IN THE SUPREME COURT OF THE STATE TE OF MISSISSIPPI NO.2015-KA SCT

Transcription

1 E-Filed Document Jan :08: KA SCT Pages: 14 IN THE SUPREME COURT OF THE STATE TE OF MISSISSIPPI NO.2015-KA SCT DANERFORD v. STATE OF MISSISSIPPI APPELLANT APPELLEE APPELLANT, DANER FORD'S REPLY BRIEF ORAL ARGUMENT REQUESTED MERRIDA (BUDDY) COXWELL (MB# 7782) CHARLES R. MULLINS (MB# 9821) COXWELL & ASSOCIATES, PLLC Post Office Box 1337 Jackson, Jac\{son, Mississippi Telephone: (601) Facsimile: (601)

2 STATEMENT REGARDING ORAL ARGUMENT The Appellant requests oral argument. The issues presented are impmiant to the fair administration of justice and are of a reoccurring nature within the legal system.

3 TABLE OF CONTENTS STATEMENT REGARDING ORAL ARGUMENT... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii ST A TEMENT OF ISSUES... iv ISSUE I:... I The Appellee's brief admits the prosecutor deliberately introduced improper character or 404(b) evidence. This improper conduct was the State's "theory of the case." It was incompetent and highly prejudicial evidence and as such requires a new trial. ISSUE II:... 5 The trial court e11'ed by granting a flight instruction over the objection of the appellant. ISSUE III:... 7 Daner Ford's trial counsel provided ineffective assistance of counsel. ISSUE IV:... 7 The trial court erred by sentencing Mr. Daner Ford as a habitual without first conducting a bifurcated sentencing hearing. CERTIFICATE OF SERVICE... 8 ii

4 TABLE OF AUTHORITES PAGE CASES Anderson v. State, 1 So. 3d 905 (Miss. Ct. App. 2008)... 6 Bollenback v. US., 326 U.S. 607, 615 (1946) Buckley v. State, 223 So. 2d 524 (Miss. 1969)... 7 Ervin v. State, 136 So. 3d 1053 (Miss. 2014)... 6 Galloway v. State, 604 So. 2d 735, 741 (Miss. 1992)... 3 Griffin v. State, 557 So. 2d 542, 554 (Miss. 1992)... 2 Johns v. State, 592 So. 2d 86 (Miss. 1991)... 7 Johnson v. State, 477 So. 2d 196, 210 (Miss. 1985)... 1 Keubler v. State, No KA-O 1825-COA... 6 Lesley v. State, 606 So. 2d 1084 (Miss. 1992)... 5 Littlejohn v. State, 593 So. 2d. 20, 26 (Miss. 1992)... 2 Pannell v. State, 455 So. 2d 785 (Miss. 1984)... 6 Wheatv. U.S., 486 U.S. 153, 100 L.Ed.2d. 140, 108, S. Ct (1988)... 2 iii

5 STATEMENT OF ISSUES ISSUE I: ISSUE II: ISSUE III: ISSUE IV: The Appellee's brief admits the prosecutor deliberately introduced improper character or 404(b) evidence. This improper conduct was the State's "theory of the case." It was incompetent and highly prejudicial evidence and as such requires a new trial. The trial court erred by granting a flight instruction over the objection of the appellant. Daner Ford's trial counsel provided ineffective assistance of counsel. The trial court erred by sentencing Mr. Daner Ford as a habitual without first conducting a bifurcated sentencing hearing. iv

