Brown v. State of Mississippi

Filing 15

MEMORANDUM OPINION re 14 Judgment. Signed by Neal B. Biggers on 9/20/11. (jtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
KING YOUNG BROWN,

PETITIONER

v.

No. 4:10CV91-B-V

STATE OF MISSISSIPPI

RESPONDENT

MEMORANDUM OPINION
This matter comes before the court on the petition of King Young Brown for a writ of habeas
corpus under 28 U.S.C. § 2254. The State has responded to the petition. Brown has not filed a
traverse, and the time to do so has expired. For the reasons set forth below, the instant petition for
a writ of habeas corpus will be denied.
Facts and Procedural Posture1
King Young Brown is in the custody of Raymond Byrd, Warden of the Delta County
Correctional Facility in Greenwood, Mississippi, after his conviction for manslaughter (Count I)
and rape (Count II) in the Circuit Court of Washington County, Mississippi. State Court Record
(“S.C.R.”), Vol. 2, pg. 296. Brown was sentenced to serve twenty years on Count I and thirty
years on Count II, to run consecutively in the custody of the Mississippi Department of
Corrections. Id.
Brown appealed his convictions and sentences to the Mississippi Supreme Court, raising
the following as grounds for relief (as stated by Brown through counsel):
I.

1

Whether the lower court erred in granting the State’s manslaughter
instruction marked and identified as S-6.

The facts and procedural posture in this opinion are taken largely from the State’s
response to the petition, as these matters are not in dispute in this case.

II.

Whether the lower court erred in allowing the State to solicit testimony
identifying King Young Brown, Jr. and [the victim]2 through microscopic
hair comparisons.

III.

Whether the lower court violated King Young Brown, Jr.’s 6th Amendment
right to confront his accusers when that court allowed the State to solicit
testimony from a DNA analyst other than the analyst that actually conducted
the DNA analysis.

IV.

Whether the verdict finding King Young Brown, Jr. guilty of manslaughter
is against and/or inconsistent with the overwhelming weight of the evidence.

V.

Whether the lower court erred in overruling King Young Brown, Jr.’s
objection to the admission of the State’s photographs marked and identified
as S-78, S-74, S-77, S-76 and S-79 on the basis that such photographs’
probative value was outweighed by its prejudicial effect.

VI.

Whether the lower court erred in allowing the illegal seizure of King Young
Brown, Jr.’s hair, blood and saliva samples thus violating the due process
clause of the 4th, 5th, 6th and 14th Amendment of the United States Constitution
and the Constitution of the State of Mississippi.

VII.

Whether the lower court erred in overruling King Young Brown, Jr.’s motion
for directed verdict.

VIII.

Whether the lower court erred in denying Appellant, King Young Brown,
Jr.’s motion for mistrial.

IX.

Whether the lower court erred in limiting King Young Brown, Jr.’s ability to
cross-examine and/or impeach the State’s fingerprint expert.

X.

Whether the court erred in dismissing an African-American juror from the
jury.

XI.

Whether the verdict finding King Young Brown, Jr. guilty of forcible rape is
against the overwhelming weight of the evidence.

The Mississippi Court of Appeals affirmed Brown’s convictions and sentences. Brown v. State,
999 So.2d 853 (Miss. App. 2008), reh’g. denied, November 18, 2008, cert. denied, January 29,
2

The victim was a minor and suffered a sexual assault prior to her murder. As such, in
the interest of privacy, the court will not to refer to her by name.
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2009 (Cause No. 2006-KA-315-COA).
Brown then filed an “Application for Leave to File Motion for Post-Conviction Relief”
and accompanying “Motion for Post-Conviction Relief and Supporting Authorities,” raising the
following grounds for relief (as stated by Brown through counsel):
Issue One:

The prosecution committed prosecutorial misconduct by eliciting
testimony that the prosecution knew was false.

Issue Two:

King Brown’s appellate counsel provided ineffective assistance of
counsel.

Issue Three:

The prosecution’s presenting and arguing false evidence to the jury
was so egregious as to require reversal under the plain error doctrine.

Issue Four:

King Brown was denied due process when the prosecution was
allowed to present the DNA evidence via a witness who did not
herself conduct the testing.

The Mississippi Supreme Court denied Brown’s post-conviction motion, holding:
After due consideration, the panel finds that Brown’s Application should be
denied. The prosecutorial misconduct claim could have been raised on direct
appeal and is, therefore, procedurally barred. MISS. CODE ANN . §99-39-21.
Notwithstanding the procedural bar, the panel finds that the claim is without
merit. Hence, where the panel finds no merit in the prosecutorial misconduct
claim, there can be no viable ineffective assistance of counsel claim. Finally,
Brown’s claim that an intervening decision would have required a different result
is also without merit where the circumstances regarding the defendant’s right of
confrontation in the Melendez-Diaz case are distinguishable from the facts in this
case.
Brown then filed the instant federal petition for a writ of habeas corpus, raising the same
four claims raised in his state court PCR with the additional allegation that “the evidence was
insufficient as a matter of law to convict Brown.” He has exhausted his remedies in state court,
and the matter is properly before this court for habeas corpus review.

