IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO KA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT

Transcription

1 E-Filed Document Jun :48: KA SCT Pages: 19 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI BRIAN KING 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 Summary of the Argument Argument Conclusion Certificate of Service i

3 TABLE OF AUTHORITIES Federal Cases: Darden v. Wainwright, 477 U.S. 168 (1986) Donnelly v. DeChristoforo, 416 U.S. 637 (1974) Pate v. Robinson, 383 U.S. 375, 385 (1966) State Court Cases: Anderson v. State, 154 So.3d 42 ( 48) (Miss. Ct. App. 2014) , 12 Bradley v. State, 116 So.3d 1093, ( 13)(Miss.App.2013)... 5 Brasso v. State, 195 So.3d 856, ( 10) (Miss/App.2016)... 5, 6, 7 Brown v. State, 483 So.2d 328 (Miss.1986) Carter v. State, 722 So.2d 1258, 1261( 13) (Miss.1998) Coleman v. State, 127 So.3d 161 ( 13) (Miss.2013)... 7 Crenshaw v. State, 520 So.2d 131 (Miss.1988) Fontaine v. State, No KA COA, Decided March 13, 2018, 2018 WL , ( 31) Griffin v. State, 840 So.2d 701, ( 6)(Miss.App.2003) Hawkins v. State, 90 So..3d 116, 121, ( 21)(Miss.App.2012) Palmer v. State, 939 So.2d 792, ( 9)(Miss.2006) Simmons v. State, 813 So.2d 710 (Miss.2002) Smith, 149 So.3d ( 15) Stubbs v. State, 811 So2d 384, ( 7) (Miss.App.2001)... 8 Wheeler v. State, 536 So.2d 1347 (Miss.1988) ii

4 Statutes: U.S.C.A. Const.Amend Mississippi Rules of the Court: Rule 9.06 of the Uniform Rules of Circuit and County Court Practice... 7 Rule 12.1, M.R.Cr.P , 6. 8 Uniform Rules of Circuit and County Court 8.04(A)(4)(a) iii

5 STATEMENT OF THE CASE This appeal is from a judgment in the Circuit Court of Jones County, Second Judicial District, for the crime of felon in possession of a firearm. Brian S. King, Jr., appeals his conviction and sentence of ten years as a twice previously convicted offender. The Circuit Court, Honorable Dal Williamson presiding, sentenced Brian King to a term of ten years, with seven years to serve and three years to be suspended. COURSE AND DISPOSITION OF THE CASE IN THE CIRCUIT COURT The grand jury in Jones County, Second Judicial District, returned an indictment charging Brian S. King, Jr., with being a convicted felon possessing a firearm. The indictment also charged that King had been convicted of at least two prior felonies, one being armed robbery and the other being possession of a firearm by a convicted felon. C.P. 9. The court tried King before a jury. The jury returned a verdict of guilty of possession of a firearm by a felon. The court conducted a separate hearing and determined that King was previously found guilty of armed robbery and felon in possession of a firearm and was sentenced to at least one year on each conviction. C.P The court sentenced King to serve a term of ten years with three to be suspended and seven years to serve. C.P King filed a notice of appeal. C.P

6 STATEMENT OF THE FACTS On or about October 27, 2015 Carlos Malone was walking down Beacon Street in the city of Laurel, County of Jones, in the State of Mississippi. Malone heard someone approaching him from behind. Malone turned and saw Brian King and another man. King was holding a gun and pointed it at Malone. Tr The two men asked Malone if he wanted to fight. Malone told them he did not want to fight. Brian King and the other man walked away. Carlos Malone called the police. Tr. 95. The next day Charles Turner and Officer Roman Moss went to Brian King s apartment to find King. Charles Turner worked for the Laurel Housing Authority. Officer Roman Moss worked with the Laurel Police Department. Charlie Turner, Officer Moss, and Investigator Kim Stewart went to Brian King s home and arrested him. Tr Turner and Officer Moss went into Brian King s residence. They pulled up King s mattress and found a weapon. Tr The weapon was a firearm and was inside a black holster Officer Reaves examined the firearm. It contained a magazine. The magazine was loaded, and the chamber held one live round. Tr.116. Brian King s palm print was found on the magazine taken form the pistol. Jamie Bush was a forensic scientist working at the State Crime Lab. Bush specialized in latent print examinations. Bush examined the gun and magazine found under Brian King s mattress. Bush found a latent palm print on the magazine. Bush had Brian King s prints. Bush compared the latent palm print from the magazine with Brian King s palm print. Bush determined that the latent palm print found on the magazine belonged to Brian King. Tr

7 SUMMARY OF THE ARGUMENT PROPOSITION ONE. Brian King claims the court erred when it denied King s request to have him examined to determine if he was competent to stand trial. Brian King was presumed to be competent to stand trial under the law. King bore the burden of overcoming the presumption, but he failed to do so. Both defense counsel and the trial judge examined Brian King. After the judge examined King, he found that there was no basis in the evidence requiring a psychiatric examination. PROPOSITION TWO. Brian King claims that trial court erred when it allowed the state to put on evidence that Brian King committed an armed robbery against Carlos Malone. It was not error to mention the robbery because the call to law enforcement about the robbery started the investigation. The two crimes of robbery by displaying a deadly weapon and the robbery were interrelated. The State needed to tell the jury the complete story. The court instructed the jury that the testimony was not to prove that a robbery occurred. 3

8 ARGUMENT PROPOSITION ONE. WHETHER THE COURT ERRED WHEN IT DENIED BRIAN KING S REQUEST TO BE EXAMINED TO DETERMINE IF HE WAS COMPETENT TO STAND TRIAL. Brian King claims that the trial judge erred when he denied King s motion to be tested in order to determine if King was competent to stand trial. King argues that the court was predisposed to find that King was competent to stand trial. He also claims the court was concerned about saving the county money. King argues that the court had reasonable grounds to believe that King did not understand the charge against him. Brian King claims the court s position was not dispassionate. He notes that the court said it would give King a chance to show the court that there was a basis for a mental examination. King appears to be arguing that the judge was not neutral when he decided the issue of the need for a psychiatric examination. King appears to be arguing that the judge did not fairly decide the issue of the need for a psychiatric examination. With all due respect, the judge was expressing the procedure in light of the presumption of competency that attached to Brian King. Due to the presumption of competency, King then had the burden of showing the court that the judge should order a psychiatric examination. The court s statement that King needed to show the court the existence of the basis for a mental examination was consistent with the test presently recognized under the law. Rule 12.1, M.R.Cr.P., presumes that the defendant is competent to stand trial. That places the burden of showing the need for a psychiatric examination upon the defendant. King is correct that the trial court said he would break the county if he gave a psychiatric examination to every defendant whose counsel would come in and say he was having trouble 4

9 communicating with his client. Communication trouble between client and attorney is not the test to determine the need for psychiatric evaluation. King is misunderstanding the court s meaning. The court is saying that a statement by counsel that he is having trouble communicating with the client is not a sufficient basis to order a psychiatric examination. The court s statement was a recognition of what the law requires before a psychiatric examination is required. When a lawyer merely says he is having trouble communicating with his client, he has not presented enough to the court to require a psychiatric examination. However, defense counsel later modified his position and expressed that to the trial judge. Counsel denied that he said that he and King had trouble communicating. Counsel said, he s having trouble reconciling with reality. Tr. 7. The State understands trial counsel s argument to have been that King s mistaken belief that he had a valid double jeopardy claim rendered King incompetent to stand trial. A misunderstanding by a layman of the law of double jeopardy does not necessarily prove that the layman cannot remember and express relevant and helpful facts to his lawyer and to otherwise assist his lawyer in defense of the charge against him. Brian King said that he wanted to speak, and defense counsel began to question King. Then the court questioned King. Tr STANDARD OF REVIEW It is within the trial judge s discretion to determine whether there are reasonable grounds to suspect incompetency to stand trial. Brasso v. State, 195 So.3d 856, ( 10) (Miss/App.2016). When an appellate court reviews a trial court s decision to deny a motion to have the defendant examined to determine if he was competent to stand trial, the reviewing court seeks to determine if the trial judge abused his discretion. The question is whether the trial judge received 5

10 information which should reasonably have raised a doubt about the defendant s competence and alerted the judge to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense. Bradley v. State, 116 So.3d 1093, 1095, ( 13)(Miss.App.2013). LEGAL PRINCIPLES REGARDING COMPETENCY TO STAND TRIAL The rules that control issues of competency to stand trial changed effective July 1, 2017, the effective date of the Mississippi Rules of Criminal Procedure. Controlling Rules as of July 1, 2017: Competency of a defendant to stand trial is now controlled by Rule 12.1, et seq., Mississippi Rules of Criminal Procedure. Effective July 1, Rule 12.1 says that there is a presumption of mental competency. To be deemed competent, the defendant must have the ability to perceive and understand the nature of the proceedings, to communicate rationally with his lawyer about the case, to recall relevant facts, and to testify in his own defense, if appropriate. Rule 12.2, M.R.Cr.P., says that if at any time before or after indictment the court, on its own motion or the motion of any party, has reasonable grounds to believe that the defendant is mentally incompetent, the court shall order the defendant to submit to a mental examination. Case Law That Was Controlling Prior to July 1, 2017: When the evidence raises sufficient doubt as to the defendant's competency to stand trial, the defendant is deprived of due process of law if the trial court fails to conduct a separate competency hearing. U.S.C.A. Const.Amend. 14. Brasso v. State, 195 So.3d 856,860, 05 12) 6

11 (Miss.App.2016). Under Uniform Rule of Circuit and County Court 8.04(A)(4)(a), it is the duty of the [circuit] court to address the defendant personally and to inquire and determine... [t]hat the accused is competent to understand the nature of the charge[.] When the evidence raises sufficient doubt as to the defendant's competency to stand trial, the defendant is deprived of due process of law if the trial court fails to conduct a separate competency hearing. Smith v. State, 149 So.3d 1027, 1033, ( 15) (citing Pate v. Robinson, 383 U.S. at 385, 86 S.Ct. 836). provides the procedure for a circuit court's determination of whether a criminal defendant is mentally competent to stand trial. Rule 9.06 is meant to ensure that a defendant's due process rights are not violated. Coleman v. State, 127 So.3d 161, 166 ( 13) (Miss.2013). Brasso v. State, 195 So.3d 856, 860, ( 12) (Miss.App2016). APPLICABLE FACTS The court conducted a hearing and ultimately found that Brian King did not need a psychiatric examination. Tr Counsel told the court that he was not having trouble communicating with King. Counsel believed that King was just having trouble reconciling with reality. Tr. 7. Brian King asked to speak. He was first placed under oath. Defense counsel asked King some questions. Tr The court asked Brian King if he understood the charge against him. King answered, Yes, sir. Tr. 13. King argued that he had already been ordered to serve time for the 2013 crime. King was making a double jeopardy argument. King said that he believed that he was already serving time 7

12 for the charge which he was now facing. Tr Defense counsel argued that, while King appeared to be rational, he... can t get past this double jeopardy argument. And I can t and that s not rational. Tr The judge said that he did not find, based upon his conversation with King, that King had any kind of mental deficiency. The judge said he found King to be perfectly coherent and capable of assisting his attorney. The judge found that King was rational and made a rational argument. Tr. 21. The court found that it had not heard anything which was the basis for determining that there was a need for a psychiatric examination. The court finally denied the motion for psychiatric examination. Tr. 26. THE TRIAL COURT DID NOT HAVE EVIDENCE BEFORE IT WHICH REQUIRED THE COURT TO GRANT THE MOTION FOR A PSYCHIATRIC EXAMINATION. The judge was present and was able to observe King s demeanor and behavior. The judge talked to King, questioned him, and discussed the charge against King. King is critical of the trial judge s reliance upon King s coherence and ability to answer questions. Both abilities are relevant when determining competency to stand trial. Rule 12.1(a) expressly includes in the test for competency both the ability... to recall relevant facts and to testify in the defendant s own defense, if appropriate... The finding that King was coherent and could inject himself into the argument was appropriate and helpful in determining King s competency. King is certainly correct that part of the test for competency is whether the defendant can assist in his own defense. The defendant must be able to coherently express to his lawyer the 8

13 relevant facts which the defendant believes will exculpate him. The court s finding of fact that King answered coherently was subject to review for clear error. Stubbs v. State, 811 So2d 384, , ( 7) (Miss.App.2001). Brian King argues, The representations of an officer of the court are as if under oath, and are accepted as true. Brief of Appellant, Page 8. King cites Robinson v. State, 761 So.2d 209, 212 (Miss.2002), as supporting authority for accepting the statement from King s lawyer that King was not competent to stand trial. The statement in Robinson was a part of the trial judge s findings regarding a Batson claim. The state does not read the statement in the Robinson opinion as a rule to be used when reviewing in appellate issue. King argues that there is a presumption that King s attorney was truthful because he was an officer of the court. King further asserts that his counsel had a track record of correctly diagnosing mental issues that would affect the ability to assist in one s own defense. Regarding counsel s track record of correctly diagnosing mental issues, the only evidence of that fact is the statement by counsel that he had that track record. The state is not saying that counsel was untruthful or incorrect when he made that statement. The state is merely observing that counsel put on no evidence to corroborate the statement. That does not overcome the presumption of competency. Brian King has not met his burden. He did not overcome the presumption that he was competent to stand trial when he was before the trial judge. Nor does he now demonstrate that the trial judge abused his discretion when he found that King failed to make the necessary. showing to require a psychiatric examination. 9

14 PROPOSITION TWO. WHETHER THE STATE COMMITTED PROSECUTORIAL MISCONDUCT CAUSING KING TO BE DENIED DUE PROCESS WHEN IT PUT ON EVIDENCE ABOUT BRIAN KING COMMITTING AN ARMED ROBBERY. Brian King claims that the State put on evidence of an armed robbery against Carlos Malone, the witness to King possessing the gun. King claims it was intentionally done... to inflame and prejudice the jury an as such is prosecutorial misconduct. King also claims that the State intended to create unjust prejudice. Brief of Appellant, Page 11. King is correct that robbery was mentioned several times during the trial, but that is because Carlos Malone initially reported that Brian King robbed him. That was how the investigation began. The testimony about robbery explained to the jury the reason Officer Heath Blancett first went to see Carlos Malone. It is the State s position that there was no prosecutorial misconduct because it was necessary to tell the complete story to avoid confusing the jury. References to robbery were not made with the intent to inflame or improperly prejudice the jury. In fact, defense counsel referred to the robbery on cross-examination by innuendo to prove that Brian King did not want to go forward with the charges. The trial judge told the jury early in the trial that any mention of robbery was not to prove that a robbery had occurred. Evidence of another crime is admissible if the other crime was so interrelated with the crime charged that the two crimes constitute a single transaction or occurrence or a closely related series of transactions or occurrences. Wheeler v. State, 536 So.2d 1347, 1352 (Miss.1988). Here the act of Brian King possessing the pistol during the robbery and the mere 10

15 possession of the pistol by Brian King was one act. It was a single transaction. Officer Heath Blancett testified that he was called to the scene because a robbery had been reported. Tr The possession of the pistol was part of the alleged robbery. If there had been prosecutorial misconduct, the references to robbery did not so infect the trial with unfairness that Brian King s conviction was a denial of due process. Darden v. Wainwright, 477 U.S. 168 (1986). Nor was this a circumstance where prosecutorial misconduct endangers the fairness of a trial... Anderson v. State, 154 So.3d 42, 57 ( 48) (Miss. Ct. App. 2014). Evidence of other crimes or bad acts is admissible in order to tell the complete story so as not to confuse the jury. In Brown v. State, 483 So.2d 328, 330 (Miss.1986), this Court said the State has a legitimate interest in telling a rational and coherent story of what happened. Where substantially necessary to present to the jury the complete story of the crime, evidence or testimony may be given even though it may reveal or suggest other crimes. Simmons v. State, 813 So.2d 710, 716 (Miss.2002). Palmer v. State, 939 So.2d 792, 795, ( 9)(Miss.2006). Regarding the need to reverse a conviction, in an analogous situation regarding comments by a prosecutor in closing, the United States Supreme Court said the following: The relevant question is whether prosecutors comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637 (1974). Darden v. Wainwright, 477 U.S. 168 (1986). The Mississippi Supreme Court has said the standard of review this Court applies to allegations of prosecutorial misconduct is [w]here prosecutorial misconduct endangers the fairness of a trial and the impartial administration of justice, reversal must follow. Anderson v. 11

16 State, 154 So.3d 42, 57 ( 48) (Miss. Ct. App. 2014). Fontaine v. State, No KA COA, Decided March 13, 2018, 2018 WL , *7, ( 31). The State s position is that there was no prosecutorial misconduct. As argued above, the references to robbery were used legitimately to tell the complete story and to avoid confusing the jury. The judge specifically told the jury that the evidence was not offered to prove that a robbery occurred. Tr. 90. Brian King s defense lawyer referred to it by innuendo in order to prove that Carlos Malone did not want to go forward with charges against Brian King. King s defense lawyer asked about the contents of the statement which Carlos Malone gave to the police and a second statement or affidavit Malone signed. During Malone s crossexamination there was a reference to the robbery by innuendo, which King mentions in the brief of the appellant. Tr. 97. Defense counsel was presenting evidence that Malone gave statements but did not want to go forward with any charges against Brian King, and Malone wanted to retract his statement. Tr. 99. When robbery was first mentioned, the judge instructed the jury that the evidence was not to be used to prove robbery. The judge asked the jury if they understood. Tr. 90. The law presumes that the jury follows the instructions given to it by the court. Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988). Griffin v. State, 840 So.2d 701, 703, ( 6)(Miss.App.2003). The court instructed the jury in INSTRUCTION NO. C-1, in part as follows:... You are to disregard all evidence that was excluded by the Court from consideration during the course of the trial. 12

17 Arguments, statements and remarks of counsel are intended to help you understand the evidence and apply the law, but they are not evidence. If any argument, statement or remark has no basis in the evidence, then you must disregard it.... C.P. 56. The evidence of Brian King s guilt was overwhelming. The parties stipulated that Brian King was a convicted felon. Tr Carlos Malone testified that he had known Brian King all of his life, and Malone saw Brian King holding a gun pointed at Malone. Tr The next day law enforcement found a pistol between Brian King s mattress and box spring. The pistol contained a magazine which had a palm print on it. The palm print matched Brian King s palm print. Tr Brian King did not testify. King put on no witnesses. King, therefore, put on no evidence that refuted a finding that King was a convicted felon and possessed a firearm. King did not object to the references to robbery on the ground that the state improperly put on evidence of other crimes or bad acts. He is procedurally barred from arguing this on appeal for the first time. When a defendant fails to object at trial, on appeal the issue is barred unless the argument is so inflammatory that the trial judge should have objected on his own motion. Hawkins v. State, 90 So..3d 116, 121, ( 21)(Miss.App.2012). An [o]bjection on one ground at trial waives all other grounds for objection on appeal. Carter v. State, 722 So.2d 1258, 1261( 13) (Miss.1998). King is correct that, if it is bad enough, prosecutorial misconduct can be reviewed as plain error. However, the facts in this case do not support a finding of plain error. 13

18 CONCLUSION The evidence at the hearing to determine the necessity of a psychiatric examination did not support a finding that the trial judge was require to order an examination of Brian King. The trial judge was not in error when he denied King s motion to have King examined to determine if he was competent to stand trial. The facts supporting the armed robbery and the possession of a firearm by a convicted felon were part of the same transaction and proved the entire story explaining the reason law enforcement first became involved in investigation of King possessing a firearm. The State asks the court to affirm the judgment of the Circuit Court of Jones County. 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)

19 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: Honorable Dal Williamson Circuit Court Judge Post Office Box 65 Laurel, MS Honorable Anthony J. Buckley District Attorney, District 18 Post Office Box 313 Laurel, MS W. Daniel Hinchcliff, Esq. Office of State Public Defender Post Office Box 3510 Jackson, MS This the 27th day of June, OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi Telephone: (601) s/scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL 15