BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Jan :10: KA COA Pages: 10 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI LAKINTA GOLDMAN APPELLANT v. No KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Appeal from the Circuit Court of Montgomery County, Miss. No ACR Justin T. Cook, MB # OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION P.O. Box 3510 Jackson MS jcook@ospd.ms.gov T: (601) F: (601) Attorney for the Appellant

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies pursuant to Mississippi Rules of Appellate Procedure 28(a)(1) that the following persons have an interest in the outcome of the case. These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal. Lakinta Goldman The State of Mississippi This the 22nd day of January, /s/ Justin T. Cook Justin T. Cook, MB # OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Attorney for the Appellant 1

3 TABLE OF CONTENTS Certificate of Interested Persons... 1 Table of Contents... 2 Index of Authorities... 2 Statement of Issues Presented for Review... 3 Statement of the Case... 3 Procedural History... 3 Facts... 3 Statement of Counsel... 6 Conclusion... 8 Certificate of Service... 9 INDEX OF AUTHORITIES Cases Lindsey v. State, 939 So. 2d 743 (Miss. 2005)

4 STATEMENT OF ISSUES PRESENTED FOR REVIEW None. STATEMENT OF THE CASE Procedural History On September 4, 2012, the Montgomery County Grand Jury returned a multi-count indictment against Lakinta Goldman and Kunta Kinta Harbin charging each with three counts of armed robbery, three counts of kidnapping, and each individually as being convicted felons in possession of a firearm. (C.P. 1-7, R.E ). Goldman was retained Thomas Flanagan to represent him, and this matter was docketed to the honorable Clarence E. Morgan, III, circuit judge. On April 3, 2013, Goldman was brought to trial and ultimately convicted two counts of armed robbery, two counts of kidnapping and one count of being a felon of a firearm. (C.P , R.E ). Goldman was sentenced to serve a total of seventy years in the custody of the Mississippi Department of Corrections as a habitual offender under Mississippi Code Annotated section Goldman filed his post-trial motions on April 15, 2013, which were denied on April 29, (C.P , C.P. 149, R.E ). Goldman filed his notice of appeal on May 21, (C.P. 159, R.E. 27). Facts Around 11:00 a.m. on May 22, 2012, Karen Foreman was working at the Dollar General in Duck Hill, Mississippi along with one other coworker, Shannon 3

5 Bloom. (Tr. 119). There was also one customer in the store at the time, Angel Graham. (Tr. 121, 144). That morning, an African-American man wearing a black t- shirt, black cargo pants, and a nylon stocking mask over his face pointed directed the three women to the back of the store before bringing Foreman alone into the room with the store s safe. (Tr ). He had an accomplice with him who remained behind with the other two women. (Tr. 120). In the back room with the safe, the man forced Foreman to open the safe and to empty the cash contents into a bag. (Tr. 125). While Foreman was emptying the $800 worth of cash from the safe, the man fired single shot from his pistol into the safe to encourage her to speed up the process. (Tr. 127, 130). The bullet was later recovered from the safe by investigating officers. (Tr. 177). The two men then left the store with the money. (Tr. 127). At trial, video surveillance and an audio recording from inside the store were played for the jury. (Tr , 139). Deputy Tim Gholson of Grenada s Sheriff s Department saw a vehicle matching the description of the vehicle tied to the Dollar General robbery traveling down the road. (Tr. 275). The vehicle was a 2002 GMC Yukon registered to the wife of Lakinta Goldman, the appellant. (Tr. 184). As Deputy Gholson followed the speeding vehicle, the passenger threw items out of the windows of the car. (Tr. 276). The vehicle then veered off the highway, off the shoulder, through a barbed wire, and into the woods. (Tr. 276). The occupants of the vehicle abandoned the car on foot and ran into the woods. (Tr. 276). One of the items thrown from the vehicle that was later recovered was a 4

