MOTION FOR REHEARING

Transcription

1 E-Filed Document Nov :00: KA SCT Pages: 10 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI IRA DONELL BOWSER a/k/a IRA BOWSER a/k/a IRA D. BOWSER APPELLANT V. NO KA SCT STATE OF MISSISSIPPI APPELLEE MOTION FOR REHEARING OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Hunter N. Aikens, Miss. Bar No P.O. Box 3510 Jackson, Mississippi Phone: Fax: Counsel for Ira Bowser

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI IRA DONELL BOWSER a/k/a IRA BOWSER a/k/a IRA D. BOWSER APPELLANT V. NO KA SCT STATE OF MISSISSIPPI APPELLEE MOTION FOR REHEARING COMES NOW the Appellant, Ira Bowser, in the above-styled matter, by and through counsel, pursuant to Rule 40 of the Mississippi Rules of Appellate Procedure, and files this Motion for Rehearing of the decision handed down by this Honorable Court on October 29, 2015, and in support thereof would show unto the Court the following: STANDARD OF REVIEW Pursuant to Rule 40 of the Mississippi Rules of Appellate Procedure [a] motion for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain[.] M.R.A.P. 40. Rule 40 also provides that [t]he motion shall state with particularity the points of law or fact which, in the opinion of the movant, the court has overlooked or misapprehended.... Id. ARGUMENT The verdict was against the overwhelming weight of the evidence. Bowser admitted to police and to the jury at trial that he was guilty of killing Page with a knife. Thus, as this Court s Opinion notes, [t]he only issue is whether Bowser is guilty of murder or manslaughter. Opinion at ( 18). The chief distinction between murder 2

3 and manslaughter is the presence of deliberation and malice in murder and its absence in manslaughter. Johnson v. State, 52 So. 3d 384, 391 ( 17) (Miss. Ct. App. 2009) (quoting Goldsby v. State, 226 Miss. 1, 15-16, 78 So. 2d 762, 767 (1955)). Bowser maintains that he is entitled to a new trial because the jury s verdict, finding that he killed Page with deliberate design, is against the overwhelming weight of the evidence. Dr. McGarry s expert testimony To permit comment on the subjective intentions of an accused by a witness based on conclusions reached from his observation invades the province of the fact finders. The issue of intent must be decided by the jury from the evidence in the case and not the conclusion of others. Newell v. State, 308 So. 2d 71, 73 (Miss. 1975) (citation omitted). In finding that the verdict was not against the overwhelming weight of the evidence, the Opinion relies in part on the expert testimony of forensic pathologist Dr. McGarry, who repeatedly offered his expert opinion that the nature of Page s stab wounds indicated that the stabs wounds were made deliberately. Opinion at ( 17). Bowser noted in his reply brief that Dr. McGarry s testimony on this point was incompetent evidence. See Reply Brief of the Appellant at p. 2, n.2. Under this Court s decisions in Parvin v. State, 113 So. 3d 1243 (Miss. 2013) and Edmonds v. State, 955 So. 2d 787 (Miss. 2007), Dr. McGarry s testimony was incompetent and inadmissible evidence, as it was based on speculation rather than scientific principles and methods. Bowser submits that in crediting Dr. McGarry s testimony as evidence supporting the jury s verdict, the Opinion inadvertently overlooks that appellate review of the weight of the 3

4 evidence [d]raws the appellate court into questions of credibility. Tibbs v. Florida, 457 U.S. 31, 37, 102 S. Ct. 2211, 2216 (1982); see also, Bush v. State, 895 So. 2d 836, 844 ( 18) (Miss. 2005). 1 An appellate court s [r]esolution of conflicting testimony in a manner contrary to the jury s verdict is a hallmark of review based on evidentiary weight.... Tibbs, 457 U.S. at 46, 102 S. Ct The Opinion also overlooks that criminal convictions must be based on competent evidence 2 and that the right to a fair trial by an impartial jury [m]eans a trial according to law on competent and relevant evidence.... McCray v. State, 293 So. 2d 807, 809 (Miss. 1974) (quoting Berry v. State, 212 Miss. 164, 175, 54 So. 2d 222, 227 (1951)). The critical issue in this case was whether Bowser stabbed and killed Page with or without deliberate design. Dr. McGarry s speculative expert testimony that Page s stab wounds were deliberately made was incompetent, highly prejudicial evidence. Bowser submits that appellate review of the weight of the evidence necessitates this Court consider a witnesses credibility and to consider whether the verdict is against the weight of the competent evidence. In the absence of Dr. McGarry s testimony, the State s theory of deliberate design murder is considerably weaker, the overwhelming weight of the remaining evidence indicates that Bowser did not kill Page with deliberate design. The Opinion notes that Bowser made no objection to Dr. McGarry s testimony at trial. 1 If [a]s the thirteenth juror, the court simply disagrees with the jury s resolution of the conflicting testimony... the proper remedy is to grant a new trial.[] Bush v. State, 895 So. 2d 836, 844 ( 18) (Miss. 2005) (citing McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982)) (footnote omitted). 2 See generally, Bankston v. State, 391 So. 2d 1005, 1009 (Miss. 1980)( A conviction will be upheld by this Court if it is based upon competent evidence. ). 4

