BRIEF OF APPELLANT, DANERFORD

Transcription

1 E-Filed Document Sep :20: KA SCT Pages: 53 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.2015-KA SCT DANERFORD v. STATE OF MISSISSIPPI APPELLANT APPELLEE BRIEF OF APPELLANT, DANERFORD MERRIDA (BUDDY) COXWELL (MB# 7782) CHARLES R. MULLINS (MB# 9821) COXWELL & ASSOCIATES, PLLC POST OFFICE BOX 1337 JACKSON, MISSISSIPPI TELEPHONE: (601) FACSIMILE: (601)

2 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court may evaluate possible disqualification or recusal: 1. Daner Ford, Appellant; 2. Merrida (Buddy) Coxwell, Attorney for Appellant; 3. Charles R. Mullins, Attorney for Appellant; 4. Johnnie E. Walls, former Attorney for Appellant; 5. T. George Kelly, Deceased, former Attorney for Appellant; 6. W. Dewayne Richardson, Washington County District Attorney; 7. Kimberly Jones Merchant, Assistant Washington County District Attorney; 8. Jacqueline L. Smith, Assistant Washington County District Attorney; 9. Honorable Betty Sanders, Washington County Circuit Court Judge; and 10. Honorable Carol White Richard, Washington County Circuit Comt Judge. Isl Merrida (Buddy) Coxwell MERRIDA (BUDDY) COXWELL (MB# 7782) CHARLES R. MULLINS (MB# 9821) COXWELL & ASSOCIATES, PLLC Post Office Box 1337 Jackson, Mississippi Telephone: (601) Facsimile: (601) Attorneys for Appellant 1

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT OF ISSUES... vi STATEMENT OF FACTS... 1 SUMMARY OF THE ARGUMENT ARGUMENT ISSUE I: CAN A PROSECUTOR DELIBERATELY SEEK TO INTRODUCE EVIDENCE OF A SEPARATE AND DISTINCT OFFENSE INTO A TRIAL IN AN ATTEMPT TO PROVE THE ACCUSED ACTED IN CONFORMITY THEREWITH, SOLELY FOR THE PURPOSE OF INFLAMING AND PREJUDICING THE MINDS OF JURORS FOR THE PURPOSE OF OBTAINING A CONVICTION ISSUE II: THE TRIAL COURT ERRED BY GRANTING A FLIGHT INSTRUCTION OVER THE OBJECTION OF THE APPELLANT ISSUE III: DANER FORDS'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL ISSUE IV: THE TRIAL COURT ERRED BY SENTENCING MR. DANER FORD AS A HABITUAL WITHOUT FIRST CONDUCTING A BIFURCATED SENTENCING HEARING CONCLUSION CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES CASES PAGE Anderson v. State, 1 So. 3d 905 (Miss. Ct. App. 2008) , 37 Banks v. State, 725 So. 2d 711 (Miss. 1997) Blanks v. State, 547 So. 2d 29 (Miss. 1989) Bollenbackv. U.S., 326 U.S. 607 (1946) Buckley v. State, 223 So. 2d 524 (Miss. 1969)... 39, 41 Burrell v. State, 727 So. 2d 761 (Miss. Ct. App. 1998) Butler v. State, 608 So. 2d 314 (Miss. 1992) Campbell v. State, 750 So. 2d 1280 (Miss. Ct. App. 1999) Carr v. State, 63 So. 3d 579 (Miss. 2010) Ellis v. State, 661 So. 2d 177 (Miss. 1995) Ervin v. State, 136 So. 3d 1053 (Miss. 2014) Flowers v. State, 773 So. 2d 309 (Miss. 2000) Fuselier v. State, 702 So. 2d 388 (Miss. 1997) Galloway v. State, 604 So. 2d 735 (Miss. 1992) Goree v. State, 748 So. 2d 829 (Miss. Ct. App. 1999) Grayv. State, 549 So. 2d 1316 (Miss. 1989) Griffin v. State, 557 So. 2d 542 (Miss. 1992)... 15, 17, 41 Henderson v. State, 403 So. 2d 139 (Miss. 1981) Herrington v. State, 102 So. 3d 1241 (Miss. Ct. App. 2012) Holly v. State, 671 So. 2d 32 (Miss. 1996) Hudgins v. State, 569 So. 2d 1206 (Miss. 1990) iii

5 Hughes v. State, 470 So. 2d 1046 (Miss. 1985) Jasper v. State, 759 So. 2d 1136 (Miss. 1999) Johns v. State, 592 So. 2d 86 (Miss. 1991) Jefferson v. State, 977 So. 2d 431 (Miss. Ct. App. 2008) Kelly v. State, 735 So. 2d 1071 (Miss. Ct. App. 1999) Kuebler v. State, No KA COA (Miss. Ct. App. 2015) Lesley v. State, 606 So. 2d 1084 (Miss. 1992) Lisenbav. California, 314 U.S. 219 (1941) Littlejohn v. State, 593 So. 2d 20 (Miss. 1992) McCollum v. Franklin, 608 So. 2d 692 (Miss. 1992) , 21 Moody v. State, 644 So. 2d 451 (Miss. 1994) O'B1yant v. State, 530 So. 2d 129, 133 (Miss. 1988) Pannell v. State, 455 So, 2d 785 (Miss. 1984) Pickens v. State, 129 Miss. 191 (1922) Pieper v. State, 242 Miss. 49 (1961) Puckett v. State, 879 So. 2d 920 (Miss. 2004) Roberts v. State, 458 So. 2d 719 (Miss. 1984) State v. Thornhill, 251 Miss. 718 (1965) Stricklandv. Washington, 466 U.S. 668 (1984) Tobiasv. State, 472 So. 2d 398 (Miss. 1985) United States v. Benedetti, 433 F. 3d 111 (1' 1 Cir. 2005) United States v. Hernandez-Bermudez, 857 F. 2d 50 (1' 1 Cir. 1988) Vicke1y v. State, 535 So. 2d 1371 (Miss. 1988)... 17, 24, 25 iv

