IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Aug :19: KA COA Pages: 22 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI AARON LYONS APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: KAYLYN MCCLINTON SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES iii STATEMENT OF THE CASE STATEMENT OF THE ISSUES STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT I. LYONS IS PROCEDURALLY BARRED FROM RAISING A DISCOVERY VIOLATION FOR THE FIRST TIME ON APPEAL II. III. IV. LYONS IS PROCEDURALLY BARRED FROM ARGUING THE PURPLE CLOTH WAS ERRONEOUSLY ADMITTED INTO EVIDENCE THERE IS NO EVIDENCE THE STATE S WITNESS, SONYA EWELL, USED HER CELL PHONE EITHER WHILE SHE WAS TESTIFYING ON THE STAND OR WHILE SHE WAS IN COURT LYONS S CLAIM REGARDING THE VICTIM S PHOTOGRAPH IS PROCEDURALLY BARRED V. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DECLINING TO DECLARE A MISTRIAL VI. LYONS S TRIAL ATTORNEY DID NOT PROVIDE HIM WITH INEFFECTIVE ASSISTANCE OF COUNSEL VII. THE TRIAL COURT CORRECTLY DENIED THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION, D-10, BECAUSE THERE WAS DIRECT EVIDENCE ADMITTED AT TRIAL VIII. THE NEW EVIDENCE IS NOT MATERIAL AND IS NOT LIKELY TO PRODUCE A NEW OUTCOME BECAUSE THE INFORMATION IN THE LETTER WAS ADDRESSED AT TRIAL i

3 IX. THE VERDICT WAS NOT CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE X. THERE IS NO CUMULATIVE ERROR CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES FEDERAL CASES Miller v. Pate, 386 U.S. 1 (1967)... 6 Strickland v. Washington, 466 U.S. 668 (1984) STATE CASES Branch v. State, 118 So. 3d 646 (Miss. Ct. App. 2013) Brown v. State, 19 So. 3d 85 (Miss. Ct. App. 2008) Brown v. State, 534 So.2d 1019 (Miss.1988) Carr v. State, 873 So. 2d 991 (Miss. 2004) Clark v. State, 40 So.3d 531 (Miss. 2010)... 9 Colenburg v. State, 735 So.2d 1099 (Miss. Ct. App. 1999) Conner v. State, 632 So.2d 1239 (Miss. 1993) Cox v. State, 793 So.2d 591 (Miss.2001)... 9 Craig v. State, 777 So.2d 677 (Miss. Ct. App. 2000) Crawford v. State, 876 So.2d 196 (Miss. 2003) Epting v. State, 720 So. 2d 487 (Miss. Ct. App. 1998)... 9 Garrett v. State, 921 So. 2d 288 (Miss. 2006) Gilleylen v. State, 255 So.2d 661 (Miss. 1971) Howard v. State, 945 So. 2d 326 (Miss. 2006)... 9 Jackson v. State, 73 So.3d 1176 (Miss. Ct. App. 2011)... 10, 12 Jenkins v. State, 607 So.2d 1171 (Miss.1992) iii

5 Johnson v. State, 341 So. 2d 660 (Miss.1977)... 9 Jones v. State, 776 So.2d 643 (Miss.2000)... 7 King v. State, 772 So. 2d 1076 (Miss. Ct. App. 2000)... 9 Livingston v. State, 943 So.2d 66 (Miss. Ct. App. 2006) Lynch v. State, 877 So.2d 1254 (Miss. 2004) Mangum v. State, 762 So.2d 337 (Miss. 2000)... 6 McCain v. State, 971 So.2d 608 (Miss. Ct. App. 2007)... 5 McFee v. State, 511 So.2d 130 (Miss.1987) Meeks v. State, 781 So.2d 109 (Miss. 2001) Miller v. State, 914 So.2d 800 (Miss. Ct. App. 2005) King v. State, 656 So.2d 1168 (Miss. 1995) Payne v. State, 462 So.2d 902 (Miss.1984) Powell v. State, 806 So.2d 1069 (Miss. 2001) Ravencraft v. State, 989 So. 2d 437 (Miss. Ct. App. 2008) Sanders v. State, 34 So.3d 1200 (Miss. Ct. App. 2009)... 7 Smith v. State, 797 So.2d 854 (Miss. 2001)... 8 Smith v. State, 835 So.2d 927 (Miss.2002)... 9 Snelson v. State, 704 So.2d 452 (Miss.1997)... 9 Whitehead v. State, 187 So.3d 1091)(Miss. Ct. App. 2016) iv

