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

Transcription

1 E-Filed Document Mar :21: KA COA Pages: 15 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CRAYTONIA BADGER APPELLANT VS. NO KA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: SCOTT STUART 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 ii STATEMENT OF THE CASE COURSE AND DISPOSITION OF THE CASE IN THE CIRCUIT COURT STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENT ARGUMENT CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Federal Cases: Chambers v. Mississippi, 410 U.S. 284 (1973) Mississippi State Cases: Box v. State, 437 So.2d 19 (Miss.1983) Cole v. State, 525 So..2d 365 (Miss.1987) Fulks v. State, 19 So.3d 803, (Paragr) (Miss. 2009)... 4 He cites Fulks v. State, 19 So.3d 803 (Miss. 2009) Hubbard v. State, 437 So. 2d 430 (Miss. 1983)... 5, 6 Kinser v. Cooper, 413 F.2d 730 (6 th Cir.1969) Mcullough v. State, 750 So.2d 1212 (Miss.1999) Morris v. State, 927 So.2d 744, ( 12) (Miss.2006)... 4 Nelson v. State, 257 Ark. 1, 513 S.W.2d 496 (1974) Patton v. State, 109 So. 3d 66 ( 39) (Miss. 2012) Triplett v. State, 666 So.2d 1356 (Miss.1995)... 9 Mississippi State Statutes: M.C.A., Section Miss. Const. Art. 3, Miss.Code Ann (1972) Other Authorities: ii

4 98 C.J.S. Witnesses Id iii

5 STATEMENT OF THE CASE This is a direct appeal from a judgment of conviction against Craytonia Latroy Badger for burglary of a storehouse. The Circuit Court of Amite County, Mississippi, Honorable Forrest A. Johnson presiding, sentenced Badger to a term of seven years without parole as a habitual offender pursuant to M.C.A., Section COURSE AND DISPOSITION OF THE CASE IN THE CIRCUIT COURT The Grand Jury indicted Craytonia Latroy Badger for the crime of burglary of a the Gloster Drug Store, the storehouse of Ricky King in Amite County, Mississippi. The indictment also charged Badger with having been at least twice previously convicted of felonies. C.P. 1. R.E. 5. The court tried Badger before a jury. The jury returned a verdict of... guilty of burglary of a storehouse. The Court conducted a separate hearing to determine if Badger was a habitual offender. The court determined that Badger was a habitual offender as defined in M.C.A., Section The court sentenced Badger to serve seven(7) years without parole, reduction, suspension, nor probation. C.P RE. 7. Badger filed a notice of appeal. STATEMENT OF THE FACTS A man wearing a hooded dark workout suit broke out the glass on the front door of Gloster Drug Store. The man proceeded to walk into the store and went straight to the drug cabinet. Tr. 74, 104, and 107. Lt. Lee Williams stopped Badger. Badger did not have a valid drivers license. Badger had an outstanding warrant. Tr

6 Williams searched Badger s vehicle. He found blood in the car, a maul type hammer with glass and concrete on the hammer, bloody shoes, and gray sweat suit that had blood on the legs. He also found jars and bottles of prescription drugs that came from the drugstore in Gloster. Tr DNA testing was done. The results showed that the blood found on the hammer in Badger s car, the blood on the pharmacy wall, and Badger s blood all matched each other to a degree of scientific certainty. Tr SUMMARY OF THE ARGUMENT Craytonia Latroy Badger claims that his right to confront witnesses against him was violated when the court denied Badger s request to recall Lt. Lee Williams. Badger did not attempt to have a subpoena issued. Nor did Badger ask for a continuance. Badger has not shown that Lt. Williams had evidence or information that would have led to evidence that would have supported Badger s theory of the case or defense. In other words, Badger has not shown a need to further cross-examine Lt. Williams. 2

7 ARGUMENT WHETHER THE TRIAL COURT VIOLATED BADGER S RIGHT TO EXAMINE A WITNESS NECESSARY FOR HIS DEFENSE. Badger argues that he was surprised when he learned that Lt. Williams was wearing a body camera when he stopped Badger s car and received permission to search Badger s car. Counsel told the court that he was tendering the witness, but he might question him again later. The court asked counsel why he would need to question him later. Counsel said they might find some evidence. Tr. 93. Badger does not tell us what new evidence he might have found. Presumably defense counsel knew before the trial that Lt. Williams arrested Badger. He also knew that Lt. Williams found the prescription drugs and seized them. Counsel could have made a telephone call to Williams and learned if there was or was not a video. Or he could have asked the court s assistance in bringing the video to court, if one existed. Badger complains that the court failed to tell the witness that he was not released from his subpoena. He claims he... was blocked from adequate time to contemplate the surprise testimony and finding ways to utilized the new evidence to rebut or contest the now uncovered potential video evidence. Brief of Appellant, Page 4-5. Badger argues that a fair trial requires both the Sixth Amendment right to compulsory process and... adequate preparation time to prepare for any such witness and evidence. Badger then discusses the dangers of trial by ambush and the need for disclosure of the names of witnesses and a summary of their knowledge of the facts and evidence. If this was a discovery violation, Badger should have asked for a continuance. In fact, it was mandatory that he ask for the continuance. Fulks v. State, 19 So.3d 803, 806, (Paragraph 11) (Miss. 2009). Quoting Mcullough v. State, 750 So.2d 1212, 1217 (Miss.1999),... he must request a 3

8 continuance... Cole v. State, 525 So..2d 365, (Miss.1987). Badger cites both Fults and Mcullough as authority for his argument. For a discovery violation to require reversal there must be a showing of prejudice and the non-disclosed material must be more than simply cumulative. Morris v. State, 927 So.2d 744, 748, ( 12) (Miss.2006). The governing rule in effect at the time of the crime and trial was Mississippi Rule of Uniform Circuit and County Court Practice 9.04(I). He cites Fulks v. State, 19 So.3d 803 (Miss. 2009). Fulks is distinguished because Fulks moved for a continuance. The opinion in Fulks repeatedly cites Box v. State, 437 So.2d 19 (Miss.1983). Fulks says the Box case said that Mississippi has endeavored to outlaw trial by ambush. Fulks describes the problems a defendant encounters when a prosecutor reveals evidence on the eve of trial. If that evidence undercuts the defense s theory of the case and renders the defense s trial preparations worthless, the only effective remedy is a continuance. Then defense counsel can meet with his client, investigate the newly arisen evidence, evaluate its trustworthiness, and consider a new strategy and theory. Fulks, Id What transpired in this case is distinguished from the trial by ambush situation. In the instant case, Badger s lawyer on cross-examination asked Lt. Williams if he had a body camera. This was not a case of the State revealing damaging evidence for the first time during the trial. In this case, defense counsel, not the State, asked a question that it apparently thought of during preparation for trial. The evidence that Lt. Williams probably used a body camera did not prove that badger was guilty. Williams said he believed that he had the camera turned on, but he had no independent recollection due to the passage of time. Tr. 91. If the State had attempted to offer the video from Lt. Williams s body camera, the court 4

9 would not have been required to grant a mistrial or continuance if the State withdrew its offer to introduce the evidence. Rule 9.04(I), Mississippi Rules of Uniform Circuit and County Court Practice. Here the State did not offer the video, if one existed. Badger had the opportunity to further cross-examine when Lt. Williams was on the witness stand. Badger could have asked the judge to instruct the witness to return the next day. Or Badger could have asked for a subpoena instanter. Trial counsel could have investigated before trial to determine if a video of the arrest existed. There is no evidence that one exists. There is no evidence that Badger s trial strategy or theory of the case was devastated or changed due to Lt. Williams saying he believed that he had the body camera turned on, but he did not remember due to the passage of time since the arrest. Standard of Review Whether a witness may be recalled for further cross-examination rests in the sound discretion of the court. Hubbard v. State, 437 So. 2d 430 (Miss. 1983). It is proper to exclude questions as to matters which were not opened up or brought out on redirect examination, or as to matters already fully covered, or discussed at length on cross-examination, where there is no claim of oversight and no reason stated why the matter was not inquired into on the cross-examination proper. 98 C.J.S. Witnesses 429. Hubbard, Id., 434. In Hubbard, the Mississippi Supreme Court considered the law in other states on the same issue of denial of a request to re-cross a witness. Although the determination of this question is based on Mississippi constitutional and case law, we compare our decisions with other jurisdictions. See Kinser v. Cooper, 413 F.2d 730 (6th Cir.1969) (no federal constitutional denial in limitation on right to recross examine prosecution witness). It has also been held that recross examination is not allowable as a matter of right, but a 5

10 matter of trial court discretion. Nelson v. State, 257 Ark. 1, 513 S.W.2d 496 (1974). Hubbard, Id., 434. When asked why he wished to recall Lt. Lee Williams, defense counsel said Williams s testimony was inconsistent with the testimony of Danny Meaux and Charles Causey. Defense counsel said he testified about the body camera and took pictures of all of the evidence, but there were no photographs of the evidence in the trunk of the car. Tr That does not explain why or how Lt.Williams s testimony was inconsistent with the testimony of Danny Meaux and Charles Causey. The court found that those matters could have been addressed the day before when the witness was present. The witness, Lt. Williams, was from out of state, was on disability, and was not available to testify. The court allowed Badger to further re-call Deputy Meaux and Officer Causey. Badger makes light of the judge saying that he was allowing Badger to recall Meaux and Causey. With all due respect, the judge could have refused to allow Meaux and Causey to testify on re-cross. It was within his discretion to do so. See Hubbard, Id. Badger could have asked further questions of Lt. Williams when he was conducting his crossexamination. His claim that he was surprised and needed more time is interesting. He apparently received discovery that told him Lt. Williams had knowledge and would give testimony about the crime. He was the officer who arrested Badger and found the stolen drugs. Badger had the opportunity before the trial to question Lt. Williams and to investigate the arrest. This included any evidence about Williams wearing a body camera when he arrested Badger. He could have then inquired if a video existed which might have relevant evidence. He asked Lt. Williams if he was wearing the body camera, so he clearly thought about the possibility that the tape 6

11 existed during his preparation for trial. The judge did not abuse his discretion when he chose not to bring Lt. Williams back for recross examination. Counsel for Badger could have asked questions while he had Williams on the witness stand for cross-examination. Counsel s explanation was not sufficient to put the circuit court judge in error. CONSTITUTIONAL VIOLATION If Badger is claiming that the court violated his Sixth Amendment right to compulsory process, which he does assert at the beginning of his argument, he must still show that he had the right to subpoena Lt. Williams, tried to do so, but was denied the right to have the subpoena issued by the court. Badger must then demonstrate how he suffered prejudice. As preliminary factual matters, Badger did not ask the court to issue a subpoena instanter either on the day when Lt. Williams was still on the witness stand or the next day when Badger again told the judge that he wanted to recall Lt. Williams in order to conduct a re-cross examination. On the second day he asked the court to bring back the witness from Vidalia. Tr. 93, Badger complains that the judge did not tell Lt. Williams that he was still under subpoena and needed to be available to testify the next day. However, Badger failed to ask the court to instruct Lt. Williams that he was still under subpoena and needed to be available to testify. Badger is now asking this court on review to find the circuit court judge in error on a matter which Badger did not bring before him at trial. With all due respect, Badger did not attempt to have the court or the clerk issue a subpoena. Badger was not denied the right to have a subpoena issued to bring Lt. Williams to court to testify. Few rights are more fundamental than that of an accused to present witnesses in his own 7

12 defense. Chambers v. Mississippi, 410 U.S. 284, 302 (1973). In Patton v. State, 109 So. 3d 66, 79 ( 39) (Miss. 2012), the Mississippi Supreme Court summarized: The Sixth Amendment affords a defendant the right to have compulsory service for obtaining witnesses in his favor. The Mississippi Constitution mirrors this right by allowing the accused to obtain witnesses in his favor. States cannot arbitrarily deny a defendant the right to put on the stand a witness whose testimony would have been relevant and material to the defense. However, the right to compulsory process is not absolute. We have held that a defendant does not have a constitutional right to subpoena anyone or anything he pleases. Additionally, we have recognized that the right to call witnesses is limited to relevant and material testimony. The burden is on the defendant to demonstrate a colorable need for the witness. Badger could have asked the trial judge to instruct Lt. Williams to stay available to be recalled the next day. He failed to do so. Or, Badger could have asked the court for an order to issue a subpoena instanter for Lt. Williams. He failed to do so. In order to be entitled to a continuance because of an absent witness, counsel must demonstrate to the court that he has used due diligence to secure his presence. Miss.Code Ann (1972). Embraced therein is the requirement that counsel has made a timely effort to place the absent witness under a subpoena. Triplett v. State, 666 So.2d 1356, 1361 (Miss.1995). Having a constitutional right at no cost to himself to have compulsory process for obtaining witnesses in his favor, Miss. Const. Art. 3, 26, there is simply no excuse for defense counsel 8

13 failing to request a subpoena for his witnesses. Counsel was derelict in failing to seek pre-trial discovery and in requesting witness subpoenas. Triplett, Id., at With all due respect, Badger s right to compulsory process under the Sixth Amendment was not violated. He did not attempt to have the court or clerk issue a subpoena to compel Lt. Williams's presence for the next day. Additionally, Badger has shown no prejudice or a colorable need for the witness. 9

14 CONCLUSION The State of Mississippi asks the court to affirm the judgment of conviction. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

15 CERTIFICATE OF SERVICE I 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: W. Daniel Hinchcliff, Esq. Office of State Public Defender Post Office Box 3510 Jackson, MS Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable Forrest A. Johnson, Jr. Circuit Court Judge Post Office Box 1383 Natchez, MS Honorable Ronnie Harper District Attorney 307 Market Street Natchez, MS This the1st day of March, OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi Telephone: (601) s/scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL 11