BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Sep :08: KA COA Pages: 17 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI DAYLON WALDROP APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT On appeal from the Circuit Court of Forrest County, Mississippi Trial Court # CR Mollie M. McMillin, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: mmcmi@ospd.ms.gov Counsel for Daylon Waldrop

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI DAYLON WALDROP APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE 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 this court may evaluate possible disqualifications or recusal. 1. State of Mississippi 2. Daylon Waldrop, Appellant 3. Honorable Patricia Burchell, District Attorney 4. Honorable Robert Helfrich, Circuit Court Judge This the 6 th day of September, Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel i

3 TABLE OF CONTENTS I. CERTIFICATE OF INTERESTED PERSONS i II. TABLE OF CONTENTS ii III. TABLE OF AUTHORITIES iii IV. STATEMENT OF ASSIGNMENT V. STATEMENT OF THE ISSUES VI. STATEMENT OF THE CASE VII. STATEMENT OF THE FACTS VIII. SUMMARY OF THE ARGUMENT IX. ARGUMENT ISSUE I: ISSUE II: THE JURY WAS NOT FULLY INSTRUCTED ON THE ESSENTIAL ELEMENTS OF CAPITAL MURDER THE TRIAL COURT ERRED IN ADMITTING THE RECORDING OF THE 911 CALL PLACED BY NIXON AND TADLOCK AFTER THE SHOOTING X. CONCLUSION XI. CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES STATE CASES Clark v. State, 756 So.2d 730 (Miss. 1999) Croft v. State, 992 So.2d 1151 (Miss. 2008) Dickerson v. State, 175 So.3d 8 (Miss. 2015) Gore v. State, 37 So.3d 1178 (Miss. 2010) Harrell v. State, 134 So. 3d 266 (Miss. 2014) , 8 Hunter v. State, 684 So. 2d 625 (Miss. 1996) Kolberg v. State, 829 So. 2d 29 (Miss. 2002) Veazy v. State, 113 So. 3d 1226 (Miss. 2013) Walker v. State, 913 So.2d 198 (Miss. 2005) STATUTES Miss. Const. art.3, OTHER M.R.E M.R.E iii

5 IN THE COURT OF APPEALS IN THE STATE OF MISSISSIPPI DAYLON WALDROP APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF ASSIGNMENT This case is properly assigned to the Mississippi Court of Appeals. STATEMENT OF THE ISSUES Issue I: Issue II: The jury was not fully instructed on the essential elements of capital murder. The trial court erred in admitting the recording of the 911 call placed by Nixon and Tadlock after the shooting. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Forrest County, Mississippi, and a judgment of conviction entered against Daylon Waldrop for capital murder. (C.P. 183, R.E. 7). Following a jury trial on October 11-13, 2016, the Honorable Robert B. Helfrich, Circuit Judge, presiding, Waldrop was sentenced to a life sentence without the possibility of parole in the custody of the Mississippi Department of Corrections. (C.P. 183, R.E. 7). Waldrop timely filed his post trial motions for new trial and JNOV, which were denied by the trial court. (C.P. 186, 196, R.E. 9, 19). Waldrop is presently incarcerated and appeals to this honorable court for relief. 1

