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

Transcription

1 E-Filed Document Oct :52: KA COA Pages: 19 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI GREG A. FORTENBERRY APPELLANT VS. NO KA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: BARBARA BYRD 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 Issues Statement of the Case Statement of the Facts Summary of the Argument Argument I. The trial court did not abuse its discretion when it admitted photographs depicting the condition in which the murder victim s body was found, and the extent of his injuries II. III. The jury s verdict was not against the overwhelming weight of the evidence No error occurred in this case; therefore, cumulative error does not require reversal Conclusion Certificate of Service i

3 Table of Authorities State Cases Bennett v. State, 933 So.2d 930 (Miss. 2006) Blake v. Clein, 903 So. 2d 710 (Miss. 2005) Chamberlin v. State, 989 So. 2d 320 (Miss. 2008) Chase v. State, 645 So. 2d 829 (Miss. 1994) Cheatham v. State, 12 So. 3d 598 (Miss. Ct. App. 2009) Dampier v. State, 973 So.2d 221 (Miss. 2008) , 11 Dubose v. State, 919 So.2d 5 (Miss. 2005) Harris v. State, 970 So.2d 151 (Miss. 2007) Hodges v. State, 912 So.2d 730 (Miss. 2005) Holliday v. State, 455 So. 2d 750 (Miss. 1984) Jackson v. State, 684 So. 2d 1213 (Miss. 1996) Jones v. State, 920 So.2d 465 (Miss. 2006) Jordan v. State, 728 So.2d 1088 (Miss. 1998) , 9 Lynch v. State, 951 So.2d 549 (Miss. 2007) Manning v. State, 735 So. 2d 323 (Miss. 1999) McIntosh v. State, 917 So. 2d 78 (Miss. 2005) McNeal v. State, 551 So.2d 151 (Miss. 1989) , 9, 10, 11 Miller v. State, 740 So. 2d 858 (Miss. 1999) Scott v. State, 878 So.2d 933 (Miss.2004) Stevenson v. State, 733 So. 2d 177 (Miss. 1998) Stringer v. State, 131 So. 3d 1182 (Miss. 2014) Thompson v. State, 990 So.2d 265 (Miss. Ct. App. 2008) Walker v. State, 740 So. 2d 873 (Miss. 1999) Waterman v. State, 822 So. 2d 1030 (Miss. Ct. App. 2002) Williams v. State, 544 So.2d 782 (Miss.1987) Williams v. State, 684 So. 2d, 1179 (Miss. 1996) State Statutes Mississippi Code Annotated Mississippi Code Annotated Mississippi Code Annotated Mississippi Code Annotated Mississippi Code Annotated ii

4 Statement of the Issues I. The trial court did not abuse its discretion when it admitted photographs depicting the condition in which the murder victim s body was found, and the extent of his injuries. II. III. The jury s verdict was not against the overwhelming weight of the evidence. No error occurred in this case; therefore, cumulative error does not require reversal. Statement of the Case The Grand Jury of Pike County indicted Greg A. Fortenberry for Murder in violation of Mississippi Code Annotated , Conspiracy to Commit Murder in violation of Mississippi Code Annotated and , Third Degree Arson in violation of Mississippi Code Annotated , Conspiracy to Commit Third Degree Arson in violation of Mississippi Code Annotated and , and Possession of a Weapon (butcher knife) by a convicted felon in violation of Mississippi Code Annotated (Indictment, CP 5-8). After a trial by jury, Circuit Judge David H. Strong, Jr., presiding, Fortenberry was found guilty as charged. (CP 87). The trial court sentenced Fortenberry, as a habitual offender, pursuant to Mississippi Code Annotated (CP 98). The trial court sentenced Fortenberry to serve concurrent life sentences in the custody of the Mississippi Department of Corrections, without the possibility of parole, for each of his convictions. (CP 99). After denial of Fortenberry s Motion for New Trial, this instant appeal was timely noticed. (CP 115). 1