6 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI AARON LYONS APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE On December 22, 2015, the appellant, Aaron Lyons, in Cause No KA COA, filed a brief in this Court. On February 17, 2016, Lyons filed a supplemental pro se brief with the clerk of the Court of Appeals. Lyons failed to serve the State with his supplemental pro se brief. On March 15, 2016, the State filed its brief in response to the December 22, 2015 brief but did not address the issues raised in Lyons s supplemental brief as the State was unaware of its existence. On June 24, 2016, the State received notice from Lyons of the supplemental pro se brief. Lyons acknowledged his failure to serve the State with his supplemental brief and provided the State with a copy of it. On July 5, 2016, the State filed a motion in this Honorable court to stay consideration of this appeal and for a time extension to respond to Lyons s pro se supplemental brief. On July 11, 2016, this Honorable court granted the State s motion and provided the State thirty days within which to file a response to appellant s pro se supplemental brief. STATEMENT OF THE ISSUES I. LYONS IS PROCEDURALLY BARRED FROM RAISING A DISCOVERY VIOLATION FOR THE FIRST TIME ON APPEAL. 1

7 II. III. IV. LYONS IS PROCEDURALLY BARRED FROM ARGUING THE PURPLE CLOTH WAS ERRONEOUSLY ADMITTED INTO EVIDENCE. THERE IS NO EVIDENCE THE STATE S WITNESS, SONYA EWELL, USED HER CELL PHONE EITHER WHILE SHE WAS TESTIFYING ON THE STAND OR WHILE SHE WAS IN COURT. LYONS S CLAIM REGARDING THE VICTIM S PHOTOGRAPH IS PROCEDURALLY BARRED. V. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DECLINING TO DECLARE A MISTRIAL. VI. LYONS S TRIAL ATTORNEY DID NOT PROVIDE HIM WITH INEFFECTIVE ASSISTANCE OF COUNSEL. VII. THE TRIAL COURT CORRECTLY DENIED THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION, D-10, BECAUSE THERE WAS DIRECT EVIDENCE ADMITTED AT TRIAL. VIII. IX. THE NEW EVIDENCE IS NOT MATERIAL AND IS NOT LIKELY TO PRODUCE A NEW OUTCOME BECAUSE THE INFORMATION IN THE LETTER WAS ADDRESSED AT TRIAL. THE VERDICT WAS NOT CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE. X. THERE IS NO CUMULATIVE ERROR. STATEMENT OF FACTS The State would ask this Honorable court to please refer to the statement of facts provided in the State s original brief, pages two to four, filed on March 15, SUMMARY OF THE ARGUMENT Lyons is procedurally barred from raising a discovery violation claim on appeal because he failed to preserve the issue by making a contemporaneous objection at trial. For the same reason, 2