6 black mask. (Tr. 181). A gun was never recovered. (Tr. 200). Angel Graham s purse as well as a bag similar to the one seen in the video surveillance of the store was recovered. (Tr. 220). One of the men was later apprehended and was determined to be Kunta Kinta Harbin (Tr. 179). Harbin informed police that the other man the police were looking for was the appellant, Lakinta Goldman (Tr. 180). Goldman was Mirandized and questioned by officers. (Tr. 185). He also voluntarily consented to have a DNA sample as well as his fingerprints taken. (Tr ). His fingerprints matched fingerprints recovered from the driver s side of the vehicle. (Tr. 299). Gunshot residue was also found on the driver s side of the vehicle around the fingerprints. (Tr. 330). Goldman s DNA was found inside the mask that was recovered as well. (Tr. 391). At the time of questioning, Goldman had recent visible scars on his body. (Tr. 188). Goldman told officers that he was driving his wife s car on the day in question, that he was driving it alone, came across a stranded motorist (Mr. Harbin), and that he did run from police, but because he had just purchased $1,800 worth of marijuana in Jackson, Mississippi earlier that day. (Tr ). At trial, a representative from AT&T, Goldman s cellular service provider, testified that a series of calls placed from the Goldman s phone on the day in question show that the phone traveled as far south as the Dollar General in Duck Hill, but no further south toward the direction of Jackson, around the time of the robbery. (Tr. 168). Additionally, Montgomery County E.O.C. as well as Grenada 5

7 County E.O.C. did not have any record of a stranded driver on the day in question. (Tr. 194). Additionally, Harbin testified for the State. He testified that he and the defendant conducted the robbery and tried to escape from police. (Tr ). While he and Goldman were running from police in the Goldman s wife s car, they started throwing evidence out of the car s window. (Tr. 230). STATEMENT OF COUNSEL 1. Counsel for the Appellant hereby represents to the Court pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005), that counsel has diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the court on Goldman s behalf in good faith for appellate review, and upon conclusion, has found none. 2. The matters considered, reviewed and included in counsel s search were: (a) the reason for the arrest and the circumstances surrounding arrest of Goldman; (b) any possible violations of Goldman s right to counsel; (c) the entire trial transcript and content of the record; (d) all rulings of the trial court; specifically, the rulings on various defense counsel objections, including, but not limited to, objections made by defense counsel that were properly sustained; (e) possible prosecutorial misconduct; (f) all jury instructions, specifically, but not limited to, those requested by defense counsel and denied by the trial court; (g) all exhibits, whether admitted into evidence or not; (h) possible misapplication of the law in 6

8 sentencing, including but not limited to the constitutionality of Goldman s sentence in light of his habitual status; (i) the indictment and all of the pleadings in the record; (j) any possible ineffective assistance of counsel issues; and (k) any potential discovery violations. 3. Counsel further confirms that he has, as of the date of filing this brief, mailed by first class mail, postage prepaid, a copy of this brief, a copy of the trial transcript, and correspondence informing Goldman that counsel finds no arguable issues in the record and that Goldman has a right to file a pro se brief. 4. Counsel for appellant requests that the Court grant Goldman thirty (30) days of additional time in which to file a pro se brief if he desires to do so. 5. Counsel stands ready to prepare supplemental memoranda of law on any issues requested by the court. 7

9 CONCLUSION appeal. There are no issues that counsel can in good faith present to the court in this Respectfully submitted, Lakinta Goldman, Appellant /s/ Justin T. Cook Justin T. Cook Miss. Bar No OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Post Office Box 3510 Jackson, MS

10 CERTIFICATE OF SERVICE I, Justin T. Cook, counsel for the appellant, hereby certify that I have this day filed by means of the electronic case filing system the foregoing Brief of the Appellant, pursuant to Mississippi Rule of Appellate Procedure 25 by which immediate notification to the following ECF participants in this cause is made: John Henry, Esq. Office of the Attorney General P.O. Box 220 Jackson, MS In addition, the following non-ecf participants are served by United States Mail, first class firs- class postage prepaid: Lakinta Goldman MDOC #37082 Mississippi State Penitentiary Post Office Box 1057 Parchman, MS Hon. Clarence E. Morgan, III Circuit Judge Post Office Box 721 Kosciusko, MS Doug Evans, ESQ. District Attorney Post Office Box 1262 Grenada, MS THIS the 22nd day of January, 2014 /s/ Justin T. Cook Justin T. Cook, Miss Bar #