-3-

Grounds One and Three: Procedurally Barred
The Mississippi Supreme Court held that the allegations of prosecutorial conduct found
in Grounds One and Three of the instant petition for a writ of habeas corpus are procedurally
barred under MISS. CODE ANN . § 99-39-21(1), as Brown did not raise these issues on direct
appeal. The Mississippi Supreme Court order holds that these claims are barred under MISS.
CODE ANN . § 99-39-21(1), which reads:
Failure by a prisoner to raise objection, defenses, claims, questions, issues or
errors either in fact or law which were capable of determination at trial and/or on
direct appeal, regardless of whether such are based on the laws and the
constitution of the state of Mississippi or of the United States, shall constitute a
waiver thereof and shall be procedurally barred, but the court may upon a showing
of cause and actual prejudice grant relief from the waiver.
“When a state court declines to hear a prisoner’s federal claims because the prisoner failed to
fulfill a state procedural requirement, federal habeas is generally barred if the state procedural
rule is independent and adequate to support the judgement.” Sayre v. Anderson, 238 F. 3d 631,
634 (5th Cir. 2001) (citing Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2553-54, 115
L.Ed.2d 640 (1991); Amos v. Scott, 61 F.3d 333, 338-39 (5th Cir. 1995)).
Section 99-39-21(1) of the Mississippi Code is, indeed, an independent state procedural
bar. Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir. 1997). The adequacy of the procedural bar
depends upon “whether Mississippi has strictly or regularly applied it.” Id. (citing Lott v.
Hargett, 80 F.3d 161, 165 (5th Cir. 1996)). Brown “bears the burden of showing that the state did
not strictly or regularly follow a procedural bar around the time of his appeal” and “must
demonstrate that the state has failed to apply the procedural bar rule to claims identical or similar
to those raised by the petitioner himself.” Id. Brown has not done so; as such, defaulted his

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federal habeas corpus claims in state court under an independent and adequate state procedural
rule. Id. at 861.
The court may, however, review the merits of Brown’s claims if he can show cause for
his default and actual prejudice resulting from it. See Coleman, 501 U.S. at 750; see also Martin
v. Maxey, 98 F.3d at 849 (citing Sawyer v. Whitley, 505 U.S. 333(1992)). The cause necessary to
excuse procedural default “must be something external to the petitioner, something that cannot
fairly be attributed to him.” Coleman, 501 U.S. at 753 (emphasis in original). Some reasons
constituting good cause for default include “interference by officials” and “a showing that the
factual or legal basis for a claim was not reasonably available to [Petitioner].” McClesky v. Zant,
499 U.S. 467 (1991).
So long as a defendant is represented by counsel whose performance is not
constitutionally ineffective under the standard established in Strickland v.
Washington, supra, we discern no inequity in requiring him to bear the risk of
attorney error that results in a procedural default.
Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986).
Brown has argues that appellate counsel was ineffective for failing to raise on direct
appeal that the prosecutor’s misconduct (as alleged in Grounds One and Three) led to a
constitutionally unfair trial. As discussed below in Ground Two, however, the Mississippi
Supreme Court correctly ruled that no prosecutorial conduct occurred. As such, appellate
counsel’s decision not to raise that claim on direct appeal was reasonable. Therefore, Brown has
proved neither cause nor actual prejudice, and he cannot overcome the procedural bar and have
his habeas corpus claims reviewed on the merits.