8 Lyons is barred from arguing that a piece of physical evidence was erroneously admitted into evidence and that a photograph of the victim was improperly displayed during closing arguments. Lyons s argument that the State s witness, Sonya Ewell, used her cell phone while in court or while on the witness stand is without factual support and merit. The trial court did not abuse its discretion to declare a mistrial. Lyons s attorney did not provide him ineffective assistance of counsel. The guilty verdicts were not contrary to the weight of the evidence, and as there were no individual errors in this case, there can be no cumulative error. ARGUMENT I. LYONS IS PROCEDURALLY BARRED FROM RAISING A DISCOVERY VIOLATION FOR THE FIRST TIME ON APPEAL. Lyons argues the prosecution violated his right to due process and a fair trial because it failed to provide him a copy of the Scales Biological Lab report prior to trial. Lyons asserts the purple cloth s DNA test results contradict the testimony provided by the State s witness, Lavatrus Harris, and if Lyons had been aware of the results prior to trial, he could have developed a strategy to present the results to the jury in a more favorable manner, and thereby strengthened his defense. Where a defendant fails to make a contemporaneous objection to the admission of evidence on the basis of discovery violation, the defendant s later claim regarding a discovery violation is procedurally barred. Livingston v. State, 943 So.2d 66, 70 (Miss. Ct. App. 2006). The lab report in question was first referred to at trial by Lyons s attorney, the Honorable William Goodwin. (TR 357). Goodwin had the report marked for identification purposes as Defendant Exhibit 26. (TR 357). The report shows the results of the DNA testing performed on the purple cloth. (TR 365). The State later sought to have Defendant Exhibit 26 admitted into evidence. (TR 368). The exhibit was accepted without objection from Lyons s attorney, Goodwin, and marked for identification as State s 3

9 Exhibit 27. (TR 368). Because Lyons s attorney did not object to the admission of the exhibit, Lyons s discovery violation claim is procedurally barred. Even if the issue were not waived on appeal, the facts do not show that the State committed a Brady violation, as Lyons argues. In Brady v. Maryland, the United States Supreme Court established the principle that the prosecution s suppression of evidence favorable to an accused upon request violates the tenants of due process where the evidence is material to guilt or punishment, irrespective of the good or bad faith of the prosecution. Carr v. State, 873 So. 2d 991, 999 (Miss. 2004) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). The determination of a Brady violation is reached through the application of a four-part test, adopted in Mississippi through King v. State. 656 So.2d 1168, 1174 (Miss. 1995). The four prongs of the test require the defendant to prove: (1) that the State possessed evidence favorable to the defendant (including impeachment evidence), (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence, (3) that the prosecution suppressed the favorable evidence, and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. 873 So.2d at 999. There is no evidence of a Brady violation in this case because there is proof that the State supplied the defendant with all discovery, to the defense counsel s satisfaction. On March 30, 2015, two months before trial began, the trial court held an omnibus hearing. (TR 26). At the hearing, the court asked Lyons s attorney, Goodwin, if discovery was complete. (TR 26). Goodwin told the court, Your Honor, we have the State s complete file. We know of nothing left out that would prohibit us from doing the omnibus order. (TR 26). The State s attorney also advised the court that he had provided all discovery save for a copy of the district attorney s statement, which he would send to Goodwin as soon as he received it. (TR 26). The State concluded, Other than that, the 4

10 Defense has everything the State has. (TR 26). In the signed omnibus order, the defense stated it had obtained full discovery and/or had inspected the prosecution s file, except for the district attorney s statement referred to above. (CP 54-57). In light of the court transcript of the omnibus hearing and the signed omnibus order, it is evident that the prosecution did not suppress any evidence in this case. Accordingly, Lyons s argument does not meet the third prong of the Brady/King test, and therefore fails. II. LYONS IS PROCEDURALLY BARRED FROM ARGUING THE PURPLE CLOTH WAS ERRONEOUSLY ADMITTED INTO EVIDENCE. Lyons argues the State should not have introduced the purple cloth as evidence because Lyons s DNA was not found on it while Lavatrus Harris s DNA was. He further asserts the fact that Harris s DNA was on the cloth discredited her testimony and is proof that the State used the evidence to deliberately misrepresent the truth. Issues raised for the first time on appeal and not contemporaneously objected to at trial are waived. McCain v. State, 971 So.2d 608, 612 (Miss. Ct. App. 2007). Lyons s attorney did not object to the admission into evidence of the two pieces of purple cloth (known as State s Exhibits 18 and 19). (TR ). Lyons s attorney did not object to Harris s testimony that she saw Lyons use a purple or gray cloth to wipe down the car. (TR 333). As a result, Lyons s argument about the State s use of the purple cloth is procedurally barred and waived on appeal. Procedural bar notwithstanding, the weight and consideration of evidence is a matter for the jury to consider. Whitehead v. State, 187 So.3d 1091, 1097)(Miss. Ct. App. 2016)(citing Craig v. State, 777 So.2d 677, 680 (Miss. Ct. App. 2000)). Here, the jury was charged with weighing and considering the value of the purple cloth and its role in the crime. Lyons s arguments about the jury s consideration of the cloth held is improper as it seeks to prohibit the jury from considering the 5

