IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI. v. No CA STATE OF MISSISSIPPI BRIEF OF APPELLANT PATRICK J. HIGGINS

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1 E-Filed Document Jun :01: CA Pages: 15 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI PATRICK J. HIGGINS APPELLANT v. No CA STATE OF MISSISSIPPI APPELLEE BRIEF OF APPELLANT PATRICK J. HIGGINS ON APPEAL FROM THE CIRCUIT COURT OF WARREN COUNTY NO. 12,0030CI DAVID NEIL MCCARTY Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, MS T: E: dnmlaw@gmail.com W: GRAHAM P. CARNER Miss. Bar No GRAHAM P. CARNER, PLLC 771 N. Congress Street Jackson, MS T: E: graham.carner@gmail.com SAGE EGGER HARLESS Miss. Bar No SAGE EGGER HARLESS, ATTORNEY AT LAW, PLLC 416 East Amite Street Jackson, MS T: F: E: sage@harlesslawfirm.com

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI PATRICK J. HIGGINS APPELLANT v. No CA STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS Pursuant to Miss. R. App. P. 28(a)(1), 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 and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal: 1. Patrick J. Higgins, Appellant 2. The Honorable M. James Chaney, Jr., Warren County Circuit Court 3. Sage Egger Harless of SAGE EGGER HARLESS, ATTORNEY AT LAW, PLLC, David Neil McCarty of DAVID NEIL MCCARTY LAW FIRM, PLLC, and Graham P. Carner of GRAHAM P. CARNER, PLLC, Counsel for the Appellant 4. The State of Mississippi, Appellant 5. Alison Elizabeth O Neal of the OFFICE OF THE ATTORNEY GENERAL, Counsel for the Appellee 6. Malissa Wilson (Winfield) and Roger Googe of the OFFICE OF THE ATTORNEY GENERAL, Trial Counsel for the Appellee So CERTIFIED, this the 1st day of June, Respectfully submitted, s/ Sage Egger Harless Sage Egger Harless Miss. Bar No Attorney for Appellant i

3 TABLE OF CONTENTS Certificate of Interested Persons...i Table of Contents.....ii Table of Authorities...iii Statement of the Issues.1 Statement of the Case...1 Relevant Facts and Procedural History....1 Summary of the Argument...3 Standard of Review..3 Argument Issue I...4 Issue II Conclusion...8 Certificate of Service.11 ii

4 TABLE OF AUTHORITIES CASES Higgins v. State, 95-KA COA (Miss. Ct. App. 1994)..1 Starcher v. Byrne, 687 So.2d 737, 739 (Miss. 1997)...3 Est. ex rel. Campbell v. Calhoun Health Services, 66 So. 3d 129, 133 (Miss. 2011).4 Durham v. State, 74 So. 3d 908 (Miss. Ct. App. 2011) 5,6 Patterson v. New York, 432 U.S. 197 (1977))...7,8 Mullaney v. Wilbur, 421 U.S. 684 (1975))...7 In re Winship, 397 U.S. 358 (1970))...7 Morissette v. U.S., 342 U.S. 246 (1952))...7 State v. Merriweather, 625 S.W.2d 256 (Tenn. 1981)..7,8 STATUTES AND RULES Miss. Code Ann ,4,5 Miss. Code. Ann Miss. Code. Ann Miss. Code Ann Miss. Code. Ann Miss. Code Ann ,4,5,6 M.R.E. 404(b) ,8 iii

5 Statement of the Issues I. The Statutory Presumption of Fraudulent Intent Does Not Apply. II. Highly Prejudicial Evidence was Improperly Considered in Weighing Plaintiff s Credibility. Statement of the Case The plaintiff in this case was wrongfully convicted and imprisoned for more than four years. After 50 months of incarceration, Patrick J. Higgins won his freedom when the Mississippi Court of Appeals declared that the evidence against him was insufficient to support a finding of guilt. See Higgins v. State, 95-KA COA (Miss. Ct. App. 1994) (unpublished opinion); R. at When the Mississippi Legislature authorized actionable claims for wrongful conviction and imprisonment, Mr. Higgins filed this lawsuit against the State of Mississippi, seeking compensation for the years he had lost. The only issue at trial was whether Mr. Higgins had the requisite intent to commit the crimes for which he was wrongfully convicted. Relying on an improper statutory presumption of guilt, and highly prejudicial and inadmissible evidence, the trial judge ruled in favor of the defendant. Although the State had failed to prove its case against Mr. Higgins, the court found that his years of imprisonment were worth nothing. From that ruling, Mr. Higgins timely appealed. Relevant Facts and Procedural History Following a 1994 jury trial, Mr. Higgins was found guilty of three felony charges of issuing bad checks in violation of Mississippi Code section (1993). Mr. Higgins appealed, and a unanimous Court of Appeals reversed the convictions and sentences. Finding that the State had failed to present sufficient evidence of guilt, the Court of Appeals rendered judgment in favor of Mr. Higgins. See Higgins v. State, 95-KA COA (Miss. Ct. App. 1994) (unpublished opinion); R. at The mandate ordering Mr. Higgins release was issued 1

