Birkhead v. State, 2011 Miss. LEXIS 99

Birkhead was indicted for capital murder during a robbery in July 2003 in Washington County, Mississippi.
Four-day trial; defense did not testify or call witnesses; jury returned guilty verdict of capital murder.
Birkhead was sentenced as a habitual offender to life without parole; conviction appealed to Mississippi Supreme Court.
Batson challenges were asserted by both sides during jury selection; trial court denied the defense’s prima facie showing.
The State admitted Lanier’s death certificate into evidence, including a time-of-injury entry; defense objected but the court admitted it.
Issues also addressed include admission of a death-certificate time entry, confrontation, a sleeping juror, a witness’s comment on silence, and notes-as-evidence jury instruction; the court ultimately affirmed the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Batson challenge sufficiency	Birkhead asserts a prima facie Batson showing of racial discrimination.	State contends record insufficient to prove prima facie discrimination due to lack of complete venire data.	No reversible error; record insufficient to demonstrate prima facie Batson violation.
Admissibility and Confrontation of death certificate	Death certificate time-of-injury/death entries are testimonial and violate confrontation if admitted without witnesses.	Death certificate time entries are non-testimonial vital-statistics records not subject to confrontation.	Death certificate contents treated as non-testimonial under Rule 803(9); no Confrontation Clause violation.
Confrontation with time-of-injury entry	Police influence behind time entries questions confrontational integrity.	No evidence shows police tainting time entries; witnesses available for cross-examination.	No Confrontation Clause violation; adequate cross-examination opportunities existed.
Sleeping juror	Sleeping juror issues should have led to dismissal or mistrial.	No persistent issue; trial judge adequately addressed with minimal disruption.	Not reversible; no grounds shown for mistrial or reversal.
Comment on silence and jury instruction	Prosecutor’s remark about defendant’s silence violated Fifth/Constitutional rights; improper jury impact.	Trial court issued curative instruction; error deemed harmless.	Curative instruction sufficed; no reversible error.

Batson v. Kentucky, 476 U.S. 79 (Supreme Court, 1986) (prohibits race-based peremptory strikes; Batson framework adopted)
Berry v. State, 802 So.2d 1033 (Miss. 2001) (State Batson standards; deference to trial court at appellate review)
Thorson v. State, 721 So.2d 590 (Miss.1998) (trial court credibility in Batson analysis)
McGilberry v. State, 741 So.2d 894 (Miss.1999) (great deference to trial court credibility in Batson rulings)
Strickland v. State, 980 So.2d 908 (Miss.2008) (Batson review considerations and proving discriminatory purpose)
Snyder v. Louisiana, 552 U.S. 472 (Supreme Court, 2008) (requires case-specific assessment of circumstantial evidence of discrimination)
Flowers v. State, 243 So.2d 564 (Miss.1971) (pre-Rules death-certificate evidentiary principles; cause-of-death considerations)
Shell v. State, 554 So.2d 887 (Miss.1989) (death certificates and public records admissibility; Rule 803(9))
Melendez-Diaz v. Massachusetts, 557 U.S. 250 (Supreme Court, 2009) (business records as non-testimonial when created for administration; limits to testimonial evidence)
Crawford v. Washington, 541 U.S. 36 (Supreme Court, 2004) (Confrontation Clause and testimonial statements)
Davis v. Washington, 547 U.S. 813 (Supreme Court, 2006) (defines the boundary between testimonial and non-testimonial statements)
Williams (D.D.C.), 740 F.Supp.2d 4 (D.D.C., 2010) (death certificate as testimonial under Melendez-Diaz framework)