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Grindle v. State
Citations: 134 So. 3d 330; 2013 WL 4516730; 2013 Miss. App. LEXIS 535Docket: No. 2012-KA-00006-COA
Court: Court of Appeals of Mississippi; August 27, 2013; Mississippi; State Appellate Court
The hearsay exception for dying declarations is a well-established principle in common law that predates the Constitution, allowing such declarations to be admissible even in light of the Sixth Amendment's confrontation rights. In the appeal of Brandon Grindle, convicted of deliberate-design murder, he contests the trial court's admission of the shooting victim’s nonverbal identification of him, made shortly before the victim's death. Grindle claims this violated his right to confront witnesses, arguing that subsequent testimony from a nurse suggesting the victim may have lost consciousness rendered the officer’s earlier testimony inadmissible. The court disagrees, stating that any discrepancies merely challenge the officer's credibility rather than the admissibility of the dying declaration, which met the criteria of Mississippi Rule of Evidence 804(b)(2). The trial judge acted within his discretion in admitting the declaration, and the application of this historical exception does not infringe upon Grindle's confrontation rights. Additionally, the court found no preserved trial errors or plain error concerning Grindle's other claims and declined to evaluate the effectiveness of his trial counsel, suggesting that any such claims should be pursued in post-conviction relief. Consequently, the court affirmed Grindle's conviction and life sentence. The facts reveal that Charles Brown was shot by Grindle while walking in front of his house. Witnesses noted ongoing animosity between Brown and Grindle, stemming from personal disputes involving their children. Testimony indicated that Grindle possessed a firearm on the day of the shooting, with two witnesses confirming they saw him with a gun in his SUV. The actual weapon used in the shooting was never recovered. Two witnesses, Oscar Walker and Rashad Newton, testified at trial regarding the shooting of Brown. Walker saw Grindle's green Ford Expedition shortly before the incident and identified it as the vehicle that fled the scene after the gunshots. Newton observed Grindle's vehicle approach Brown, who was backing away when shots were fired, ultimately leading to Brown's death. Grindle's appeal centers on Officer Richard Browning, who interviewed the intubated Brown in the emergency room shortly before he died. Despite Brown's inability to speak, Officer Browning asked him if Grindle was the shooter, to which Brown responded affirmatively by nodding "yes." Grindle was charged with first-degree murder under Miss.Code Ann. 97-3-19(l)(a) for killing Brown. Prior to the trial, Grindle filed a motion in limine to exclude Officer Browning's testimony about his exchange with Brown, which the State argued was admissible as a dying declaration despite being hearsay. Grindle's counsel contended that Brown's nodding did not qualify as such. During the motion hearing, Officer Browning detailed his interaction with Brown, affirming that Brown understood and responded to his questions. Grindle's attorney cross-examined Officer Browning about Brown's medical condition, but Browning maintained that Brown was responsive. Grindle did not present any evidence to contradict Browning’s testimony. The trial judge ruled that Brown's nonverbal responses qualified as a dying declaration and denied Grindle’s motion to exclude Browning's testimony, allowing the jury to assess the credibility of Officer Browning's account. Additionally, the State called investigating officers to testify about the murder. Officer Chris Brumfield searched Grindle’s vehicle the day after the shooting for a gun and shell casings but found neither. During the trial, the State inquired if Grindle had a .45 caliber pistol upon his arrest five months later, to which Officer Brumfield confirmed but noted that the Mississippi Crime Lab ruled out that gun as the one used in the shooting. Officer Browning testified about his hospital interview with the victim, Brown, which aligned with his previous statements. Nurse Kayla Breland, who treated Brown, confirmed Officer Browning's presence but could not recall their conversation due to her focus on medical care. Breland’s records indicated a low Glasgow score for Brown, suggesting he could not communicate or control his movements; however, she admitted Brown "possibly could have" nodded in response to questions. Grindle did not testify but presented several defense witnesses. The jury convicted Grindle of deliberate-design murder, resulting in a life sentence. Following a denied post-trial motion, Grindle appealed with new counsel, asserting that both preserved and unpreserved errors warranted a new trial. He claimed the admission of Brown’s dying declaration and his second arrest were erroneous, that the jury received improper instructions, and that the State made inappropriate remarks during closing arguments. Additionally, he alleged ineffective assistance of trial counsel. Grindle’s unpreserved appellate challenges are subject to the plain-error doctrine, which allows for review only of errors that seriously affect judicial proceedings’ fairness or integrity. He preserved his challenge to the admission of Brown's dying declaration, but his specific claim regarding Breland’s testimony affecting the reliability of that declaration was waived due to lack of objection at trial. Grindle also did not preserve his argument concerning his constitutional right to confront evidence against him, limiting the review of these claims to plain error analysis. Brown's