6 on August 10, Mr. Higgins had been imprisoned for 50 months for alleged criminal acts that the State failed to prove. In 2009, the Mississippi Legislature declared that innocent persons who have been wrongly convicted of felony crimes and subsequently imprisoned have been uniquely victimized, have distinct problems reentering society, and should be compensated. Miss. Code. Ann To further this goal, the Legislature established the right to file a civil suit against the State, embodied as an actionable claim for wrongful conviction and imprisonment.... Miss. Code. Ann (1). If one proved wrongful conviction, the Legislature would compensate those years lost to unjust incarceration: In light of the particular and substantial horror of being imprisoned for a crime one did not commit, the Legislature intends by enactment of the provisions of this chapter that innocent people who are wrongfully convicted be able to receive monetary compensation. Miss. Code. Ann The law allowed people who were convicted and released before 2009 to file suit until Miss. Code. Ann (1). Mr. Higgins timely filed suit against the State, seeking compensation for the 50 months he had been wrongfully imprisoned. Before trial, the attorneys on both sides agreed that all preconditions to recovery were met except for one: whether Patrick was entitled to recover under the wrongful conviction law, which required that he prove by a preponderance of the evidence that he either did not write the checks in question with an intent to defraud. During the trial, the State was allowed to present highly prejudicial, yet irrelevant, evidence, on which the trial judge relied in denying Mr. Higgins requested relief. The court also adopted the Legislature s statutorily imposed presumption of fraudulent intent, even though our appellate courts have ruled such a presumption constitutionally impermissible. 2

7 Summary of the Argument For two reasons, the case should be reversed and judgment rendered in favor of Patrick Higgins. First, when rendering judgment in favor of the State and against Mr. Higgins, the trial court applied the statutory presumption of guilt found at Mississippi Code section Such mandatory presumptions are unconstitutional, and the Court of Appeals has declared that section is an improper shifting of the burden of proof. Durham v. State, 74 So. 3d 908 (Miss. Ct. App. 2011). Because the trial court gave credence to this presumption, the judgment must be reversed. Second, the trial court judged Mr. Higgins credibility largely on inadmissible and highly prejudicial evidence. Contrary to the Mississippi Rules of Evidence, the State was allowed to introduce evidence of other bad acts in order to show that he acted in conformity therewith. M.R.E. 404(b). Because the trial court relied on this evidence to find that Mr. Higgins had committed the crimes for which he was wrongfully convicted, this also warrants reversal. Because the parties and the trial court agreed on the amount of compensation due Mr. Higgins, this Court should render judgment in favor of Mr. Higgins for that amount, plus the statutorily-mandated attorney fees and expenses. 1 Standards of Review The issues in this case hinge mainly on questions of law, and are therefore subject to de novo review. Starcher v. Byrne, 687 So.2d 737, 739 (Miss. 1997). Our standard for review is de novo in passing on questions of law. Id. 1 Subsection (2)(b) of Mississippi Code section provides that a plaintiff who has been wrongfully convicted and incarcerated is entitled to [r]easonable attorney s fees for bringing a claim under this chapter calculated at... twenty-five percent (25%) if the claim is appealed, plus expenses. These fees shall not be deducted from the compensation due the claimant, nor is counsel entitled to receive additional fees from the client for a claim under this section. 3

8 To the extent either point of error raises questions of fact, the Court utilizes the manifest error standard of review. Est. ex rel. Campbell v. Calhoun Health Services, 66 So. 3d 129, 133 (Miss. 2011). When reviewing a judgment from a bench trial, this Court employs the substantial evidence/manifest error rule. Id. (internal quotations and citations omitted). In other words, [t]he trial court s findings will be affirmed unless they are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. Id. (internal quotations and citations omitted). Argument I. The Statutory Presumptions of Knowledge and Fraudulent Intent Do Not Apply. Because the trial court applied the unconstitutional presumptions found in Mississippi Code section , the judgment should be reversed. Mr. Higgins was wrongfully convicted of passing three bad checks with fraudulent intent in The presumptions at issue here are found in Miss. Code Ann (1) which read, in 1993, as follows: As against the maker or drawer thereof, the making, drawing, issuing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence and create a presumption of intent to defraud and of knowledge of insufficient funds in, or on deposit with, such bank, corporation, firm or person, provided such maker or drawer shall not have paid the holder thereof the amount due thereon, together with a service charge not to exceed Thirty Dollars ($30.00), within fifteen (15) days after receiving notice that such check, draft or order has not been paid by the drawee. Both of the facts that Miss. Code Ann (1) permits to be presumed are elements of the crime of passing a bad check. The statute setting forth the elements of the crime, as it existed at the time of Mr. Higgins trial, stated: It shall be unlawful for any person with fraudulent intent to make, draw, issue, utter or deliver any check, draft or order to obtain money drawn on any bank, corporation, firm or person for the purpose of obtaining money, services or any article of value, or for the purpose of satisfying a preexisting debt or making a 4

