IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Nov :53: KA COA Pages: 12 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JULIUS BENDER APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: BILLY L. GORE 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 CASE STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT BENDER S APPEAL IS DEVOID OF ARGUABLE ISSUES. ACCORDINGLY, BOTH HIS CONVICTION AND SENTENCE SHOULD BE FORTHWITH AFFIRMED CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES STATE CASES Lindsey v. State, 939 So.2d 743 (Miss. 2005)... 1, 2, 7 Rushing v. State, 195 So.3d 760 (Miss. 2016)... 2 STATE STATUTES Miss. Code Ann , 7, 8 ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JULIUS BENDER APPELLANT VERSUS NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE Following a trial by jury held on February 23, 2017, forty (40) year old Julius Bender was convicted in the Circuit Court of Jasper County, Eddie H. Bowen, circuit judge, presiding, of firearm possession as a convicted felon. of the MDOC. inter alia, that Bender was sentenced as a non-violent habitual offender to serve ten (10) years in the custody The appellate brief filed by Ms Mollie McMillin, learned counsel for the appellant, states,... Appellant hereby represents to the Court pursuant to Lindsey v. State, 939 So.2d 743 (Miss. 2005) that counsel [for the Appellant] has diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the Court on Mr. Bender s behalf in good faith for appellate review, and upon conclusion, has found none. (Brief of the Appellant at 2) According to Bender s Statement of Counsel, [t]he matters considered, reviewed and included in counsel s search were: (a) the reason for the arrest and circumstances surrounding the arrest of Bender; (b) any possible violations of Bender s right to counsel; (c) the entire trial transcript and contents of the record; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence 1

5 or not; (h) possible misapplication of the law in sentencing; (i) the indictment and all of the pleadings in the record; (j) any possible ineffective assistance of counsel issues; (k) whether the verdict was supported by the overwhelming weight of the evidence. Ms. McMillin states [t]here are no issues that counsel can in good faith present to the Court in this appeal. (Brief of the Appellant at 3) Stated differently, appellate counsel is unable to argue, in good faith, any prejudicial error. Appellate counsel has followed with great skill and expertise the procedure articulated in Lindsey v. State, 939 So.2d 743 (Miss. 2006), and finds no arguable issues in the record. (Brief of the Appellant at 2) In finding in good faith no arguable issues, i.e., those issues that could be supported by fair argument, lawyer McMillin identified no fewer than eleven (11) different matters considered and reviewed after diligent research. (Brief of the Appellant at 3) Counsel s brief statement of the facts reflects that Mr. Bender is hopelessly guilty. Ms McMillin s final conclusion is that [t]here are no issues that counsel can in good faith present to this Court in the appeal on this matter. (Brief of the Appellant at 3) We wholeheartedly concur. See, however, Rushing v. State, 195 So.3d 760 (Miss. 2016) [Supreme Court upon review, did discover an arguable issue but affirmed, nevertheless, appellant s conviction of methamphetamine possession.] STATEMENT OF FACTS On February 23, 2017, a Jasper County petit jury returned the following unanimous verdict: We, the jury, find the defendant [Julius Bender] guilty of being a convicted felon in possession of a firearm. (R. 133; C.P. at 63) Following a bifurcated hearing Judge Bowen adjudicated Bender a habitual offender by virtue 2

6 of Miss. Code Ann and sentenced him to serve ten (10) years in the custody of the MDOC as a non-violent habitual offender. (R ) Appellee respectfully defers to Ms McMillin s statement of the facts - two (2) pages of who did what to whom - which we accept as both accurate and fair. (R. 1-2) One (1) witness testified for the State during its case-in-chief, Bay Springs patrolman Eric Winfrey, who testified, in part, as follows: Q. [BY PROSECUTOR SMITH:] I want to direct your attention back to April 26 th of Were you employed with the city of Bay Springs Police Department at that particular time? A. [BY WINFREY:] Yes, sir, I was. Q. And what was your position at that time? A. I was a patrolman. Q. On April 26 th, 2014, did you happen to come in contact with Mr. Bender? A. Yes, sir, I did. Q. And would you please tell the Court the events that transpired for you to come in contact with Mr. Bender on that particular day? A. That day we received a call of shots being fired on Richards Street, which is in the city limits and in the Second Judicial District. Once we got on that street we made contact with Ms. Michelle Cole. She advised that the green car that was involved in that shooting was at the base of the hill and had not come out yet. So we went to the base of the hill. We made contact with that vehicle. And beside that vehicle was standing Mr. Larry Simmons, which I have been friends with Mr. Simmons for quite a few years and also charged him with possession of a controlled substance a few years back. I asked him did he have anything to do with the shooting. He advised - - MR. ULMER: Objection to what Mr. Simmons told him. THE COURT: You can t testify as to what somebody told you. Now that s hearsay. Sustained. 3

