E-Filed Document Nov :27: KA COA Pages: KA IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI

Transcription

1 E-Filed Document Nov :27: KA COA Pages: KA IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI STATE OF MISSISSIPPI, Plaintiff Appellee V. SHANNON RAYNER, Defendant Appellant FROM THE CIRCUIT COURT OF JASPER COUNTY, MISSISSIPPI FOR THE SECOND JUDICIAL DISTRICT CAUSE NO.: REPLY BRIEF OF APPELLANT JOHN M. COLETTE, MSB #6376 SHERWOOD A. COLETTE, MSB# John M. Colette & Associates 190 East Capitol Street, Suite 475 Jackson, Mississippi Office: (601) Facsimile: (601) Attorney for Appellant Shannon Rayner

2 TABLE OF CONTENTS Table of Contents.. i Table of Authorities... ii Summary of Argument Argument I. The State failed to present any evidence to establish his guilt beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis... 2 II. The Prosecutor s improper and prejudicial remarks denied Rayner his Sixth Amendment right to a fair and impartial trial. 7 Conclusion Certificate of Service Certificate of Compliance i

3 TABLE OF AUTHORITIES United States Supreme Court Berger v. United States, 295 U.S. 78, (1935) Fifth Circuit Court of Appeals United States v. Gallardo Trapero, 185 F.3d 307, 320 (5th Cir. 1999).. 9 United States v. Garza, 608 F.2d 659 (5th Cir. 1979)... 9 Mississippi Supreme Court Algheri v. State, 25 Miss. 584 (1853)... 6 Dunaway v. State, 551 So.2d 162, 164 (Miss. 1989) Edmonds v. State, 955 So. 2d 787, 792 (Miss. 2007) Hester v. State, 463 So.2d 1087, 1093 (Miss. 1985). 6 Johnson v. State, 477 So.2d 196, (Miss. 1985) Taylor v. State, 672 So.2d 1246, 1270 (Miss. 1996) Mississippi Court of Appeals Cooper v. State, 76 So.3d 749, 755 (Miss. Ct. App. 2011)... 8 Sacus v. State, 956 So.2d 329, 334 (Miss. Ct. App. 2007) 2 Stokes v. State, -- So.3d --, 2013 WL (Miss. Ct. App. 2013) ii

4 SUMMARY OF THE ARGUMENT In the Summary of the Argument and Argument portions of its brief, the Appellee attempts to confuse the issue of whether there was sufficient evidence to allow the jury to find Rayner guilty of depraved heart murder. The Appellee argues that the State presented sufficient evidence because Rayner s theory of defense was disproven and/or the jury rejected Rayner s theory of defense as unreasonable hypothesis of innocence. Appellee s Br. at 15. However, the Appellee fails to show that the State presented any evidence linking Rayner to the death of Sonya Rayner. In this case, the State was required to prove beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence that (1) the Rayner killed Sonya, (2) without the authority of law, and (3) with deliberate design to effect death. Here, the State failed to present any evidence to establish a causal link between Rayner s actions or inactions and the fracture to Sonya s skull or Sonya s death, and that he did so with deliberate design. In fact, no evidence was presented upon which an inference could have been maintained that Rayner caused Sonya s death. Simply put, the State failed to establish the actus reus by Rayner. Because the State failed to present any evidence linking Rayner to Sonya s cause of death, the trial court erred in denying Rayner s motion for judgment of acquittal and JNOV. Therefore, this Court must reverse Rayner s conviction and sentence and render judgment in his favor. In the alternative, because the prosecutor s erroneous remarks during rebuttal closing were so flagrant Rayner was denied his right to a fair trial. Erroneously stating that an expert is not a credited doctor in this State is not a comparison as the Appellee claims. Therefore, Rayner s convictions and sentence must be reversed and a new trial granted. 1

5 ARGUMENT I. The State failed to present any evidence to establish Rayner s guilt beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis. The Appellee argues that Rayner s theory of defense was disproved by the State s experts and/or that the jury reasonably could have rejected Rayner s theory of defense as an unreasonable hypothesis of innocence. Essentially, the Appellee contends that because the defense did not persuade the jury with a possible innocent reason for Sonya s death, then the verdict must stand. This is not the law. What is of utmost importance in every criminal prosecution is that the State first must prove the accused committed the act charged, and that he did so under circumstances that every element existed. While a motion for acquittal and JNOV challenges the legal sufficiency of the evidence, the critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under circumstances that every element of the offense existed. Sacus v. State, 956 So. 2d 329, 334 (Miss. Ct. App. 2007) (emphasis added). Here, the State must prove that (1) Rayner killed Sonya, (2) without the authority of law, and (3) with the deliberate design to effect death, and that he did so under circumstances that every element existed. However, no evidence was presented to show that Rayner committed any act whatsoever that caused or contributed to cause Sonya s death or that Rayner committed an act with the deliberate design to effect death. With respect to Sonya s death, the State presented evidence from Dr. LeVaughn who testified to the cause and manner of death. Dr. LeVaughn expounded on Dr. Shaker s original autopsy report (which stated the cause of death as probable blunt force trauma ) and concluded 2

6 that the cause of death was most likely blunt force trauma. 1 Tr. T. at Later, at trial, Dr. LeVaughn amended his opinion and stated that he was certain the fracture to Sonya s skull was caused by blunt force trauma. 2 However, Dr. LeVaughn was not able to rule out with certainty mechanical or positional asphyxia as a cause or contributing factor in her death. R. Excerpts at 3 & 4; Id. at 376. This testimony, in and of itself, should show that Dr. LeVaughn was not certain as to the cause of death. When asked what type of blow to the head or object caused the fracture to Sonya s skull, Dr. LeVaughn did not know. Id. at 340. The only other State witnesses with testimony somewhat relevant to Sonya s death were Tommy Boyd and Ken Caraway. 3 Tommy Boyd testified, relative to Sonya s death, that Sonya s body was covered with sheetrock and insulation, and that there was nothing heavy of consequence in the area. Id. at 152; S-5. Ken Caraway testified for the purpose of introducing Rayner s hand-written statement from an interview on February 17, Id. at According to Rayner s statement, Rayner and Sonya went to the Bay Springs house to get away for the night. While at the house Rayner and Sonya watched a movie, made love, and went to sleep. At some point during the night, Rayner woke up to Sonya struggling with something at the foot of the bed. Rayner, realizing the room was filling with smoke, jumped to his feet then to his hands and knees and crawled to the door. Rayner reached the bedroom door, opened it, and the smoke and heat knocked him back. Rayner never saw or heard from Sonya after opening the door. Rayner stated that he did not know how he got out of the house. Tr. T Dr. LeVaughn was did not conduct the original autopsy. Dr. LeVaughn basically signed off on Dr. Shaker s autopsy report and then drafted an amended autopsy report in preparation for trial that stretched Dr. Shaker s conclusions. 2 It must be noted that Dr. LeVaughn s opinion as to Sonya s cause of death became more certain while testifying in court than on July 23, 2013, when Dr. LeVaughn conducted his examination Dr. Shaker s original autopsy and concluded that the cause of death was most likely due to blunt force trauma. 3 The remaining State witnesses did not provide any testimony relevant to the death of Sonya. 3

7 Based on this evidence, or the lack thereof, the State failed to establish that Rayner killed Sonya, without the authority of law, and with the deliberate design to effect death. Assuming arguendo that Dr. LeVaughn correctly concluded that Sonya died due to blunt force trauma, neither Dr. Levaughn, Tommy Boyd nor Ken Caraway provided any testimony linking Rayner to the cause of the blunt force trauma. At most, their testimony established that Rayner and Sonya went to the Bay Springs house and Sonya died at some point during the night due to blunt force trauma. According to the record, there is not a scintilla of evidence linking Rayner to the cause of the fracture/blunt force trauma to Sonya s head. In fact, the State failed to present any evidence as to how Sonya received the fracture/blunt force trauma to her head. The State even failed to present evidence that Sonya did not inflict the injury she sustained to herself. The only evidence the trial court had in front of it after the State rested its case-in-chief established that Sonya most likely died or died due to blunt force trauma to the head. The trial court did not know how the fracture was inflicted, or by whom the fracture was inflicted, or by what object inflicted the fracture. To allow the trial to proceed at this juncture was clearly error and a violation of Rayner s Due Process rights as there was no evidence to establish a causal link between Rayner s actions or inactions and the fracture to Sonya s skull. Therefore, the trial court erred in denying Rayner s motion for judgment of acquittal, and this Court must reverse Rayner s conviction and sentence and render judgment in Rayner s favor. Thereafter, Rayner presented witness testimony in his defense. Here, Rayner presented the possible theory that the light fixture could have fallen during the fire and caused the fracture to Sonya s skull. Despite the Appellee s statement that the light fixture would have been hanging several feet away, Boyd testified that the light fixture was found several feet away from the body after the firemen concentrated their fire-fighting efforts on the bedroom in which Sonya was 4