5 Statement of the Facts 1 In August of 2013, Kenneth Thompson s fourteen-year-old son, Blake Thompson, went missing. (TR 142). Kenneth Thompson looked for him for several days, on his own, before contacting the McComb Police Department to assist in his search. (TR ). Two days after he reported his son missing, Kenneth Thompson was reported missing by his fiance. (TR 143). His body was later discovered in a wooded area behind a house owned by Jasper Pittman, a former police officer. (TR 131 and 181). Law enforcement officers came to suspect that Blake was involved in the murder, along with 2 Lajerrious Perkins (a/k/a Moo ), and Greg Fortenberry (a/k/a Red ). (TR 144, 152, and ). People had seen Blake at Jasper s house during the time that his father was looking for him; and on the day of the murder, a witness had seen Perkins driving Thompson s vehicle at Edgewood Mall, and Blake and Fortenberry were with him. (TR , , , and 273). Fortenberry and Perkins were taken into custody by the McComb Police Department. (TR 145). And Blake was brought to the police department by Jasper Pittman. (TR ). When police interviewed Blake, he told them where his father s body was, and he eventually led officers to the body. (TR 147 and 212). Thompson s body was located in a wooded area behind Jasper Pittman s house. (TR 181). 1 The State has attempted to provide a concise statement of the facts. Extensive evidence was presented at trial, including a video of a three-hour interview with Fortenberry. (See Exhibit S-50). The video was not transcribed; however, this writer has attempted to summarize the information that was provided in the video. While the statement of facts covers most of what was presented at trial, additional facts will be presented, as necessary, in the argument section of this brief. 2 Jasper was not suspected to have participated in the murder because he was away at National Guard Drill when the murder occurred. (TR 226). He was charged with participating in crimes that occurred after the murder. (TR 226). 2

6 Although there was a partially-dug grave near Thompson s body, Thompson s body was found on the ground, covered with leaves and debris. (TR ). A blue t-shirt, and a shovel with a broken handle were recovered from the scene. (TR 183). When Thompson s body was uncovered, officers could see that he had a wound on the right side of his neck. (TR ). Investigators searched inside Pittman s home, and there were no indications that a crime had occurred there. (TR ). However, investigators searched through garbage bags and located multiple items of evidence including bloody rags, blood-covered clothing, and various items that had blood on them, that appeared to have belonged to the victim. (TR ). And investigators found four clean knives, including two butcher knives, in the kitchen sink. (TR 195). After investigators had collected evidence from Jasper s home, they were notified that Thompson s vehicle had been found in a nearby wooded area. (TR 201). The vehicle was located behind an abandoned house, and was burned beyond recognition. (TR and 252). Lance Falvey, of the Pike County Sheriff s Department, was the detective assigned to Thompson s missing person case. (TR ). Falvey received word that the missing-person case may have turned into a homicide case. (TR 210). He reported to the McComb Police Department, 3 and had a chance to speak with Fortenberry. (TR 226). The first time that Falvey spoke with Fortenberry was August 20, (TR 227). After he advised Fortenberry of his Miranda rights, Fortenberry waived his rights, but declined to sign the waiver. (TR and 235). In his initial statement, Fortenberry claimed that he did not kill Thompson. (TR 235). He claimed that he and Perkins were asleep at Jasper s home when the crime occurred. (TR 235). He admitted that he rode 3 Falvey spoke with Fortenberry five times. (TR 234). All of their interviews were recorded, and lasted over sixteen hours. (TR 234). To avoid having to show sixteen hours of interview footage, Falvey testified about what Fortenberry revealed during some of the interviews. 3