6 Welch v. State, 566 So. 2d 680, 684 (Miss Wheatv. U.S., 486U.S.153 (1988) Williams v. State, 463 So. 2d 1078 (Miss. 1985) OTHER AUTHORITIES Mississippi Code Annotated (1) Mississippi Code Annotated (Supp. 2014)... 10, 43 Mississippi Rules ofevidence 403, , 13, 14, 20, 22, 23, 26, 27, 31 v

7 STATEMENT OF ISSUES ISSUE I: ISSUE II: ISSUE III: ISSUE IV: CAN A PROSECUTOR DELIBERATELY SEEK TO INTRODUCE EVIDENCE OF A SEPARATE AND DISTINCT OFFENSE INTO A TRIAL IN AN ATTEMPT TO PROVE THE ACCUSED ACTED IN CONFORMITY THEREWITH, SOLELY FOR THE PURPOSE OF INFLAMING AND PREJUDICING THE MINDS OF JURORS FOR THE PURPOSE OF OBTAINING A CONVICTION THE TRIAL COURT ERRED BY GRANTING A FLIGHT INSTRUCTION OVER THE OBJECTION OF THE APPELLANT DANER FORDS'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL THE TRIAL COURT ERRED BY SENTENCING MR. DANER FORD AS A HABITUAL WITHOUT FIRST CONDUCTING A BIFURCATED SENTENCING HEARING Vl

8 STATEMENT OF FACTS In the early morning hours of September 7, 2008, Jessie Coats was at his home in Greenville, Mississippi (T. 288). At approximately 3:00 a.m. gunshots woke up Mr. Coats (T ) and he looked quickly out of the window. Mr. Coats saw fire coming from the barrel ofa gun. Mr. Coats ran to his living room and heard more gunshots (T. 289). Mr. Coats had prior military experience so he testified that the first shots he heard were large caliber pistol shots (T. 292) and the other shots were short bursts consistent with a semiautomatic assault rifle (T. 296). Mr. Coats briefly stuck his head out of his front door and observed all of the shooting coming from Stockton Drive, which is the street closest to the front of his house (T ). After the shooting ended, Mr. Coats came outside and saw a Chevrolet Caprice driving away from Stockton headed toward Cornell Street (T. 300). Several neighbors in the vicinity came outside and began looking around. In just a few minutes Mr. Coats found Marvin Stuckett lying on the ground in the backyard outside Tyrone Smith's house (T. 302). Mr. Smith lived three (3) doors down from Mr. Coats and right beside Mr. Stuckett. Neighbors moved Mr. Stuckett from the backyard to the porch where they were all waiting on the police and ambulance (302). Mr. Coats found a bullet hole in one (1) of his cars, and approximately twenty (20) casings and some live rounds from an AR-15 assault rifle (T. 308) and what appeared to be a.45 caliber pistol (T. 309). Mr. Coats could not see who did the shooting but he did see a white Chevrolet Caprice pull away and drive off (T. 314). Mr. Smith lived at 290 Stockton Drive. During the early morning hours of September 7, 2008 he also heard gunshots and called the police. Mr. Smith testified the shooting was coming "T" refers to Trial Transcript.

9 from an area north of his house by Haycraft Street (T. 325). Mr. Stuckett was found by his back door (T. 327). Mr. Smith lives right beside Mr. Stuckett. He did not see who did the shooting (T. 338). Officer Wigfall was the first Greenville Police Officer to arrive on the scene. He was patrolling on Nelson Street when he heard gunshots on Stockton Street. He went to Stockton and observed people walking back and faith yelling. Officer Wigfall observed Mr. Stuckett on the ground and he helped locate casings and rounds (T ). Sergeant Foster of the Greenville Police Depaitment aitived on the scene after Officer Wigfall (T. 343). Sergeant Foster and other officers located three (3) 7.62 x 39mm shells and one (1) 9mm round (T. 346). The 7.62 x 39mm can be fired from an AK-47, SKS assault rifle, or an AR-15. The 9mm is a pistol round (T. 347). In addition, Sergeant Foster found an assault rifle on the front passenger seat of a vehicle in Mr. Stuckett' s yard. The assault rifle was admitted without objection as State's Exhibit 1 (T ). Sergeant Foster confirmed at the hospital that Mr. Stuckett was dead (T. 350). Sergeant Foster identified State's Exhibit 2 as a Romanian rifle magazine containing twenty-five (25) live rounds which was removed from State's Exhibit 2. The State's next witness was Carlos Smith. Mr. Smith is a resident of Greenville, Mississippi and on September 7, 2008 (T. 413) he was attending a paity at a local nightclub called Southern Whispers. Mr. Smith observed the Appellant, Daner Ford, arrive at the club. The prosecutor, Dwayne Richardson, then asked Carlos Smith the following questions: Q: Now, prior to that night, had you and Daner Ford ever had bad blood? A: No, sir. Q: Had there ever been any problem between the two of you? 2

10 A: Back in '94 he had shot me. Q: Now--- Tr ( emphasis supplied). Mr. Ford's counsel immediately objected to this testimony. The Comi held an inchambers hearing. Mr. Richardson went on to explain that the introduction of this testimony was pati of his theory. Defense counsel objected on the basis of relevance, MR.E. 404(b), and that the evidence was more prejudicial than probative (T ). Mr. Richardson stated that the defense did not file a pretrial motion on this testimony and if they had wanted to keep the evidence out, they could have filed the motion (T ). The trial Court sustained the objection, denied the motion for a mistrial made by Mr. Kelly and succinctly told the jury to disregard the statement (T. 424). According to Carlos Smith, he was upstairs at Southern Whispers with Gregory Suber and Damian Norman. Daner Ford walked right up to them and made a derogatory comment and an argument ensued after which Daner Ford supposedly said he was going to kill one of them (T. 425). No objection was made by Ford's counsel to this remark. During the argument Steve Ford and Freddie Han is joined Daner Ford (T. 426). It is important to note that the victim, Marvin Stuckett, was not present at this time in the upstairs pati of Southern Whispers. Mr. Smith testified that later, as he was going down the stairs, he passed Daner Ford and Mr. Ford hit him in the head which statied a fight between them. The club owner and a bouncer broke up the fight and told Mr. Smith to wait in the kitchen until he calmed down. Mr. Smith eventually left out of the club. On his way out, Mr. Smith saw Marvin Stuckett with some women in the downstairs pati of the bar. There were no conversations noted in the record between Carlos Smith and Marvin Stuckett, and there does not appear any connection between 3

