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

Transcription

1 E-Filed Document Jul :36: KA COA Pages: 12 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI MAURICE TOWNSEND APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS 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 STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT I. THE INDICTMENT WAS MORE THAN SUFFICIENT TO INFORM THIS DEFENDANT OF THE CRIME HE WAS CHARGED. SO INFORMED THAT HE DID NOT REALIZE THERE WAS ERROR UNTIL THIS APPEAL II. III. THE TRIAL COURT DID NOT ERR IN HIS RULINGS IN STRIKING AND SEATING JURORS THE TRIAL COURT DID NOT ERR IN STRIKING FOR CAUSE JURORS WHO MAY NOT BE ATTENTIVE DURING THE TRIAL CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES FEDERAL CASES Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) STATE CASES Berry v. State, 703 So.2d 269 (Miss. 1997) Berry v. State, 728 So.2d 568 (Miss. 1999) Brooks v. State, 18 So. 3d 859 (Miss. Ct. App. 2008) Brown v. State, 934 So.2d 1039 (Miss. Ct. App. 2006) Burrell v. State, 613 So.2d 1186 (Miss.1993) Carter v. State, 722 So.2d 1258 (Miss. 1998) DeSalvo v. State, 776 So.2d 704 (Miss. Ct. App. 2000) Gathings v. State, 822 So.2d 266 (Miss. 2002) Hervey v. State, 764 So.2d 457 (Miss. Ct. App. 2000) Lawson v. State, 154 So. 3d 926 (Miss. Ct. App. 2015) Le v. State, 913 So.2d 913 (Miss. 2005) Peterson v. State, 740 So.2d 940 (Miss. Ct. App. 1999) Ross v. State, 16 So. 3d 47 (Miss. Ct. App. 2009) , 6 Smith v. State, 989 So.2d 973 (Miss. Ct. App. 2008) Spears v. State, 942 So.2d 772 (Miss. 2006) Walker v. State, 671 So.2d 581 (Miss. 1995) Welde v. State, 3 So.3d 113 (Miss. 2009) Wells v. State, 160 So. 3d 1136 (Miss. 2015) ii

4 STATE STATUTES Miss. Code Ann Miss. Code Ann (2) iii

5 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI MAURICE TOWNSEND APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE The grand jury of the Lafayette County indicted defendant for Aggravated Assault of a Law Enforcement Officer, in violation of Miss. Code Ann (2). (Indictment, c.p. 1). After a trial by jury, the Hon. Andrew K. Howorth, presiding, the jury found defendant guilty of Simple Assault on a Law Enforcement Officer. (Jury Verdict, C.p. 62). The trial Court sentenced defendant to five years, with four years suspended. The suspended sentence was pursuant to the post-release supervision of Miss. Code Ann (Sentencing Order, c.p ). After denial of post-trial motions, this instant appeal was timely noticed. (C.p. 91). The trial court granted an appeal bond, and it would appear defendant is presently out on appeal bond pending final decision of this court. (Appeal Bond, c.p. 95). STATEMENT OF FACTS A law enforcement officer went to a local night club after complaints of noise after hours. Upon arriving at the club the officer noticed the bouncers trying to eject a patron from the club. The officer intervened to help and at some point a woman approached the officer from behind and grabbed his right arm. Tr The officer responded and pushed the woman away from the scene. As it turned out that woman was the Aunt (by marriage) of the man being ejected from the bar. Tr. 1

6 219. The man who was being ejected took umbrage that the law enforcement officer had placed hands upon his Aunt and proceeded to strike the officer in the chest. Tr The man continued to push and started to choke the officer with both hands around his neck. Tr The officer used pepper spray to get the man under control (which was not effective). Tr The man tried to run from the scene and was apprehended, arrested and went to trial for Aggravated Assault of a Law Enforcement officer. The jury found defendant guilty of the lesser included charge of Simple Assault of a Law Enforcement officer. The defense witness essentially corroborated the State s evidence. Tr SUMMARY OF THE ARGUMENT I. THE INDICTMENT WAS MORE THAN SUFFICIENT TO INFORM THIS DEFENDANT OF THE CRIME HE WAS CHARGED. SO INFORMED THAT HE DID NOT REALIZE THERE WAS ERROR UNTIL THIS APPEAL. The indictment was clear and informed the defendant of the charges against him. The issue raised in the motion to quash the indictment at trial was regarding a different issue than now presented on appeal. Consequently this issue is barred as having been waived. It is also without merit in law as the indictment was legally sufficient to charge the crime for which he was to be tried. II. THE TRIAL COURT WAS CORRECT IN HIS RULINGS IN STRIKING AND SEATING JURORS. The trial court struck a juror for cause. Even though, arguably, it was raised as a quasi Batson claim it was not. A defendant is not entitled to a certain racial composition of the jury. 2