7 to town with Perkins and Blake, but denied that he committed any crime. (TR ). A couple of days later, on August 22, Fortenberry expressed that he wanted to speak to the detectives again. (TR 236). When Falvey had Fortenberry brought over to speak to him, Fortenberry presented an attorney s business card and told him that he wanted to call his attorney and have him present. (TR 236). After speaking with Fortenberry s attorney, Falvey stopped the interview. (TR 237). th At Fortenberry s preliminary hearing, which occurred on September 10, Officer Levey revealed to the court all of the information that had been uncovered so far in the investigation. (TR 237 and ).Two days after Fortenberry s preliminary hearing, he sent a note expressing that he wanted to talk again. (TR ). In this interview, Fortenberry claimed that Perkins committed the murder, but admitted that he was there with him. (TR 240 and 245). Fortenberry explained that Perkins flagged down Thompson to ask him to take them to the store, and that Thompson stopped for Perkins because Perkins and his siblings had grown up with Thompson s children. (TR ). Fortenberry and Perkins also knew that Thompson was looking for Blake, so they offered to tell him where he was in exchange for a ride. (TR 242). Fortenberry said that the real reason that they got into Thompson s truck was because they had a plan to kill him. (TR 245). th Fortenberry was interviewed again on September 20, after he sent a letter saying that he wanted to talk to the investigators again. (TR 246). In this interview, Fortenberry restated that Perkins stabbed Thompson. (TR 249). However, he maintained that he was part of the pre-planning, carrying out the murder, and the attempt to cover up the murder after the fact. (TR 249). He added that, after Thompson was murdered, Jasper came home and told them where they could take Thompson s truck: to his family s land that was nearby. (TR ). Jasper went to his neighbor s house to borrow a can of gas, put some of the gas in the truck that was using (that had run out of 4

8 gas), and saved the rest. (TR 250). Perkins and Fortenberry drove Thompson s truck to the place that Jasper had told them about. (TR 251). Fortenberry found something that they could light on fire, while Perkins splashed gasoline all over the truck. (TR 251). Fortenberry lit a receipt, and then started the fire. (TR 251). Perkins and Fortenberry took the gas can, and waited on Jasper to pick them up. (TR 252). At the end of this interview, he told detectives that he wanted to wait to tell the rest of what happened. (TR 253). On September 23rd, Fortenberry spoke to the detectives again. (TR ). During this interview, Fortenberry stated that he had lied about portions of his story in prior statements, but that everything he said was true, except what had happened in Thompson s truck. (Exhibit S-50). In this final interview, Fortenberry admitted that he (and not Perkins) stabbed Kenneth Thompson, that Blake and Perkins helped him carry the body to the woods, and restated that Jasper told him and Perkins where to discard and burn Thompson s truck. (Exhibit S-50). A video of this confession was admitted at trial, and was played for the jury. (Exhibit S-50). Summary of the Argument The trial court did not abuse its discretion when it admitted photographs that portrayed the scene where Kenneth Thompson s body was discovered, that portrayed the condition of Thompson s body, and that portrayed Thompson s mortal stab wound. Although defense counsel objected to some of the photos, he did not object to all of them, and some of his objections were sustained; therefore, there was either no error, or this issue was waived for appellate purposes. Furthermore, the photographs were not overly gruesome, and were necessary to (1) aid in describing the circumstances of the killing and the events that occurred after the killing; (2) to describe the location of the body 5

9 or cause of death; and (3) supplement and clarify witness testimony. The jury s verdict was not against the overwhelming weight of the evidence. Fortenberry confessed to committing the crimes, and evidence was presented that corroborated the facts he provided in his confession. It was the jury s duty to assess the credibility of the evidence and assign its weight. Based on the evidence that was presented, the jury was entitled to find that Fortenberry was guilty. Although Fortenberry claims that he is entitled to a new trial, based on cumulative errors, there were no errors in his trial. Therefore, there was no cumulative error. Reversal is not required, and his convictions should be affirmed. Argument I. The trial court did not abuse its discretion when it admitted photographs depicting the condition in which the murder victim s body was found, and the extent of his injuries. Fortenberry argues that he is entitled to a new trial because photographs portraying the victim s injury and the crime scenes were admitted at trial. (Appellant s Brief p. 13). Fortenberry specifically argues that the trial court abused its discretion when it admitted Exhibits S-6 through S-16 and S-56 through S-58, because he claims that the testimony that was offered at trial would have been more than sufficient to establish everything the state needed to prove in this case. (Appellant s Brief p ). He also claims that the sole purpose of admitting the photos was to inflame the emotions of the jurors. (Appellant s Brief p. 13). However, most of these photos were not gruesome, at all, and did not contain the victim s body. And all of the photos that were admitted into evidence (38 total) were necessary to corroborate the circumstances of the killing, to show where the victim s body was discovered, to show how the victim died, and to supplement the testimony of the witnesses who testified. The fact that the photos were difficult to view, or are 6