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Neither will a “fundamental miscarriage of justice” arise out of the court’s decision not to
review the merits of these claims. See Martin, 98 F.3d at 849 (citing Sawyer v. Whitley, 505 U.S.
333 (1992)). The “fundamental miscarriage of justice” exception is confined to cases “where the
petitioner shows, as a factual matter, that he did not commit the crime of conviction.” Fairman v.
Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (citing Ward v. Cain, 53 F.3d 106, 108 (5th Cir.
1995)). Indeed, to prove that he is actually innocent, Brown must present new, reliable evidence
– not presented at trial – and prove that it was “more likely than not that no reasonable juror
would have convicted him in light of the new evidence.” Fairman, 188 F.3d at 644 (citations
omitted). Brown has presented no such evidence (not reasonably available at trial) to support his
claim of actual innocence. As made clear in the later discussion of Ground Two (regarding
sufficiency of the evidence), trial counsel was aware of Brown’s current allegation that the
prosecution elicited testimony (not presented to the jury at trial) from the forensic hair analyst
contrary to the DNA report from ReliaGene. S.C.R., Vol. 16, pg. 1861 and 1865. This claim is
meritless, as discussed in Ground Two below. Given Brown’s inability to overcome his
procedural default, his claims of prosecutorial misconduct in Grounds One and Three will be
dismissed.
Grounds Two, Four, and Five: Reviewed on the Merits in State Court
The Mississippi Supreme Court has already considered Grounds Two, Four, and Five on
the merits and decided those issues against the petitioner; hence, these claims are barred from
habeas review by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d), unless
they meet one of its two exceptions:
(d) An application for a writ of habeas corpus on behalf of a person in
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custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was 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.
Id. (emphasis added). The first exception, subsection (d)(1), applies to questions of law. Morris
v. Cain, 186 F.3d 581 (5th Cir. 2000). The second exception, subsection (d)(2), applies to
questions of fact. Lockhart v. Johnson, 104 F.3d 54, 57 (5th Cir. 1997). Since the petitioner’s
claims challenge both the application of law and the finding of fact, this court must consider the
exceptions in both subsections.
Under subsection (d)(1), a petitioner’s claim merits habeas review if its prior adjudication
“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law.” Id. (emphasis added). A state court’s decision is contrary to federal
law if it arrives at a conclusion opposite to that reached by the United States Supreme Court on a
question of law, or if it decides a case differently from the Supreme Court on a set of “materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1523 (2000). A state
court’s decision involves an unreasonable application of federal law if it identifies the correct
governing principle but unreasonably (not just incorrectly) applies that principle to facts of the
prisoner’s case; this application of law to facts must be objectively unreasonable. Id. at 1521. As
discussed below, the petitioner has not shown that the Mississippi Supreme Court unreasonably
applied the law to the facts, or that the court’s decision contradicted federal law. Accordingly,
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the exception in subsection (d)(1) does not apply to Grounds Two, Four, and Five of the
petitioner’s claims.
Nevertheless, under § 2254(d)(2) these grounds may still merit review if those facts to
which the supreme court applied the law were determined unreasonably in light of the evidence
presented. Because the supreme court is presumed to have determined the facts reasonably, it is
the petitioner’s burden to prove otherwise, and he must do so with clear and convincing
evidence. Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); 28 U.S.C. § 2254(e)(1). As
discussed below, the petitioner has failed to meet this burden; as such, he cannot use subsection
(d)(2) to move these claims beyond § 2254(d), which bars from habeas corpus review issues
already decided on the merits.
Ground Two: Ineffective Assistance of Counsel
In Ground Two, Brown argues that his appellate counsel was ineffective for failing to
raise on direct appeal the claim of prosecutorial misconduct set forth in Grounds One and Three
of the instant petition. Claims of ineffective assistance of appellate counsel are also governed by
the standard laid out in Strickland v. Washington, 466 U.S. 668 (1984) (describing the standard
regarding effectiveness of trial counsel). See also, Evitts v. Lucey, 469 U.S. 387, 397-399 (1985)
(same standard applies to claim of ineffective assistance of appellate counsel). To prove that
counsel was ineffective under the Sixth Amendment, a petitioner must prove that counsel’s
performance was deficient – and that the deficiency caused actual prejudice to the petitioner’s
defense. Under the deficiency prong of the test, the petitioner must show that counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland, 466 U.S. at 687. The court must analyze counsel’s actions based upon
-8-

the circumstances at the time – and must not use the crystal clarity of hindsight. Lavernia v.
Lynaugh, 845 F.2d 493, 498 (5th Cir. 1988). The petitioner “must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’”
Strickland, 466 U.S. at 689 (citation omitted). To prove prejudice, petitioner must demonstrate
that the result of the proceedings would have been different or that counsel’s performance
rendered the result of the proceeding fundamentally unfair or unreliable. Vuong v. Scott, 62 F.3d
673, 685 (5th Cir.), cert. denied, 116 S.Ct. 557 (1995); Lockhart v. Fretwell, 506 U.S. 364, 369
(1993); Sharp v. Johnson, 107 F.3d 282, 286 n.9 (5th Cir. 1997).
Brown argues that appellate counsel was ineffective for failing to argue that the
prosecutor’s conduct rendered his trial fundamentally unfair by eliciting certain testimony from
Emil Lyon, a forensic hair comparison analyst with the Mississippi Crime Lab. Brown argues
that the prosecutor elicited testimony from Lyon that several of the hairs recovered from Brown’s
home were microscopically similar to the victim’s hair. Brown argues that a DNA test from
ReliaGene Laboratories (which was not admitted into evidence at trial) was unable to match any
of the recovered hairs to the victim, and, therefore, the prosecutor suborned perjury because he
knew Lyon’s testimony to be false. To put it mildly, Brown has grossly mischaracterized the
facts – and has reached conclusions not supported by reason.
As the State has set forth the facts regarding this issue quite clearly (organizing the
relevant test results into a table), the court will relay these facts nearly verbatim from the State’s
response to the instant petition. Brown has not challenged the accuracy of these facts.
Lyon conducted forensic hair comparisons on hairs recovered from several items of
evidence for microscopic similarities. In addition, several of the hairs, which were recovered
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from Brown’s home, were also sent to ReliaGene for DNA testing, resulting in the generation of
the report referenced by Brown in his habeas petition.3 However, Brown’s statement that
ReliaGene’s report “could not match any hair found in the Spencer [defendant’s] house to R.W.
[the victim],” is simply wrong. ECF doc. 1, pg. 1. Paragraph 2 of the ReliaGene report, under
the heading “Conclusions,” reported that several of the hair samples “produced a mitochondrial
genetic profile not consistent with the reference blood stain card of victim [R.W.],” paragraph 1
lists several other samples which “produced inconclusive or no results.” Exhibit C, pg. 1.
Further, while Lyon testified to personally comparing multiple hairs within each sample for
microscopic similarities, the ReliaGene report indicates that only one (1) hair from each sample
was tested for DNA results. Hence, Brown’s statement that “the mitochondrial DNA testing
demonstrated conclusively that R.W.’s hairs were not found in the Spencer house,” ECF doc. 1,
pg. 15, is just wrong. In truth, while the DNA testing was able to exclude the victim as the donor
of several of the hairs recovered from Brown’s residence, several others produced inconclusive
results, and many others were not tested at all. Given these results, it is irrational to conclude (as
did Brown) that none of the hairs recovered from Brown’s residence were the victim’s. On the
contrary, the untested hairs and the hairs yielding inconclusive results may well have belonged to
the victim.4 In an effort to demonstrate most clearly the correlation between Emil Lyon’s