identification of Grindle as the shooter was deemed a dying declaration, meeting all necessary criteria for admissibility under Mississippi law. The trial judge had the discretion to admit this testimony despite challenges to its credibility raised by Breland’s later testimony regarding Brown’s consciousness. Any inconsistencies between Officer Browning's and Breland's accounts were determined to be issues of credibility for the jury to assess, rather than grounds for excluding the dying declaration. According to Mississippi Rule of Evidence 804(b)(2), which allows for the admission of hearsay statements made under the belief of imminent death in homicide cases, the trial judge's decision to admit Brown’s nodding in response to Officer Browning's questions was appropriate. Brown's nods were classified as nonverbal statements under Rule 801(a), constituting hearsay as they were offered to prove the truth of his assertion that Grindle was the shooter. With Brown deceased shortly after his statements, he was deemed "unavailable" under Rule 804(a)(4). Rule 804(b)(2) thus permitted the admission of his statements regarding the circumstances of his impending death. This rule codified the longstanding hearsay exception for dying declarations, traditionally based on the belief that individuals would not lie at the point of death. Although contemporary views may be more secular, there remains a general consensus on the reliability of dying declarations. The modern application of this hearsay exception may require a lesser showing for admission compared to common law standards. Grindle argues that the trial court improperly admitted Brown's dying declaration under Rule 804(b)(2), claiming common-law requirements were not satisfied. However, the Mississippi Supreme Court has established three key requirements for a dying declaration: 1) the declarant must be in extremis and die after making the statement; 2) the declarant must realize they are mortally wounded; and 3) the declarant must have no hope of recovery. Grindle concedes these conditions were met, as Brown was in extremis, died, and his gunshot wounds indicated his awareness of his condition. Grindle's primary contention is that Brown was "medically unconscious" during his statements, thus making them inadmissible. He cites past cases stating that declarations must come from someone of sound mind. However, Officer Browning, the sole witness at the pretrial hearing, testified that Brown was conscious and responsive, despite having a tracheostomy tube. Browning described Brown’s attempts to communicate, confirming that he understood questions and responded affirmatively. The judge ruled that Brown’s statements were admissible as dying declarations, with the officer's testimony supporting Brown's consciousness and comprehension during the interaction. Therefore, even if Rule 804(b)(2) incorporates a "sound mind" requirement, the evidence demonstrated that this requirement was satisfied. Officer Browning's trial testimony aligned closely with his pretrial testimony, indicating that while Brown could not speak, he was believed to understand questions and responded non-verbally. Browning testified that Brown nodded affirmatively multiple times when asked if Grindle was the shooter, asserting that Brown's responses were clear. This scenario is comparable to the case of Berry v. State, where a gunshot victim briefly regained consciousness to identify his shooter before dying. The court allowed the dying declaration under Rule 804(b)(2), concluding that the victim was conscious of his impending death. The admissibility of Brown's dying declaration was upheld despite Breland’s later testimony, which Grindle argued should have led to the exclusion of Officer Browning’s testimony. However, the trial judge had ruled the declaration admissible prior to Breland's testimony, and Grindle did not object after Breland testified, which was necessary to preserve any claim of error related to that testimony. Grindle contended the judge erred by not revising the prior ruling based on new evidence, yet no legal precedent required the judge to sua sponte correct earlier evidentiary decisions based on subsequent testimony. Breland's testimony primarily questioned Browning's credibility rather than the admissibility of Brown’s declaration. Breland was called by the State to confirm that Browning questioned Brown before his death, but his cross-examination responses were uncertain regarding Brown's state of consciousness. Breland's testimony indicated that Brown may have been conscious enough to respond, which challenges the reliability of Officer Browning's account from the emergency room rather than conclusively proving Brown could not make a dying declaration. Grindle's argument that the trial judge erred by not providing a limiting instruction regarding Officer Browning's testimony is waived, as he did not request such an instruction. The court found no reversible error in the trial judge's decision to uphold a prior evidentiary ruling regarding Brown's statements, which was deemed within the judge's discretion. Grindle’s appellate counsel contends that Brown's dying declaration infringed on his Sixth Amendment right to confrontation, a claim not raised during the trial. While the plain-error doctrine allows the court to consider unpreserved issues affecting fundamental rights, the court found no violation of Grindle’s rights since the right to confront one’s accuser includes an exception for dying declarations. The Sixth Amendment guarantees a defendant's right to confront witnesses, and while Brown's identification of the shooter constituted 'testimonial' hearsay under Crawford v. Washington, the court determined that the exception for dying declarations applied, mitigating potential confrontation clause violations. The Supreme Court has acknowledged a longstanding exception to the Sixth Amendment's confrontation requirement for dying declarations, even those that are testimonial. In Crawford, the Court noted this exception as part of criminal hearsay law but did not resolve its applicability to testimonial dying declarations. Four years later, in Giles, the Court reiterated that common law recognized dying declarations made by individuals who were aware they were dying. In the 2011 case of Bryant, the issue of whether the Sixth Amendment excepts dying declarations was not definitively resolved due to procedural abandonment at the state level, despite Justice Ginsburg's dissent highlighting the historical exception. In Mississippi, the case Sanders v. State applied Bryant but did not address dying declarations specifically. The Mississippi courts have indicated that if the issue were properly presented, they would likely uphold the historical exception for dying declarations as compatible with the state's constitutional confrontation requirements. Additionally, other states have recognized that this exception existed at the time the Sixth Amendment was adopted, suggesting its validity under both federal and state confrontation standards. The Supreme Court of California has determined that the Confrontation Clause should be interpreted in light of common law, allowing exceptions established at the founding, such as the dying declaration exception, without conflicting with the Sixth Amendment. This view is supported by a Wisconsin Supreme Court decision, which recognized the historical acceptance of dying declarations in common law and their compatibility with constitutional rights. Other jurisdictions have similarly upheld the admissibility of dying declarations, emphasizing their deep roots in legal tradition and lack of conflict with constitutional protections. Furthermore, there is no federal or state court precedent indicating that the admission of dying declarations violates a defendant’s right to confront their accuser, leading to the conclusion that such evidence did not infringe upon Grindle’s Sixth Amendment rights. Additionally, Grindle contends that the trial court erred in admitting testimony regarding his prior arrest for possessing a stolen firearm, arguing it violated Mississippi Rules of Evidence 404(b) and 403. Rule 404(b) prohibits using evidence of other crimes to suggest a person's character, but allows for its admission for other purposes. If a judge permits such evidence, they must conduct a Rule 403 balancing test to weigh its probative value against potential prejudice, which the trial judge is required to perform as established in Watts v. State. Grindle failed to object to the introduction of evidence regarding his subsequent arrest, which included the recovery of a .45-caliber pistol, thereby waiving his Rule 404(b) argument against its admission. The court referenced Rubenstein v. State, noting that a lack of objection to prior bad acts precludes appellate arguments concerning those statements. Grindle's attorney was responsible for eliciting the testimony about the arrest, which prevents him from later claiming it was improperly introduced. Despite this waiver, the court found no merit in Grindle's argument that the testimony was unduly prejudicial. Officer Brumfield's testimony merely indicated Grindle’s arrest and the recovery of a pistol not linked to the murder, without creating a pattern of testimony that would constitute unfairness. Grindle's attorney might have introduced the arrest details to clarify that the recovered weapon was not the murder weapon, which could have been beneficial to his defense. Therefore, the court concluded that the admission of this evidence did not result in a fundamentally unfair trial, rejecting any claim of plain error. Grindle further challenged the jury instructions related to deliberate design murder and the presumption of malice, which will be addressed next. No court reporter was present at the jury-instruction conference, meaning any objections from Grindle's counsel to the jury instructions are not documented. Both the State and Grindle agreed not to instruct the jury on manslaughter, creating an all-or-nothing scenario regarding Grindle’s guilt for murder. Consequently, Grindle waived challenges to the substantive murder instruction and presumption-of-malice instruction due to his failure to object at trial, as established by precedent. The deliberate-design-murder instruction provided to the jury included all necessary elements for a murder conviction: that Charles Brown was alive, that Grindle killed him with a firearm on a specific date, with deliberate design and malice aforethought, without legal authority, and not in self-defense. The court found this instruction adequate, negating the need to assess its impact on Grindle's rights. Grindle’s primary concern regarding the jury instructions was that the presumption-of-malice instruction contradicted the requirement of malice in the deliberate-design-murder instruction. This presumption instruction indicated that if a person is harmed with a deadly weapon, intent to kill may be inferred. Under Mississippi law, malice is essential for murder but not for manslaughter, and it can be inferred from the use of a deadly weapon. However, once all evidence is presented, any initial presumption should not influence the jury’s independent assessment of malice. The court highlighted that a presumption-of-malice instruction is only appropriate when the evidence does not clarify the circumstances of the weapon's use. Grindle argued that direct evidence existed