11 what happened upstairs in the Southern Whispers and Marvin Stuckett who was downstairs. Carlos Smith never saw Marvin Stuckett alive again. Nick Harmon was also at Southern Whispers on September 6-7, 2008 (T. 451). He was downstairs standing with Marvin Stuckett when Steverson Ford, Jonathan Robinson and Corey Hanis came down the stairs. Steverson Ford was telling them to move out of his way and Corey HatTis hit Mr. Harmon in the head. Security pushed everyone outside. The group consisted of Mr. Harmon, Marvin Stuckett, David Franklin, Steverson Ford, Jonathan Robinson, Corey Hanis, Daner Ford, and others. Mr. Harmon heard Daner Ford yelling about a fight. Mr. Hmmon testified that he heard Daner Ford say "we were fighting heads up...i beat him down... I'm going to kill one of them." Mr. Ford's counsel did not object to this testimony (T. 457). Daner Ford then ran off. Mr. Hatmon did not know who Mr. Ford was referring to when he made the comments. Mr. Harmon left with Mr. Stuckett and they drove around. There was no testimony from Mr. Harmon of a physical altercation between Marvin Stuckett and Daner Ford outside the club. After a while together Mr. Stuckett dropped Mr. Harmon off at his car (T. 461). Mr. Harmon was headed to the Huddle House when he saw Christopher York at his brother's house. Mr. York was attempting to wake up Mr. Harmon's brother by discharging an AK-47 outside (T ; T ). Mr. Hmmon, his brother, Christopher York and Damien Smith got in cars and headed over to Marvin Stuckett's house (T. 467). They knocked on Stuckett's door and window but could not reach him. During this time period Mr. Harmon saw Freddie Hanis driving a green car (T. 478). Christopher York was also at Southern Whispers on September 6-7, He witnessed Mr. Stuckett outside the club arguing with Steverson Ford, Dwayne Smith and Daner Ford. He did not see any physical altercation (T ). Later Mr. York saw a green Chevy and a blue 4

12 Chevy headed in the direction of Marvin Stuckett' s house. According to York, Freddie Harris owned the green Chevy and Jessie Lee owned the blue Chevy (T. 503). Mr. York was headed toward Mr. Stuckett's house right before the shooting occurred. When he turned onto Cornell Street, before getting onto Stockton Street, Mr. HatTis heard shots so he decided not to go to Stockton Street (T. 505). The green and blue Chevys passed Mr. York and he could see Freddie Harris driving the green Chevy, with Dwayne Smith and Jonathan Robinson as the passengers (T. 505). Jessie Lee was seen driving the blue Chevy and Steverson Ford and Daner Ford were passengers (T.506). On September 8, 2008, Lan y Tisaby was working as a patrolman for the Greenville Police Depattment. He was called to Mr. Stuckett' s house to assist with crowd control after the shooting. An AK-47 was located in a car which was parked in the front yard of Marvin Stuckett's home. According to the testimony, the AK-47 was the gun Christopher York was discharging at Mr. Hatmon's house, which he carried over to Marvin Stuckett's house but left in the car when he heard the police coming (T , State's Exhibit 1). While at the scene, Officer Tisaby was provided information about a blue Chevy parked at the Double Quick. Officer Tisaby and Officer Ove1ton went to the Double Quick and performed a traffic stop on the blue Chevy. Jessie Lee was driving and they noticed a live 9mm round in the back seat. Mr. Lee was arrested for an old contempt of court warrant (T , ). Mr. Lee was subsequently a prosecution witness who was also facing a separate murder charge himself, but he provided testimony for the State smtounding the shooting. It was unclear from direct or cross examination what he received for his testimony though it appeared an accessory after the fact charge was discussed (T ). 5

13 Erica Brown is employed by the Greenville Police Depattment in the Criminal Investigative Division. She identified two (2) 7.62 x 35 spent cartridges and two (2) 7.62 x 39 live rounds which were marked as State's Exhibit 3 (T ). Officer Brown also took photos of the scene which were admitted as State's Exhibit 4, A-S (T ). Officer Brown recovered two (2) live 9mm rounds from Jessie Lee's car on the night he was arrested. The rounds were admitted as State's Exhibit 6 (T. 557). During the investigation Officer Brown took statements from many of the men allegedly involved in this offense. An abrasion was observed on Daner Ford's nose which she was told came from the fight with Carlos (T ). Daner Ford's statement was recorded on a micro-cassette and admitted as State's Exhibit 5-7 (T. 565). During cross examination Officer Brown testified that five (5) males were charged in the case. Officer Brown told the jury Steverson Ford's case was concluded, Daner Ford was on trial, Jessie Lee was a State witness and Jonathan Robinson had not been tried. She was unce1tain of Freddie Harris' legal position (T ). Officer Brown admitted there was no physical evidence connecting Daner Ford to the murder. There was the testimony of Jessie Lee, but Mr. Lee never saw Daner Ford discharge his gun (T ). According to Officer Brown, no weapons were recovered from the scene that matched the bullets recovered from Mr. Stuckett's body. Her investigation did reveal that tlu ee (3) weapons were involved in the shooting, including an AK-47, a.38 and a 9mm (T. 590). Her investigation revealed that Jessie Lee repotted that Daner Ford had a rifle and Steverson Ford had a pistol, but no one provided information on the other pistol. 6