11 weight of this piece of evidence. Similarly, it is within the discretion of the jury to accept or reject a witness s testimony, and the jury may give consideration to all inferences flowing from the testimony. Mangum v. State, 762 So.2d 337, 342 (Miss. 2000). Lyons argues Harris s testimony is discredited by the purple cloth because while she said she had nothing to do with the crime, her DNA was found on the cloth. (TR 346, 365). The jury heard Harris say she had nothing to do with the crime. (TR 346). The jury also heard Kathryn Rodgers, the DNA testing expert in this case, testify that the DNA from the purple cloth was a mixture profile containing the DNA of more than one individual, and Harris could not be excluded as a contributor to the mixture profile. (TR 365). Lyons s arguments about the propriety of the State s arguments regarding Harris and the purple cloth overlook the fact that the jury has the discretion to accept or reject Harris s testimony. For that reason, his arguments are improper. Lyons also argued the State misrepresented the DNA evidence from the purple cloth in an attempt to mislead the jury. In particular, Lyons claims the cloth should not have been used to corroborate Harris s testimony because the State knew Harris s DNA was on the cloth. Therefore, he asserts the State s introduction of the cloth was an intentional misrepresentation. To support his claim, Lyons cited the United States Supreme Court case, Miller v. Pate, and asserts that like the prosecutor in Miller, the State s misrepresentation of the evidence played a vital part in his case. 386 U.S. 1 (1967). In Miller, the defendant was on trial for the murder of an eight-year-old girl in a brutal sex attack. 386 U.S. at 3. At trial, the prosecutor repeatedly referred to a key piece of evidence, a pair of men s undershorts, as bloody shorts, despite knowing that the reddish-brown stain was paint, not blood. 386 U.S. at 3-6. Upon review, the Supreme Court of the United States held the prosecutor deliberately misrepresented the truth. 386 U.S. at 7. The case was reversed and remanded. 386 U.S. at 7. Clearly, the facts in Lyons s case are insufficient to establish any evidence of intentional 6

12 misrepresentation by the State. However, even if the State had misrepresented the value of the purple cloth to the jury, as Lyons claims, the alleged misrepresentation by the State in this case does not rise to the grievous level of misconduct seen by the prosecutor in Miller. Again, the issue here is without merit. III. THERE IS NO EVIDENCE THE STATE S WITNESS, SONYA EWELL, USED HER CELL PHONE EITHER WHILE SHE WAS TESTIFYING ON THE STAND OR WHILE SHE WAS IN COURT. Lyons argues that Sonya Ewell used her cell phone on the same day of the trial, either while she was on the stand or while she was in the courtroom. To support his claim, Lyons said that his aunt, who was present at trial, called him the night that Ewell testified and said she saw Ewell using her cell phone in trial. Further, Lyons said that Harris s testimony about her contact with Ewell and her response about texting Ewell the previous day, was proof that Ewell used her phone in court. Lyons insists that courtroom cameras can be used to verify his suspicions. On appeal, [an appellate court s] review is limited to what appears in the record, and we will not consider matters that are not contained in the record. Sanders v. State, 34 So.3d 1200, 1202 (Miss. Ct. App. 2009) (citing Jones v. State, 776 So.2d 643, 649 (Miss.2000)) As this Court has held, [w]e cannot decide an issue based on assertions in the briefs alone; rather, issues must be proven by the record. 34 So.3d at Lyons argues Ewell s alleged cell phone use could have allowed her to secretly coach Harris on how to testify against Lyons. Lyons does not present any outside evidence or proof of these claims beyond of his own self-serving, conclusory arguments, and the conversation he claims to have had with his aunt. Lyons s attorney did not make a contemporaneous objection to the supposed cell phone use and the trial judge never mentioned the matter on the record. Therefore, the issue is clearly without factual basis and lacks merit. 7