6 STATEMENT OF THE FACTS Waldrop was convicted of capital murder for killing Robert Bobby Williams during the commission of the robbery of Williams, his girlfriend KC Nixon, and Williams s roommate Mitchell Tadlock. Nixon testified that on August 1, 2013, she was with Williams at his house in Hattiesburg. (Tr. 231). Williams s bedroom was on the second floor of the house, and he had several roommates. (Tr. 232). Around 10:30 p.m., Nixon heard a knock at the bedroom door. Assuming it was one of Williams s roommates, she opened the door. (Tr. 233). She saw three black men, all pointing guns at her, all with their faces covered. (Tr. 233). Williams was already asleep, but he woke when Nixon screamed. (Tr. 233). The men yelled repeatedly, Where is it? (Tr. 234). Nixon was afraid and tried not to look at the men. (Tr. 235). The men forced Nixon and Williams downstairs and directed them to Tadlock s bedroom. (Tr. 235). They forced Williams to knock on Tadlock s door, which was closed and locked. (Tr ). Tadlock, a known drug dealer, was slow to come to the door, even though Williams kept telling Tadlock that he had visitors. (Tr. 238). Tadlock finally opened the bedroom door, and immediately slammed it shut. (Tr. 239). One of the men shot the door twice. (Tr. 239). The men then ordered Williams to open the door and made Williams and Nixon walk into Tadlock s room. (Tr. 239). Once inside the room, Nixon hurried to find a safe spot to take cover. (Tr. 240). When she walked past Tadlock, she saw that he had a gun in his hand, hanging by his side. (Tr. 240). One of the men yelled out that he saw a gun, and all three men scurried out of the bedroom. (Tr ). Nixon testified that there was chaos, and she could hear the men trying to get out of the house. (Tr. 241). In the midst of the chaos, Williams told Tadlock to give him the gun. (Tr. 242). Williams exchanged fire with one of the men. (Tr. 242). When the gunfire stopped, Nixon looked up to check 2

7 on Williams. (Tr. 242). He had been shot and was still facing out into the hallway. Williams moaned, stepped back, then fell to the floor. (Tr. 243). Nixon told Tadlock to call 911, and she started CPR. (Tr. 243). Nixon was able to give vague descriptions of the three men who came into the house small to medium build, black males, wearing dark clothing and covering their faces. (Tr. 273). Nixon could not identify anyone who was at the house that night. (Tr. 277). Tadlock testified he woke up around 10:30 that night when Waldrop knocked on his door and told him he had a visitor. (Tr. 289). Tadlock got dressed and opened the door. He saw Nixon and Williams and the three men, who were dressed in black and had their faces covered. (Tr. 290). Tadlock testified that the man in the front was pointing a gun in his face. (Tr. 290). Tadlock slammed the door, then sat a jar with marijuana in it by the door. (Tr. 291). He grabbed his gun and laid down on the floor, waiting for the door to open. (Tr. 291). Williams opened the door and walked in with his hands above his head. (Tr. 291). Williams came over to Tadlock and told Tadlock to give him the gun. (Tr.291). Williams took a couple of steps with the gun and started firing. (Tr. 292). Like Nixon, Tadlock could not give a good description of the men and could not identify anyone involved. (Tr. 318). Tadlock testified that he never heard any of the men talk at all, and he never knew what they wanted. (Tr. 324). He thought it was a gang initiation. (Tr. 324). Derrick Bolton, who was indicted along with Waldrop and David Fairley for this crime, testified against Waldrop at trial. Bolton pled guilty to second degree murder and received a thirtyfive year sentence, with only twenty-two to serve. (Tr ). According to Bolton, the men got a tip that there were drugs and money in the house Williams and Tadlock lived in. (Tr ). They planned to rob them. Bolton called Fairley, and Bolton and Waldrop picked Fairley up and 3