3

Although the report was not made part of the record, the State has stipulated that the
court may use the report to analyze Brown’s claims in Ground Two.
4

In any event, Brown makes a serious error in relying on the ReliaGene report. Contrary
to Brown’s belief, the report is solid proof that the head hair and pubic hair found on the victim’s
t-shirt (Exhibit S-8B and S-11A) were, indeed, matched Brown’s mitochondrial DNA. Exhibit C,
pg. 2. Indeed, 99.8% of the those of African and Caucasian descent, 99.6% of those of Hispanic
and Asian descent, and 99.1% of those of Native American descent were excluded as the donor
of those hairs. Brown could not, however, be excluded.
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testimony and the ReliaGene results, the court offers the following chart (which the State
provided in its Response):5
Exhibit No./
ReliaGene No.

Description

Emil Lyon’s
testimony as to
what comparisons
revealed

Excluded ReliaGene
Report

S-16 / 03-18421-A
and
03-18421-B

Several hairs and
one (1) fiber from
the outer surface of
the inner plastic bag
containing the
victim’s body
[S.C.R.,Vol. 16, pg.
1839]

- Pubic hairs
microscopically
similar to Brown’s

- 03-18421-A was “Hair
A” from a slide with three
(3) hairs and 03-18421-B
was “Hair B” from the
slide with three (3) hairs

-one (1) head hair
fragment
microscopically
similar to victim’s
- hairs and
fragments
insufficient for
comparison [Id. at
1840]

- both 03-18421-A and B
produced a mitochondrial
genetic profile that was
not consistent with the
victim’s reference blood
stain card
- both 03-18421-A and B
produced a mitochondrial
genetic profile which were
consistent with Brown’s
reference blood stain card
- no mention of third hair
on slide

5

In the interest of clarity, the court has included in the chart below only the items of
evidence containing hairs which Lyon found to be microscopically similar to the victim’s hair.
Lyon also testified to multiple items of evidence which produced no usable hair comparisons and
several items, obtained from the defendant’s residence, which contained only Brown’s hair.
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S-19 / 03-18420

white plastic
garbage bags from
Brown’s laundry
room [Id. at 1842]

- one (1) head hair
not similar to either
Brown’s or the
victim’s
- one (1) head hair
microscopically
similar to Brown’s

- indicates that 03-18420
was a slide containing
these hairs
- no reference that these
hairs were ever tested

- head hair
fragments
microscopically
similar to victim’s
- hairs insufficient
for comparison
- animal hairs,
fibers and plant
material
[Id. at 1842-44]
S-28 / 03-18426

white pullover shirt
recovered from the
dirty laundry in
Brown’s bedroom
[Id. at 1852]

- one (1) head hair
fragment
microscopically
similar to victim’s
- hairs and
fragments
insufficient for
comparison
- fibers
[Id. at 1852-53]

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- indicates that only “Hair
1" from a slide containing
seven (7) hairs was tested
- 03-18426, “Hair 1,"
produced inconclusive or
no results
- no mention of the other
six (6) hairs contained on
the slide

S-31 / 03-18429

tennis shoes
recovered from
Brown’s residence
[Id. at 1854-55]

- one (1) head hair
microscopically
similar to Brown’s

- indicates that only “Hair
4" from a slide containing
five (5) hairs was tested

- one (1) pubic hair
microscopically
similar to Brown’s

- 03-18429, “Hair 4,"
produced inconclusive or
no results

- head hair
fragments
microscopically
similar to victim’s

- no mention of the other
four (4) hairs contained on
the slide

- animal hair and
fibers
S-32 / 03-18425

lint collected from
lint filter in dryer in
Brown’s residence
[Id. at 1856]

- one (1) pubic hair
microscopically
similar to Brown’s

- indicates that only “Hair
2" from a slide containing
five (5) hairs was tested

- one (1) head hair
and hair fragments
microscopically
similar to victim’s
[Id. at 1856]

- 03-18425, “Hair 2,”
produced a mitochondrial
genetic profile that was
not consistent with the
victim’s reference blood
stain card
- 03-18425, “Hair 2,”
produced a mitochondrial
genetic profile that was
consistent with the
mitochondrial genetic
profile of Brown
- no mention of the other
four (4) hairs contained on
the slide

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S-36 / 03-18-427

multiple hairs
collected from a
mop head which
swabbed the
laundry room of
Brown’s residence
[Id. at 1857]

- head hair and head - indicates that only “Hair
hair fragments
1" from a slide containing
microscopically
2 hairs was tested
similar to victim’s
- 03-18427 produced a
- pubic hairs
mitochondrial genetic
microscopically
profile that was not
similar to Brown’s
consistent with the
victim’s reference blood
- one (1) dyed gray stain card
head hair and hairs
and fragments
- no mention of the other
insufficient for
hair contained on the slide
comparison
[Id. at 1858]