14 On re-direct, Officer Brown testified that Freddie HatTis' statement put Daner Ford at the scene of the shooting and that shots were fired when Daner Ford got out of the car, but Daner Ford was not seen shooting (T. 595). Dr. Thomas Deering perfotmed an autopsy on Marvin Stuckett on September 8, According to Dr. Deering, two (2) bullets sttuck Mr. Stuckett. In Dr. Deering's professional opinion both bullets were from a handgun and not an assault rifle (T ). One (1) bullet was recovered from Marvin Stuckett's body and turned over to the Mississippi Crime Lab. It appeared to be a.38 caliber (T. 634). Starks Hathcock is employed at the Mississippi Crime Laboratory in Jackson. He was tendered and accepted as an expert in the field of fireatm and tool mark examination (T. 643). Mr. Hathcock compared the projectile taken from Mr. Stuckett's body (State's Exhibit 14) and the characteristics of the bullet were consistent with a.38 caliber. He compared this bullet to a.380 Lorcin handgun and a.357 Magnum Smith & Wesson which were provided to him by law enforcement, and determined that the projectile was not fired from either weapon (T. 647). Mr. Hathcock compared the two (2) spent 7.62 x 39 (State's Exhibit 3) with a bullet fired (State's Exhibit IA) from State's Exhibit S-1, and he concluded the spent rounds were not fired from State's Exhibit 1 (T ). The two (2) 9mm shells were both manufactured by the same bunter tools (T. 653). Jessie TetTell Lee was a resident of Greenville, Mississippi. He is the cousin of both Steverson Ford and Daner Ford (T. 679). On the evening of September 6, 2008, he got together with Steverson Ford, Jonathan Robison, Tyrone and Tasha Powell (T. 671). This group eventually went to Southern Whispers where they met Daner Ford (T. 674). Mr. Lee did not see what happened in the club but they were all led outside by a bouncer (T. 675). After regrouping, 7

15 several of them went over to Steverson Ford's house where they were joined by Daner Ford, Freddie Hanis and Dwayne Smith. Daner Ford was fussing about the events at Southern Whispers (T. 678). Later in the evening, the group loaded up to go to an after-hours club. Daner Ford rode with Freddie Harris in his green Chevrolet. Steverson Ford, Jonathan Robinson and Kendrick Johnson all rode in Jessie Lee's car (T. 681). While en route, Freddie Hanis' car made a U-turn and followed another car that had run a red light. Steverson Ford told Mr. Lee to keep following Freddie Harris. They eventually pulled up on Stockton Drive and parked (T ). Jessie Lee saw Daner Ford walking down the street, after exiting the other car, carrying a rifle (T. 685). Daner Ford cut tlu ough a yard. By this time Steverson Ford, Jonathan Robinson and Ken Johnson got out of Mr. Lee's car (T ). Mr. Lee then heard shots behind the car and shooting toward Cornell Street from the direction where he saw Daner Ford walking (T. 689). During the shooting, Mr. Lee heard someone yell, "Don't do it OJ." (OJ is Steverson Ford's nickname) (T. 689). He did not know who yelled "Don't do it OJ." After the shooting stopped Jonathan Robinson got into the front passenger seat, Ken Johnson got in the back behind the driver, and Steverson and Daner Ford got into Jessie Lee's car. According to Mr. Lee, Daner was holding a rifle. Mr. Lee stated that at one point, he heard Daner Ford say, "N----r's gonna learn, going stop messing with me." (T. 704). While they were leaving the scene Mr. Lee heard Daner Ford complain that he almost got shot by Steverson Ford. Daner Ford made the comment to everyone in the car that if anyone asked, they had not seen him. Mr. Lee dropped everyone off at Steverson Ford's house. Later Mr. Lee was arrested at the Double Quick (T ). 8

16 At the Greenville Police Department Mr. Lee provided a statement to law enforcement. He admitted that his original attorney was Tucker Gore and they discussed an accessory after the fact charge and the five ( 5) year maximum instead of a life sentence for murder. During crossexamination, Mr. Lee stated that he heard shots and turned around to see Steverson Ford shooting a pistol (T. 715). Mr. Lee did not think Mr. Johnson had a gun but he got out of the car and could have shot ( ). Mr. Lee denied he was the one who did any shooting, though he admitted sending a letter to Daner and Steverson Ford wherein he explained he had to give law enforcement a statement to get out of "hot water." (T ). Mr. Lee confirmed he heard someone say, "Don't do it, OJ." (T. 736). Mr. Lee never saw Daner Ford shoot his rifle (T. 738 and 749) and he could not explain why there were three (3) types of bullets on the ground at Stockton Drive when he only testified to hearing two (2) different types of shots ( ). There was no testimony from Mr. Lee or any other person that a plan existed to shoot Marvin Stuckett. Delano Wilson is a criminal investigator for the Greenville Police Depmiment (T. 755). He patiicipated in the interview of witnesses with other investigators. As stated earlier, the shooting took place in the early morning hours of September 7, 2008, which was a Sunday. Investigator Wilson worked on the case over the weekend. Daner Ford came to the Greenville Police Depmiment and gave a statement on the morning after the shooting (T. 560). On Monday, September 8, 2008, warrants were issued for Daner Ford, Steverson Ford, Freddie Hanis and Jonathan Robinson (T ). On Tuesday, September 9, 2008, Investigator Wilson called T. George Kelly, Daner Ford's attorney, and asked that Mr. Ford turn himself in to the police (T. 760). When Daner Ford did not turn himself in by September I 0, 2008, the police considered Mr. Ford to be a fugitive from justice (T. 761). Using a trap and trace, law 9