5 Opinion at ( 17). No sound trial strategy supported trial counsel s failure to object to Dr. McGarry s testimony. And, because the critical issue in this case was whether Bowser stabbed Page with or without deliberate design, the failure to object resulted in prejudice to Bowser s trial. Bowser submits that the record affirmatively shows ineffective assistance of constitutional dimension. Accordingly, in the interests of judicial economy, Bowser respectfully requests this Court to grant rehearing and order a new trial because Bowser received ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct (1984). Presumption of malice by unexplained killing with a deadly weapon The Opinion applies cites Nicolaou v. State, 534 So. 2d 168, 172 (Miss. 1988) and Stokes v. State, 240 Miss. 453, 477, 128 So. 2d 341, (1961) for the proposition that malice was conclusively established because Bowser s used a deadly weapon. Opinion at ( 18, 20). Bowser submits that the Opinion inadvertently misapprehended or misapplied the law. By relying on the brutal nature of the killing and the use of deadly weapon, the Opinion (and Nicolaou and Stokes) overlooks that the crime of heat-of-passion manslaughter itself contemplates both the use of a deadly weapon and cruel and unusual killings: The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter. Miss. Code Ann Also, as Nicolaou stressed, the rule of that case applies only where there is unexplained proof that the defendant killed another with a deadly weapon.... Nicolaou, 5

6 534 So. 2d at 172 (emphasis in original). In Stokes for example, no testimony was offered on behalf of the defendant. Stokes, 240 Miss. at 477, 128 So. 2d at 350. And in Nicolaou, the defendant testified, but he claimed that he could not what happened to cause the incident. Nicolaou, 534 So. 2d at 170. In this case, Bowser presented proof about the events that caused the incident. He testified that Page began arguing with him as soon as he got home; she followed him to the bedroom where he pulled her hair and she hit him in the groin; he grabbed clothes to try and calm her down; she kicked him; grabbed a knife and swung it at him; and he took it from her, cut her first on the arm and then blacked out. Unlike Nicolaou and Stokes, the circumstances surrounding the killing were substantially explained such the jury had before it evidence of the surrounding circumstances; therefore, the jury s verdict could not rest on a presumption of malice. [C]riminal liability generally does not turn solely on the results of an act without considering the defendant s mental state. Elonis v. United States, 135 S. Ct. 2001, 2012, 192 L. Ed. 2d 1 (2015). A killing may be mitigated to manslaughter even if deliberate design exists The Opinion also overlooks that the circumstances may mitigate a killing to murder even though a deliberate design existed. See, e.g., Tran v. State, 681 So. 2d 514, 517 (Miss. 1996) ( [a] killing can be deliberate or intentional and yet be other than murder. ); Windham v. State, 520 So. 2d 123, 126 (Miss. 1987) ( [I]t is possible for a deliberate design to exist and the slaying nevertheless be no greater than manslaughter. ); Pittman v. State, 297 So. 2d 888, 893 (Miss. 1974) ( [T]he deliberate design to kill might exist and the killing be manslaughter. ); Ellis v. State, 108 Miss. 62, 66 So. 323, 324 (1914) ( [A] homicide may be designed and intended, and at the same 6