6 ISSUE I: THE APPELLEE'S BRIEF ADMITS THE PROSECUTOR DELIBERATELY INTRODUCED IMPROPER CHARACTER OR 404(B) EVIDENCE. THIS IMPROPER CONDUCT WAS THE STATE'S "THEORY OF THE CASE." IT WAS INCOMPETENT AND HIGHLY PREJUDICIAL EVIDENCE AND AS SUCH REQUIRES A NEW TRIAL. The State's rebuttal argument concedes, albeit unwittingly, that the prosecutor deliberately introduced improper 404(b) evidence. First, the State contends the prosecutor did not deliberately introduce the improper 404(b) character evidence that the Appellant shot a State witness in The State then argues it was the prosecutor's theory of the case that "bad blood" from a 1994 shooting was the cause of the current indictment. If the prior shooting was the prosecutor's "theory of the case" then it was deliberately introduced. Any argument to the contrary is belied by the record. The Appellant notes some minor factual disputes with the Appellee's brief, but none that really change the import of the errors found in this Appeal. The main contention of the Appellee is that no "serious and irreparable damage" resulted to Mr. Ford from the prosecutor's deliberate introduction of character evidence. Johnson v. State, 477 So. 2d 196, 210 (Miss. 1985). Appellee suggests the prosecutor did not deliberately introduce character evidence or improper 404(b) evidence. Let's review what the District Attorney said: "... if they [defense] wanted to keep this out pretrial, they should have filed a motion. And they didn't." (Tr. 420). Are we are seriously arguing that the introduction of a wholly unrelated shooting some fomieen (14) years earlier, which did not result in a conviction, is not overly prejudicial and harmful to an accused's defense? Especially when Mr. Ford is on trial for a shooting done by someone else and he is charged with having acted in conce1i, and the defense is that he did not act in concert. Arguing that the introduction of this evidence was not overly prejudicial or could be cured by the comi's admonition is a fiction too fanciful for reasonable men and women to 1

7 accept. The admonition by the trial judge only served to reinforce an already overly prejudicial piece of incompetent evidence. (Tr. 424). If a prosecutor deliberately introduces improper evidence then the error is magnified because fairness is a cherished hallmark of the criminal justice system. If people cannot see a process that is fair, and depend upon it to be fair, then there will be no respect for the criminal justice system. This simple but crucially important point was made clear in Appellant's brief: "The prosecutor has an obligation to the accused as well as society, not to participate in a criminal proceeding against the accused when it knows that the constitutional right of the defendant is being violated." Littlejohn v. State, 593 So. 2d. 20, 26 (Miss. 1992), quoting from Wheat v. U.S., 486 U.S. 153, 100 L.Ed.2d. 140, 108, S. Ct (1988); Griffin v. State, 557 So. 2d 542, 554 (Miss. 1992), "... no person accused, however angry the people, however evil the crime, regardless how strong the appearance of guilty, can be denied the full protection of the law and a fair and orderly trial conducted with judicial decorum and dignity," and "... the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jmy according to the procedure and standards appropriate for criminal trials." Bollenback v. U.S., 326 U.S. 607, 615 (1946). The record establishes that the prosecutor deliberately introduced improper evidence during Daner Ford's trial. Based on the theory of defense presented by Ford's trial counsel, the introduction of this evidence prejudiced Mr. Ford's defense. The Appellee's vision of the prosecutor's conduct or behavior is opaque. A mistrial should have been granted by the trial comt. The Appellee argues "[t]he State's theory of the case was that the shooting of Marvin Stuckett staited with bad blood between Daner Ford and Carlos Smith, Stuckett's friend." State's Brief, p. 10. Frankly, the Appellee's positions are inconsistent and illogical. First, the 2

8 Appellee says the introduction of the evidence was not deliberate, in spite of the prosecutor saying in open court, "if they ( defense counsel) wanted to stop me they should have filed a motion." Frankly, it is a prosecutor's obligation to abide by the Rules of Evidence instead of a treating a trial as a win at any cost proceeding. It was in fact, as borne out by the black and white record, the prosecutor's theory to introduce incompetent and improper evidence which would fatally inflame the jury and prejudice Mr. Ford's defense. A seasoned prosecutor knows this and a seasoned prosecutor knows that they need to advise witnesses not to mention improper evidence. This was not done because as the saying goes, "it is easier to ask for forgiveness than permission." It is easier to put improper evidence before a jury and then let the accused struggle with the burdens of it in a jury's mind, even after a limiting instruction. As this Court noted in Galloway v. State, 604 So. 2d 735, 741 (Miss. 1992), "That the record does not affirmatively reflect prejudice does not prove there has not been none. Where there is prejudice, it often will arise from matters not of record that by their very nature cannot be in the record." Once the witness made the statement that Daner Ford shot him in 1994 the "cat was out of the bag" and the trial judge could not "un-ring the bell." We should remember when the defense counsel made the claim that the 1994 shooting was a discovery violation, the prosecutor vehemently argued that it was included in discovery. (Tr ). So the prosecutor was aware of its existence. A fourteen (14) year old shooting had nothing to do with this case. It was not necessary in order to prosecute this case and it was unfairly prejudicial. The prosecutor wanted this improper evidence introduced to bolster his conviction odds because he had no direct evidence that Daner Ford shot his gun, or that Daner Ford shot at Mr. Stuckett, or that Daner Ford acted in concert with whoever shot Marvin Stuckett. We know from the evidence no projectile from Daner Ford's 3