17 enforcement located Mr. Ford hiding at his mother's house in the attic behind a set of rims (T ). The State rested and the defense made a Motion for a Directed Verdict as to Counts I and II. The Motion was overruled (T ). The defense rested without calling any witnesses (T. 811). SUMMARY OF THE ARGUMENT Mr. Daner Ford was on trial in a multi-count indictment for murder, for use of a firemm during the commission of a crime and being a felon in possession of a firearm (R.E. 25). Shortly before trial, during an ore tenus motion, the State obtained an order amending the indictment to include a habitual charge under MC.A (Supp. 2014). The record does not contain any motion hearing or evidence that Daner Ford's counsel patiicipated in that process (R.E ). Mr. Ford was denied a fundamentally fair trial due to several errors committed during the trial of this case. First and foremost, the District Attorney purposely introduced into evidence a fourteen (14) year old shooting supposedly perpetrated by Daner Ford upon Carlos Smith. Mr. Smith was a prosecution witness who testified that an argument ensued between himself and Daner Ford on the second floor of the Southern Whispers Night Club. This argument was "bad blood" according to the District Attorney, but it was not related to the victim, Marvin Stuckett. When the District Attorney first asked the question ifthere were problems between Carlos Smith and Daner Ford, Mr. Smith answered "no." This was apparently not the rehearsed answer the District Attorney wanted, so he again asked ifthere was "bad blood." Carlos Smith then stated he had been shot by Mr. Ford foutieen (14) years earlier. Defense counsel objected and moved for a mistrial. A bench conference was held and it was poignantly clear that the District Attorney 10

18 deliberately introduced this incident in an effort to prejudice the jury. There was an altercation between Carlos Smith and Daner Ford on the second floor, but it is clear it had absolutely nothing at that point to do with the deceased, Marvin Stuckett. Marvin Stuckett was on the first floor of the nightclub and when Mr. Smith left the club he saw Marvin Stuckett with some women. Mr. Smith never even spoke to Marvin Stuckett during that evening. There was apparently a later argument that occuned outside the night club and Daner Ford was seen arguing with Marvin Stuckett, but Carlos Smith was not present. The trial judge found the evidence improper and admonished the jury to disregard it. Her admonishment, however, only served to highlight Carlos Smith's testimony. Mr. Ford was on trial for a murder where he was accused of acting in concert to cause the deliberate death of Marvin Stuckett. The pathologist established that Marvin Stuckett died from a pistol wound. The State's witness saw Daner Ford with a rifle and Steverson Ford with a pistol. There was possibly another unidentified pistol at the scene. This same State's witness also heard someone say, "Don't do it, OJ." Daner Ford's attorney argued if the State's evidence were to be believed then this statement proved that Daner Ford did not act in concert. This testimony and argument could have garnered Daner Ford an acquittal or conviction on a lesser-offense, but the jury had already been influenced by the inflammatory and prejudicial testimony that Daner Ford had shot someone before. The evidence elicited by the District Attorney was improper character evidence under MR.E. 404 and 403. Secondly, the trial judge improperly granted a flight instruction. This shooting took place on Sunday, September 7, 2008 in the early morning hours. That same morning Daner Ford voluntarily went to the police department and gave a videotaped statement. It was not used by the District Attorney during the trial. Several other men were at1'ested on September 7, II

19 The Greenville Police Department began looking for Mr. Ford late on September 7, They checked several homes but there was no testimony that they spoke to anyone about Mr. Ford. On September 9, 2008, during the afternoon, a detective called Mr. Ford's attorney, George T. Kelly, and told him they were looking for Mr. Ford. Mr. Kelly advised the police he would try to find Daner Ford and arrange for his sun ender. On September I 0, 2008 law enforcement officials had not heard from Mr. Kelly, so they considered Mr. Ford a fugitive and obtained a "trap and trace" warrant to track Daner Ford via his phone. They located him on September 15, 2008, hiding in the attic of his mother's home. During the jury charge, Mr. Kelly objected to thr flight instruction, stating he had never reached Mr. Ford so there was no evidence he was fleeing. The Mississippi Supreme Comt has held that flight instrnctions should not be given unless they have considerable probative value. In this case, the flight instruction did not meet those requirements. There was no evidence that Mr. Ford knew he was wanted for murder. Further, not wanting to be attested is not the same as flight. Mr. Ford had already given one (1) statement to the police and he may have simply not wanted to talk with the police again. This instruction was reversible error. Thirdly, Mr. Ford's attorneys did not render effective assistance of counsel. Steverson Ford had already been tried and convicted for Marvin Stuckett's murder. State witness Jessie Lee testified that he saw Daner Ford with a rifle and heard shooting but did not see Mr. Ford shoot or shoot at Marvin Stuckett. Mr. Lee did see Steverson Ford shooting a pistol in the direction of the deceased, Marvin Stuckett. There was apparently another pistol on the scene but Mr. Lee claimed to know nothing about it. Daner Ford was in a better positon in his defense than Steverson Ford had been at his trial. Jessie Lee testified that he heard someone say, "Don't do it, OJ," (Steverson Ford's nickname). Daner Ford's attorney used this to argue that Daner Ford was 12