10 gruesome does not mean that the photos should have been excluded. See Stringer v. State, 131 So. 3d 1182, 1189 (Miss. 2014). The photographs provided evidentiary value and were more probative than prejudicial. For these reasons, the trial court did not abuse its discretion by admitting the photos. states: The exclusion of relevant evidence is governed by Mississippi Rule of Evidence 403, which Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. The standard of review for the admission of photographs was explained extensively by the Supreme Court in Chamberlin v. State, 989 So. 2d 320, 340 (Miss. 2008). The Court explained that Id. Admission of photographs by the trial court is reviewed for abuse of discretion. Dampier v. State, 973 So.2d 221, 230 (Miss.2008). A decision favoring admissibility will not be disturbed absent a clear abuse of that judicial discretion. Id. The discretion of the trial judge is almost unlimited... regardless of the gruesomeness, repetitiveness, and the extenuation of probative value. Id. (quoting Williams v. State, 544 So.2d 782, 785 (Miss.1987)). See also Bennett v. State, 933 So.2d 930, 946 (Miss.2006); Jones v. State, 920 So.2d 465, 476 (Miss.2006); McIntosh v. State, 917 So.2d 78, (Miss.2005); Dubose v. State, 919 So.2d 5, 11 (Miss.2005); Blake v. Clein, 903 So.2d 710, 728 (Miss.2005); Hodges v. State, 912 So.2d 730, 781 (Miss.2005). Some probative value is the only requirement needed in order to support a trial judge's decision to admit photographs into evidence. Jones, 920 So.2d at (quoting Jordan v. State, 728 So.2d 1088, 1094 (Miss.1998) (quoting Scott v. State, 878 So.2d 933, 985 (Miss.2004), overruled in part by Lynch v. State, 951 So.2d 549 (Miss.2007)); McIntosh v. State, 917 So.2d at 84. So long as a photograph has probative value and its introduction serves a meaningful evidentiary purpose, it may still be admissible despite being gruesome, grisly, unpleasant, or even inflammatory. Dampier, 973 So.2d at 230 (citations omitted). But see McNeal v. State, 551 So.2d 151 (Miss.1989)) (the solitary instance where this Court held a photograph, a close-up of the victim's partly decomposed skull, was gruesome and lacked an evidentiary purpose and was more prejudicial than probative). A photograph has a meaningful evidentiary purpose when it: (1) aids in describing the circumstances of the killing; (2) describes the location of the body or cause of death; or (3) supplements or clarifies witness testimony. Dampier, 973 So.2d at