9 payment or payments on a past due account or accounts, knowing at the time of making, drawing, issuing, uttering or delivering said check, draft or order that the maker or drawer has not sufficient funds in or on deposit with such bank, corporation, firm or person for the payment of such check, draft or order in full, and all other checks, drafts or orders upon such funds then outstanding.... Miss. Code Ann (1) (1993). In the final order, the trial court declared that Mr. Higgins must overcome the presumption under Miss. Code Ann (1). R. at 115. The opinion went on to find that because Mr. Higgins likely received the 15-day notices, his failure to pay the dishonored checks after receipt of notices is prima facie evidence of intent to defraud, thereby creating a presumption of intent to defraud that [he] failed to overcome. R. at 116. Yet, in 2011, the Mississippi Court of Appeals ruled that the presumptions found in Section were unlawful mandatory presumptions in the case of Durham v. State, 74 So. 3d 908 (Miss. Ct. App. 2011). In Durham, the defendant was convicted of four felony counts of passing bad checks. Id. at 909. While the defendant admitted to signing the checks as an officer of a corporation, one of his defenses was that when he wrote the checks he had no fraudulent intent, which, as shown above, is one of the elements of the crime charged. Id. at 911. Specifically, the defendant testified: I in no way when I wrote the checks and they were sent out... I in no way knew that we were going to end up with some people who didn t get paid. Id. at 914. The defendant was convicted at trial and appealed his conviction. The issue of intent and the interplay of Section was a chief focus of the Durham appeal. During the defendant s trial, the jury was issued a jury instruction that closely tracked the language of Section Id. at The crux of the instruction was that if the defendant received the statutory notice and did not pay the checks in full within 15 days, it was to be presumed that he had a fraudulent intent at the time that he wrote the checks. Id. The defendant in Durham attacked the jury instruction, and thus the statutory presumptions, as 5

10 shifting the burden of proof and requiring that certain inferences be drawn in favor of the State. Id. at 912. In response to the defendant s argument, the State countered that the statute and jury instruction at issue does not require the jury to presume any facts; rather, it merely creates a permissible inference. Id. The Court of Appeals disagreed with the State s contention, and ruled that Miss. Code Ann creates an impermissible mandatory presumption. Id. at 912. In doing so, the Court of Appeals surveyed precedent from several other jurisdictions, all of which reached the same conclusion: statutes such as Miss. Code Ann create unlawful mandatory presumptions and can have no effect. See id. at The Court of Appeals summarized its reasoning: In the present case, the issue of intent was a crucial element of the crime, and there were numerous references made by the state at trial in regard to section (1) s fifteen-day requirement. Id. at 914. The Court then excerpted the State s closing argument, which echoes the position of the State in this case: And the law said he just instructed you on this. If you don t pay it within fifteen days, which [Durham] admitted he got the notice, then there s a prima facie case that you had the intent to defraud. Prima facie you may assume that. It s a prima facie case. There s an assumption. Id. Because the issue of intent was so crucial to the case but the State was allowed the benefit of an improper mandatory presumption on that very issue, the Court of Appeals reversed the conviction and remanded the case for a new trial. Id. at Intent was crucial to this case as well. Higgins presented evidence that he had no intention of defrauding Southern Lock when he wrote the checks. The State should not have been permitted in any way to use the Miss. Code Ann s presumption of fraudulent intent. That presumption is illegal and should not have been considered by the trial court. Reliance on this statute is in direct conflict with the well-settled principle that mandatory 6

11 presumptions, even rebuttable ones, are unconstitutional when the presumed fact is an element of the crime charged. See e.g., Patterson v. New York, 432 U.S. 197 (1977); Mullaney v. Wilbur, 421 U.S. 684 (1975); In re Winship, 397 U.S. 358 (1970). As the United States Supreme Court affirmatively declared in Winship, 397 U.S. 358, Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. The Supreme Court reaffirmed this axiom in Mullaney v. Wilbur, 421 U.S Addressing the elements of heat-of-passion homicide, the Court noted that although intent is typically considered a fact peculiarly within the knowledge of the defendant, this does not, as the Court has long recognized, justify shifting the burden to him. The Court went on to conclude [t]he result, in a case such as this one where the defendant is required to prove the critical fact in dispute, is to increase further the likelihood of an erroneous [criminal] conviction. Id. In Patterson, 432 U.S. 197, the Supreme Court made clear that it is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime. (internal citations omitted). Patterson echoed what the Court had declard years earlier in Morissette v. U.S., 342 U.S. 246 (1952): Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury. In other words, Whether that intent existed, the jury must determine, not only from the act of taking, but from that together with defendant s testimony and all of the surrounding circumstances. See also State v. Merriweather, 625 S.W.2d 256 (Tenn. 1981) (reversing conviction under statutory bad check scheme similar to that in Mississippi, where the trial judge instructed the jury using only the statutory text and provided no other explanation of the law and the interplay of bad check laws with constitutional principles). 7