Lyon compared microscopic characteristics of multiple hairs from each sample, while
ReliaGene analyzed only one hair from each sample tested (except for S-16, from which
ReliaGene tested two hairs). Moreover, in the ReliaGene report, several hairs produced
inconclusive results, and many others were not included at all. Therefore, one could not
rationally conclude from the record and the report whether (for a given result) Lyons and
ReliaGene analyzed the same hairs. Brown has, therefore, failed to prove that the prosecutor
knowingly elicited false evidence from Lyon.6 For these reasons, appellate counsel was
reasonable in deciding to raise on direct appeal the claim of prosecutorial misconduct, as the
claim was frivolous. In any event, appellate counsel is not required to raise every colorable claim

6

The court is troubled by counsel’s failure to make this simple distinction: an analysis
failing to attribute a hair to the victim is not the same as an analysis definitively excluding the
victim as the hair’s donor. In the first example, one can draw no conclusion as to the donor of
the hair; in the second, one can conclude that the victim is not the donor. This distinction is the
most basic form of deductive reasoning.
The court is further troubled by counsel’s decision to use this flawed logic to argue that a
prosecutor suborned perjury – a serious allegation, requiring serious reflection – reflection
lacking in this case.
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on appeal, let alone meritless grounds. Jones, supra. Brown’s claim in Ground Two of the
instant petition is without merit and will be dismissed.
Ground Five: Insufficiency of the Evidence7
Brown argues in Ground Five that the evidence against him was insufficient to support
the jury’s verdict. A challenge to the sufficiency of the evidence can support a claim for habeas
corpus relief only if the evidence, when viewed in the light most favorable to the State would
lead no reasonable fact finder to find that the State proved “the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979); see also Marler v. Blackburn, 777 F.2d 1007, 1011 (5th Cir. 1985). This
standard of review “preserves the integrity of the trier of fact as the weigher of the evidence.”
Bujol v. Cain, 713 F.2d 112, 115 (5th Cir. 1983). Indeed, this standard allows the trier of fact to
convict the defendant even if “the facts also support one or more reasonable hypotheses
consistent with the defendant’s claim of innocence.” Gilley v. Collins, 968 F.2d 465, 468 (5th
Cir. 1992). As set forth below, the State adduced a vast array of evidence against Brown – more
than sufficient to sustain his conviction. Thus, Brown’s allegations in Ground Five are
overwhelmingly contradicted in the record – and are thus frivolous.
The jury heard testimony from Cynthia Webster, the victim’s mother, that she and the
victim arrived at the Merrill house [the victim’s grandparent’s house which was next door to
Brown’s residence] around 4 p.m. on April 20, 2002, the day of the murder, and the victim went
across the street to the park to play. S.C.R., Vol. 10, pg. 921. Sometime thereafter, Webster took

7

Again, as the State’s recitation of the evidence introduced at trial is uncontradicted (and
well-supported in the record), the court has reproduced it nearly verbatim.
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the victim to Sonic to get some dinner, the victim ate some french fries and ice cream and went
back to the park and Webster nodded off folding clothes. Id. at 929-932. When Webster awoke,
the victim was missing. Id. at 932. Oscar Merill, Sr., the victim’s grandfather, testified that
when he left the Merrill residence around 6:30 or 6:45 p.m., Cynthia Webster was asleep and
there no one was in the park. S.C.R., Vol. 11, pp. 1145-47. Addie Cannon, the victim’s aunt,
testified that she began searching for the victim once she was informed of her disappearance,
continued the search until 4 a.m. and did not observe any cars riding around the neighborhood,
anyone walking the streets or anyone go into Brown’s yard. S.C.R., Vol. 10, pg. 1021. In
addition, Valacia Carson, another of the victim’s aunts, testified that she was out in the driveway
of the Merrill’s house from midnight or 1 a.m. to daybreak and did not see any cars turn toward
the house or observe anyone carrying a garbage bag. S.C.R.,Vol. 11, pg. 1044. Carson also
testified that she and her mother drove by the park around 4:45 p.m. and saw the victim on the
swings. Id. at 1038. This was corroborated by Bernice Merrill, the victim’s grandmother and
Carson’s mother. Id. at 1120. Further, Emma Brown, the victim’s great aunt, testified that she
arrived at the Merrill house after 11 p.m. and remained outside all night, but she did not notice
any traffic stopping at Brown’s residence. Id. at 1096.
In addition, Officer Jason Jenkins testified that he knocked on Brown’s residence between
6 a.m. and 7 a.m. on April 21, 2002, received no answer, and, thereafter, around 8:30 a.m.,
looked in the garbage can at Brown’s residence and saw a large, heavy white garbage bag,
although he did not suspect anything sinister at the time. S.C.R., Vol. 12, pp. 1183-1184.
Officer Jenkins further testified that he left the scene around 2:45 p.m., but returned around 3:00
p.m. after receiving a call on his radio. Id. at 1185-86. Officer Jenkins was informed that the
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victim’s body had been found and was asked to verify whether the garbage can looked the same
as it had earlier that day. Id. at 1187-88. Officer Jenkins testified that the same garbage bag was
in the can, and, at that point, had a cut in it revealing the victim was inside. Id.at 1189. Officer
James Whitehead testified that he was initially approached by Brown’s step-father, Leon
Spencer, to investigate the garbage can because it contained a bag which neither he nor his wife
had put into it. Id. at 1222. Officer Whitehead further testified that Brown’s step-father obtained
a knife, and the officers cut a small hole in the garbage bag revealing that there were two (2) bags
and inside the second was the victim’s body. Id. at 1228. The garbage can was then taped off
and the scene guarded until the crime lab came to take possession of the evidence. Id. at 1230.
The jury was taken to the crime scene and able to observe the areas where the garbage can was
located, where the victim’s family was sitting, as well as their line of vision to Brown’s
residence, and the points of entry into Brown’s property. Id. at 1252-1270.
Officer Edward Crockett corroborated Officer Whitehead’s testimony about the discovery
of the body. In addition, Crockett testified that he searched the area around the garbage can for
wheel marks indicating that the heavy garbage can had been dragged from a different location
and found none. S.C.R., Vol. 13, pg. 1318. Further, Officer Crockett testified that, upon the
discovery of the victim’s body, Brown’s mother stated that there were similar garbage bags in her
storage shed. S.C.R., Vol. 12. at 1307. However, David Zeliff, Section Chief of the Mississippi
Crime Lab, testified that when the shed was searched it was locked and no white garbage bags
were found. S.C.R., Vol. 13, pp. 1397 and 1408. Officer Ricky Spratlin testified that the search
of the shed revealed no signs of forced entry. S.C.R., Vol. 15, pg. 1675. Zeliff further testified
that he recovered hairs from the outer surface of the inner garbage bag holding the victim’s body
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near the bottom of the bag. S.C.R., Vol. 13, pp. 1366-68. Later in the trial, Amrita LalPatterson, lab manager at ReliaGene Laboratories, testified that her lab tested two (2) of the hairs
found on the inner bag and they were consistent with Brown’s genetic profile.8 S.C.R., Vol. 17,
pg. 1964. She also testified that the genetic profile of one hair, which was consistent with
Brown’s, occurs with a frequency of 1 in 575 trillion Caucasians, 1 in 19.6 trillion AfricanAmericans and 1 in 6.56 quadrillion Hispanics, while the other hair, which was consistent with
Brown’s genetic profile, would occur in 1 in 140 quadrillion Caucasians, 1 in 13.1 quintillion
African-Americans and 1 in 198 quadrillion Hispanics. Id. at 1971. She further stated that the
population of the entire world was a little over 6 billion people. Id. On cross-examination,
Zeliff was asked questions seeking to imply that the hair found on the inner bag could have
floated in on the wind. S.C.R., Vol. 13, pp.1446-48. On redirect, Zeliff indicated that in his
thirty (30) years of experience he had never encountered a case where a pubic hair had floated
into a crime scene on the wind. Id at. 1472. Zeliff also stated that he was 5 feet 10 inches tall
and around 185 pounds and was able to lift the garbage bag alone in order to examine it,
indicating that a single person could have carried the bag. Id. at 1441.
In addition, the jury heard from Officer Andrew Kaho that he took fingerprints of all the
individuals who were in Brown’s residence on the day of the murder and all those who were in
the Merrill home. S.C.R., Vol. 14, pp. 1481 and 84. In addition, Officer Kaho testified to
collecting prints from an individual whose name came up in the investigation and pulling prints
which were on file from another individual. Id. at 1487-88. Officer Ricky Spratlin testified that