20 not acting in concert. There was absolutely no testimony that the two (2) carloads of men went to shoot and kill Marvin Stuckett. During the trial Daner Ford's attorney brought out the fact that Steverson Ford had already been convicted of murder in the same case. This is obviously very prejudicial and problematic for Daner Ford, and there was no sound trial strategy for providing this information to the jury. During a bench conference, the prosecution and judge both thought the evidence was more harmful to the defense than helpful. In addition, Daner Ford's counsel did not object to a comment supposedly made by him that constituted additional 404(b) evidence which was neither relevant nor probative under Rule 403. Lastly, the final point is raised out of an abundance of caution. The record does not reflect Mr. Ford's attorneys participated in the motion to amend the indictment to charge Mr. Ford as a habitual. The couti did not hold a separate hearing but merely sentenced Mr. Ford as a habitual. This is error. Standing alone, any of the first three (3) en ors above warrant a new trial. Their cumulative effect on the jury requires that this couti reverse Mr. Ford's convictions and remand this case for a new trial. Mr. Ford did not receive due process and a fundamentally fair trial. ARGUMENT ISSUE I: CAN A PROSECUTOR DELIBERATELY SEEK TO INTRODUCE EVIDENCE OF A SEPARATE AND DISTINCT OFFENSE INTO A TRIAL IN AN ATTEMPT TO PROVE THE ACCUSED ACTED IN CONFORMITY THEREWITH, SOLELY FOR THE PURPOSE OF INFLAMING AND PREJUDICING THE MINDS OF JURORS FOR THE PURPOSE OF OBTAINING A CONVICTION INTRODUCTION At the urging of the District Attorney, State's witness Carlos Smith testified that Daner Ford had shot him in 1994, foutieen (14) years prior to the shooting which is the subject of this appeal (T ). Mr. Ford was never charged with shooting Mr. Smith and it had absolutely 13

21 no connection to Mr. Stuckett's death. The District Attorney could not provide a valid basis for introducing the fourteen (14) year old shooting other than to blame Mr. Ford's trial attorneys for not filing a motion in limine to exclude it (T ). Such a brazen and knowing violation of the rules requires a reversal. Mr. Ford was denied a basic, fundamentally fair trial due to what appears to be the deliberate actions of the prosecutor during the trial of this multi-count indictment. The evidence the District Attorney purposely introduced was irrelevant, inflammatory, and prejudicial. It served no purpose other than to prejudice the jury in a way our rules of evidence and Constitution prohibit by directly implying: "Look, Daner Ford shot someone before, so he must have shot someone this time." MR.E. Rule 404(b). This flagrant and purposeful conduct by the District Attorney cannot be rewarded. It did not come from an inexperienced prosecutor. It came from an experienced, multi-term prosecutor, and as revealed during a hearing outside the presence of the jury, it was the District Attorney's "theory" to introduce this evidence. The prosecutor admitted he intended to offer the inflammatory evidence unless the defense objected in a pretrial motion in limine. With due respect, it should be the rule, not the exception, that attorneys representing the power of the State and defense attorneys representing the accused follow the rules of evidence. Deliberately introducing a prior bad act to prove the accused acted in conformity with his character at the time charged in the indictment is a violation of Rules 404(b) and 403 of the J\1ississippi Rules of Evidence. The prosecutor's attitude towards this evidence amounts to a winning at any cost approach, and this approach has been condemned many times by this Court in criminal cases. In a civil case the Mississippi Supreme Court wrote, "... trial proceedings should not be viewed as no-holds barred wrestling matches." McCollum v. Franklin, 608 So. 2d 14

22 692, 695 (Miss. 1992). If this principle is true in a civil case when the only thing at stake is money, how many more times is it truer in a criminal case where the life/liberty of an accused is at stake and the due process of the trial process is at stake? This Comt wrote in Griffin v. State, 557 So. 2d 542, 554 (Miss. 1992) that "... no person accused, however angry the people, however evil the crime, regardless how strong the appearance of guilty, can be denied the full protection of the law and a fair and orderly trial conducted with judicial decorum and dignity." The question before this Comt in Mr. Ford's case is whether this point of fundamental constitutional law can waiver from year to year, or appear as a tide upon the beach, changing with each new moon represented by new Justices, or is it a fundamental, universally applied constitutional principal of due process applied through the lyfississippi Rules of Evidence? This is important because the issue of the introduction of prejudicial and inflammatory evidence appears before this Comt on an all-too frequent basis. It is also impottant because prejudice can exist in a case and be hard to measure. In Galloway v. State, 604 So. 2d 735,741 (Miss. 1992), the Court stated, "That the record does not affirmatively reflect prejudice does not prove there has not been none. Where there is prejudice, it often will arise from matters not of record that by their very nature cannot be in the record." The Court's statement in Griffin holds true for jmy deliberations. Jury deliberations will seldom, if ever, appear in the record. A jury's verdict amounts to a decision on which facts to believe, which to reject, and which to partially accept or reject. The jury's determination of which facts to accept are then filtered into the jmy instructions. People outside the jury box will usually never know what facts each jury decided were true. Sometimes the simplest actions by a defendant may prevent him from being convicted of the most serious offense- or any offense at 15

23 all. This may well have been true for Daner Ford had the prosecutor not deliberately introduced a fourteen (14) year old shooting in order to prejudice the jury. Daner Ford was charged with acting in concert with others to kill and murder Marvin Stuckett (R.E. 25). The testimony of Jessie Lee, a co-defendant, put Daner Ford at the scene with a rifle (T ; 690). No one saw Daner Ford shoot, though Jessie Lee claims he heard shooting coming from an area near Mr. Ford (T. 738). Jessie Lee testified he saw Steverson Ford shooting a pistol (T. 715; 737). The victim died from a pistol wound (T. 632). Jessie Lee also heard someone say something to the effect, "OJ (Steverson Ford's nickname), don't do it." (T. 689; 736). One of the things Jessie Ford could not explain was why there were three (3) different types of shells on the scene and he only claims to have heard two (2) people shooting (T. 746). The jury in deliberations may well have decided Daner Ford did not act in concert at the time Marvin Stuckett was shot. The jury may have believed Daner Ford shot into the air, if he shot at all, and that it was Daner Ford who said, "OJ, don't do it," thereby abandoning any criminal intent or action. However, after the prosecutor deliberately introduced evidence that Daner Ford allegedly shot another witness (Carlos Smith) fourteen (14) years ago, the jury would have been unable to make those important factual determinations due to the prejudicial testimony. It made no difference that the trial court succinctly told the jury to disregard the testimony; the damage was done (T. 424). In this case it appears the improper and inflammatoty evidence was introduced due to a purposeful or deliberate trial strategy. This is more egregious than when it appears before this Court as a result of pure inadvertence, because the "aim of the requirement of due process is not to exclude presumptively false testimony, but to prevent fundamental fairness in the use of 16