7 Q. What did you observe when you got there? We understand that you saw Mr. Simmons. What else did you observe whenever you arrived? A. A green car, the driver of the vehicle trying to back the car out, but he couldn t get it out. Q. Okay. So you came in contact with Mr. Bender at that particular point? A. Yes, sir. Q. Didn t you say he was driving? A. Yes, sir. Q. During your conversation with Mr. Bender, tell the Court what transpired in your conversation with Mr. Bender on that particular day. A. I asked Mr. Bender to exit the vehicle. I placed Mr. Bender in handcuffs for officer safety. Because there was a gun involved, I wanted to make [sure] there was no gun because I couldn t see it by him sitting in the car. I told him he wasn t under arrest, but I wanted to make sure there was no gun. I asked him did he do shooting and he said, No, I didn t. They jumped me up on the side street and I didn t shoot. I said, Did you have a gun? He said no at first and then he said, I do have one. I m going to show you exactly where the gun was. It was placed in the car wrapped in a white towel. It was a black.38 with a laser sight on it. And I asked him again did you do any shooting and he said no. Q. Okay. Was the gun loaded? A. Yes, sir, it was. Q. Did you take it into your possession at that time? A. Yes, sir I did. * * * * * * Q. I m going to hand State s Exhibit 1 to you at this time. Do you recognize that particular firearm. A. Yes, sir, I do. Q. Is that the firearm you obtained from the defendant on April of 2014? 4

8 A. Yes, sir, it is. Q. Okay. And once you took it into your possession, what did you do with it at that particular time? A. Once we took it into my possession, I unloaded it and put it into the gun vault. We ran the gun to make sure it wasn t stolen and it came back as no record found. Q. And it s been under lock and key ever since that time? A. Yes, sir, that s correct. (R ) At the close of the State s case-in-chief, the defendant, via trial defense counsel, moved for a directed verdict on the ground [t]he gun that has been admitted we feel like it was admitted erroneously because just that it was under lock and key without saying where it was, I mean, who had access to it. It could have been substituted, anything done to it, We feel like it was erroneously admitted, which goes directly to the essential element of the crime of possession, which is proving the firearm was, in fact, the firearm involved in that case. We renew our objection we made previously to the motion to amend the indictment to habitual offender. (R. 83) Following argument by both litigants, the circuit judge overruled the motion for a directed verdict with the following observations. All right. Since the defendant did say that it was his gun, that proves that he was in possession of a firearm. The state proved that he was a prior felon by his certified exhibits. So the defendant s motion is hereby overruled. All right. We re going to go eat lunch. (R. 90) After being advised of his right to testify or to remain silent Bender, following an off-therecord discussion with his attorney, personally elected to take the stand in his own behalf. (R ) Bender testified he was forty (40) years of age and that on the date in question he... got jumped by the local gang of ten or more who fired shots into his motor vehicle. (R. 95) 5