13 IV. LYONS S CLAIM REGARDING THE VICTIM S PHOTOGRAPH IS PROCEDURALLY BARRED. Lyons asserts the State unfairly prejudiced his case and inflamed the jury when it displayed a photograph of the victim, John Deere, during its closing argument. Lyons further argues the trial court violated his constitutional right to a fair trial when it allowed the photo to be on display during closing arguments. The photograph in question, State s Exhibit 12, is a professional studio photograph of Deere taken some time before his death. (TR 228). The photo was introduced by the State to show Deere as he appeared before he was murdered, and was identified as such by Deere s widow. (TR 228). To review an issue on appeal, there must be contemporaneous objection for preservation of error. Smith v. State, 797 So.2d 854, 856 (Miss. 2001). Lyons s attorney neither objected to the introduction of the photo during trial, nor its presence during closing arguments. (TR 228, 392). On the contrary, Lyons s attorney said he had no objection to the photograph s initial introduction into evidence, and in his closing argument, Lyons s attorney told the jury, I have no problem with [Deere s] photograph being up there while I m talking. (TR 228, 392). Once again, the failure to make a contemporaneous objection to the photograph s admission into evidence and presentation during closing arguments procedurally bars Lyon from raising the issue on appeal. V. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DECLINING TO DECLARE A MISTRIAL. Lyons argues Ewell s statement that he told her he had committed several robberies irreparably damaged his defense and caused the jury to find him guilty. He proffers that the trial court abused its discretion by declining to declare a mistrial. Although Ewell had been instructed not to mention Lyons s previous robberies, she referred to them in her testimony. Defense counsel 8

14 immediately objected and moved for a mistrial. (TR 264). The decision to declare a mistrial is within the sole discretion of the trial court. Clark v. State, 40 So.3d 531, 538 (Miss. 2010). Here, the judge called both attorneys to the bench and said that it would reprimand the jury and ask if the members could ignore Ewell s statement. (TR 264). The judge said that if the jury could ignore the improper testimony, the trial would continue. (TR 264). The jury indicated to the court that it was capable of ignoring Ewell s statement, so the trial continued. (TR 265). The trial court did not abuse its discretion by declining to declare a mistrial. The Mississippi Supreme Court has long held that a jury admonishment to disregard an answer is sufficient in cases where a witness makes an improper reference to a defendant's criminal background. Howard v. State, 945 So. 2d 326, 368 (Miss. 2006); See also Smith v. State, 835 So.2d 927, 947 (Miss.2002); Cox v. State, 793 So.2d 591, 595 (Miss.2001); Brown v. State, 534 So.2d 1019, 1024 (Miss.1988); Payne v. State, 462 So.2d 902, 905 (Miss.1984); Johnson v. State, 341 So. 2d 660, 662 (Miss.1977). Likewise, this Court has held that [i]t must be presumed that the jury will follow the court's instruction to disregard any inadvertent comments or evidence and to decide the case solely on the evidence presented.... To presume otherwise would be to render the jury system inoperable. King v. State, 772 So. 2d 1076, 1078 (Miss. Ct. App. 2000) (internal citations omitted). Thus, [w]here the judge instructs the jury to disregard the impropriety, prejudicial error does not result. Epting v. State, 720 So. 2d 487, 489 (Miss. Ct. App. 1998) Snelson v. State, 704 So.2d 452, 456 (Miss.1997). Accordingly, this issue is without merit. VI. LYONS S TRIAL ATTORNEY DID NOT PROVIDE HIM WITH INEFFECTIVE ASSISTANCE OF COUNSEL. To prove ineffective assistance of counsel, Lyons must show that: (1) his counsel s 9