regarding his use of a deadly weapon, but the court clarified that "circumstances surrounding the use of the weapon" refers to factual context explaining the nature of the killing, not the type of evidence presented. Evidence indicated that the shooting involved Grindle was deliberate and malicious, as he had previously complained about Brown and was seen driving with a gun. Testimony confirmed that Grindle shot Brown twice while passing by him, establishing a presumption of malice that rendered the instruction on presumption unnecessary but not prejudicial. The court deemed any error in giving this instruction as harmless, particularly since Grindle did not contest it during the trial. Unlike in Tran v. State, where conflicting evidence existed regarding the nature of the shooting, Grindle’s defense was based solely on misidentification without any self-defense claim or contrary evidence. Thus, the lack of conflicting evidence meant the judge's instruction regarding malice was at most a harmless error. Additionally, Grindle challenged the State's closing argument, claiming it contained an improper "send-a-message" appeal, which his attorney did not object to during the trial. The court found the comments were not inflammatory enough to warrant sua sponte intervention by the judge. Prosecutors are prohibited from encouraging juries to use their verdict as a message to the public, as the jurors must focus solely on the evidence regarding the defendant's guilt. The court outlined a two-prong test for assessing such complaints, beginning with whether defense counsel objected and if the comment was unsolicited. In this case, the defense did not object, complicating Grindle's challenge on appeal. Grindle's appeal is focused on comments made by the prosecutor during closing arguments, which he contends improperly referenced the Casey Anthony and O.J. Simpson trials, suggesting that juries in Florida and California misunderstand reasonable doubt. Grindle's attorney did not object to these comments at trial, leading to a procedural bar on this issue unless the statements were deemed so inflammatory that the trial judge should have intervened. The court found that while the remarks were ill-advised, they did not reach the level warranting judicial intervention. Furthermore, any references to the high-profile cases were minimal within the broader context of the State's argument. The judge had instructed the jury that attorney arguments are not evidence, and it is presumed they followed this instruction. Applying a two-prong test to determine reversible error, the court concluded that Grindle could not demonstrate prejudice, as it was clear beyond a reasonable doubt that the jury would have found him guilty regardless of the prosecutor's comments. Grindle's argument centers on the claim of ineffective assistance of counsel, alleging that his trial counsel's inactions and omissions led to a violation of his constitutional rights. The court expresses confidence that, despite these alleged deficiencies, the jury would have found Grindle guilty based on overwhelming evidence. Generally, the court is reluctant to entertain ineffective assistance claims on direct appeal unless the record clearly demonstrates constitutional ineffectiveness or both parties agree the record is adequate for review. In this case, the state did not agree, and Grindle acknowledged his arguments were not fully supported by the record. The court clarifies that the relevant question on direct appeal is whether the trial judge had a duty to declare a mistrial based on counsel's performance, rather than the effectiveness of the counsel itself. Grindle's claims related to his counsel's failure to preserve errors are viewed as part of strategic decisions, which are typically protected under the presumption of counsel's competence. The court finds no evidence to counter this presumption and suggests that Grindle's claims are better suited for a post-conviction relief motion, where the record can be thoroughly developed. Consequently, the court denies Grindle's claim without prejudice, allowing him the option to address his counsel's performance in a future post-conviction relief proceeding. The judgment of the Marion County Circuit Court, convicting Grindle of deliberate-design murder and sentencing him to life in prison with a $2,500 fine, is affirmed. All costs related to the appeal are to be borne by Marion County. Grindle, represented by Eleanor Faye Peterson at trial, sought in forma pauperis status and court-appointed appellate counsel after his post-trial motion was denied. Initially, George Holmes was appointed, but he withdrew, and Merrida Coxwell and Charles Richard Mullens took over as Grindle’s appellate counsel. Grindle challenges the admission of evidence regarding his parents’ arrests for failing to report him, arguing it was irrelevant. The trial judge allowed this evidence, clarifying that Grindle voluntarily turned himself in. Grindle claims this violated Mississippi Rules of Evidence 608 and 609, which pertain to character evidence, but these rules do not apply as his parents did not testify. He also argues a violation of Rule 404(b), but the evidence was not used to show conformity to prior conduct. The trial judge limited the evidence to Grindle’s act of surrendering, not implicating him in any wrongdoing. Grindle initially contended that the trial judge’s granting of Jury Instruction 10, which he requested, was plain error; however, he later conceded this point, shifting the focus to his counsel's performance. The excerpt references notable high-profile cases, emphasizing that improper remarks in those trials were deemed harmless errors that did not impact the jury's verdicts.