9 Bender freely admitted the gun seized by Officer Winfrey was his gun. Q. [BY DEFENSE COUNSEL:] Now, when Officer Winfrey asked you about a gun, this collective exhibit with a towel around the gun? A. Yes, sir. Q. Is that your gun? A. Yes, sir, it is. Q. When did you with buy it, your best recall? A. Best of my memory, I think around Q. Tell me the circumstances about you buying this gun. A. Well, after I got off probation and to my knowledge, that didn t supposed to be useable on my record, so I wouldn t be a felon. And I went in the store and I seen a gun and I liked it. So actually, I never knew if that was correct or not, so I purchased a gun as a - - really to see if my record was clean or not. I did it legally. I had to pay for the gun. He told me they would do a background. He would notify me if I could pick it up. Two days, I called to check on my gun. He said, I ain t heard nothing, but we ll let you know. You don t have to call. The next day he called me and said everything come back. You re clear to pick your weapon up, and I ve had it ever since. I got a receipt for it now. Q. That night, did you shoot - - on April 26 th, 2014, did you shoot that gun? A. No, sir, I didn t. Q. Did you touch it. A. No, sir. It was in my car. I didn t touch it until they shot at me and I knew the police were coming. I got it. I thought about getting rid of it but, you know, I didn t want it to be in the scene, but the reason I give to the officer was because I didn t want it to come up in the wrong hands and it was mine anyway. (R ) Following closing arguments the jury retired to deliberate at a time not reflected by the record. It later returned with a verdict of guilty of being a convicted felon in the possession of a firearm. (R, 133) 6

10 A poll of the jury reflected the verdict was unanimous. (R ) At the close of the sentence-determination phase of the bifurcated trial on February 23 rd, Judge Bowen adjudicated Bender a habitual offender by virtue of Miss. Code Ann and sentenced him to serve ten (10) years in the custody of the MDOC. Bender later filed a motion for J.N.O.V. or, in the alternative, for a new trial on March 23, 2017, arguing, inter alia, the verdict was contrary to the evidence. (C.P. at 68) Judge Bowen overruled the motion on March 27, (C.P. at 74) Ms. McMillin has certified she mailed to Bender at his Kemper-Neshoba County Correctional Facility address, postage prepaid, a true and correct copy of this brief informing Julius Bender that counsel finds no arguable issues in the record and that Bender has a right to file a pro se brief. Appellee has no objection to counsel s request that the Court grant to Bender forty (40) days of additional time in which to file a pro se brief if he desires to do so. (Brief of the Appellant at 3) SUMMARY OF THE ARGUMENT We concur with the observations of appellate counsel that the present appeal is devoid of arguable issues supporting Bender s appeal. Lindsey v. State, supra, 939 So.2d 743, (Miss. 2005). Duncan, it appears, was hopelessly guilty of the crimes charged. ARGUMENT BENDER S APPEAL IS DEVOID OF ARGUABLE ISSUES. ACCORDINGLY, BOTH HIS CONVICTION AND SENTENCE SHOULD BE FORTHWITH AFFIRMED. Patrolman Eric Winfrey testified that Bender possessed a.38 pistol on the date and at the time testified about. See appellee s Statement of Facts. 7

11 Julius Bender, the defendant, testified he owned and possessed the firearm seized by Winfrey on the date and at the time testified about. See appellee s Statement of Facts. In the end, no reasonable and fairminded juror could have returned any verdict other than guilty. CONCLUSION Appellee concurs with the trained legal eye of Ms. McMillin, Bender s appellate counsel, there are no arguable issues in the record. We respectfully submit Bender is hopelessly guilty as a non-violent habitual offender of possession of a firearm by a convicted felon. No error, plain or otherwise, took place during the trial of this cause. The evidence does not preponderate in favor of Bender, and his appeal, for want of arguable and justiciable issues, has no appeal on appeal. Accordingly, the judgment of conviction of possession of a firearm by a convicted felon and the ten (10) year sentence as a non-violent habitual offender imposed by virtue of Miss. Code Ann should be forthwith affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ Billy L. Gore BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

12 CERTIFICATE OF SERVICE I, BILLY L. GORE, 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: HONORABLE MOLLIE M. McMILLIN Indigent Appeals Division Office of the 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: This the 14th day of November, HONORABLE EDDIE H. BOWEN Circuit Judge, District 13 P.O. Box 545 Raleigh, MS HONORABLE MATT SULLIVAN District Attorney, District Court Ave., Ste. 4, Mendenhall, MS JULIUS BENDER, Pro Se, #T3285 Kemper-Neshoba County RCF 374 Stennis Industrial Park Road De Kalb, MS OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO. (601) FAX NO. (601) /s/ Billy L. Gore BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL 9