8

This particular DNA evidence was not suppressed, although the ReliaGene report
mentioned earlier was suppressed and not offered at trial.
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he carried all of the fingerprint cards collected by Officer Kaho to the crime lab. S.C.R, Vol. 15,
1685. Further, John Byrd, who was employed as a fingerprint analyst with the Mississippi Crime
Lab at the time of the crime, testified that ten (10) items of evidence were submitted to him for
testing, and that he had been provided with thirteen (13) known fingerprint cards for comparison.
S.C.R., Vol. 14, pg. 1552 and 54. Byrd testified that he developed a latent print off the exterior
garbage bag containing the victim’s body just above the tape closure. Id. at 1553 This bag was
admitted as Exhibit S-19-(A). Id. at 56. Byrd testified that this latent print, L-1, was “a positive
identification with the left little fingerprint of King Y. Brown, Jr.” Id. at 1566. In addition, Byrd
stated that he tested several white plastic bags recovered from the laundry room in Brown’s
residence which were admitted as Exhibit S-34. Id. at 1568 and 71. Byrd testified that a print
lifted from those bags, L-2, was “a positive identification with the right middle finger of King Y.
Brown, Jr,” and another print lifted from those bags, L-3, was “a positive identification with the
left middle fingerprint of King Y. Brown, Jr.” Id. at 1573.
Dr. Steven Hayne, the forensic pathologist who conducted the autopsy, testified that the
victim’s vaginal injuries were consistent with penetration. S.C.R., Vol. 16, pg. 1772. Dr. Hayne
further stated that he found 200 cc’s of fluid in the small bowel which were consistent with a
meal of french fries and ice cream and would indicate that the victim died within one (1) to two
(2) hours of consuming the meal. Id. at 1773. Dr. Hayne testified that, based on the victim’s
facial injuries and the absence of other findings, cause of death was suffocation. Id.
Joe Andrews, a trace evidence specialist with the Mississippi Crime Lab, testified that the
tape on the bags containing the body was consistent in color, width and texture to tape found in
Brown’s residence. S.C.R., Vol. 17, pg.1934. Andrews also testified that the garbage bags
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holding the victim’s body were “consistent in all physical and chemical characteristics” to the
garbage bags found in Brown’s residence and “they cannot be excluded as having originated
from the same source.” Id. at 1938. Further, the jury heard from Brown’s mother, Gloria
Spencer, on cross-examination that the unique garbage bags, which were found in her home and
which contained the victim’s body, were given to the family by her brother-in-law who lived in
Arkansas. S.C.R., Vol. 18, pg. 2083.
In addition, on cross-examination, Brown’s step-father Leon Spencer, testified that the
doors of their residence were armed with an alarm system which issued a chime when a door was
opened, but that the back door did not have any such sensor on it. Id. at 2187. In addition, Leon
Spencer testified that his father, who Brown was home alone with at the time of the
disappearance and murder, was 89 years old, somewhat hard of hearing and recovering from a
heart attack at the time of the crime. S.C.R., Vol. 19, pg. 2220. Willie Spencer, Leon Spencer’s
father, testified that, at one point in the evening, “[Brown] was in the kitchen, and so I went to
the restroom, and I come out of the restroom and goes and sits down, and he came after awhile,
about twenty minutes. He come back and sat down beside of me, but the little girl was gone
from over at the swings back over yonder where the other little girls was at.” Id. at 2296.
The State then called several rebuttal witnesses, including Brown’s neighbor Santore
Cole, who had given police a recorded statement that he saw Brown place something in his trash
can around 5:30 p.m. on the night of the murder. At trial, Cole indicated that he had seen Brown
do so much earlier in the afternoon. S.C.R., Vol. 20, pg. 2379. However, a tape of Cole’s
recorded statement was played for the jury, and Cole verified that it was his voice on the tape.
Id. at 2380.
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Given the voluminous evidence of Brown’s guilt, even in the absence of Lyon’s
testimony regarding the forensic hair comparisons, the prosecution presented the jury with
sufficient evidence to support Brown’s conviction. The jury considered the short time frame of
between 4:45 p.m. on April 20, 2002, when the victim was seen by her aunt and grandmother and
6:45 p.m. on April 20, 2002, when her grandfather left the house and did not see her. They heard
the recorded statement of Brown’s neighbor Santore Cole that he had seen Brown put something
in the trash around 5:30 p.m. Multiple witnesses testified that no one was seen coming or going
from the Brown residence from the time it was discovered the victim was missing until the next
day when the body was found. The jury observed the scene and saw for themselves the location
of the can, the backyard and the points of view of the various witnesses. The victim was found in
the Browns’ garbage bag, double wrapped in unique garbage bags obtained by Brown’s family
from a relative in Arkansas. Brown’s pubic hair was found in between the two bags holding the
victim towards the bottom of the bag, and DNA Genetic analysis proved that the hairs matched
Brown’s genetic profile to the exclusion of an overwhelming portion of the potential population.
Brown’s fingerprints were found both on the outer bag containing the victim and the similar bags
in his family’s laundry room. The forensic pathologist testified that the victim’s injuries were
consistent with vaginal penetration and that she died of suffocation. The jury observed the
testimony the witnesses and weighed their credibility.
Based upon this overwhelming evidence, a juror could readily conclude beyond
reasonable doubt that Brown committed the crimes of his conviction. Brown’s claim for relief in
Ground Five of the instant petition will therefore be dismissed as frivolous.