8 found. Tr. T. at 152. James Vickers testified that he assumed the light fixture, as shown on the floor in S-27, would have been hanging above where Sonya s head was located based on the location of the junction box from which the light fixture fell and where he was told Sonya s body was found. Id. at Further, Vickers stated that the water from a fire hose is being sprayed at eighty to one hundred pounds of pressure. Id. at 283. Taking this testimony together, the logical inference created is that the light fixture could have fallen onto Sonya s head during the fire causing the fracture and later sprayed aside by the fire hoses applying eighty to one hundred pounds of pressure to the area where Sonya and the light fixture were located. Nevertheless, the Appellee argues that the jury reasonably could have rejected Rayner s theory of defense as an unreasonable hypothesis of innocence. Rayner submits that whether the jury believed his light fixture theory or not does not establish that the State had met its initial burden of proof that Rayner killed Sonya, without the authority of law, and with the deliberate design to effect death. Rayner also called Dr. Hayne to the stand who testified to the cause and manner of death. Dr. Hayne testified that he disagreed with Dr. Shaker s and Dr. LeVaughn s conclusion that the cause of death was probable blunt force trauma or most likely blunt force trauma because Dr. Shaker and Dr. LeVaughn could not rule out mechanical or physical asphyxia as the cause or contributing factor in the death and that their conclusion was not a definitive statement. Id. at 605, 614. The Appellee contends that Dr. Shaker s and Dr. LeVaughn s conclusions as to the cause of death on their respective autopsy reports do not matter because Dr. LeVaughn cured that at trial by testifying that he was now certain the cause of death was blunt force trauma. Even assuming arguendo that Dr. LeVaughn s opinion as to the cause of death became more certain months after his initial examination of Dr. Shaker s autopsy report, the record remains devoid of any evidence establishing that Rayner committed an act that killed Sonya, or that he acted in a 5

9 way that evinces the deliberate design to effect death. Thus, the State failed to present evidence to establish that Rayner was guilty beyond a reasonable doubt of killing Sonya, without the authority of law, and with the deliberate design to effect death. Therefore, this Court must reverse Rayner s conviction and sentence and render judgment in his favor. Because the State s case was based entirely upon circumstantial evidence, the jury was instructed that the evidence for the State must be so strong as to establish the guilt of the defendant beyond a reasonable doubt, and to the exclusion of every other reasonable hypothesis consistent with innocence. R. at 645. In other words, if the evidence merely establishes some finite probability in favor of one hypothesis rather than another, such existence cannot amount to proof, however great the probability may be. Hester v. State, 463 So. 2d 1087, 1093 (Miss. 1985) (quoting Algheri v. State, 25 Miss. 584 (1853)). Thus, where the State fails to prove beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence that (1) Rayner killed Sonya, (2) without the authority of law, and (3) with deliberate design to effect to death, this Court must reverse Rayner s conviction and sentence, and render judgment in his favor. In this case, the State failed to prove beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence that Rayner committed the act charged, and that he did so under circumstances that every element of the offense existed. In fact, the State s own expert witness, Dr. LeVaughn, provided the jury with a reasonable hypothesis consistent with innocence that was not refuted or contested by any other evidence at trial. As stated above, Dr. LeVaughn could not rule out with certainty that mechanical or positional asphyxia was a cause or contributing factor in Sonya s death. Id. at , 376; R. Excerpt at 4. This testimony taken with his conclusion probable or most likely blunt force 6

10 trauma should clearly indicate to this Court that a rational trier of fact should have concluded that Sonya died from mechanical or positional asphyxia and/or the combination of asphyxia and blunt force trauma, not blunt force trauma at the hands of Rayner. Essentially, because the State s proof was lacking at the close of its case-in-chief and when it finally rested, the jury could only employ guess work, conjecture or speculation in reaching their verdict. No one testified that Rayner hit Sonya in the head with his fist, his foot, a baseball bat, a board, or any other object. No evidence with blood on it was produced that would allow the jury to infer that the piece of evidence was used to cause the blunt force trauma to Sonya s head. No evidence was produced that Sonya did not die from positional or mechanical asphyxia. Thus, Rayner submits that there simply was not enough evidence from which to infer or prove beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis consistent with innocence that (1) Rayner killed Sonya, (2) without the authority of law, and (3) with deliberate design to effect death. It is tantamount that the State first proves the defendant committed each and every element of the offense charged beyond a reasonable doubt. The burden does not rest upon the defendant to show that he did not commit the offense charged. Because the record evidence was insufficient to establish that Rayner killed Sonya, without the authority of law, and with the deliberate design to effect death, the trial court erred in denying Rayner s motion for acquittal and JNOV. Therefore, this Court must reverse the Rayner s conviction and sentence and render judgment in his favor. II. The Prosecutor s improper and prejudicial remarks denied Rayner his Sixth Amendment right to a fair and impartial trial. The test to determine if reversal is required where the prosecutor s argument is in question is whether the natural and probable effect of the prosecutor s improper argument 7

11 created an unjust prejudice against the accused resulting in a decision influenced by prejudice. Taylor v. State, 672 So. 2d 1246, 1270 (Miss. 1996). Once an objection has been made and sustained by the trial court, it is the further duty of [the] trial court to move for a mistrial... if serious and irreparable damage has been done. Dunaway v. State, 551 So. 2d 162, 164 (Miss. 1989) (quoting Johnson v. State, 477 So. 2d 196, (Miss. 1985)). Here, the complained of argument by the prosecutor had the natural and probable effect to create an unjust prejudice against Rayner which resulted in a decision influenced by prejudice. On appeal, the Appellee attempts to fade the effect of the prosecutor s argument [t]hen you go to Dr. Hayne, a discredited doctor in the State of Mississippi by arguing that the prosecutor, during closing rebuttal, was only comparing the testimony of Dr. LeVaughn and Dr. Hayne. Id. at ; Appellee Br. at 21. However, this argument was a direct comment regarding credibility of Rayner s expert witness. This improper and erroneous argument was highly prejudicial to Rayner because it was made at a time where Rayner could not rebut or rehabilitate Dr. Hayne. However, even if given the opportunity to attempt to rehabilitate Dr. Hayne, the irreparable damage had been done. Here, because Rayner had no opportunity to rebut the prosecutor s statement that Rayner s witness was discredited, the prosecutor knew or should have known that the probable and likely effect of his argument would have created an unjust prejudice resulting in a decision influenced by prejudice. In addition, the prosecutor knew that Dr. Hayne had not been discredited by the State of Mississippi as Dr. Hayne was accepted as an expert in the field of forensic pathology at trial and this State s case law provides that Dr. Hayne is a credited doctor in the State of Mississippi. See Cooper v. State, 76 So. 3d 749, 755 (Miss. Ct. App. 2011) (quoting Edmonds v. State, 955 So. 2d 787, 792 (Miss. 2007)). 4 Not only is this 4 The Cooper decision followed the three decisions referred to by the prosecutor in cross-examining Dr. Hayne. Shepardizing the three cases referred to by the prosecutor in cross-examination would have easily 8

12 argument a flat out improper and prejudicial comment on the credibility of the Rayner s medical expert, it is also an erroneous statement. Thus, erroneously claiming that Dr. Hayne was a discredited doctor in the State of Mississippi during rebuttal closing is exactly the type of improper argument that the United States Supreme Court, Mississippi Supreme Court and this Court have condemned. Berger v. United States, 295 U.S. 78, (1935); see also Edmonds, 955 So. 2d at 792; Stokes v. State, -- So. 3d --, 2013 WL (Miss. Ct. App. 2013) (quoting United States v. Gallardo Trapero, 185 F.3d 307, 320 (5th Cir. 1999)). Although the trial court instructed the jury to disregard the improper comment, the damage done by the prosecutor s improper comment could not be undone. See United States v. Garza, 608 F.2d 659 (5th Cir. 1979) ( despite a corrective instruction, once such statements are made, the damage is hard to undo. ). Because the prosecutor s comment was made during rebuttal closing the damage could not have been undone by the trial court s instruction to disregard the comment. Furthermore, the Appellee attempts to liken the prosecutor s argument here to the prosecutor s statement in Dunaway v. State, 551 So.2d 162 (Miss. 1989). However, calling the witness a whore that was paid $2,000 and resided outside the state may imply that the witness is not trustworthy, but is quite different than telling the jury that the witness is not credible in the eyes of the State of Mississippi. While both comments/arguments are improper, the prosecutor s argument here goes far beyond what the case law allows. These two improper arguments bring to mind the old adage, you can lead a horse to water, but you can t make it drink. The prosecutor in Dunaway, although improperly, led the jury to water. Here, the prosecutor made the jury drink. Because the prosecutor crossed the line of improper argument and prejudiced Rayner s defense, the trial court should have moved for a mistrial sua sponte, or revealed the Cooper decision in which the Mississippi Supreme Court found that Dr. Hayne was a credited doctor in the State of Mississippi. 9

13 granted Rayner s motion for a new trial based on a violation of Rayner s Sixth Amendment right to a fair and impartial trial. While a prosecutor may comment on any facts introduced at trial, the error here results from the prosecutor s blatant disregard for this State s case law and the fact that Dr. Hayne is not a discredited doctor in the State of Mississippi and. The record is devoid of evidence suggesting that Dr. Hayne has been or is a discredited doctor. Dr. Hayne s credibility should have been left for the jury to make their determination. By stating that Dr. Hayne had been discredited by the State of Mississippi when case law clearly states otherwise is clearly an attempt at giving the erroneous comment the State s stamp of approval. Thus, the prosecutor obviously intended for the natural and probable effect to create an unjust prejudice which resulted in a decision influenced by prejudice. Because the charge of depraved heart murder against Rayner depended entirely on the credibility of Dr. LeVaughn and Dr. Hayne, the prosecutor s improper and erroneous comment then you go to Dr. Hayne, a discredited doctor in the State of Mississippi was unquestionably intended to create unjust prejudice and influence the jury in making its decision. Based on the prosecutor s improper and prejudicial argument during rebuttal closing, Rayner was denied his Sixth Amendment right to a fair and impartial trial. Therefore, this Court must reverse Rayner s conviction and sentence and remand for a new trial. CONCLUSION Based on the foregoing and the arguments provided in Brief of the Appellant, Rayner respectfully requests that this Court reverse his conviction and sentence and render judgment in his favor. In the alternative, should this Court find that sufficient evidence existed to sustain the verdict, Rayner submits that he was denied his Sixth Amendment right to a fair and impartial 10

14 trial due to the prosecutor s improper and prejudicial comment regarding his expert witness s credibility. Thus, Rayner requests that this Court reverse his conviction and sentence and remand his case for a new trial. Respectfully Submitted, /s/ John M. Colette JOHN M. COLETTE, ATTORNEY FOR APPELLANT /s/ Sherwood A. Colette SHERWOOD A. COLETTE, ATTORNEY FOR APPELLANT 11

15 CERTIFICATE OF SERVICE I, JOHN M. COLETTE, Attorney for the Appellant, do herby certify that I have this day, caused to be mailed, U.S. Mail, Postage Pre-paid, a true and correct copy of the foregoing Brief of the Appellant to Honorable Matthew Sullivan Assistant District Attorney for Jasper County 100 Court Ave, Ste. 4 Mendenhall, MS Honorable John Henry Assistant Attorney General for the State of Mississippi 550 High Street, Suite 1200 Jackson, MS Honorable Judge Eddie Bowen Circuit Court Judge of the 13 th Circuit Court District 146 Main Street Raleigh, MS This the 19th day of November, JOHN M. COLETTE, ATTORNEY FOR APPELLANT SHANNON RAYNER John M. Colette, MSB# 6376 Sherwood A. Colette, MSB# John M. Colette & Associates Attorney for the Appellant 190 East Capitol Street Suite 475 Jackson, Mississippi Office: (601) Facsimile: (601)

16 CERTIFICATE OF COMPLIANCE Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements I. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: a. This brief contains 3,232 words, excluding parts of the brief exempted by M. R. App. P. 32(a)(7)(B)(iii). II. This brief complies with the typeface requirements of M. R. App. P. 32(a)(5), and the type-style requirements of M. R. App. P. 32(a)(6) because: a. This brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 12-point font and Times New Roman font style. /s/ John M. Colette JOHN M. COLETTE, Attorney for Appellant August 6, 2014 DATE 13