REPLY BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Feb :43: CA COA Pages: 12 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JERRARD T. COOK APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE REPLY BRIEF OF THE APPELLANT ORAL ARGUMENT REQUESTED Erin E. Briggs, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: Counsel for Jerrard T. Cook

2 TABLE OF CONTENTS TABLE OF CONTENTS i TABLE OF AUTHORITIES ii INTRODUCTION REPLY ARGUMENT CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Apprendi v. New Jersey, 530 U.S. 466 (2000) United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391 (1936) Brown v. State, 995 So. 2d 698 (Miss. 2008) Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) People v. Gutierrez, 324 P. 3d 245, 270 (Cal. 2014) Miller v. Alabama, 132 S.Ct (2012) Montgomery v. Louisiana, 136 S.Ct. 718 (2016) Roper v. Simmons, 543 U.S. 551 (2005) State v. Seats, 865 N.W.2d 543 (Iowa 2015) State v. Sweet, 879 N.W. 2d (Iowa 2016) , 9 Veal v. State, 784 S.E. 2d (Ga. 2016) ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JERRARD T. COOK APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE INTRODUCTION Appellants s Reply Brief is limited to rebuttal of certain points in the Appellee s Brief. Cook submits that the points in the State s brief, to which no reply has been made, are fully covered by Appellant s Opening Brief. Only those point requiring additional comment will be addressed to assist this Court in resolving the applicable issues. REPLY ARGUMENTS I. The Trial Court Erred in Sentencing Cook to Life-Without-Parole, as Cook is Not One of the Uncommon and Rare Juvenile Homicide Offenders Who May Be Sentenced to Die in Prison. Cook submits that the State misapprehends the thrust of the argument for this issue. The Appellee Brief fails to respond to the fact that, based on the court s record, along with the presumptively mitigating Miller 1 factors, the trial court could not have reasonably concluded that Cook is the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified. Montgomery v. Louisiana, 136 S. Ct. 718, 733 (2016). In the absence of competing expert testimony from any State s witness, the Court should be alarmed that the trial court disregarded Dr. Christopher Lott s expert opinion that Cook was not one 1 Miller v. Alabama, 132 S.Ct (2012). 1

5 of the rare offenders who could not be rehabilitated. (Appellant s Brief, Pg. 18). Dr. Lott s expert opinion was based on the evidence and his consideration of the Miller factors. Id. The Supreme Court has acknowledged the difficulties in distinguishing the juvenile offenders whose crime can be attributed to their youthful immaturity and the rare juvenile offenders whose crimes reflect irreparable corruption. Roper v. Simmons, 543 U.S. 551, 573 (2005). According to Dr. Lott, the research is very clear that you cannot take an adolescent that commits an offense at the age of sixteen or seventeen and determine their behaviors ten years in the future. (Tr. 186). The State argues that the trial court did not apply the wrong law. However, the trial court s conclusions regarding chronological age, immaturity, and failure to appreciate risk and consequences are deeply troubling and inconsistent with what the research has proven about children and brain development. II. Cook s Sentence Was Imposed in Violation of His Constitutional Right and Statutory Right to Have His Sentence Determined By a Jury. Cook pled guilty to capital murder. (Appellant s Brief, Pg. 4). In Miller cases involving capital offenses, there are at least two distinct arguments for the necessity of jury sentencing. Cook has a constitutional right to a jury sentence provided by the Sixth Amendment. Under this constitutional right, the jury must find the fact of irreparable corruption before it can enhance a life sentence to life without parole. Under the statutory right, provided in Section (1) of the Miss. Code, the jury has to choose between life and life without parole. (Appellant Brief, Pg. 21). In the Dycus v. State 2 order, the court based its decision on the statutory interpretation argument. Cook asserts that he has both 2 Dycus v. State, Miss. S.Ct., No M

6 a statutory and constitutional right to a jury trial. Waiver The State argues that Cook waived his right to a trial by jury when he entered this guilty plea. Obviously, any waiver that Cook may have signed prior to his first sentence being imposed, when there was only one available sentence, was not binding after both the United States and Mississippi Supreme Courts ruled that mandatory life-without-parole sentencing schemes were unconstitutional. Once there is a choice between sentences, the question then arises as to who the sentencer will be. This was the same question presented after the United States Supreme Court struck down mandatory death sentences for juveniles. At the beginning of the re-sentencing hearing, the trial court heard Cook s request for a jury trial. (Tr. 6). The State concedes as much in its brief when it noted, Cook filed a motion asking for jury to determine his sentence. (Appellee Brief, Pg. 11). Even if the Court finds that this issue has been waived, Apprendi 3 errors like this one would be considered plain errors. In Brown v. State, 995 So. 2d 698, 704 (Miss. 2008), the Court held that the trial court denied the defendant his Sixth Amendment right to a jury. The Court noted that even where the guilt of a defendant is beyond dispute, denial of a jury trial undoubtedly implicates the fairness, integrity or public reputation of judicial proceedings, thereby constituting clear error. Id (citing United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391 (1936)). Montogomery s Requirement of a Factual Finding The State argues that Montgomery recognized that Miller does not require the trial courts to make a finding of fact of the child s incorrigibility. (Appellee Brief, Pg. 12). The full quote from 3 Apprendi v. New Jersey, 530 U.S. 466 (2000). 3

7 Montgomery is below: Louisiana suggests that Miller cannot have made a constitutional distinction between children whose crimes reflect transient immaturity and those whose crimes reflect irreparable corruption because Miller did not require trial courts to make a finding of fact regarding a child s incorrigibility. That this finding is not required, however, speaks only to the degree of procedure Miller mandated in order to implement its substantive guarantee. When a new substantive rule of constitutional law is established, this Court is careful to limit the scope of any attendant procedural requirement to avoid intruding more than necessary upon the States sovereign administration of their criminal justice systems. See Ford v. Wainwright, 477 U.S. 399, , 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). ( [W]e leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences. ). That Miller did not impose a formal fact finding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole. To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment. Montgomery v. Louisiana, 136 S.Ct. 718, 735 (2016). While Miller and Montgomery did not impose a formal fact finding requirement of irreparable corruption, the Court left it to the States to develop a procedure that ensures that only irreparably corrupt children will be sentenced to life without parole. The Mississippi Supreme Court has not had the occasion to address the sentencing procedure post-montgomery. However, the only procedure that ensures that only irreparably corrupt children will be sentenced to life-without-parole, as Montgomery requires, is one that requires a finding that the child is irreparably corrupt before such a sentence can be imposed. Thus, Montgomery, in practice, requires a factual finding of irreparable corruption. In keeping with this, other courts have required a finding that a child is irreparably corrupt before a life-without-parole sentence may be imposed. These cases can be distinguished by pre-and post- Montgomery decision. Post- Montgomery Decision 4

8 In Veal v. State, 784 S.E. 2d 403, 412 (Ga. 2016), the Court unanimously reversed the juvenile life-without-parole sentence because the trial court did not make any distinct determination, on-the-record, that Veal was irreparably corrupt or permanently incorrigible. The Court held that this finding was necessary in order to put him in the narrow class of juvenile murders whose life-withoutparole sentence was proportional under the Eighth Amendment. Id. In Luna v. State, - - P. 3d WL , *6, n.11 (Ok. Ct. Crim. App. Dec. 2, 2016), after concluding that juveniles convicted of first degree murder had a statutory right to jury sentencing, the Court constructed the following jury instruction :... No person who committed a crime as a juvenile may be sentenced to life without the possibility of parole unless you find beyond a reasonable doubt that the defendant is irreparably corrupt and permanently incorrigible. Pre-Montgomery Decision In State v. Seats, 865 N.W.2d 543, 556 (Iowa 2015), the Court announced that only those juveniles whose crimes reflect irreparable corruption should be sentenced to life-without-parole. The Court also found that is it the State s burden to show that an offender manifest irreparable corruption. Id. In People v. Gutierrez, 324 P. 3d 245, 270 (Cal. 2014), the Court recognized that, in Miller sentencing hearings, the question is whether the juvenile, at the time of sentencing, can be found to be irreparably corrupt, beyond redemption, and unfit to reenter society, despite the diminished culpability and greater prospects for reform that ordinarily differentiate juveniles from adults. Since such finding of irreparably corruption is required and it is a factual finding, this decision must be made by a jury. The State has offered no response to this prong of the argument. III. Cook s Sentence Must Be Vacated and He Must Be Re-Sentenced to Life With Parole, Because the Practice of Sentencing Children to Life-Without-Parole Violates the 5

9 Federal and State Constitutional Prohibitions Against Cruel and Unusual Punishment. The State s response to this issue is internally inconsistent. First, the State incorrectly asserts that Both the United States Supreme Court and the Mississippi Supreme Court expressly rejected [a categorical bar] in Miller and Parker. (Appellee Brief, Pg. 12). Later, the State correctly acknowledges that the Supreme Court did not address the question. (Appellee Brief, Pg. 13). The State notes, but offers no substantive response to Cook s argument that there is no reliable way to determine that a juvenile s offenses are results of an irredeemably corrupt character and there is thus no reliable way to conclude that a juvenile - even one convicted of an extremely serious offense - should be sentenced to life in prison, without any opportunity to demonstrate change or reform. (Appellant Brief, Pg.23-24). The Iowa Supreme Court has abolished life without parole for exactly this reason. State v. Sweet, 879 N.W. 2d 811, (Iowa 2016). The Court noted, The APA (American Psychological Association) in Miller in an amicus brief, emphasized that professional psychologists could not predict who was irretrievable. (Citation omitted). We should not ask our district court judges to predict future prospects for maturation and rehabilitation when highly trained professionals say such predictions are impossible. Id. The Court continued, In sum, we conclude that sentencing courts should not be required to make speculative up-front decisions on juvenile offenders prospects for rehabilitation because they lack adequate predictive information supporting such a decision. Id. The Court concluded, The parole board will be better able to discern whether the offender is irreparably corrupt after time has passed, after opportunities for maturation and rehabilitation have been provided, and after a record of success or failure in the rehabilitative process is available. Id. The Court announced that it had adopted a categorical rule that juvenile offenders may not be 6

10 sentenced to life without the possibility of parole under the state s constitution. Id. The State did not address the argument made that [t]here is also an unacceptable likelihood that the terrible facts of a crime will overpower mitigation factors that are present with juvenile offenders - even in cases where the juvenile s immaturity, vulnerability, and lack of depravity would require a lesser sentence. (Appellant Brief, Pg. 23). In Cook s case, it appears that the judge s decision is a direct result of terrible facts of a crime overpowering the mitigation factors present in this case. 7

11 CONCLUSION Cook submits that, based on the propositions cited and briefed in this Reply Brief, as well as those provided in the primary brief, this Court should vacate Cook s life-without-parole sentence and remand this case. The trial court should be instructed to re-sentence Cook to life imprisonment with eligibility for parole, notwithstanding the present provisions of Mississippi Code Section (1)(f). Alternatively, the Court should vacate Cook s sentence and remand with instructions that he be resentenced, by a jury. Respectfully submitted, JERRARD T. COOK, APPELLANT By: /s/ Erin E. Briggs Erin E. Brigs Counsel for Appellant 8

12 CERTIFICATE OF SERVICE I, Erin E. Briggs, Counsel for Jerrard T. Cook, do hereby certify that on this day I electronically filed the forgoing REPLY BRIEF OF THE APPELLANT with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Jason L. Davis Attorney General Office Post Office Box 220 Jackson, MS Further, I have this day caused to be mailed via United States Postal Service, First Class postage prepaid, a true and correct copy of the above to the following non- MEC participants: Honorable David H. Strong Circuit Court Judge Post Office Box 1387 McComb, MS Honorable Dewitt (Dee) T. Bates, Jr. District Attorney, District East Bay Street Magnolia, MS Jerrard T. Cook, MDOC #L6510 East Mississippi Correctional Facility Hwy 80 West Meridian, MS This the 23rd day of February BY: /s/ Erin E. Briggs Erin E. Briggs Counsel for Appellant Erin E. Briggs, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: eprid@ospd.ms.gov 9