8 drove to Williams s house. (Tr. 338). Bolton went to the door and opened it; Waldrop and Fairley went upstairs. (Tr. 338). Bolton heard screaming, so he ran upstairs. He heard Fairley ask, Where is it? (Tr. 338). Williams responded that it was downstairs in Tadlock s room. (Tr. 338). Fairley told Williams to show them which room. They had Williams knock on the door. Williams told Tadlock that there were people there to buy drugs. (Tr. 338). Tadlock opened the door and slammed it shut again. (Tr. 339). That s when Waldrop shot through the door. (Tr. 339). When Williams went into Tadlock s bedroom, Bolton looked into the room and screamed he s got a gun! (Tr. 339). Bolton ran from the house, followed by Fairley. (Tr. 339). They heard gunshots once they got outside and ran to their car. (Tr. 339). Waldrop caught up to them after a while. (Tr. 339). When he did, he was limping and talking about being shot. (Tr. 339). Waldrop told Fairley and Bolton that he shot and killed Williams. (Tr. 339). Once they got in their car, they realized that Waldrop only had a graze wound on his arm and had not been shot. (Tr. 340). They dropped the car off at Waldrop s uncle s body shop and split up. (Tr. 360). The crime scene investigators who collected evidence from Williams s house saw a small spot of blood on Tadlock s car, which was in the driveway. (Tr. 415). The spot of blood was compared to a known DNA sample from Waldrop, and it was determined to be Waldrop s blood. (Tr. 634). Fairley also testified against Waldrop after receiving the same deal from prosecutors as Bolton. (Tr. 548). Fairley s story differed in some ways from Bolton s version of events. However, he essentially corroborated Bolton s story. Fairley testified that Waldrop was the one who fired the shots into Tadlock s bedroom door. (Tr. 553). Bolton was the one who saw Tadlock s gun and both Bolton and Fairley ran out of the house. (Tr. 554). Waldrop was left behind, and Fairley heard gunshots as he and Bolton were running away. (Tr. 554). And Waldrop said he had been shot when 4

9 he caught up to Bolton and Fairley. (Tr. 555). Waldrop presented an alibi for the night of the murder. His mother, Laura Waldrop, testified that she and Waldrop drove to New Orleans that day to meet with Waldrop s parole officer. (Tr ). She testified that they left Hattiesburg in time to make it to his 2:00 p.m. appointment. (Tr. 683). Laura could not remember if she had reported to work that morning. (Tr. 683). They got home from New Orleans around dusk or dark. When they arrived home, Waldrop s girlfriend Kendall Sutton was there, along with Laura s two younger children. (Tr. 696). Bolton, who was living with the Waldrops at the time, was not home, and the family s Dodge Magnum was also gone. (Tr. 696). According to Laura, the family would have eaten supper, watched television or played video games before bed. (Tr. 697). Sutton testified for Waldrop, too. She testified that Laura and Waldrop went to New Orleans that day. When they got home, Waldrop stayed home with her. (Tr. 752). Bolton was not there at the time. (Tr. 752). Finally, Waldrop testified on his own behalf. He gave the same version of events as his mother. He could not remember what time they got home that day. (Tr. 769). Bolton was not home when they got back. And he did not go anywhere once they got home. (Tr. 770). Waldrop denied that he was ever in Williams s house and testified he had no knowledge of Bolton and Fairley going there to rob him. (Tr. 773). SUMMARY OF THE ARGUMENT Waldrop was convicted of capital murder for killing during the course of a robbery. While the jury was instructed that they had to find that Waldrop killed Williams while in the commission of a robbery, the record in this case shows that the jury was never instructed on the elements of robbery. Although neither the State nor Waldrop objected to the omission of a robbery instruction, 5

10 it is the responsibility of the trial court to ensure the jury is fully instructed on all essential elements of the crime charged. Waldrop submits this error deprived him of due process and his fundamental right to a jury trial, which is protected by the United States and Mississippi Constitutions. Further, the Mississippi Supreme Court has held that it is always reversible error when the trial court fails to instruct the jury on the essential elements of an offense. The only remedy is reversal and remand. Additionally, the trial court erred in allowing the State to introduce a recording of the 911 call Nixon and Tadlock made immediately after the shooting. Waldrop objected to the evidence on the grounds that it was irrelevant, inflammatory, cumulative, and more prejudicial than probative. The recording had no evidentiary value and only served to appeal to the emotions of the jurors. It was error for the trial court to allow the recording into evidence, and Waldrop submits that it requires this Court reverse his conviction and remand his case for a new trial. ARGUMENT Issue I: The jury was not fully instructed on the essential elements of capital murder. Waldrop s fundamental right to due process was violated when the trial court failed to instruct the jury on all the essential elements of capital murder, including the elements of armed robbery. Waldrop was indicted for capital murder with the underlying felony of armed robbery. The indictment against Waldrop alleged that he: (C.P. 15).... in Forrest County, Mississippi, on or about August 1, 2013, did then and there willfully, unlawfully and feloniously, and with or without any design to effect the death, kill and murder Robert Williams, a human being, while in the commission of the crime and felony of Robbery with a deadly weapon, as defined by Section , Mississippi Code of 1972, as amended, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi. Mississippi Code Annotated section (2)(e) defines capital murder as a killing without 6

11 the authority of law done with or without any design to effect death, by any person engaged in the commission of the crime of... robbery... or in any attempt to commit such felonies[.] Armed robbery is defined in Mississippi Code Annotated section , which makes it a felony to take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon.... Robbery has three essential elements: (1) felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means taking and carrying away the property of another from his person or in his presence. Croft v. State, 992 So.2d 1151, 1157 (Miss. 2008) (quoting Walker v. State, 913 So.2d 198, 223 (Miss. 2005)). Armed robbery requires the additional element of exhibition of a deadly weapon. Clark v. State, 756 So.2d 730, 732 (Miss.1999). Veazy v. State, 113 So. 3d 1226, 1229 (Miss. 2013). which stated: The jury was instructed on the elements of capital murder in the State s instruction S-1, If you find from the evidence in this case beyond a reasonable doubt that: 1. On or about August 1, 2013 in Forrest County, Mississippi; 2. That Robert Williams was a human being; 3. That DAYLON WALDROP with or without any design to effect death and without authority of law, Daylon Waldrop did kill Robert Williams; 4. While Daylon Waldrop was engaged in the commission of the crime of robbery, then you shall find the defendant guilty as charged. (C.P. 171). There are no other elements instructions in the record. Neither the State nor Waldrop offered an instruction on the elements of robbery. However, the supreme court has held that the procedural bar does not apply when the trial court has failed to properly instruct the jury on the essential elements of the crime. Harrell v. State, 134 So. 3d 266, 7

12 270 ( 14) (Miss. 2014) (citing Kolberg v. State, 829 So. 2d 29, 46 (Miss. 2002)). Rather, the supreme court has recognized that it is the responsibility of the trial court to assure that the jury is fully and properly instructed on all issues of law relevant to the case. Id. (quoting Kolberg, 829 So. 2d at 46). While the trial court is responsibility for instructing the jury, even sua sponte, the State also bears the responsibility for assuring the jury is instructed on the essential elements of the crime. Id. (citing Hunter v. State, 684 So. 2d 625, 635 (Miss. 1996)). Harrell is indistinguishable from the facts in this case. In Harrell, the State failed to request an instruction on robbery as the underlying felony of capital murder. The defense did not object or offer an instruction on robbery, and the trial court failed to instruct sua sponte. In Harrell, the supreme court overruled its holding in Kolberg to the extent that Kolberg allowed the appellate court to apply a harmless error analysis to cases where the jury has not been instructed on the elements of a crime. Id. at 271 ( 18). The supreme court held that allowing the court to engage in a harmless error analysis violates Section 31 of the Mississippi constitution, which provides, The right of trial by jury shall remain inviolate. Id. (citing Miss. Const. art.3, 31). In overruling Kolberg, the supreme court stated, We hold that it is always and in every case reversible error for the courts of Mississippi to deny an accused the right to have a jury decide guilt as to each and every element of a crime charged. Id. at 275 ( 30) (emphasis added). Because the jury in this case was never instructed on the elements of armed robbery, which is an essential element of the capital murder charge, Waldrop s fundamental right to a jury trial was violated. Accordingly, his conviction and sentence should be reversed and his case remanded for a new trial. Issue II: The trial court erred in admitting the recording of the 911 call placed by Nixon and Tadlock after the shooting. This Court will not reverse a conviction based on the trial court s admission or exclusion of 8

