NO KA COA IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI BRYN ELLIS APPELLANT, STATE OF MISSISSIPPI APPELLEE.

Transcription

1 E-Filed Document May :28: KA COA Pages: 11 NO KA COA IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI BRYN ELLIS APPELLANT, v. STATE OF MISSISSIPPI APPELLEE. ON APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI ORAL ARGUMENT NOT REQUESTED REPLY BRIEF OF APPELLANT, BRYN ELLIS W. Ellis Pittman, MSB# PITTMAN & ASSOCIATES, PLLC Post Office Box Sharkey Avenue Clarksdale, MS (662) Wilbert L. Johnson, Esq. Johnson Law Office P.O. Box 787 Clarksdale, MS (662) Attorneys for Appellant

2 TABLE OF CONTENTS TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES I. WAS THE PRIOR TESTIMONY OF A STATE WITNESS PROPERLY ALLOWED UNDER THE UNAVAILABLE WITNESS RULE OF MISS. R. EVID II. WHETHER THE CUMULATIVE HEARSAY STATEMENTS OBJECTED TO AND ALLOWED INTO EVIDENCE DENIED ELLIS A FAIR TRIAL. 4 III. WHETHER THE PROSECUTOR S STATEMENT THAT THE EVIDENCE WENT UNDISPUTED BY THE DEFENSE WAS AN IMPROPER COMMENT REGARDING ELLIS FAILURE TO TESTIFY THAT DENIED ELLIS A FAIR TRIAL..6 STATEMENT REGARDING FACTS... 1 SUMMARY OF THE ARGUMENT... 1 ARGUMENT... 2 CONCLUSION... 6 CERTIFICATE OF SERVICE ii

3 TABLE OF AUTHORITIES Supreme Court Cases Anthony v. State, 843 So.2d 51 (Miss. Ct. App. 2002) Clark v. State, 693 So (Miss. 1997)... 4 Jackson v. State, 551 So.2d 132 (1989) Griffin v. State, 557 So.2d 542 (1990) McGowan v. State, 859 So.2d 320 (Miss. 2003) 6 Parker v. State, 514 So.2d 76 (1986)... 2 Wilson v. State, 923 So.2d 1039 (2005) Federal Court Cases Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed. 2d 597 (1980).3 Statutes Miss. Const. Art. 3, Sec Mississippi Rules of Court Miss. R. Evid Passim Miss. R. Evid Miss. R. Evid iii

4 STATEMENT OF THE ISSUES As previously outlined, Bryn Ellis now seeks this Court s review of the following issues: I. WAS THE PRIOR TESTIMONY OF A STATE WITNESS PROPERLY ALLOWED UNDER THE UNAVAILABLE WITNESS RULE OF MISS. R. EVID. 804? II. III. WHETHER THE CUMULATIVE HEARSAY STATEMENTS OBJECTED TO AND ALLOWED INTO EVIDENCE DENIED ELLIS A FAIR TRIAL? WHETHER THE PROSECUTOR S STATEMENT THAT THE EVIDENCE WENT UNDISPUTED BY THE DEFENSE WAS AN IMPROPER COMMENT REGARDING ELLIS FAILURE TO TESTIFY THAT DENIED ELLIS A FAIR TRIAL? STATEMENT REGARDING THE FACTS The Appellant rests on the facts as previously stated in the initial brief. SUMMARY OF THE ARGUMENT As previously argued before this Court, Mr. Ellis raises three issues on appeal. First, Appellant contends that the Court erred when prior testimony of Dr. Feng Li was improperly allowed under the unavailable witness rule of Miss. R. Evid Secondly, Ellis contends that the cumulative hearsay statements objected to and allowed into evidence denied him a fair trial. Lastly, Ellis contends that the prosecutor s statement that there was a history of violence and history of threats, threats that, by the way, didn t go undisputed by the defense was an impermissible statement regarding his failure to testify which denied him a fair trial. 1

5 ARGUMENT I. THE COURT ERRED BY ALLOWING THE PRIOR TESTIMONY OF A STATE WITNESS UNDER THE UNAVAILABLE WITNESS RULE OF MISS. R. EVID In response to Appellee s argument, the Court erroneously found that Dr. Li was unavailable for trial and ordered the video deposition of Dr. Li. Pursuant to Miss. Rule of Evid. 804, a deposition taken in the course of the same proceeding may be offered provided that the party against whom the testimony is now offered...had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. The case cited by the defense is very distinguishable from our case. The Court found that a witness was unavailable to testify because he was in West Germany. Parker v. State, 514 So.2d 76, 773 (1986). The facts in our case are such that Dr. Li was the State s paid contracted expert witness and was subjected to the subpoena power of the Court when he was in Jackson on or before the 11 th of September While the witness in Parker was already in West Germany at the time the trial had begun, Dr. Li was very much in Jackson when he was notified of the trial. Moreover, I am not entirely sure how the witness testifying via videotaped deposition on the witness stand (without the jury present) gives the jury the opportunity to observe his demeanor considering the circumstances of a trial are very different. In Wilson, this Court held that the trial court did not err in allowing for videotaped deposition of State s expert witness. Wilson v. State, 923 So.2d 1039, 1041 (2005). In this case, the witness was not able to testify due to a conflict. Id. 2

6 Unlike Parker and Wilson, this Court should conclude that the State failed to meet its burden that Dr. Li was unavailable to testify, and the Court erroneously admitted his videotaped deposition. In fact, the Court should not have proceeded to the second part of the test articulated in Ohio. Ohio v. Roberts, 448 U.S. 56, 74-74, 100 S.Ct. 2531, 65 L.Ed. 2d 597 (1980 Moreover, Ellis did not have the opportunity to cross-examine Dr. Li about the projectiles that were recovered from Odom s body. At trial, the firearm expert testified that the bullets and firearms found at Ellis home were different types of bullets. In response to the State s argument, this disagreement between the experts (Bishop and Dr. Li) could have, in fact, exonerated Bryn Ellis or at least cast further doubt of his guilt before the jury. There was no substitute for Dr. Li testifying before the jury about the bullets he recovered from Odom s body. Besides, there was no conceivable way Ellis defense could have known that the firearm testimony was contradictory to Dr. Li s testimony. Clearly, a ruling by the Court finding Dr. Li was unavailable prejudiced Ellis defense. When the ruling of unavailability in the long line of cases that have come before this Court are compared to the finding of unavailability in the present case, the trial court made a long stretch that is far short of the requirements of Rule 804(a). Again, the trial court has extended Rule 804(a) to include taking a trip out of the country. Further, the prosecution has been rewarded for its lack of diligence in notifying its witness of the scheduled trial date. Moreover, as pointed out by Appellant s trial counsel, Ellis was prejudiced by not having adequate time to research and respond to the motion. Therefore, Dr. Li should not have been 3

7 declared unavailable under Rule 804 and his videotaped deposition should have not been admissible. As a result of the trial court s error, a new trial is the requested remedy. II. THE COURT ERRED BY ALLOWING CUMULATIVE HEARSAY STATEMENTS OBJECTED TO INTO EVIDENCE WHICH DENIED ELLIS A FAIR TRIAL. In response to the State s argument, over defense s continuing objections, Cheryl McGee testified that He (Odom) said that was Bryn that was -- that got out the car. And he said, that was Bryn outside. And I said, huh? And he said, that was Bryn. (T. 137). The testimony presented by Cheryl was, in fact, hearsay and the trial court erred when it allowed such testimony. This testimony should not have been admitted under the presence sense impression of the hearsay rule exceptions. Pursuant to Miss. Rule of Evid. 803(1), a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter is not excluded from the hearsay rule. Clark stated that present sense impression statements are allowed based on the theory that the contemporaneousness of the occurrence of the event and the statement render it unlikely that the declarant made a deliberate or conscious misrepresentation. Clark v. State, 693 So , 932 (Miss. 1997). Nevertheless, in accordance to Anthony, the testimony should have been excluded because it was too far removed from the murder. Anthony v. State, 843 So.2d 51, 56 (Miss. Ct. App. 2002). Furthermore, prejudicial hearsay was improperly allowed as a present sense impression since it was a benign incident 4