7 III. THE TRIAL COURT DID NOT ERR IN STRIKING FOR CAUSE JURORS WHO MAY NOT BE ATTENTIVE DURING THE TRIAL. The trial court struck some jurors for cause who expressed they would not or could not or would be distracted during the trial and witness testimony. Such is a valid reason to strike a juror for cause. The trial court was within his discretion in striking the juror for cause. ARGUMENT I. THE INDICTMENT WAS MORE THAN SUFFICIENT TO INFORM THIS DEFENDANT OF THE CRIME HE WAS CHARGED. SO INFORMED THAT HE DID NOT REALIZE THERE WAS ERROR UNTIL THIS APPEAL. In this initial claim of trial court error, it is argued the trial court erred in failing to quash the indictment because the indictment was lacking the language scope of duty to inform the defendant he was charged with assault of a law enforcement officer. The indictment is to be found in the record. C.p. 1. It would seem to the State that the indictment is more than clear to put the defendant on notice that he was charged with aggravated assault of a law enforcement officer. The indictment clearly includes the wording AGGRAVATED ASSAULT Law Enforcement Officer, as well as the statutory code number with paragraph designation. In addition, the indictment in listing the facts of the assault stated... Officer David Sabin, a law enforcement officer,... followed, again, by the statute number. 10. Whether an indictment is so flawed as to require reversal is a question of law. Brown v. State, 934 So.2d 1039, 1043( 16) (Miss. Ct. App. 2006). This Court on appeal reviews a question of law de novo. Id. The standard of review of an amendment to an indictment is also de novo. See Spears v. State, 942 So.2d 772, 773( 5) (Miss. 2006). Brooks v. State, 18 So. 3d 859 (Miss. Ct. App. 2008) aff'd in part, rev'd in part, 18 3

8 So. 3d 833 (Miss. 2009). Well first of all, the State would argue this issue, presented now for the first time, is procedurally barred as having been waived. Prior to trial counsel did file a motion to quash and a hearing was held after which the judge overruled the motion. Tr The record is totally void of any mention as to the language scope of duty. The motion to quash was based on whether it was purposely, knowing, or reckless or an attempt. There was no mention of not the law enforcement officer being on duty. 15 [... ] It is well established that an objection on one ground waives all other unspecified grounds. DeSalvo v. State, 776 So.2d 704, 710 ( 20) (Miss. Ct. App. 2000) (citing Carter v. State, 722 So.2d 1258, 1261 ( 13) (Miss. 1998)). [.. ] Lawson v. State, 154 So. 3d 926, 933 (Miss. Ct. App. 2015). It is the position of the State that issue was waived as not having been raised and presented to the trial court. Further, as to the argument or claim that the jury instruction improperly amending the indictment, that too was waived. Looking to the record, the complained of jury instruction is to be found in the clerk s papers at pages When the amended instruction was presented, defense counsel was asked if there was an objection and the reply of trial counsel was We're good, Your Honor. Tr. 270 & When counsel did not enter an objection and in reading the record it is apparent defense did not have an objection to the objection. In fact defense agreed to the giving of the instruction and should not now be able to complain. Wells v. State, 160 So. 3d 1136 ( 16) (Miss. 2015), reh'g denied (Apr. 30, 2015). This issue is procedurally barred as having been waived, at least twice. No relief should be granted on this claim of error. 4

9 II. THE TRIAL COURT DID NOT ERR IN HIS RULINGS IN STRIKING AND SEATING JURORS. During voir direct a couple of jurors (#21 & #45) responded to a question expressing their concerns about not being able to give full attention to the trial because of other commitments. Tr During jury selection the State asked that both be stricken for cause, which the trial court did. Tr Defense objected claiming that Juror #21 was black and so the defense objected that the reasons given should not support the juror being struck because he was a black juror. Tr.87. The trial court was aware of the facts and the responses of the juror during voir dire in granting the strike for cause. 10. A circuit judge has wide discretion in determining whether to excuse any prospective juror, including one challenged for cause. Smith v. State, 989 So.2d 973, ( 36) (Miss. Ct. App. 2008). A juror who may be removed on a challenge for cause is one against whom a cause for challenge exists that would likely affect his competency or impartiality at trial. Hervey v. State, 764 So.2d 457, 461( 11) (Miss. Ct. App. 2000) (quoting Berry v. State, 703 So.2d 269, 292( 85) (Miss. 1997)). The Mississippi Supreme Court has stated that [if] the evidence is conflicting on the question of whether or not the defendant could receive a fair and impartial trial, deference will be given to the considered opinion of the trial judge. Welde v. State, 3 So.3d 113, 119 ( 29) (Miss. 2009) (citing Burrell v. State, 613 So.2d 1186, 1190 (Miss.1993)). Because the trial judge hears and sees the individual jurors, he is in the better position to evaluate their responses and determine whether or not they should be excluded for cause. Peterson v. State, 740 So.2d 940, 949( 28) (Miss. Ct. App. 1999) Ross v. State, 16 So. 3d 47, 54 (Miss. Ct. App. 2009) Further while the claimed error on appeal is rather nebulous and unclear, it is clear to the State the defendant is not entitled to a specific racial composition of the jury. 28. Ross also claims that defense counsel's performance was deficient based on his failure to object to the State's peremptory challenges as they constituted Batson violations. Ross was not entitled to a specific racial and gender composition in the selected jury. See Le v. State, 913 So.2d 913, 924( 21) (Miss. 2005) (a defendant is not entitled to a jury of any particular composition ) (quoting Taylor v. Louisiana, 5

10 419 U.S. 522, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)); see also Gathings v. State, 822 So.2d 266, 272( 21) (Miss. 2002) (a defendant is not entitled to a given percentage of jury members of his own race ). Rather, [t]he focus of the Batson inquiry is on the purposeful discrimination in a party's use of peremptory challenges, not on the ultimate racial composition of the jury. Berry v. State, 728 So.2d 568, 572( 11) (Miss. 1999). Ross v. State, 16 So. 3d 47 (Miss. Ct. App. 2009) (emphasis added). The trial court did not err in acting within his wide discretion in striking the juror for cause. No relief should be granted on this claim of error, as it was not even a Batson challenge. III. THE TRIAL COURT DID NOT ERR IN STRIKING FOR CAUSE JURORS WHO MAY NOT BE ATTENTIVE DURING THE TRIAL. In this last claim of trial court error, it is now argued for the first time that it was error to grant the State s strike for cause of (presumably) Juror #21, because he expressed that he would be so distracted he wouldn t pay attention when witnesses testify. Tr [... ] The Mississippi Supreme Court has stated that [n]either the State nor the defense is properly served by a juror who cannot confirm that she would pay attention while the evidence was presented and could not therefore fairly deliberate the issues. Walker v. State, 671 So.2d 581, 623 (Miss. 1995). Therefore, we find no error in the circuit court's granting the State's challenge for cause as to Morton. Ross v. State, 16 So. 3d 47 (Miss. Ct. App. 2009). So, as the record supports the request for the strike and the trial court evaluated the situation in the context of voir dire, there is no error in the exercise of the trial court s wide discretion in granting this challenge for cause. Therefore no relief should be granted on this last claim of trial court error. 6

11 CONCLUSION Based upon the record on appeal and the rulings of the trial court, the State would ask this Court to affirm the jury s verdict and sentence of the trial court. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601) Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO

12 CERTIFICATE OF SERVICE I, JEFFREY A. KLINGFUSS, 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: Stewart Guernsey, Esq. Fondren Law Firm P.O. Box 2442 Oxford, MS Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 14th day of July, Honorable Andrew K. Howorth Circuit Court Judge 1 Courthouse Sq., Ste 201 Oxford, MS Honorable Ben Creekmore District Attorney 1301 Monroe Avenue Oxford, MS OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO /s/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS SPECIAL ASSISTANT ATTORNEY GENERAL 8