24 testimony, true or false." Butler v. State, 608 So. 2d 314, 323 (Miss. 1992), quoting Lisenba v. California, 314 U.S. 219, 236, 86 L Ed 166, 62 S Ct 280 (1941). In point of fact, prosecutors have a duty to the system as a whole to ensure fairness. In Littlejohn v. State, 593 So. 2d. 20, 26 (Miss. 1992), quoting from Wheat v. U.S., 486 U.S. 153, 100 L.Ed.2d. 140, 108, S. Ct (1988), the Court wrote, "The prosecutor has an obligation to the accused as well as society, not to patiicipate in a criminal proceeding against the accused when it knows that the constitutional right of the defendant is being violated." This Court was no doubt following its own sense of procedural due process in announcing the principle in Griffin, supra, but the United States Supreme Couti has likewise announced that "... the question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials." Bollenback v. U.S., 326 U.S. 607, 615 (1946). While the trial judge attempted to cure the deliberate and egregious error of the District Attorney, it was simply not enough to remove the prejudicial testimony from the mind of the jury. In Vicke1y v. State, 535 So. 2d 137l(Miss. 1988), this Comi wrote: Id. at Elementary to all trial proceedings is the proposition that the occurrence of any prejudicially incompetent matter or misconduct before a jury, the damaging effect of which cannot be removed by admonition or instructions, necessitates a mistrial. The trial judge asked the jury to disregard the testimony but the "damaging effect" had already been absorbed by the jury (T. 424). The District Attorney's theory was that Mr. Ford acted in "conce1i" with others and caused the death of Marvin Stuckett. Once Carlos Smith's testimony was deliberately introduced to the jury by the prosecutor there was simply no way the trial judge could ask or expect the jury to forget testimony of an alleged prior violent act 17

25 supposedly committed by Mr. Ford with a gun. The prosecutor sought to introduce this testimony to prove Mr. Ford was acting on the day charged in the indictment in "conf01mity with his prior conduct" fomteen (14) years earlier. There was no way Daner Ford could receive a fundamentally fair trial after this testimony was purposefully placed before the jury. The prosecutor obtained the conviction he sought, but he did so at the cost of procedural fairness. It is suggested that deliberate actions that violate fundamental fairness should not profited or be rewarded. The question is whether this Court will excuse the District Attorney's actions simply because of the Court's "curative instruction". If so, district attorneys will be inclined to deliberately introduce inadmissible evidence in future cases knowing that this Court will find a curative instruction absolves them of their sins. ARGUMENT Daner Ford was on trial for the murder of Marvin Stuckett. This was a multi-count indictment wherein Count I alleged Daner Ford, Steverson Ford, Jonathan L. Robinson, Freddie L. Harris and Jessie Lee all acted in concert on September 7, 2008 to kill and murder Marvin Stuckett. Count I also alleged an enhancement under MC.A (1). Count II alleged Daner Ford was a convicted felon in possession of a deadly weapon (R.E. 25). Prior to trial, the District Attorney amended the indictment to charge Mr. Ford as a habitual offender (R.E. 27). The pathologist's testimony established that the two (2) bullets that entered Marvin Stuckett were from a pistol (T. 632). According to Jessie Lee, a co-defendant who testified for the prosecution, Steverson Ford had a pistol and Daner Ford had a rifle. Jessie Lee saw Steverson Ford shooting his pistol (T. 685; 715). In other words, the weapon Daner Ford had did not cause Mr. Stuckett's death nor did anyone testify that he discharged this weapon. Jessie Lee heard other shooting in the area near where Daner Ford went, but Jessie Lee never saw Daner Ford 18

26 shoot his rifle. Empty rifle shells were recovered (T. 738). It is possible that others discharged weapons that were not recovered (T. 746). Jessie Lee did hear someone say to Steverson Ford, "No OJ, don't." (T. 689). There was a third gun at the scene, a pistol, but testimony never established who possessed the weapon or if it was shot. 9mm bullets were found in Jessie Lee's car shortly after the shooting (T. 737; 746). Ford's defense counsel planned to defend the case in a vety traditional manner by challenging the prosecution's theory of the case and arguing to the jury that even if parts of the State's evidence were true, it did not mean Daner Ford acted in concert to cause the death of Marvin Stuckett. In closing defense counsel stated, "!don't believe Daner Ford is guilty of any crime. You heard Jessie Lee say that he heard someone say, 'Don't do it, OJ. 'Maybe he told the truth about that. I ask you to find my client not guilty of either charge. Thank you." (T ). The State was well aware that the physical evidence excluded Daner Ford as the shooter. They also knew they did not have any testimony to establish that the group was "acting in concert". As such, the State devised a theory to put Daner Ford's prior character before the jury to establish the crucial, missing evidence. During the Course of the trial the District Attomey called Carlos Smith as a witness. Carlos Smith and Daner Ford had known each other since junior high school. Carlos Smith testified he had been shot by Daner Ford fourteen (14) years earlier, around If this indeed did happen, it served no purpose other than to prejudice the jury and deprive Mr. Ford of a fundamentally fair trial. The prosecutor stated during a bench argument on this matter outside the presence of the jury that he disclosed Daner Ford's arrest record in discovery. Apparently the prosecutor believed since he provided Daner Ford's attest record to defense counsel, it meant, or gave him a 19