11 In the present case, the State attempted to introduce twelve photographs from the scene where the murder victim s body was found. (TR 177). Defense counsel objected and argued that some of the photos were duplicates, and that the number of pictures was inflammatory and prejudicial to the defendant. (TR 176). Specifically, defense counsel argued that two of the photos (that featured the victim s body) were too similar. (TR 177). The prosecutor agreed to withdraw its attempt to introduce one of those photos, and defense counsel stated that he was satisfied with that offer. (TR 179). Defense counsel then stated that he had no objection to the remaining photos; therefore, eleven photos were admitted, without objection. (TR 180). Later in the trial, the State attempted to introduce six photographs, taken during the autopsy, to show the extent of the murder victim s injuries, the location of his stab wound, and the condition of the victim s body and clothing when it arrived at the Medical Examiner s Office. (TR ). Defense counsel objected to the number of the photos, and argued that some of the photos were duplicative and that they were all prejudicial. (TR 339). Specifically, he argued that two of the photographs showed, essentially, the same thing. (TR 340). The trial court agreed, and excluded one of the photos, but found that the probative value of the other photographs outweighed the danger of unfair prejudice. (TR ). The trial court also found that, in light of the fact that other photos depicting images of the victim s wound were entered without objection, the autopsy photos should also be admitted because they were not more prejudicial than what had already been entered. (TR 341). Five of the photos were admitted, without a contemporaneous objection from defense counsel. (TR ). This Court should find that, although defense counsel initially objected to the admission of the crime scene and autopsy photographs, he withdrew or waived the objections to all of the photos (except for S-5 and S-55) when the State offered to withdraw its request to admit S-5, and the trial 8

12 court granted defense counsel s request to exclude S-55. (TR 180 and 341). Because the trial court granted defense counsel s request to preclude the admission of the objected-to photographs, there was no error. And when the trial court decided that the other photographs were admissible, defense counsel did not object; therefore, this issue was waived and is now procedurally barred. See Chase v. State, 645 So. 2d 829, 848 (Miss. 1994). Waiver of the issue notwithstanding, this Court should find that the trial court did not abuse its discretion when it admitted the photographs. It is clear from the record that the trial court only permitted photographs which were necessary to describe the circumstances surrounding the victim s death, and those that were necessary to corroborate the trial witnesses testimony. When compared to admissible photos in other cases, these are not overly gruesome or prejudicial. Appellate Courts of this State have frequently upheld the admission of photos depicting bloody and gruesome injuries, and photos of portions of the body that were examined during an autopsy. See generally Walker v. State, 740 So. 2d 873, (Miss. 1999); Miller v. State, 740 So. 2d 858, (Miss. 1999); Jordan, 728 So. 2d at 1093; See e.g. Manning v. State, 735 So. 2d 323, 342 (Miss. 1999)(affirming admission of bloody, close-up photos of one victim's body face down in pool of blood and knife wound to another's throat); Williams v. State, 684 So. 2d, 1179, 1198 (Miss. 1996) (affirming admission of photos of victim's excised larynx, heart, vaginal and anal area, as well as photos of stab wound to victim's chest and heart); Jackson v. State, 684 So. 2d 1213, 1230 (Miss. 1996) (affirming admission of photos of four dead children stabbed in neck, chest and face). The only case where this Court held that photos were so gruesome and inflammatory as to be inadmissible was McNeal v. State, 551 So. 2d 151 (Miss. 1989). This Court held that the photographs in that case, which were close-up shots depicting a partly decomposed, maggot-infested 9

13 skull, were so horrible that the trial judge abused his discretion in admitting them. Id. Indeed, the Supreme Court was so appalled that it proclaimed the photos to be, some of the most gruesome [...] ever presented to this Court. Id. The Court also opined that the state could have shown the angle and entry of the bullet wound without the full-color, close-up view of the decomposed, maggot-infested skull. Id. A cursory glance at the photos made issue on this appeal confirms that, although not pleasant, they do not rise to the level of those found in McNeal. Fortenberry has not demonstrated any prejudice arising from these photos-much less that any prejudicial effect substantially outweighs their probative value. Although Fortenberry argues that the photos were admitted to cause the jury to convict him merely because he was accused of the crime, this argument is without merit. (See Appellant s Brief p. 13). The photos objectively demonstrated the extent of the victim s injuries, the condition of his body, and the crime scene without being overly gruesome or prejudicial. And the photos were probative because they tended to corroborate the facts that Fortenberry provided when he confessed to committing the crimes. To the extent that these photos are gruesome, it is because they document a gruesome crime. This does not mean that they are so prejudicial as to bar admission. See Holliday v. State, 455 So. 2d 750, 752 (Miss. 1984)(finding that the mere fact that photo is grisly or may arouse emotions of jurors does not render it incompetent so long as it serves legitimate, evidentiary purpose). The pictures were not overly gruesome for a crime of this nature, and each photograph had probative value. Moreover, the fact that the State only submitted 10 photographs to demonstrate the victim s injuries, and 29 photos to demonstrate the scenes where the crimes occurred (although many more were taken) shows that the State was trying not to be cumulative or egregious; it submitted only the 10

14 pictures that were necessary to assist the witnesses in their testimony. 4 It is evident that the trial judge did not abuse his discretion in admitting the photographs at issue. This is especially true, given the highly deferential standard of reviewing the admissibility of such evidence. See Stevenson v. State, 733 So. 2d 177, 180 (Miss. 1998). The court considered defense counsel s arguments when ruling on the admissibility of these photos. And it is clear from the record that this was an issue on which the court placed considerable focus and deliberation, and he exercised his discretion by excluding some of the offered photographs. In light of the court's attention to this matter, in light of the determination that the pictures accurately depicted the victim and his injuries, and in light of the testimony that these photos were necessary to prove the State's case against Fortenberry, the trial court cannot be found to have abused its discretion in allowing the photos into evidence. As the discretion of the court runs toward almost unlimited admissibility of photographs, this Court should find that the court did not err in admitting the pictures. The photographs were used to (1) aid in describing the circumstances of the killing and the events that occurred after the killing; (2) to describe the location of the body or cause of death; and (3) supplement and clarify witness testimony. See Dampier, 973 So.2d at 230. Furthermore, the photographs are not so horrible that this Court should find that the trial court abused his discretion in admitting them and there was no other way to prove the victim s cause of death. See McNeal, 551 So. 2d at 151. Fortenberry was not prejudiced by the introduction of the photographs. Accordingly, this issue is without merit. 4 The State mentioned, in total, there were at least 600 photographs which showed the victim s injuries and the crime scene, but it chose to limit the number that were introduced. (TR 179). 11

15 II. The jury s verdict was not against the overwhelming weight of the evidence. Fortenberry concedes that [t]here is a decent amount of evidence that seems to implicate [his] involvement. (Appellant s Brief p. 14). However, he argues that the jury s verdict should not be affirmed because there is not a firm link between the actual murder and the defendant. (Appellant s Brief p. 14). Fortenberry confessed to the crimes; therefore, the cornerstone of the Appellant s argument is that Fortenberry was not credible. (Appellant s Brief p. 17). The Appellant suggests that it is possible that Fortenberry confessed to the crimes, even though he did not commit them; therefore, he argues that the convictions are against the weight of the evidence and that he should receive a new trial. (Appellant s Brief p. 18). However, this Court has held that [f]actual disputes are properly resolved by the jury and do not mandate a new trial. Cheatham v. State, 12 So. 3d 598, 602 (Miss. Ct. App. 2009)(citations omitted). This Court has also found that Mississippi has a long standing policy of trusting the jury s verdict. Waterman v. State, 822 So. 2d 1030, 1033 (Miss. Ct. App. 2002). And that it is the jurors who decide the credibility of the evidence and the witnesses testimony, and this Court has no say so in the matter. Id. The jury s verdict, in this case, is not against the overwhelming weight of the evidence, and should not be disturbed by this Court. Fortenberry admitted, in a videotaped interview that was admitted at trial, that he, Lajerrious Perkins, and Blake Thompson planned to kill Blake s father. (Exhibit S-50). He stated that he stabbed and killed Kenneth Thompson with a large butcher knife and that Perkins was with him when he did it. (Exhibit S-50). He also admitted that, after the murder, he, along with Blake, buried Thompson s body in a shallow grave, and then, Jasper dropped them off at an area where he and Perkins burned Thompson s truck. (Exhibit S-50, and TR 252). Although Fortenberry admitted that he initially lied about some of the facts, he progressively 12

16 added details to his confession through a series of interviews, and the details of Fortenberry s confessions were corroborated by evidence presented at trial. Defense counsel did not provide any evidence to contradict Fortenberry s confessions, and none of the evidence corroborated his original 5 claim that he was at home sleeping when the crimes occurred. A sample of the evidence that tends to corroborate Fortenberry s confession includes the following: A witness saw Fortenberry, Perkins, and Blake together in Kenneth Thompson s truck. The witness was suspicious because she did not believe that Thompson would have let his fourteen year old son borrow his truck. (TR 152, and ). One of Jasper Pittman s neighbors had seen Blake, Fortenberry, and Perkins in the neighborhood prior to the murder. (TR ). Fortenberry and Perkins watched her as Kenneth Thompson came to her door and asked if she had seen his son. (TR 163). They were with Jasper, later, when he came to borrow a gas jug. (TR ). The day before his body was discovered, Kenneth Thompson asked another of Jasper s neighbors if he had seen his son. (TR 273). After Kenneth left, the neighbor saw Kenneth in his truck, along with two men whose description matched that of Fortenberry and Perkins. (TR ). But, later, the neighbor saw only Fortenberry and Perkins in the truck. (TR 277). Four clean knives, including two butcher knives were found in the kitchen sink at Jasper Pittman s house, where Fortenberry had been staying. (TR and 304). A red t-shirt and pair of camouflage shorts, that were worn by Fortenberry, had Thompson s blood on them. (TR ). Personal items that belonged to Thompson, including a boater registration card, a drivers license, the warranty for his truck, the bill of sale for his truck, a scratch off card, a wallet, and personal paperwork were recovered from Jasper Pittman s house. (TR ). Fortenberry s fingerprints were found on an appointment card for Thompson, one of Thompson s receipts, one of Thompson s bills, the bill of sale for Thompson s truck, Thompson s real and personal property receipt. (TR ). Thompson s cause of death was a single stab wound to the right side of his neck. (TR 347). And medical evidence showed that he was stabbed with a knife that had a serrated blade. (TR 343). In light of these facts, this Court should find that the jury was entitled to convict Fortenberry and that his convictions should be affirmed. 5 The jury heard testimony about this initial statement, and could have chosen to accept that claim if the evidence supported it. (TR 235). 13

17 III. No error occurred in this case; therefore, cumulative error does not require reversal. Fortenberry argues that the cumulative effect of individual errors deprived him of his fundamental rights. (Appellant's Brief p. 19). This Court has held that [t]he cumulative error doctrine stems from the doctrine of harmless error which holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial. Thompson v. State, 990 So.2d 265, 270 (Miss. Ct. App. 2008)(quoting Harris v. State, 970 So.2d 151, 157 (Miss. 2007)). However, in Thompson, this Court also held that, reversal based upon cumulative error requires a finding or findings of error and because the Court found no error regarding [the defendant's] conviction, harmless or otherwise, this issue is without merit. Id. As there were no errors harmless or otherwise in Fortenberry s case, there can be no cumulative error. Accordingly, this issue is without merit. 14

18 Conclusion The issues raised on appeal are without merit. Accordingly, the State of Mississippi respectfully requests that this Honorable Court affirm Fortenberry s convictions and sentences. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Barbara Byrd BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

19 Certificate of Service I hereby certify that on this day I electronically filed (and mailed by United States Postal Service) 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 David H. Strong, Jr. Circuit Court Judge Post Office Drawer 1387 McComb, Mississippi Honorable Dewitt (Dee) Bates, Jr. District Attorney 284 East Bay Street Magnolia, Mississippi Benjamin A. Suber, Esquire Attorney At Law MS Office of the State Public Defender Indigent Appeals Division Post Office Box 3510 Jackson, Mississippi This the 6th day of October, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI TELEPHONE: (601) s/ Barbara Byrd BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL 16