8 far removed in time and space from the accusations against Ellis in this instant case. McGee was present with Odom at this alleged incident, yet she did not see Ellis or identify Ellis on her own accord. The testimony improperly sought to identify Ellis as a perpetrator through hearsay testimony about what Odom allegedly saw, not the night that Odom was killed, but at least a year earlier. McGee was further allowed to state that Ellis made uncorroborated threats against Odom. McGee s opinion was based purely on speculation and no hard facts or first-hand observations. The irrelevant opinion did not meet the standards of allowable lay witness testimony under Miss. R. Evid In response to Appellee s argument that she did not give an opinion on an ultimate issue, Ellis was definitely on trial for murdering Odom. Thus, the fact that McGee stated that she believed Ellis killed Odom is definitely an ultimate issue in the trial. However, Appellant concedes that trial counsel did not make a contemporaneous objection specifically to the impermissible lay witness opinion testimony. Further, McGee s testimony regarding her opinion that Ellis killed Odom and the numerous threats that were never made to Odom were highly prejudicial under Miss. R. Evid The statements made by McGee could not otherwise help the jury form its own opinion of the facts or properly weigh her previous hearsay testimony. Accordingly, McGee s testimony unduly prejudiced Ellis as she was permitted to testify that Ellis allegedly made numerous threats against Odom. 5

9 Unlike the Supreme Court s findings in Jackson and McGowan, this Court should find that the evidence admitted denied Ellis a fair trial. Jackson v. State, 551 So.2d 132 (1989). McGowan v. State, 859 So.2d 320 (Miss. 2003). III. THE COURT ERRED BY ALLOWING THE PROSECUTOR S IMPROPER STATEMENT THAT THE EVIDENCE WENT UNDISPUTED BY THE DEFENSE REGARDING ELLIS FAILURE TO TESTIFY WHICH DENIED ELLIS A FAIR TRIAL. Again, this Court should rule that the improper comments made by the prosecution during closing arguments require reversal. The prosecution improperly commented that shows a history of violence and a history of threats, threats that, by the way, didn t go undisputed by the defense. (T. 474,16-18). Pursuant to Section 26 of the Mississippi State Constitution, In all criminal prosecutions the accused shall...not be compelled to give evidence against himself... Miss. Const. Art. 3, Sec. 26. Further, the Supreme Court of Mississippi held that the prosecutor s remark during closing argument at guilt/innocence phase was improper comment on defendant s failure to testify and required reversal. Griffin v. State, 557 So.2d 542 (1990). This Court should rule that the prosecution s comments were a backdoor way to commenting on Defendant s failure to testify. This statement is clearly improper and requires this Court to reverse and remand this case to the lower court for a new trial. CONCLUSION Based on the above and foregoing reasons, the Court should reverse and remand the conviction of Bryn Ellis and grant him a new trial. More specifically, the Circuit Court erred by allowing the prior testimony of a state witness under 6

10 the unavailable witness rule of Miss. R. Evid The Court also erred by allowing cumulative hearsay statements, which were objected to, into evidence which denied Ellis a fair trial. Lastly, the Court erred by allowing the prosecutor s improper statement that the evidence went undisputed by the defense regarding Ellis failure to testify which denied Ellis a fair trial. RESPECTFULLY SUBMITTED, this the 29 th day of May, BRYN ELLIS, APPELLANT By: /s/ W. Ellis Pittman W. Ellis Pittman, MSB# PITTMAN & ASSOCIATES, PLLC Post Office Box Sharkey Avenue Clarksdale, MS Tel: (662) Fax: (662) ATTORNEY FOR APPELLANT OF COUNSEL: Wilbert L. Johnson, MSB# JOHNSON LAW OFFICE Post Office Box Sharkey Avenue Clarksdale, MS Tel: (662) Fax: (662)

11 CERTIFICATE OF SERVICE I, W. Ellis Pittman, of Pittman & Associates, PLLC, attorney for APPELLANT, do hereby certify that I have this day caused to be filed, via the electronic filing system, a true and correct copy of the above and foregoing Reply Brief of Appellant and notice through the e-file system was sent to the following: John R. Henry, Jr., Esq. Mississippi Attorney General s Office P. O. Box 220 Jackson, MS Barbara Byrd, Esq. Mississippi Attorney General s Office P. O. Box 220 Jackson, MS I further certify that I have this day caused to be mailed by United States Mail, postage pre-paid, a true and correct copy of the above and foregoing Reply Brief of Appellant to the following: Hon. William A. Gowan, Esq. 7 th Judicial District Circuit Court Judge P. O. Box Jackson, MS Jim Hood, Attorney General Mississippi Attorney General s Office P. O. Box 220 Jackson, MS Wilbert L. Johnson, Esq. Johnson Law Office P.O. Box 787 Clarksdale, MS willaw5@aol.com THIS, the 29 th day of May, /s/ W. Ellis Pittman W. Ellis Pittman 8