13 evidence unless the judge has abused his discretion and thereby caused prejudice to the accused. Gore v. State, 37 So.3d 1178, 1183 ( 13) (Miss. 2010) (citations omitted). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Dickerson v. State, 175 So.3d 8, 20 ( 40) (Miss. 2015) (quoting M.R.E. 401). But, a trial court may exclude evidence where the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Id. (quoting M.R.E. 403). Rule 403 of the Mississippi Rules of Evidence states: The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. In this case, the State introduced a recording of the 911 call placed immediately after the shooting. In the recording, Williams can be heard moaning as Nixon and Tadlock ask for an ambulance. Nixon can be heard counting compressions as she performed CPR, crying, and yelling that she thought Williams had a pneumothorax. (Exhibit 6). Waldrop objected to the recording being entered into evidence, arguing that the recording had no evidentiary value, was not probative of any fact in issue, and was not relevant or material to the case. (Tr ). Waldrop argued the recording was irrelevant, immaterial, highly prejudicial, and highly inflammatory. (Tr. 332). Rule 401 of the Mississippi Rules of Evidence set out the test for relevant evidence as follows: Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the case. MRE 401. Irrelevant evidence is not admissible. MRE 402. The recording in this case is prejudicial and inflammatory. It has no probative value and does not make any fact more or less probable. The recording appeals to the emotions of the jurors, who 9

14 can hear Nixon s urgent tone, Williams s moaning, and Nixon administering CPR and yelling that Williams had stopped breathing. It does not make it more or less likely that Williams was murdered or that Waldrop, Fairley, and Bolton broke into the house to rob them and killed Williams in the process. (C.P. 191). The State responded to this issue in Waldrop s motion for new trial, arguing: A substantial portion of the Defendant's case was questioning K.C. Nixon about her inability to see the Defendant, yet her Suspect Identification Form(s) all stated the three intruders/murders [sic] were black males. This 911 call gave a present sense impression of K.C. Nixon and Mitchell Tadlock. It allowed the jury to hear K.C. Nixon's general description of the defendants, the number of defendants, her state of mind, etc a mere moment after being subjected to this horrific crime. In essence, this call was far more probative than prejudicial, and was deemed such by the trial judge. Mississippi Rule of Evidence 803 governs exceptions to the rule that hearsay is not admissible. The rule allows hearsay that reflects a present sense impression, which the rules describe as [a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. MRE 803. Waldrop did not object on the grounds that the recording was hearsay. Even if the recording is excepted from the rule against hearsay, the party seeking its admission must first show that the evidence is relevant. Further, Nixon and Tadlock both testified that there were three black males, wearing dark clothing, who left immediately after shooting. The recording, which is cumulative to their testimony, has no probative value and only served to appeal to the emotions of the jurors. The facts that needed to be decided by the jury in this case were whether Waldrop shot and killed Williams during the course of a robbery. The jury was not tasked with deciding whether Nixon and Tadlock called 911 or whether Nixon performed CPR, which are essentially the only facts that are more or less probable after listening to the recording. 10

15 Because the trial court erred in admitting the recording of the 911 call in this case, Waldrop respectfully requests this honorable Court reverse his conviction and sentence and remand his case for a new trial. CONCLUSION Waldrop submits that based on the propositions cited and briefed above, together with any plain error noticed by this Court which has not been specifically raised but may appear to the Court on a full review of the record, the judgment of the trial court and Waldrop s convictions and sentences should be reversed and the indictment against him should be dismissed. DAYLON WALDROP, APPELLANT Respectfully submitted, BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel 11

16 CERTIFICATE OF SERVICE I, Mollie M. McMillin, Counsel for Daylon Waldrop, do hereby certify that on this day I electronically filed the forgoing BRIEF OF THE APPELLANT with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Jason L. Davis Attorney General Office Post Office Box 220 Jackson, MS Further, I have this day caused to be mailed electronically or via United States Postal Service, First Class postage prepaid, a true and correct copy of the above to the following non- MEC participants: Honorable Robert Helfrich Circuit Court Judge Post Office Box 309 Hattiesburg, MS Honorable Patricia Burchell District Attorney, District 12 Post Office Box 166 Hattiesburg, MS Daylon Waldrop, MDOC # South Mississippi Correctional Institution Post Office Box 1419 Leakesville MS This the 6th day of September BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel Mollie M. McMillin, MS Bar No

17 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: