IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI RALPH EDWARD LLOYD A/K/A RALPH LLOYD NO KA COA STATE OF MISSISSIPPI

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1 E-Filed Document Mar :16: KA COA Pages: 16 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI RALPH EDWARD LLOYD A/K/A RALPH LLOYD APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LISA L. BLOUNT 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 Issue Statement of the Case, Procedural History and Facts Summary of Argument Argument Lloyd did not prove that his trial counsel provided constitutionally ineffective assistance by failing to request a cautionary accomplice jury instruction Conclusion Certificate of Service I

3 TABLE OF AUTHORITIES Cases Brown v. State, 890 So. 2d 901, (Miss. 2004) Carson v. State, No KA SCT (Miss. Nov. 17, ) Havard v. State, 928 So.2d 771 (Miss.2006) Hendrix v. State, 957 So.2d 1023 (Miss. Ct. App. 2007) Jones v. State, 203 So. 3d 600, 610 (Miss. 2016) Maggett v. State, 2016 WL , at *4 (Miss. Ct. App. Dec. 13, 2016) McQuarter v. State, 574 So.2d 685 (Miss.1990) Osborne v. State, 54 So.3d 841 (Miss. 2011) Read v. State, 430 So.2d 832, 841 (Miss. 1983) Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) Williams v. State, 729 So.2d 1181 (Miss.1998) Williams v. State, 32 So.3d 486 (Miss. 2010) Rules Mississippi Rule of Appellate Procedure 22(b) ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI RALPH EDWARD LLOYD A/K/A RALPH LLOYD APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE Ralph Edward Lloyd a/k/a Ralph Lloyd was convicted in the Circuit Court of Madison County, William E. Chapman, III, J. presiding, of armed robbery while in possession of firearm and conspiracy to commit armed robbery. After denial of post trial motions, Lloyd appealed. Statement of the Issue Whether Lloyd s trial counsel rendered ineffective assistance by failing to request a cautionary accomplice jury instruction. Statement of the Case Procedural History A Madison County grand jury indicted Ralph Edward Lloyd aka Dirt, Willie Demond- Devonte Louis aka Willow Collier Reed aka Collier,, and Jammon Lewis aka Dick for the armed robbery of Arthur James Luckett and for conspiracy to commit the armed robbery, while in possession of a firearm and enhanced for a crime committed against a victim 65 years of age or order. CP 5. The court granted a motion for severance. CP 20. A jury convicted Ralph Edward Lloyd aka Dirt of the armed robbery and conspiracy but did not find that he should be subject to the enhancement for committing a crime against a 65-year old. CP The Honorable William E. Chapman, Circuit Court Judge, presiding, sentenced 1

5 Lloyd to forty-five (45) years for the armed robbery with ten (10) years suspended, an additional five (5) years for the firearm enhancement to run concurrently to the armed robbery sentence and a concurrent five (5) years for the conspiracy. CP 78. The court further ordered Lloyd to serve five (5) years on supervised probation for the armed robbery. Lloyd filed post trial motions which the trial court denied. Aggrieved, Lloyd appealed. CP 88, 91. Facts Around noon on October 15, 2015, Canton Police Officer Lincoln Powell responded to a radio call that four male subjects wearing Halloween masks had just robbed a man and were running from the area of 933 Mary Court. Tr. 92. Upon arriving at the scene, Officer Powell found a visibly shaken 66-year old Arthur James Luckett (Luckett) who stated that he had just been robbed at gun point by four males wearing Halloween masks. Mr. Luckett owned a yard maintenance company and regularly serviced homes in the area. Tr Luckett s truck and trailer carrying a lawnmower were parked on the side of the road. Mr. Luckett told Officer Powell that he was standing at the gate of his trailer, when two suspects came up behind him. The shortest of the suspects held a handgun on him while he and a taller suspect reached into his pants pocket and took $500 cash and a money order. Tr Luckett told the officer that two of the suspects had on ghost-type Halloween masks, one had on a gorilla mask, and he could not make out what type of mask the fourth male who was at a distance was wearing. Tr The assailant holding the weapon told Luckett, "Arthur, we gone rob you." Luckett told officers that the voice sounded familiar to him and later identified it as Willie Louis, ("Willow"). Tr Mr. Luckett had known fourteen-year-old Willow and his family for years; Willow had worked for him at his lawn care business, as had Ralph Lloyd. Tr. 114, 117, Luckett had 2

6 also known Lloyd and his family for years also and testified that Lloyd lived with his grandmother at 917 Mary Court, a short distance from the robbery. Tr Mr. Luckett testified on cross that the three males standing closer to him were wearing a Casper mask and then the one standing far off had on a gorilla mask. Tr He also said three males grabbed him and reached into his pocket and wasn t sure if Willow was the holding the gun on him. Tr Mr. Luckett testified that he was very nervous when he turned around and saw a gun staring in his face. Tr Investigator Terrence Ware with the Canton Police Department testified to his investigation of the case. Tr After arriving on the scene, Ware and Officer Henderson searched the area looking for evidence but found none. They came into contact with Willie Louis and Collier Reed on a pathway near the scene. Collier Reed, upon seeing the officers, immediately threw his hands in the air, and laid down on the ground. When the officers were confused as to Reed s actions, Reed claimed to be giving the officers respect. The two were not suspects at the time and were let go. Tr While driving in the area, Investigator Ware spotted Kendoirus Hobson on the porch of a house on Boyd Street. Hobson had been a reliable source of information in a previous case, so Ware asked him about the robbery. Tr. Tr Hobson told Ware that Willow, Collier, Dirt and Dick were involved. Tr , On October 20, 2015, authorities questioned Hobson a second time. Hobson again identified the same individuals as being involved, including Dirt. Tr. 216, 224. Hobson said that he and LaVonta Wilkes were outside Dirt s house when Dick, Willow, Dirt and Little Collier were plotting to rob Luckett. According to Hobson, the masks were on a table. Ex. 3; Tr

7 On May 27th Hobson gave another statement naming Dirt, Willow, Dick, Little Collier and someone named Junior. According to Investigator Ware, Hobson and Willow got May Main and Junior mixed up. Junior is LaVonta Wilkes' brother. Tr At trial, Hobson, previously convicted of armed robbery and aggravated assault, testified that he, Willow, Xavier Johnson, Junior, Dick, and Collier were at Dirt s house playing cards. Dick told them that Luckett had some money so Dirt went in the house and got a bookbag with some ski masks. They went around the house, put on the masks and walked toward Luckett. Dick pulled the gun on Mr. Arthur and told him to give it up. Tr Hobson and Xavier Johnson stood at the edge of the driveway and saw Dirt, Willow, Collier Reed, and Jammon Lewis rob Mr. Luckett. Tr Based on Luckett s statement and Hobson s first statement, Investigator Ware picked up Willow for questioning four days after the robbery. When initially interviewed by police, Willow denied having anything to do with the robbery. He said that Collier Reed ("Collier") and "Mane Mane" robbed Mr. Arthur. Tr. 180, 190, 191, 211. Ware signed a statement typed by the police but it should be noted that Willow testified at trial that he could not read. Tr Willow recanted his earlier statement where he denied participation in the robbery and named Hobson. Willow told authorities that Dirt, Dick, Collier, participated in the robbery with him and Mane Mane stayed back at the house. Hobson did not know Dirt s real name. Dirt was identified as Ralph Lloyd after Willow showed the authorities Dirt s house, which turned out to be Lloyd s house. Tr Willow knew Dirt from working with Mr. Luckett and because he dated his cousin, however he didn t know his real name. Willow had never been to Dirt s house prior to the day of the robbery. Tr

8 At trial, Willow testified that he was with Dirt, Dick, Collier, and Mane Mane at Lloyd s house on Mary Court on the day of the robbery. Tr. 168, 194. Mane Mane stayed back by the house during the robbery. He did not know Mane Mane s real name. Tr. 168, 194. According to Willow, Lloyd was responsible for handing out the masks and participated in the robbery. Tr , 195. Willow testified that after being arrest and indicted for his involvement in the armed robbery and conspiracy he reached a deal with the district attorney's office. Willow entered a guilty plea to simple robbery with a recommended sentence of fifteen years in exchange for his trial testimony. Tr.185. While there were some discrepancies in Willow s statements and testimony and Hobson s statements and testimony, Willow and Hobson consistently named Dirt as being one of the assailants who planned the robbery and participated in the robbery. 5

9 Summary of the Argument Ralph Lloyd did not satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and, accordingly, did not receive ineffective assistance of counsel based on his counsel's failure to request a cautionary jury instruction related to accomplice testimony. To prove ineffective assistance of counsel, a defendant must show (1) that his counsel's performance was deficient and (2) that this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with the defendant. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel's performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct To overcome this presumption, "[t]he defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct "To prevail on this claim, [the defendant] must show under Strickland that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' " Havard v. State, 928 So.2d 771, 790 (Miss.2006) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. 2052). The defendant's entitlement to a cautionary accomplice jury instruction hinges upon the existence of corroboration Jones v. State, 203 So. 3d 600, 611 (Miss. 2016), reh'g denied (Nov. 17, 2016) (quoting Williams v. State, 32 So.3d 486, 491 (Miss. 2010)). If the [accomplice] testimony is not corroborated, a cautionary jury instruction is required. Osborne v. State, 54 So.3d 841, 846 ( 22) (Miss. 2011). 6

10 In the case at hand, the accomplice testimony was corroborated. Hence, defense counsel s failure to request a cautionary accomplice jury instruction does not constitute deficient representation because a cautionary instruction was not required. Willow s testimony as to Lloyd s involvement in the crime was corroborated by Hobson. Hobson was not an accomplice. There is no conflict in the testimony as to Hobson's nonparticipation in the conspiracy and robbery. While Willow initially denied any involvement in the robbery and implicated Hobson, Willow admitted his involvement and denied Hobson's participation long before trial and testified to such. There was no testimony or evidence admitted at trial that Hobson was involved in the conspiracy or robbery. Under the facts in the record, Hobson was not an accomplice. Even assuming that trial counsel's failure to request a jury instruction regarding accomplice testimony was deficient representation, Lloyd cannot demonstrate prejudice. The jury was made aware that Hobson was not being prosecuted and also that Willow had a plea deal with the state. The court instructed the jury that its your prerogative to determine what weight and what credibility will be assigned the testimony and supporting evidence of each witness in this case. CP Defense counsel thoroughly questioned Willow and Hobson about inconsistencies in their statements and their possible motives for lying and emphasized it to the jury in his closing argument. So even if the jury was instructed that Willow and Hobson s testimonies should be viewed with caution and suspicion there is not a reasonable probability that the verdict would have been different. Further, the state does not concede that the record is sufficient for the reviewing court to determine whether Lloyd's counsel was constitutionally ineffective. Lloyd's conviction and sentence should be affirmed. 7

11 Argument Ralph Lloyd cannot satisfy the test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) for ineffective assistance of counsel, and, accordingly, did not receive ineffective assistance based on defense counsel's failure to request a cautionary jury instruction related to accomplice testimony. Ralph Lloyd contends that his trial counsel was ineffective because counsel failed to ask the trial court to instruct the jury regarding the unreliability of accomplice testimony. Mississippi Rule of Appellate Procedure 22(b) provides that issues such as ineffective assistance of counsel, which may be raised in post-conviction-relief proceedings, are allowed on direct appeal only "if such issues are based on facts fully apparent from the record." The state does not concede that the record is sufficient to review this issue on direct appeal. See Read v. State, 430 So.2d 832, 841 (Miss. 1983). Ralph Lloyd aka Dirt did not prove that his trial counsel provided constitutionally ineffective assistance by failing to request a cautionary accomplice jury instruction. A defendant in a criminal case is entitled to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, , 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the United States Supreme Court articulated the test for considering a constitutional claim of ineffective assistance of counsel. First, the court must determine whether the defendant received reasonably effective assistance of counsel. Strickland, 466 U.S. at , 104 S.Ct Second, if it is determined that the defendant did not receive reasonably effective assistance of counsel, the reviewing court must determine whether the insufficiency had a reasonable probability of affecting the outcome of the case. Id. at 695. Under Strickland, there is a strong presumption that counsel's performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 8

12 2052. To overcome this presumption, "[t]he defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct Willow and Hobson provided the only evidence directly linking Lloyd with the conspiracy and robbery. Lloyd asserts that because defense counsel failed to request a cautionary accomplice jury instruction, the jury was never instructed that it should consider these testimonies with caution. Lloyd believes failure to request such an instruction amounts to ineffective assistance of counsel and entitles him to a new trial. Citing Williams v. State, 32 So.3d 486, 490 (Miss.2010), the Supreme Court recently held that "for a defendant to be entitled to a cautionary instruction, it is only necessary that the accomplice's testimony be uncorroborated." Jones v. State, 203 So. 3d 600, 610 (Miss. 2016), reh'g denied (Nov. 17, 2016). "The defendant is entitled to a cautionary instruction if the trial court finds that the testimony of the accomplice is uncorroborated." Id. "When determining whether a defendant is entitled to such a cautionary instruction, the trial judge considers whether the witness was in fact an accomplice and whether the witness's testimony was corroborated. Williams, 32 So.3d at 490 (citing Brown v. State, 890 So.2d 901, 910 (Miss. 2004))." Jones 203 So. 3d at 610. An accomplice cautionary instruction was not required because Hobson was not an accomplice. An accomplice... is a person who is implicated in the commission of the crime, and will be considered as such if the evidence admits a reasonable inference that the witness may have been a co-perpetrator or the sole perpetrator. Dedeaux v. State, 125 Miss. 326, 87 So. 664 (1921). Williams v. State, 729 So. 2d 1181, 1189 (Miss. 1998) Id. 9

13 Willow, an indicted accomplice, testified to Lloyd s involvement in the robbery and conspiracy. Hobson s testimony corroborated Willow s testimony that Lloyd participated in the planning and robbery. Although there were discrepancies in their statements and testimony, they consistently said Lloyd participated in the conspiracy and robbery. On the day of the robbery while Investigator Ware was in the area, he saw Hobson sitting on the porch of a house on Boyd Street. Hobson had provided Ware with reliable information in the past so Ware asked him about the robbery. Ware initially questioned Hobson as a snitch. Four days later after being named by Hobson and Luckett, Willow, upon being questioned for the first time, denied any involvement and implicated Hobson. However, Willow subsequently admitted that he participated in the robbery not Hobson. The only evidence that Hobson was a participant in the crime was provided by Willow and Willow retracted that accusation long before trial. The evidence does not admit a reasonable inference that Hobson participated in the crime. If Hobson is not an accomplice and his testimony corroborates Willow s testimony tying Lloyd to the crime, no cautionary accomplice instruction is require. Hence, defense counsel's failure to request a cautionary accomplice jury instruction does not constitute deficient representation because a cautionary instruction was not required. Should this Court hold that trial counsel's failure to request a jury instruction regarding accomplice testimony was deficient representation, Lloyd cannot demonstrate that his counsel's deficient performance prejudiced his defense. In order to establish constitutionally ineffective assistance, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland,

14 U.S. at 694, 104 S.Ct Even if the jury had received an accomplice instruction, there is not a reasonable probability that it would have changed the jury s verdict. The jury heard Willow s involvement in the robbery and heard that Willow pleaded guilty to robbery and had made a deal to receive a fifteen (15) year sentence for telling the truth at Lloyd s trial. Tr Defense counsel thoroughly addressed any motives Willow and Hobson might have for lying in cross examination and in his closing argument. The majority of the closing argument was about Willow and Hobson. While not given a cautionary accomplice instruction the jury received instruction C-1, which provides: It is your function to determine the facts in this case and to consider and weigh the evidence for that purpose. You are to apply the law to the facts, and in this way decide the case. The evidence which you are to consider consists of the testimony and statements of the witnesses, any stipulations made by the attorneys, and any exhibits admitted into evidence. You are also permitted to draw such reasonable inferences from the evidence as seem justified in the light of your own experience. It is your prerogative to determine what weight and what credibility will be assigned the testimony and supporting evidence of each witness in this case. You are required and expected to use your good common sense and sound honest judgment in considering and weighing the testimony of each witness who has testified. CP The jury was told they were to determine what weight and what credibility to give each witness and to use their common sense. Certainly, the jury could deduce that Willow, and Hobson if considered an accomplice, had an incentive to lie. It cannot be said that there is a reasonable probability that the result of the trial would have been different if the jury received an accomplice-testimony instruction. Hence, Lloyd fails to prove he was prejudiced by his attorney s failure to request a jury instruction and fails the second prong of the Strickland test. Accordingly, this issue is without merit and the jury's verdict and the 11

15 sentence of the trial court should be affirmed. CONCLUSION Based upon the arguments presented herein as supported by the rulings of the trial court and record on appeal, the state would ask this reviewing Court to affirm Ralph Lloyd s conviction and sentence for armed robbery while in possession of firearm and conspiracy. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ Lisa L. Blount LISA L. BLOUNT SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO Office of the Attorney General Post Office Box 220 Jackson, Ms Telephone: (601)

16 CERTIFICATE OF SERVICE I, LISA L. BLOUNT, 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: Erin E. Briggs, Esq. Indigent Appeals Division Office of State Public Defender P. O. Box 3510 Jackson, MS Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable William E. Chapman, III Circuit Court Judge P.O. Box 1626 Canton, MS Honorable Michael Guest District Attorney P.O. Box 68 Brandon, MS This the day of March, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO /s/ Lisa L. Blount LISA L. BLOUNT SPECIAL ASSISTANT ATTORNEY GENERAL 13