Averald D. Burnett, Jr. v. State of Mississippi, 2015-KA-00210-COA

Background

Burnett, a former police officer, was jailed on an alleged rape of his 16‑year‑old stepdaughter; while in Pearl River County jail he allegedly solicited inmate Russell Steele to kill his estranged wife and stepdaughter.
Steele testified Burnett drew a map, provided schedules and house details, and had a girlfriend bail Steele out and give him $300 as a partial payment. Steele later reported the plot to police.
Recorded jail calls and other recordings showed Burnett’s girlfriend was not part of the plot; she testified for the State. Burnett denied the plot, saying the map was for his attorney and claiming other jail inmates or a scheme for contraband phones explained events.
At trial Burnett did not testify; the jury convicted him of two counts of attempted capital murder. Sentencing: two consecutive 30‑year terms and a $30,000 fine.
On appeal Burnett alleged multiple errors: prosecutorial misconduct (closing argument and treatment of Steele’s incentives), improper judicial comments, improper character evidence, failure to give a spoliation instruction for overwritten jail video, sentencing procedure errors, and cumulative error. The Court of Appeals affirmed.

Issues

Issue	Burnett's Argument	State's Argument	Held
Prosecutor argued facts not in evidence (multiple girlfriends)	Prosecutor misstated evidence about a second girlfriend	Wife had testified she knew of a second girlfriend; prosecutor relied on that testimony	No error — evidence supported prosecutor’s statement
Prosecutor misstated rewards/leniency given to Steele	Steele received benefits (hotel, money) that amounted to a reward and bias	Benefits were investigatory/security measures; characterization was argument based on facts	No reversible error; disagreement was semantic and for jury to weigh
Prosecutors encouraged Steele to invoke privilege / recant prior statements	Prosecutors induced Steele to claim privilege or to change earlier jailroom boasts	Record shows no encouragement to invoke Fifth Amendment; prosecutor’s interpretation reasonable	No misconduct shown
Trial judge comments (implying belief in witness truthfulness)	Judge’s in‑court remark suggested belief in officer’s veracity, prejudicing jury	Judge’s remark was inarticulate, promptly corrected, and jury instructed to disregard any perceived opinion	No reversible error; corrective instruction and presumption jury followed it
Admission of ex‑girlfriend’s characterization of Burnett as "liar"/"master manipulator"	Testimony was improper character evidence and prejudicial	In context it reflected witness’s reaction/bias and was cumulative; not the objection made at trial	Admission erroneous in wording but harmless; not reversible
Spoliation instruction for overwritten jail video	Overwritten video could have shown inmate directions/letter; court should instruct on spoliation	Overwriting was routine, no showing of bad faith or intent to suppress evidence	No spoliation — instruction properly denied
Sentencing hearing procedure (refusal to hear live testimony; chambers meeting with victims)	Procedure violated sentencing rights; trial court erred	Appellant offered no developed argument or proffer; issue procedurally barred	Procedurally barred; no relief granted
Cumulative error	Errors together deprived Burnett of fair trial	Errors were minor, corrected, or harmless when viewed cumulatively	No cumulative error; conviction and sentence affirmed

Key Cases Cited

Wells v. State, 698 So. 2d 497 (Miss. 1997) (trial judges may explain evidentiary rulings but must not comment prejudicially on evidence)
Galloway v. State, 122 So. 3d 614 (Miss. 2013) (jury presumed to follow corrective instructions from the court)
Tolbert v. State, 511 So. 2d 1368 (Miss. 1987) (spoliation instruction requires evidence of intentional destruction indicative of fraud)
Ladnier v. State, 878 So. 2d 926 (Miss. 2004) (admission/exclusion of evidence reviewed for abuse of discretion; reversal only if substantial rights affected)