27 privilege to introduce a prior violent act fourteen (14) years old. It is even more unusual that the prosecutor felt that this prior act was relevant to the fights that took place at the Southern Whispers Night Club. P(lst problems between C(lr/os Smith mid D(lner Ford were irrelev(lflt to w/l(lt /l(lppened between D(lner Ford mid M(lrvin Stuckett. Daner Ford was on trial for the murder of Marvin Stuckett, not an act between him and Carlos Smith foutteen (14) years earlier. The following is a po1tion of what transpired while the District Attorney was presenting the testimony of Carlos Smith: T Q. Now prior to that night, had you and Daner Ford ever had bad blood? A. No, sir. Q. Had there ever been any problem between the two of you? A. Back like in '94 he had shot me. Q. Now- Mr. Kelly: Your Honor, objection, May we approach the bench? It is poignantly clear from the District Attorney's questioning of Carlos Smith that he deliberately intended to elicit a fourteen (14) year old shooting offense allegedly committed by Daner Ford. This alleged shooting constituted a separate and distinct offense which is not admissible to prove that the accused acted in conformity on the day charged in the indictment. See MR.E. 404 (b ). The District Attorney asked the question the first time and upon receiving a "no" asked it in another form. It cannot be clearer that he intended to elicit this testimony. During the bench conference the defense counsel objected first on the basis of a discovery violation, but the District Attorney adamantly stated the shooting incident was listed in discovery (T ). The defense counsel also objected on the basis that a prior shooting by Mr. Ford 20

28 constituted a prior bad act and was not admissible, and was more prejudicial than probative (T ). The District Attorney responded in a way that is very telling. While he claimed that the altercation between Carlos Smith and Daner Ford was somehow connected to Marvin Stuckett, Carlos Smith went on to testify that he left the club and saw Marvin Stuckett with some women on the first floor of the club (T ). If there was a later problem between Marvin Stuckett and Daner Ford outside the Southern Whispers Club, it had no connection to the problem between Carlos Smith and Daner Ford inside the club, and more importantly, the fourteen (14) year old shooting had absolutely nothing to do with this trial. The District Attorney was seeking a subterfuge so he could introduce a prior bad act by Mr. Ford because he knew he did not have any direct testimony that Daner Ford shot his gun or shot at Marvin Stuckett. Perhaps the District Attorney was also concerned that it might be proven or be argued that Daner Ford was the person who said, "No, OJ, don't do it." (T. 689). This statement alone could weaken the prosecutor's argument that Daner Ford acted in concert, so in order to ensure a victory in his "no holds-bmted wresting match," the District Attorney sought to prejudice the jury by the introduction of a fourteen (14) year old separate and distinct bad act. McCol/11111, supra, at 695. As noted previously herein, defense counsel did in fact argue that maybe Daner Ford was the one who said "No, OJ, don't shoot," and was therefore not guilty. The District Attorney apparently believed he had the right to introduce a fourteen (14) year old inflammatory and prejudicial separate offense into the current trial unless someone stopped him. During the bench conference the following transpired: Mr. Richardson: So as far as -they've been put on notice. If they want to file a motion pretrial they could have, but they didn't. And so as to whether or not there had been any bad blood, and that was ce1iainly a yes or no answer, and so- (T. 419) 21

29 Mr. Kelly: And he said no. He said no. Mr. Richardson: And, two, if they wanted to keep this out, pretrial they should have filed a motion, and they didn't (T. 420). * * Mr. Richardson: And there was no pretrial motion on that. If there had been a motion, we would have argued it (T. 424). The District Attorney's argument is specious at best. It is clearly understood (or should be) among prosecutors that it is impermissible to establish character to prove someone acted in confotmity therewith at the time of the crime, and that the use of a separate and district criminal offense is very limited under Rule 404(b ). The fourteen (14) year old shooting fit none of the permitted uses of 404(b) evidence. The District Attorney argued that the defense counsel did not file a motion to stop him from introducing the fomteen (14) year old conviction. It was not the defense lawyers' job to presume that the District Attorney would violate the rules of evidence. It was the District Attorney's job to follow the rules of evidence. Once Carlos Smith testified he had been shot by Daner Ford, the damage was done to Mr. Ford's defense regardless of the trial comt's effo1ts. After a lengthy bench conference the trial Judge stated: The Court: Ladies and gentlemen, the discussion at the bench was concerning the last question and response, the question by Attorney Richardson and the response by Mr. Smith. The Comt is going to instruct you to disregard the question and the answer as it related to the bad blood between these two gentlemen culminating in an act in Disregard that, no consideration of it during deliberations. T (emphasis supplied) Mr. Ford's counsel moved for a mistrial which was denied by the trial court. Looking at the admonition to the jury by the trial court it seems more likely to have reinforced the 22

30 inflammatmy and highly prejudicial testimony rather than cured any error. The Cami's instrnction expressly told the jury that there was "bad blood" between Daner Ford and Mr. Smith which culminated in "an act" in In other words, the jury was advised that the shooting did indeed happen. As numerous comis have noted time and time again, you can't "un-ring the bell." Curative instructions in these situations are legal fictions, useful in some cases and not useful in others. There is simply no way a jury could forget the testimony of Carlos Smith that he was shot by Daner Ford, especially when the Court's so-called "curative instruction" corroborates that it did indeed happen. Daner Ford was on trial for a shooting which resulted in death, as well as other crimes. The weight of this error and what the jury learned was prejudicial to Daner Ford's right to a fair trial. In Gray v. State, 549 So. 2d 1316 (1989), a witness made a wholly unresponsive statement that the accused was attested for a separate misdemeanor. The trial court admonished the jury to disregard the statement and this Mississippi Supreme Comi found no error, noting several times that the District Attorney had admonished the witness not to mention other crimes and the witness' comment was spontaneous. Gray, at (Reversed on other grounds). In the case at bar, it is clear that the District Attorney purposely and deliberately elicited the fomieen (14) year old charge that was unconnected with this offense. Needless to say, this fomieen (14) year old offense which apparently did not result in a conviction did not pass scrntiny under Rule 403 or 404(b ). The Mississippi Supreme Comi has held in many cases that the introduction of inflammatory evidence prejudices the right to a fair trial and cannot be erased by a curative instrnction. In Lesley v. State, 606 So. 2d 1084 (Miss. 1992), the Court reversed the defendant's conviction for conspiracy to commit murder due to the introduction of evidence of an 23