9 rifle hit Mr. Stuckett. There was an inference that could be drawn from the testimony of other witnesses that Daner Ford shot his weapon but there was no direct evidence. Couple this with the evidence that a witness heard someone say, "No, OJ, don't do it," (T.689), and the prosecutor's motives are clear-unfairly prejudice Mr. Ford's defense in order to obtain a conviction. This type of conduct is prohibited under the MR.E. and fundamental fairness. We do not have to guess at the prosecutor's motives in this case. The motives are expressed in the record. The prosecutor stated: Mr. Richardson: So as far as -they've been put on notice. If they want to file a motion pretrial they could have, but they didn't. And so as to whether or not there had been any bad blood, and that was certainly a yes or no answer, and so- (T. 419) Mr. Kelly: And he said no. He said no. Mr. Richardson: And, two, if they wanted to keep this out, pretrial they should have filed a motion, and they didn't (T. 420). * * Mr. Richardson: And there was no pretrial motion on that. If there had been a motion, we would have argued it (T. 424). The Mississippi Rules of Evidence were implemented for a definite purpose. Case law interpreting the rules are very clear. Those rules don't say: The Introduction of Prejudicial Evidence is Permitted in Criminal Trials unless Prevented by the Accused." We, both prosecutors and defense lawyer, have been operating long enough under the Mississippi Rules of Evidence to know our obligations and to know Rule 404 and the prejudicial/probative balancing test under Rule 403. Common sense and caution are both needed when a prosecutor seeks to use this type of evidence. Obviously just bringing out prejudicial evidence and "hoping for the best" is a poor and fundamentally flawed way to operate justice. The trial comt's instruction to the jury could not cure the error in this case. The only way to cure this error was to grant a mistrial. The trial comt actually reminded the jury again of the 4

10 1994 shooting when it told the jury to disregard "the bad blood between these two gentlemen culminating in an act in "(Tr. 424). Slice it any way you want but this evidence was overly prejudicial and improper. It was introduced to unfairly prejudice Mr. Ford's defense. Mr. Ford's defense was to show the jury he did not act in concert. There was testimony from a witness who overheard someone outside the car say, "OJ, don't do it." Defense counsel argued to the jury, "I don't believe Daner Ford is guilty of any crime. You heard Jessie Lee say that he heard someone say, 'Don't do it, OJ. 'Maybe he told the truth about that. I ask you to find my client not guilty of either charge."(tr ). This defense could have been more artfully argued, but it was a good and reasonable defense under all the evidence. It was fatally prejudiced by the introduction of highly improper character evidence. The evidence introduced was so damaging "that an admonishment could not cure the prejudicial effect the comments would have on the jury." Lesley v. State, 606 So. 2d 1084 (Miss. 1992). Ample authority has been cited in Appellant Brief. It won't be repeated again here. This error requires a reversal and remand so that Mr. Ford is afforded the right to present his defense to a new jury unencumbered by this egregious error. ISSUE II: THE TRIAL COURT ERRED BY GRANTING A FLIGHT INSTRUCTION OVER THE OBJECTION OF THE APPELLANT The Appellee claims there may have been an explanation for Mr. Ford's absence for eight days, but hiding in the attic proves guilt. This is not correct. While the record is not perfect, it is clear Mr. Ford was up and about in the community. We know he came by one of his lawyer's office the day before he was arrested in his attic. (Tr. 760). Neither Mr. Ford nor his attorney knew there was an anest warrant for murder outstanding at that time. It was only later that law enforcement called Mr. Ford's attorney, T. George Kelly, to advise him of the warrant. Mr. Kelly 5

11 advised law enforcement he would try to reach Mr. Ford but he was unable to do so. (Tr ). Mr. Ford had cooperated and given a statement to law enforcement on the evening of the shooting. (Tr. 563). There is absolutely no evidence that Mr. Ford knew he was wanted for murder. This writer believes that as law enforcement officers searched to execute the warrant on Mr. Ford they did not tell people in the community they had a warrant for Mr. Ford's arrest. So, to Mr. Ford's knowledge, law enforcement may have wanted to interview him again about the actions of his cousin, Steverson Ford. Wanting to avoid giving more information or talk to law enforcement might not be the best conduct, but it is not evidence from which guilt can or should be inferred. The Appellee relies on the Court of Appeals decision in Anderson v. State, 1 So. 3d 905 (Miss. Ct. App. 2008) for its "big bang" authority. This case is inapposite. In Anderson the defendant immediately fled the scene and stayed gone for several months. He took the witness stand and provided no explanation for his fleeing the scene or absence for several months. Mr. Ford did not flee and absent himself for several months. He left the scene according to witnesses and that same night gave a recorded statement to law enforcement. He stayed in the community to work. Mr. Ford stayed in contact with his attorney, T. George Kelly. (Tr ). There was no "flight" in this case. Mr. Ford was in his attic but hiding in the attic might be admissible for whatever the jury wants to make of it, but the additional "flight instruction" was completely improper. The facts of this case are closer to Pannell v. State, 455 So. 2d 785 (Miss. 1984) than Anderson, supra. Pannell was thoroughly covered in Appellant's Brief and not distinguished by the Appellee. The Mississippi Supreme Court in Ervin v. State, 136 So. 3d 1053 (Miss. 2014) questioned whether hiding in one's own attic with no way out would constitute probative flight. It was not the basis for the reversal in Ervin but it is for Mr. Ford's case. The Appellee did not 6

12 attempt to discuss or distinguish the relevant and controlling language in Ervin. Finally, the Appellee failed to mention or explain the recent Comt of Appeals case of Keubler v. State, No KA COA, where the Comt correctly remarked "Jury instructions on flight are even more limited than admissible evidence of flight." Id, at (Emphasis added). The Appellee asks this Comt to affirm Mr. Ford's conviction even if the flight instruction was improper because there was sufficient evidence of guilt. (Appellee's brief, page 15). This is not possible. Mr. Ford put forth a defense that was already seriously and unfairly prejudiced by the introduction into evidence of incompetent character evidence. The flight instruction standing alone would require a reversal but together with the improper character evidence, the cumulative effect was devastating. This Court must reverse and remand these convictions based on the improper flight instruction. ISSUE III: DANER FORD'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL This point is adequately set forth in the Appellant's brief. The Appellee has written a few "blackletter" law statements but has not tackled the serious issues set forth in the Appellant's brief. There is no trial strategy or reasonable explanation for what defense counsel did in this case when they introduced the prior conviction of co-defendant Steverson Ford. This is clear from Johns v. State, 592 So. 2d 86 (Miss. 1991). Buckley v. State, 223 So. 2d 524 (Miss. 1969). Even the trial judge noted "it seems to me it's more prejudicial.... " (Tr ). Mr. Daner's attorneys rendered ineffective assistance of counsel and he was prejudiced by their conduct. Offering evidence that the co-defendant was tried and convicted for the same offense was "more prejudicial" and served no useful purpose. The remaining issues in this point are adequately set fotth in Appellant's brief and have not been rebutted by the Appellee. This requires a reversal. 7

13 ISSUE IV: THE TRIAL COURT ERRED BY SENTENCING MR. DANER FORD AS A HABITUAL WITHOUT FIRST CONDUCTING A BIFURCATED SENTENCING HEARING Appellant rests upon his original brief. RESPECTFULLY SUBMITTED, THIS the 15 1 h day of Januaiy, Isl Merrida "Buddy" Coxwell MERRIDA "BUDDY" COXWELL OF COUNSEL: MERRIDA "BUDDY" COXWELL (MB# 7782) CHARLES R. MULLINS (MB# 9821) COXWELL & ASSOCIATES, PLLC Post Office Box 1337 Jackson, Mississippi Telephone: (601) Facsimile: (601) merridac@coxwelllaw.com chuckm@coxwelllaw.com Attorneys for Appellant 8

14 CERTIFICATE OF SERVICE I, Merrida "Buddy" Coxwell, counsel of record for the Appellant, Daner Ford, have this day filed the above and foregoing Appellant Daner Ford's Reply Brief with the Clerk of Court utilizing the ECF system, and have caused to be served, via United States mail, postage pre-paid, true and correct copies of same upon the following: Office of the Mississippi Attorney General 550 High Street, Suite 1200 Jackson, Mississippi W. Dewayne Richardson, Esquire Washington County District Attorney Post Office Box 426 Greenville, Mississippi Honorable Carol White Richard Washington County Circuit Court Judge Post Office Box 244 Greenwood, Mississippi THIS, the 15u, day ofjanuaty, Isl Merrida "Buddy" Cmwell MERRIDA "BUDDY" COXWELL 9