12 Simply put, presumptive intent has no place in this case. Patterson, 432 U.S Because the trial court relied on the presumptions found in Section , the judgment should be reversed. II. Highly Prejudicial Evidence was Improperly Considered in Weighing Plaintiff s Credibility. Because the trial court relied on inadmissible, prejudicial evidence to determine whether Mr. Higgins possessed fraudulent intent, the judgment must be reversed. Over Higgins objection, the State was allowed to admit evidence that Higgins had pled guilty to this unrelated crime. The trial court subsequently relied on this evidence to conclude that he acted in conformity therewith, when he wrote the checks in See M.R.E. 404(b). In its order, the trial court concluded that Higgins cannot withstand attacks on his character for truthfulness, and immediately thereafter noted that [i]n 2011, Higgins pled guilty to Theft by Deception. R. at In other words, the trial court used the 2011 guilty plea to conclude that Higgins was in fact guilty of the 1993 allegations. Rule 404(b) of the Mississippi Rues of Evidence clearly states that [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. The fact that Mr. Higgins pled guilty to a crime involving fraud nearly two decades after the crimes in question is the very type of evidence Rule 404(b) prohibits. The trial court should not have considered the 2011 guilty plea as evidence of Mr. Higgins intent to defraud Southern Lock in The trial court made other factual determinations that were not in line with the evidence presented at trial. For example, the order repeatedly referred to Mr. Higgins earning $20, in payments during the two weeks prior to him signing the subject checks. R. at However, his testimony at trial was that he had grossed just $10,000 in that two week period. Tr

13 Also, in passing on Mr. Higgins credibility, the trial court noted that during the criminal trial, Higgins pointed the finger at his wife, knowing the State could not call her to testify, claiming she signed the checks in order to procure a divorce. R. at 112. The only evidence adduced at trial that he had once claimed his wife signed the checks was a notation on a hand-written letter. With counsel s stringent objections, the letter was not introduced into evidence, but it appears from the Opinion and Order that the trial court relied on this letter when making its findings of fact. In sum, Mr. Higgins testified that he did not intend to defraud Southern Lock when he wrote the checks, but the trial court found otherwise. Because this finding of fact was based on inadmissible, prejudicial evidence, misstatements of fact, or evidence that was never properly before the court, the judgment must be reversed. Conclusion For two core reasons this case must be reversed and judgment rendered in favor of Mr. Higgins. The trial court first erred when it applied the presumption of guilt found in Mississippi Code section The fact-finder s second error was to rely on inadmissible, highly prejudicial evidence when judging Mr. Higgins credibility. Because Mr. Higgins testimony established that he did not intend to defraud the drawee, the only element of the crime in question, he met his burden of proof and is entitled to compensation under the MCC. As a result, this case should be REVERSED and judgment RENDERED in favor of the Appellant, awarding him compensation, attorneys fees and expenses. 9

14 Respectfully submitted, this the 1st day of June, s/ Sage Egger Harless Sage Egger Harless Miss. Bar No SAGE EGGER HARLESS, ATTORNEY AT LAW, PLLC 416 East Amite Street Jackson, Miss. T: F: E: DAVID NEIL MCCARTY Miss. Bar No DAVID NEIL MCCARTY LAW FIRM, PLLC 416 East Amite Street Jackson, Miss T: E: W: GRAHAM P. CARNER Miss. Bar No GRAHAM P. CARNER, PLLC 771 N. Congress Street Jackson, Mississippi T: E: 10

15 CERTIFICATE OF SERVICE I, Sage Egger Harless, certify that I have served a copy of the above and foregoing document to the following via filing with the MEC electronic filing system: Ms. Muriel Ellis, Clerk MISSISSIPPI SUPREME COURT Attorney for Appellee Alison Elizabeth O Neal OFFICE OF THE ATTORNEY GENERAL And have further provided paper copies via U.S. Mail to the following: The Trial Court Honorable M. James Chaney, Jr. Warren County Circuit Court P.O. Box 351 Vicksburg, MS On June 1, s/ Sage Egger Harless SAGE EGGER HARLESS 11