defendant's statement about not wishing to proceed with a mitigation case. In Amos, the defendant explained his wishes in a colloquy with the trial judge and “acknowledged that he understood the consequences.” Amos, 61 F.3d at 349. In Autry, we found that “nothing in this record reflects any change in the level of Autry's rationality or in the voluntary and knowing character of his decision, in the three years since trial. And no one, not even his present counsel, offers any evidence that Autry is, or was, incompetent.” Autry, 727 F.2d at 362. In yet another case, the district court determined that the defendant was competent and “made a knowing and intelligent waiver”; the court of appeals wrote that the defendant “steadfastly,” “intelligently,” and “competently” waived his rights. Lenhard v. Wolff, 443 U.S. 1306, 1311–12, 100 S.Ct. 3, 61 L.Ed.2d 885 (1979) (citation omitted).

The Supreme Court has declined to establish a standard to evaluate a defendant's waiver of the presentation of mitigating evidence. Schriro v. Landrigan, 550 U.S. 465, 478–79, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). “We have never imposed an ‘informed and knowing’ requirement upon a defendant's decision not to introduce evidence.” Id. at 479, 127 S.Ct. 1933 (citation omitted). In that case, the Court assumed without deciding that the proper rule was one of informed and knowing waiver. Id.

We need not establish a standard today either. We will review Brawner's statements to confirm that he was competent and that his wishes were consistent, knowing, and voluntary. Brawner's principal argument is that his statements waiving the presentation of mitigating evidence were not made knowingly because his attorneys misinformed him about the role and nature of such evidence. He also asserts that his statement at trial that he did not “deserve to live” is not the same as affirmatively wishing to be sentenced to death. We consider these arguments in our review of the record evidence.

Approximately three months after the murders, Brawner saw his former probation officer Kenneth Fox FN3 at the jail and talked to him. Brawner later said: “I told him that I had done something wrong and I imagined that I would get the death penalty for it. I told him I didn't know very much about the drugs they used on you when they do lethal injections, but that I knew there was other people out there that needed organs.” Fox told him to put it in writing. FN3. In 1998, Brawner was convicted of several counts of burglary and grand larceny.

Brawner gave Fox a handwritten letter two days later, which Fox turned over to the police. The letter read: You told me to write down what I'd asked you for earlier. Well, instead of wasting the taxpayers' money anymore, I am guilty of murder. I was not in my right mind then but that still doesn't excuse what I did. I'm sorry for it and wish everyday I could take it back but I can't. So, here we are. With the current situation I am suffering in this jail. I won't last much longer so to save us a lot of heartache, how about just go ahead and putting me to death, so to speak. I will explain. I will not live life in prison so I'm asking for the death penalty. I know this is a special request but instead of lethal injection that will mess up my organs, I want to go out of this world in the hospital while I am donating my heart.... Please honor my request.... I make this request of sound mind and body.

Approximately five months after the murders, on September 18, 2001, Brawner met with the law clerk, and rejected the suggestion that he plead guilty to avoid the death penalty. According to a memo the law clerk wrote that day, Brawner “said it was his desire to suffer the death penalty than to spend the rest of his life in prison. He would [choose] death over life. We discussed this in detail, and at the end of our discussions, [Brawner] did not change his mind.” The next day, Walker wrote Brawner to confirm his wishes. On September 20, 2001, Brawner replied, “I did say I do not want to plead guilty in exchange for a life sentence. I will take what the Jury says [and] nothing less.”

On November 15, 2001, Brawner wrote a letter to Walker in which he admitted to the murders and expressed frustration with Walker's representation. Brawner then wrote, “I am guilty of a crime [and] I need to be put to Death!” Walker responded four days later, stating, “I advised you that you make my job hard because you tell that you do not wish to spend your life in prison. Only the jury can sentence you to death. A judge cannot. You cannot.” Walker concluded, I simply need for you to advise me in writing of your response to the following two questions: (1) Do you wish to contest your guilt of any or all of the four counts of capital murder at your trial? (2) Do you wish to contest the death penalty if you are found guilty of any or all of the four counts of capital murder? Your instructions on how you desire me to proceed on these two matters will be honored. The record does not show a response from Brawner.

Some of the correspondence is inconclusive. For example, on December 19, 2001, Brawner wrote Walker and provided a list of five “persons who can testify on my behalf” and their contact information. It is not clear whether Brawner suggested that these people testify during the guilt phase—he had claimed the insanity defense—or during mitigation. The law clerk spoke with Brawner shortly thereafter, then suggested in a memo to Walker that the five persons could be used to “testify as to [Brawner's] mental state before committing the crimes”; the clerk did not suggest using them for mitigation. Brawner's current attorneys claim that his trial team only contacted one of these witnesses.

On March 15, 2002, the trial court held a hearing on Brawner's motion to suppress inculpatory statements. Brawner during direct examination said this: [Walker]: And you don't wish life without parole in this case if you get convicted, do you, Mr. Brawner? [Brawner]: No, sir. [Walker]: You either want to be declared mentally insane or you want the death penalty? ... [Brawner]: That's correct. [Walker]: Not ‘life without parole’ or ‘life’? [Brawner]: No, sir. [Walker]: All right. Psychologists at the Mississippi State Hospital at Whitfield also assessed Brawner's mental state before trial. On March 25, 2002, they reported the following: “During this evaluation, Mr. Brawner reported that he has had thoughts of killing himself while incarcerated. He also reported intermittently experiencing thoughts of killing two other inmates housed in the same facility.... He reported that he would harm himself or someone else if he felt that doing so would help ensure that he would either receive ‘help’ or the death penalty.” At trial, the State Hospital psychiatrist testified that based on the evaluation, Brawner “demonstrated clearly” his sanity and understanding of his legal situation, the charges, the penalties, the expectations, the role of witnesses, among other critical facts and processes. After the prosecution rested, Brawner repeatedly and clearly stated his wishes during a colloquy in Chambers: [Walker]: Mr. Brawner, do you wish for me to try to get you ‘life’ or ‘life without parole,’ if you are, in fact, found guilty of any of these counts by the jury? In other words, it's what the lawyers call ‘put on a mitigation case,’ call your mother as a witness to tell about your background, call Dr. Marsha Little–Hendren to tell what she found. How do you wish me to proceed, is what I need to know from you? [Brawner]: As far as life, I don't feel that I deserve life to live. This dialogue continued for several pages of the transcript. Brawner asked that his mother testify during the guilt phase, then withdrew that request after Walker's statement that “she really doesn't have anything to add, I don't think, at this stage whether you're guilty or not guilty.” Brawner then stated he did not wish for her to testify at mitigation.

The trial judge stated, I think it's ultimately Mr. Brawner's decision in consultation with his two lawyers.... I think the State has at this point, at least, got sufficient evidence before the jury that Mr. Brawner is competent to assist counsel. It's like I told you, Mr. Brawner, you've got to make this decision and direct your lawyers which way you want the case to go. Walker added that in his previous ten capital murder trials, “I've never had a capital murder client tell me not to ask for life or life without, not to put on a mitigation case.” Walker turned to Brawner and said, “you know, you kind of put me in a quandary here, I'm being asked to do something that I haven't done in ten capital murder trials, but I will respect your opinion....” One of the prosecutors questioned Walker to make a record. Walker stated that he recommended presenting mitigating evidence and had prepared a mitigation case, but was not going to pursue it per his client's wishes. Walker then questioned Brawner again. Brawner stated he knew and understood both phases of capital murder trials, understood the possible sentence, and confirmed that he did not want his mother to, as Walker put it, “beg for you to get life or life without parole.”

The conference ended and Brawner's case-in-chief began. Brawner testified, but his insanity defense collapsed quickly on cross-examination. He admitted that he knew right from wrong, agreed that he had planned the murders, knew he had to “cover up” what he was about to do, shot four people, attempted to cover up the crimes, then lied to the police afterward. After admitting to all four murders and the underlying felonies, Brawner said he would have murdered a fifth victim if he had to. The prosecutor concluded by asking Brawner, “[w]hat do you deserve?” Brawner replied, “[d]eath.” The jury returned a guilty verdict on all four counts.

Before sentencing, the trial judge held another colloquy in chambers. The judge said he would instruct the jury on mitigating factors. “[E]ven though counsel for the defendant tells me that he has been instructed not to seek any mitigation instructions, I'm doing that against defense counsel's wishes.” The prosecutor clarified that defense counsel had actually advised the defendant to put on mitigation evidence, “but the defendant had elected to ask the Court not to give them against counsel's objections.” Finally, Brawner's attorney sought the court's permission “to get in one more time ... that this is [Brawner's] last chance to tell me to present [his] mitigation case[ ]. He's never wavered from that.” Brawner was then questioned by his attorney as follows:

[Walker]: Mr. Brawner, when the jury gets back from lunch [the prosecutors] are going to ask the jury to impose the death penalty upon you. You have consistently throughout my representation of you, and Mr. Defer, instructed me not to present what's called a mitigation case. In lay terms that means ask for life or life without parole. Is that still your desire that I not ask for life or life without parole at the sentencing phase of this trial? [Brawner]: Yes, it is. The prosecutor then asked if Brawner understood what had happened so far, the consequences of his decision, and that “this is a free and voluntary decision that you're making against your lawyer's advice?” Brawner again said: “It is.” The judge concluded, “I think Mr. Brawner is in full control of his faculties.... I think he's made a free and voluntary choice, and he's consistently instructed his lawyer to take this position.... The Court finds that he is competent.”

When the parties returned to court for the punishment phase, Brawner's attorney did in fact present a limited mitigation case. He called Brawner's former probation officer to testify about the living conditions on Mississippi's death row.FN4 Walker was apparently attempting to show that life without parole would be a harsher penalty than death. Walker's closing argument at sentencing confirmed this strategy, with this conclusion: “[I]f you're a vindictive person, if you're a vengeful person, you want to put the most hurt on Mr. Brawner that you can, then you decide in your mind is it a two-minute death via lethal injection or is it 50 years in Unit 32 at the Mississippi Department of Corrections?” The jury returned a sentence of death. FN4. Fox was also the prosecution's witness during sentencing. He testified to aggravating factors warranting the death penalty.

Brawner's wishes did not change after trial. On August 23, 2003, he wrote the Mississippi Supreme Court, copying the State Attorney General and his attorney, and asked that “after this one mandatory appeal I wish to forgo any and all further appeals.” Brawner elaborated on his wishes in the version he sent to the Attorney General, which stated, “I do understand the situation I place myself in by waiving any further appeals. I will be put to death. I have had over a year and a half to think about all of this and my mind is made up.”

One year later, during his state habeas proceedings, Brawner reiterated his request in an August 6, 2004 letter to the clerk of the Mississippi Supreme Court. “I request motions, petitions, Appeals, and/or stays of execution of any kind Filed by my counsel and/or persons trying to [represent] me be withdrawn and that a Mandate of affirmance be issued forth with.” He then reiterated this request and described that he no longer wanted legal representation. On the same day, he wrote the trial court a similar letter asking for an execution date “set with out further delay” and “ expedited review of this waiver.”

The voluminous record supports that, aside from a relatively weak attempt to be declared legally insane, Brawner consistently sought the death penalty. The trial judge concluded that not only had Brawner's testimony not contradicted any of the elements of capital murder, he had in fact “[b]olstered” the argument for guilt and the penalty of death. Brawner's wishes remained the same for over three years, throughout pre-trial, trial, direct appeal, and state habeas proceedings.

It is true that Walker's description of Brawner's mother's mitigation testimony as merely “begging for life” was not an accurate characterization or sound counseling of his client. The depth of Walker and Defer's mitigation investigation has also been called into question by the substantial evidence accrued during the various habeas proceedings. There is no evidence that Brawner was uncooperative; he did not interrupt or object when his attorney called his one witness during mitigation. E.g., Schriro, 550 U.S. at 476–77, 127 S.Ct. 1933. But it is also true that Brawner was not shown to be incompetent or that his decision to seek the death penalty was not a knowing, voluntary, and intelligent choice. The Mississippi Supreme Court had significant evidence that Brawner was not prejudiced by any ineffective assistance of counsel because he actively and repeatedly sought the death penalty.

As a final matter, we note that before reading the jury instructions, the trial judge told Walker, “I'm afraid of the scenario that [Brawner's] saying I've got mental problems, and then for you not to beg for a lesser punishment, the Supreme Court would say well, the lawyer should have overridden his client's feelings to that extent.” The judge concluded, “I've never seen a lawyer put in a worse situation than you're in.” The prosecutor agreed. Considering the substantial record evidence, we cannot say that the Mississippi Supreme Court's resolution of Brawner's ineffective assistance claim was objectively unreasonable. Brawner has not made the “substantial showing” necessary for a COA to issue on this claim. 28 U.S.C. § 2253(c)(2).

II. Discrimination Against a Pregnant Juror

Brawner's other argument for a COA is that the prosecutor committed constitutional error when she exercised a peremptory challenge against a pregnant juror on the basis of the pregnancy. Brawner exhausted this claim by raising it during his direct appeal. Brawner I, 872 So.2d at 7–12. A defendant must establish unconstitutionally discriminatory jury selection by a three-part test:

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination. Miller–El, 537 U.S. at 328–29, 123 S.Ct. 1029 (citing Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). Batson was later extended to make unconstitutional discrimination in jury selection based on sexual stereotypes. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 137, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). The Supreme Court found it essential to end the perpetuation of “prejudicial views of the relative abilities of men and women.” Id. at 140, 114 S.Ct. 1419. Even one instance of striking a pregnant juror as a convenient pretext for gender discrimination would be unconstitutional. Id. at 142 n. 13, 114 S.Ct. 1419.

J.E.B. did not purport to eliminate the use of peremptory challenge, though. “Parties still may remove jurors who they feel might be less acceptable than others on the panel; gender simply may not serve as a proxy for bias.” Id. at 143, 114 S.Ct. 1419. “Even strikes based on characteristics that are disproportionately associated with one gender could be appropriate, absent a showing of pretext.” Id. The Supreme Court has never ruled on the characteristic of pregnancy, which is obviously associated exclusively with one sex.

During voir dire in Brawner's case, the prosecution struck three women and one man, tendering a proposed jury composed of seven women and five men. Brawner I, 872 So.2d at 8. Brawner's counsel objected on the basis that three out of the four strikes were used against women, citing J.E.B. and Batson. Id. at 8–9. The trial court found that Brawner had failed to meet the threshold showing of bias, “not with [the prosecution] having accepted seven [women] out of the first twelve,” and then granted the prosecution's request to state her reasons for the strikes. Brawner's argument focuses on the striking of Juror Number 38, who was pregnant. The prosecutor first stated that she struck the juror on the basis of the pregnancy. Brawner's attorney responded that “there's no proof that this lady's going to have a baby this week or next week or that she can't serve physically because she's pregnant.” The prosecutor replied, “last week in the Tribble case, we had a pregnant juror and she had trouble—particularly difficulties with the lack of air conditioning in our courtroom.” There was no further argument after that; the judge directed the parties to “move on.”

The Mississippi Supreme Court fully rejected Brawner's argument that the prosecutor displayed bias based on gender. Id. at 7–12. It included in its opinion a table showing the relevant characteristics of all 36 members of the venire who were considered or struck before a full jury was seated. Id. at 7. The venire was slightly more than 60 percent female, and of the 12 jurors ultimately selected, 75 percent were female. Id. at 10. The Mississippi Supreme Court accepted the trial judge's finding that Brawner had failed to establish a prima facie case of discrimination. Id. at 10. The trial judge was found to have properly allowed the prosecutor to state her reasons for the strikes on the record, but later arguments about the propriety of those reasons did “not lessen the burden on the defendant to establish the prima facie case.” Id. at 10–11 (citation omitted). Therefore, the court concluded, it was “not necessary to review each gender neutral reason offered by the State for its strikes,” including the reasons given for the pregnant juror. Id. at 12.

In direct appeals as in habeas proceedings, “[d]eference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding largely will turn on evaluation of credibility.” Miller–El, 537 U.S. at 339, 123 S.Ct. 1029 (citation and quotation marks omitted). Even where “[r]easonable minds reviewing the record might disagree about the prosecutor's credibility”—which we do not—“on habeas review that does not suffice to supersede the trial court's credibility determination.” Rice, 546 U.S. at 341–42, 126 S.Ct. 969. Brawner has not made a substantial showing that he has any clear and convincing evidence that could satisfy AEDPA's standard of review. See id. at 338–39, 126 S.Ct. 969.

We disagree that the Mississippi Supreme Court permitted the trial judge to collapse the second and third steps of the Batson analysis. The trial judge ruled on Brawner's objection before the prosecutor issued her gender-neutral reason. See Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (holding the first step of Batson was moot when the prosecution stated its reasoning before the trial judge ruled on the objection). This was not error.

In addition, even if we assume Brawner's attorney made out a prima facie case, the record shows no evidence that the prosecutor's reason for using a peremptory strike on the pregnant juror was a pretext for excluding women. The prosecutor identified the previous pregnant juror's “difficulties with the lack of air conditioning in our courtroom” in a trial just one week prior to Brawner's. Pregnancy necessarily will affect only female jurors, but the prosecutor's stated reason here was health-related and was grounded to a recent event. It was not evidence of unconstitutional discrimination.

The state court's resolution of this claim was not unreasonable. That conclusion is not debatable. A COA will not issue. MOTION DENIED.