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Ground Four: Introduction of Testimony Regarding Test Results
from a Witness Who Did Not Personally Conduct the Tests
In Ground Four, Brown claims that he was denied due process when the prosecution
presented DNA evidence through Amrita Lal-Paterson who did not personally conduct the tests
herself. The Mississippi Court of Appeals rejected this claim on the merits during direct appeal,
holding :
Brown argues his right to confront his accuser was violated in this case because
the DNA analyst who testified was not the analyst who performed the tests.
Brown argues that under McGowen [v. State, 859 So.2d 320 (Miss. 2003)], it is a
violation of his Sixth Amendment right of confrontation since Chris Larson, who
originally performed the test, was able to testify, but did not. The State contends
that the DNA expert Amrita Lal-Paterson was a qualified expert and was properly
allowed to testify regarding the DNA evidence. [S.C.R., Vol.17, pg. 1953].
In this case, Paterson was the laboratory manager at ReliaGene Technologies, a
private laboratory in New Orleans, Louisiana. Paterson, in her duties as manager,
trains the laboratory analysts, reviews the analysts' work, conducts tests, and
testifies in court when necessary. [Id. at 1951] Paterson is certified as an expert in
the field of forensic science, specializing in DNA analysis. Paterson did not
perform the tests on the DNA found at the scene, but she was the laboratory
manager at the time the tests were performed. [Id.] Paterson also testified at trial
that although she did not perform the testing, she did review the work of Chris
Larson, the analyst who actually performed the tests. [Id. at 1959] In addition,
Paterson testified that she further made her own analysis of the work performed
by Larson. [Id.] In formulating her own analysis, Paterson reviewed the entire file
and the test results to reach her own conclusions on the DNA testing. [Id. at 1960]
Paterson completed her own report and then compared her conclusions and report
with Larson's. [Id.]
Paterson testified regarding the DNA testing performed on two of the four hairs
presented to ReliaGene Technologies by the Mississippi Crime Laboratory. She
testified that DNA tests were performed on those two hairs because they
contained root material sufficient for testing. [Id. at 1965-66] DNA was extracted
from these two samples and then DNA was extracted from reference samples
from both R.W. and Brown. [Id.] Paterson testified that the lab performed
identical tests on those samples and then compared the reference sample results to
the other hair samples provided. [Id.] The purpose of performing these tests was
in order to determine if either R.W. or Brown could be included or excluded as a
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donor to the hairs provided. R.W. was excluded as a possible donor of the two
hairs samples. [Id. at 1968] However, Paterson testified that Brown could not be
excluded as a possible donor of the two hairs tested. [Id. at1969] Paterson opined
that one hair sample gave results for eleven of the thirteen markers which the lab
tested, and the test results showed that the genetic profile of the DNA donor in
that sample occurs with a frequency of occurrence of one in 19.6 trillion. [Id. at
1970-71] The other hair sample gave results for all thirteen markers tested, and
the genetic profile of the DNA donor in that sample occurs with a frequency of
occurrence of one in 13.1 quintillion. [Id. at 1971]
In this case, Brown complains that his Sixth Amendment right to confront his
accuser has been violated since the analyst who actually performed the test did not
testify at trial. However, Paterson, the expert who did testify at trial, actively
participated in the analysis, forming her own opinion report on the DNA samples
tested. She was also a laboratory manager at the time the tests were taken and was
directly involved with checking the work of each analyst, and in fact performed
checks on the tests run by Larson. Further, the DNA expert, Paterson, “is not so
far removed from the process as to be reduced to the level of a records custodian.”
Adams v. State, 794 So.2d 1049, 1057-58 (¶ 24) (Miss.Ct.App.2001). This Court
agrees with the trial court's determination that Paterson was sufficiently involved
with the analysis and overall process so as to avoid violating Brown's Sixth
Amendment right of confrontation. This issue is without merit.
Brown, 999 So. 2d at 860-861.
Brown notes that five months after the Mississippi Supreme Court denied certiorari
review on this issue, the United States Supreme Court decided Melendez-Diaz v. Massachusetts,
129 S.Ct. 2527, 164 L.Ed.2d 314 (2009). He argues that Melendez-Diaz requires reversal of his
conviction because “when the prosecution presents the results of laboratory testing through a
witness who did not perform the tests,” the prosecution has denied the defendant his Sixth
Amendment right to confront a witness against him. ECF doc. 1, pg. 28. On post-conviction
collateral review, the Mississippi Supreme Court held that “the circumstances regarding the
defendant’s right to confrontation in the Melendez-Diaz case are distinguishable from the facts in
this case.” The Mississippi Supreme Court was correct in so distinguishing Brown’s case from

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Melendez-Diaz. In Melendez-Diaz, the prosecution submitted only “certificates of analysis”
affirming that the substance seized was cocaine – and did so without calling a single witness to
support that documentation. Melendez-Diaz, 129 S.Ct. at 2531. The Supreme Court held that,
“[a]t the time of trial, petitioner did not know what tests the analysts performed, whether those
tests were routine, and whether interpreting their results required the exercise of judgment or the
use of skills that the analysts may not have possessed.” Id. at 2537. In conclusion, the Supreme
Court held that “[t]he Sixth Amendment does not permit the prosecution to prove its case via ex
parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was
error.” Id. at 2542. The Melendez-Diaz Court made no finding the propriety of calling a lab
manager who oversaw the testing and conducted independent analysis of the findings – as
occurred with Amrita Lal-Paterson in the present case.
The present case presents a situation distinguishable from that in Melendez-Diaz. Unlike
Melendez-Diaz who was faced with only affidavits (thus with no chance for explanation or crossexamination regarding the test results), Brown had the opportunity to question Lal-Paterson, who
had personally conducted an independent analysis. Brown could, and did, confront Lal-Paterson
regarding her testimony. Thus, the Mississippi Court of Appeals properly held that no
constitutional violation occurred through use of Lal-Paterson to present the test evidence, and the
Mississippi Supreme Court properly the Melendez-Diaz case during its analysis of the issue.
Therefore, as to this issue, the decisions of the Mississippi Court of Appeals and Mississippi
Supreme Court were neither contrary to, nor did they involve an unreasonable application of,
clearly established federal law, as determined by the Supreme Court of the United States.
Further, these decisions were not based on an unreasonable determination of the facts in light of
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the evidence. As such, Brown’s claims for habeas corpus relief Ground Four will be dismissed
with prejudice.
In sum, all of Brown’s claims in the present petition for a writ of habeas corpus will be
denied. A final judgment consistent with this memorandum opinion will issue today.

SO ORDERED, this the 20th day of September, 2011.

/s/ Neal Biggers
NEAL B. BIGGERS
SENIOR U. S. DISTRICT JUDGE

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