7 time entirely justifiable. ); McDonald v. State, 78 Miss. 369, 29 So. 171, 171 (1901) ( [M]anifestly, the design to kill might exist, and the killing be merely manslaughter. ). The Opinion also suggests that whether the manslaughter was the proper verdict is not a proper inquiry. See Opinion at ( 15, 21). 3 Bowser submits that the Opinion inadvertently misapprehended the law and overlooked numerous cases to the contrary. Wade v. State, 748 So. 2d 771, 776 (Miss. 1999) ( [W]e find a lack of malice by Wade in shooting Simpson. The killing was more appropriately a killing in the heat of passion, thus manslaughter was the only appropriate verdict. ); Dedeaux v. State, 630 So. 2d 30, 33 (Miss. 1993) ( In Clemons v. State, 473 So. 2d 943 (Miss. 1985), this Court held that the facts would not support a conviction of murder but the evidence did establish guilt of manslaughter. The case was remanded for resentencing for the crime of manslaughter. ); Biles v. State, 338 So. 2d 1004, 1005 (Miss. 1976) ( A jury verdict may be affirmed as to guilt, but the case remanded for resentencing when the proof is not sufficient to sustain a conviction for the crime charged, but is sufficient to sustain a conviction for a lesser included offense. ) (citing Wells v. State, 305 So. 2d 333 (Miss. 1974)). Bowser submits that the overwhelming weight of the evidence showed that he did not kill Page with deliberate design. Instead, the overwhelming weight of the evidence showed that Bowser killed Page in the heat of passion after an argument escalated into a physical altercation in which Page pulled a knife on Bowser. On the night in question, Page was upset because Bowser was cheating on her, and Page began arguing with Bowser before he even 3 [T]he inquiry is not whether manslaughter was the proper verdict, but whether the verdict reached by the jury was against the overwhelming weight of the evidence. Opinion at ( 15). The analysis of a challenge to the weight of the evidence does not require the Court to determine whether manslaughter was the proper verdict. Opinion at ( 21). 7

8 made inside the house. Bowser wanted to go to bed and did not want to argue with Page, but she followed him to the bedroom and got in between him and the bed. Bowser pulled Page s hair, Page hit him in the groin, and Bowser grabbed her by the clothes to try and calm her down. Page then kicked Boswer, grabbed a knife, and swung it at him; and Bowser took the knife, cut Page on the arm, and stabbed her 28 more times while he was black-out mad. Significantly, Page, not Bowser, introduced the knife into the altercation; this belies that Bowser acted out of a plan, calculation, or design to kill Page. The opinion relies in part on the fact that Bowser testified that Page wasn t trying to hurt me. Opinion at ( 16). Although this fact weigh against a finding of self-defense, it does not detract from heat-ofpassion manslaughter. Having a knife wielded and swung at a person is a very provocative, anger-inducing act even if some uncertainty surrounds the knife wielder s intentions. After Page wielded the knife, Bowser took it from her, cut her on the arm, and blacked out as he stabbed her 28 more times; this is consistent with one acting out of impulse and passion rather than reason: Heat of passion killings... involve an act committed while the defendant is under a temporary overmastering passion caused by some sudden provocation of sufficient gravity to cause the defendant to act on impulse and without the reflection that might normally precede a decision on whether or not to physically attack another human being. Magee v. State, 752 So. 2d 1100, 1104 ( 16) (Miss. Ct. App. 1999) (citing Miss. Code Ann (Rev. 1994); Windham v. State, 520 So. 2d 123, 127 (Miss. 1987)). Bowser maintains that the overwhelming weight of the evidence showed that he did 8

9 not kill Page with deliberate design and requests this Honorable Court to grant rehearing and remand this case for a new trial or for resentencing for manslaughter. A new trial is appropriate where the possibility of guilt still exists for both the principal and the lesser-included offense. Johnson v. State, 52 So. 3d 384, 397 ( 40) (Miss. Ct. App. 2009) (citing Wade, 748 So.2d at 775 ( 14). CONCLUSION Bowser submits that the foregoing propositions warrant the grant of this Motion for Rehearing and requests this Court to withdraw its original opinion and substitute a new opinion reversing his conviction and sentence and remanding this case for a new trial or for resentencing for manslaughter. WHEREFORE, PREMISES CONSIDERED, Appellant requests this Honorable Court to grant this Motion for Rehearing. Respectfully submitted, OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION For Ira Bowser, Appellant BY: /s/ Hunter N. Aikens Hunter N. Aikens, Miss. Bar OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION P.O. Box 3510 Jackson MS Phone: Fax: haike@ospd.ms.gov 9

10 CERTIFICATE OF SERVICE I, Hunter N. Aikens, Counsel for Ira Bowser, do hereby certify that I have this day electronically filed the foregoing Motion for Rehearing with the Clerk of the Court using the MEC system which issued electronic notification of such filing to: Honorable Jason L. Davis Attorney General Office Post Office Box 220 Jackson, MS So certified, this the 12 th day of November, OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION P.O. Box 3510 Jackson MS Phone: Fax: haike@ospd.ms.gov /s/ Hunter N. Aikens Hunter N. Aikens; Miss. Bar COUNSEL FOR APPELLANT 10