15 performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). There is a strong presumption that counsel s performance falls within the range of reasonable professional assistance. 466 U.S. at 689. In order to overcome this presumption, Lyons must show that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. 466 U.S. at 694. An ineffective assistance of counsel claim raised on direct appeal is confined strictly to the record. Colenburg v. State, 735 So.2d 1099, 1102 (Miss. Ct. App. 1999). Lyons argues defense counsel s failure to interview and/or call a number of potential witnesses at trial amounted to ineffective assistance of counsel. Because Lyons s claim is raised on direct appeal, it is bound to information contained in the record. The record indicates that Lyons s attorney sought to call five of the six potential witnesses referred to in Lyons s supplemental brief, and even filed subpoenas for them. (CP 63-66). The State filed a motion in limine shortly after receiving the list of anticipated defense witnesses, in which it argued to exclude the five witnesses. (CP 96-97). Thereafter, the record is silent on the matter. Ultimately, counsel s choice of whether or not to call certain witnesses falls within the ambit of trial strategy and will not stand as support for an ineffective assistance of counsel claim. Jackson v. State, 73 So.3d 1176, (Miss. Ct. App. 2011). Therefore, this portion of Lyons s ineffective assistance argument should fail for lack of merit and support. Next, Lyons argues his attorney failed to adequately use the DNA results of the purple cloth as impeachment and exculpatory evidence. According to Lyons, Lyons s case would have been strengthened if counsel had used the DNA results to impeach Harris s testimony and prove Lyons was not involved in the crime. The record clearly shows that defense counsel brought Harris s 10

16 credibility into question. (TR ). Counsel focused on Harris s motive for potentially fabricating her testimony against Lyons, as a scorned woman who hated Lyons and only testified as part of a deal for immunity. (TR ). Additionally, the results of the DNA evidence were presented and thoroughly explained to the jury. (TR 365). Lyons has failed to establish how counsel s strategy to discredit Harris through motive, instead of DNA testing, amounts to deficient performance. Furthermore, Lyons has not demonstrated that counsel s choice denied him a fair trial. This issue is without merit. Lyons also asserts defense counsel failed to thoroughly investigate reports in the discovery material and the credentials of the State s expert witness, Dr. Steven Haynes. The discovery material at issue, Defendant Exhibit 24, is a report from the FBI laboratory from (Defendant Exhibit 24). The report details the results of trace evidence examinations performed on specimens from an earlier suspect s vehicle. (Defendant Exhibit 24). Lyons claims that counsel failed to diligently review this report. By failing to do so, Lyons alleges counsel missed an opportunity to implicate the earlier suspect in committing the murder. That being said, Lyons has not demonstrated that counsel failed to diligently review the report. In fact, counsel asked the court to mark the exhibit for identification and referred to it throughout questioning Captain Steve Rushing of the Lincoln County Sheriff s Department. (TR 296). Accordingly, Lyons has not shown that counsel performed deficiently or created any prejudice to his case. Additionally, Lyons takes issue with counsel s failure to object to Dr. Steven Haynes s qualification as an expert witness and insists the error amounts to ineffective assistance of counsel. According to Lyons, Haynes was not competent to testify because of an allegedly bad track record and reputation in his reporting. (Appellant s Supplemental Brief, P. 23). Goodwin did not object 11

17 to Dr. Haynes s classification as an expert witness because he had stipulated to that fact before Dr. Haynes testified. (TR 282). In Cooper v. State, the Mississippi Court of Appeals held that the defendant s attorney s performance was not deficient for merely failing to challenge Dr. Steven Haynes s qualifications. 76 So.3d 749, 755 (Miss. Ct. App. 2011). The court explained that because Cooper had failed to show how testing Dr. Haynes s qualifications might have changed the result of his trial, and because the Supreme Court has emphasized Dr. Haynes s qualification as an expert in forensic pathology, it was not reasonably probably that counsel s failure to object to Dr. Haynes s qualifications affected the outcome of Cooper s case. 76 So.3d at 755. Like the defendant in Cooper, Lyons has failed to show how an objection to Dr. Haynes s qualifications might have changed the result of his trial. As a result, Goodwin s failure to object to Dr. Haynes s qualifications is neither ineffective assistance of counsel, nor prejudicial to Lyons s case. Lyons further argues that counsel s failure to object at several points during trial unfairly prejudiced his case. Specifically, Lyons asserts Goodwin should have objected to (1) the admission of the purple cloth into evidence, (2) Harris s testimony that Lyons pulled a gun on her and threatened her and her family, (3) the exhibition of Deere s photo during closing arguments, and (4) the trial court s denial of jury instruction D-10. It is well-established that counsel s choice of whether or not to make certain objections falls within the ambit of trial strategy and will not stand as support for an ineffective assistance of counsel claim. Jackson v. State, 73 So.3d 1176, (Miss. Ct. App. 2011). Accordingly, Lyons s grievances in this instance do not support his claim of ineffective assistance of counsel. Lastly, Lyons argues that counsel s failure to suggest a lesser-included offense to armed robbery jury instruction, either simple robbery or theft, amounts to ineffective assistance of counsel. 12

18 According to Lyons, there is insufficient evidence to establish that he took the cash box from Deere and it is likely that the armed robbery was committed by a third party before Lyons arrived at the Pik & Pak. Therefore, Lyons reasons, a reasonable jury could have found him not guilty of one of the essential elements of armed robbery, and he was entitled to a lesser-included offense jury instruction. As previously mentioned, there is a rebuttable presumption that counsel s decisions are tactical, and whether or not to request a lesser-included offense fits well within that presumption. Ravencraft v. State, 989 So. 2d 437, 443 (Miss. Ct. App. 2008). It is entirely possible that Goodwin strategically declined to request a lesser-included offense jury instruction because he believed that Lyons would be acquitted of the greater charge but convicted of the lesser offense and made a calculated decision not to pursue the lesser-included instruction. Miller v. State, 914 So.2d 800, 805 (Miss. Ct. App. 2005). Moreover, Lyons does not cite any authority to show that failure to request a lesser-included offense instruction amounts to ineffective assistance of counsel. Failure to seek an instruction is not ineffective assistance of counsel. Powell v. State, 806 So.2d 1069, 1078 (Miss. 2001). Lyon s issue here is without merit. VII. THE TRIAL COURT CORRECTLY DENIED THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION, D-10, BECAUSE THERE WAS DIRECT EVIDENCE ADMITTED AT TRIAL. Lyons argues the trial court erred when it denied jury instruction D-10, a circumstantial evidence instruction. 1 The defendant is not entitled to a circumstantial evidence instruction where both circumstantial and direct evidence are admitted at trial. Garrett v. State, 921 So. 2d 288, The instruction at issue told the jury,... that if the State of Mississippi has relied on circumstantial evidence to establish its theory of the guilt of the Defendant, then the evidence for the State must be so strong as to establish the guilt of the Defendant, not only beyond a reasonable doubt, but the evidence must be so strong as to exclude every other reasonable hypothesis other than that of guilt. (CP 164). 13

19 (Miss. 2006)(citing Gilleylen v. State, 255 So.2d 661, (Miss. 1971)). Direct evidence has been held to include direct scientific evidence such as fingerprints and DNA, and eyewitness testimony. 921 So. 2d at (citing Lynch v. State, 877 So.2d 1254, (Miss. 2004); Conner v. State, 632 So.2d 1239, 1256 (Miss. 1993)). Lyons was not entitled to the circumstantial evidence jury instruction, D-10, because direct evidence was admitted in his case. Lyons told Ewell that he and Harris robbed a gas station and killed the attendant in Brookhaven, Mississippi. (CP 255, 266). This is an admission to a significant element of the offense charged, which constitutes direct evidence for the purposes of determining whether Lyons was entitled to a circumstantial evidence instruction. See Lynch v. State, 877 So.2d 1254,1265 (Miss. 2004). See also Brown v. State, 19 So. 3d 85, (Miss. Ct. App. 2008). Additionally, the DNA evidence presented at trial showed that Lyons s DNA matched the DNA sample on the FUBU jeans found next to the burning cash box. (TR , 388). This DNA evidence is also considered direct evidence and therefore precludes the application of a circumstantial evidence jury instruction.921 So. 2d at Accordingly, the trial court correctly denied jury instruction D-10. VIII. THE NEW EVIDENCE IS NOT MATERIAL AND IS NOT LIKELY TO PRODUCE A NEW OUTCOME BECAUSE THE INFORMATION IN THE LETTER WAS ADDRESSED AT TRIAL. Lyons argues the letter Ewell sent him after he was convicted is newly discovered evidence which proves that Ewell had a motive to fabricate her testimony. To succeed on a motion for a new trial based on newly discovered evidence, the petitioner must prove that new evidence has been discovered since the close of trial and that it could not have been discovered through due diligence before the trial began. Additionally, the petitioner must show the newly discovered evidence will 14

20 probably produce a different result or induce a different verdict, if a new trial is granted. This requires a showing that the evidence is material and is not merely cumulative or impeaching. Crawford v. State, 876 So.2d 196, (Miss. 2003)(citing Meeks v. State, 781 So.2d 109, 112 (Miss. 2001)). The letter by Ewell was sent after Lyons was convicted, however, the evidence is not material and is cumulative at best. The issue of Ewell s motive to testify was already argued by Lyons s trial attorney in closing. The attorney said that Ewell was a scorned woman who was angry with Lyons and as a result, fabricated her testimony against him. (TR 394). Therefore, the issue was raised at trial and the jury nevertheless found Lyons guilty. This is not newly discovered material evidence. Additionally, the nature of the letter is not nearly as significant as Lyons suggests. The letter Ewell sent Lyons was attached to Lyons s supplemental brief and is not evidence of a previously unknown motive. In the letter, Ewell wrote, I never wanted to testify against you... Ewell detailed why she was initially angry with Lyons when he left her, however, Ewell maintained that she loved him regardless. The letter from Ewell is not proof of a motive to fabricate testimony. If anything, the letter shows she did not want to testify against Lyons. Lyons argues the letter is sufficient to show with a reasonable probability that a different result would occur if this were introduced as evidence in a new trial, but the letter is clearly insufficient to do so. Therefore, Ewell s letter does not amount to newly discovered evidence which would produce a different result or verdict if a new trial were granted. This Court is bound by the record on direct appeal, and Lyons should pursue any claim based on matters outside the appellate record in a motion for post-conviction relief. Branch v. State, 118 So. 3d 646, (Miss. Ct. App. 2013). 15

21 IX. THE VERDICT WAS NOT CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE. The weight of the evidence was addressed in the State s original brief, submitted on March 15, Accordingly, it will not be discussed in the State s supplemental brief. X. THERE IS NO CUMULATIVE ERROR. There are no individual errors and as such, there can be no cumulative error. This Court may reverse a conviction and sentence based upon the cumulative effect of errors that independently would not require reversal. Jenkins v. State, 607 So.2d 1171, (Miss.1992). However, where there was no reversible error in any part, so there is no reversible error to the whole. McFee v. State, 511 So.2d 130, 136 (Miss.1987). In this case, there is no reversible error in any part and consequently, no cumulative error. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ Kaylyn McClinton KAYLYN MCCLINTON SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

22 CERTIFICATE OF SERVICE I, KAYLYN MCCLINTON, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable David H. Strong, Jr. Circuit Court Judge P.O. Drawer 1387 McComb, MS Honorable Dewitt (Dee) Bates District Attorney 284 E. Bay Street Magnolia, MS George T. Holmes, Esq. Indigent Appeals Division Office of State Public Defender P. O. Box 3510 Jackson, MS This the 10th day of August, /s/ Kaylyn McClinton KAYLYN MCCLINTON SPECIAL ASSISTANT ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS