PETITION FOR WRIT OF CERTIORARI

Transcription

1 E-Filed Document Jun :21: CT SCT Pages: 7 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI WILLIE PICKETT PETITIONER v. No KA-932 STATE OF MISSISSIPPI APPELLEE PETITION FOR WRIT OF CERTIORARI COMES NOW the petitioner, Willie Pickett, Pursuant to Rules 17(a)(1), (2), and (3)(ii), Mississippi Rules of Appellate Procedure, and files this Petition for Writ of Certiorari and respectfully requests that this Court grant the relief requested and review the decision of the Court of Appeals of the State of Mississippi entered in this cause and in support of this petition states unto the Court the following: I. Pickett was convicted of attempted murder and sentenced to thirty years in the custody of the Mississippi Department of Corrections. He is presently incarcerated. II. Appeal of the conviction and sentence was timely perfected in this Court, and the case was assigned to the Court of Appeals. On February 6, 2018, the Court of Appeals rendered its opinion in the matter and affirmed the judgment and sentence of the trial court. 1

2 III. On March 6, 2018, Pickett filed a Motion for Rehearing with the Court of Appeals, and the same was denied by order entered on June 12, IV. Review is appropriate in this case because the opinion of the Court of Appeals conflicts with published opinions of this Court. Specifically, the State s amendment of the indictment after witnesses had already been called was substantive. Allowing the State to amend the indictment changed a defense Willie had available at the time of the original indictment. Furthermore, the indictment, as amended, was void, insofar as it failed to allege an essential element of the offense of attempted murder. Because the indictment was void, the State s elements instruction was likewise erroneous. It, too, omitted essential elements of the offense of attempted murder. Because the jury did not find, beyond a reasonable doubt, all of the elements of the crime for which Willie was convicted, his conviction cannot stand. Lastly, the Statute for which Willie was convicted is unconstitutional. ARGUMENT Issue One: Willie s indictment was improperly amended. The Court of Appeals erred in Issue I in which it found the trial court did not err in allowing the state to amend the indictment. (Op. 5-11). The Grand Jury returned an indictment which charged that Willie... did wilfully, unlawfully, and feloniously, with deliberate design to effect the death of Clark, did attempt to kill and murder Decarlos Clark... by shooting him. (C.P. 2, R.E. 6) (emphasis added). After the jury was empaneled, the State made an ore tenus motion to amend the indictment to insert the word at between shooting and him (Tr. 218). The defense objected to the 2

3 amendment, and the trial court declined to rule on the motion immediately. (Tr ). At the time the indictment was amended, a jury had been seated and numerous witnesses had testified. The amendment changed a defense Willie had available at the time of the original indictment - namely that he did not shoot someone. Trial courts do not have authority to grant substantive amendments to indictments. See Baine v. State, 604 So. 2d 258 (Miss. 1992); Monk v. State, 532 So. 2d 592 (Miss. 1988); State v. Allen, 505 So. 2d 1024 (Miss. 1987). Our rules of court likewise outline the requirements of an indictment. The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. URCCCP Rule 7.09 of the Uniform Rules of Circuit and County Court Practice outlines the limited circumstances under which an indictment may be amended. Rule 7.09 states the following: All indictments may be amended as to form but not as to the substance of the offense charged. Indictments may also be amended to charge the defendant as an habitual offender or to elevate the level of the offense where the offense is one which is subject to enhanced punishment for subsequent offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under the influence, Miss. Code Ann ). Amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised. URCCCP 7.09 (emphasis added). The test for whether an amendment will prejudice a defendant is whether the defense as it originally stood will be equally available after the amendment is made. 1 The Uniform Rules of Circuit and County Court practice were in effect at the time of trial. 3

4 Patton v. State 109 So. 3d 66, 81 (Miss. 2012) (quoting Montgomery v. State, 891 So. 2d 179, 181 (Miss. 2005). An indictment may not be amended to change the nature of the charge, except by action of the grand jury which returned the indictment. Griffin v. State, 584 So. 2d 1274, 1275 (Miss. 1991). It is well settled in this state... that a change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant s case. Id. at (internal citations omitted) Accordingly, the State impermissibly amended the indictment. The Court of Appeals s analysis fails to appreciate the fundamental difference between being shot and being shot at. As a matter of law, this difference requires reversal. Issue Two: The amended indictment fails to allege the crime for which Willie was convicted. The Court of Appeals further erred in Issue II, where it found the amended indictment sufficient to charge the essential elements of attempted murder. (Op ). To be sufficient, an indictment must contain the essential elements of the crime charged. Peterson v. State, 671 So. 2d at If the facts alleged in the indictment do not constitute an offense within the terms and the meaning of the law, the indictment in insufficient. Id. at 653 (citing Love v. State, 52 So. 2d 470, 472 (1951)). This Court has held that a challenge to the substantive deficiency of an indictment implicates fundamental constitutional rights to due process. See Burchfield v. State, 277 So. 2d 623, 625 (Miss. 1973) (ruling that a defendant has a fundamental right to be legally charged by an indictment which charges the essential ingredients of the offense... ). Omission of an essential element of the crime charged constitutes a jurisdictional defect. See, Patton v. State, 34 So. 3d 563, 573 (Miss. 2010) (Kitchens, J., specially concurring) 4

5 (citing Banana v. State, 635 So. 2d 851, 853 (Miss. 1994); Garner v. State, 944 So. 2d 934, 940 (Miss Ct. App. 2006)). The amended indictment fails to specify an act committed by Willie which, if accomplished, would constitute an offense of murder under , as required by Mississippi s attempted murder statute. The act of shooting at another person is not an act which, if accomplished, constitutes an offense of murder. Instead, the statute criminalizing shooting at another person is Mississippi Code section (2)(a), Mississippi s attempted aggravated assault statute. Issue Three: The jury was not properly instructed on the elements of attempted murder. The Court of Appeals likewise erred in Issue III where it found the State s elements instruction to be proper. (Op ). Attempted murder includes the element that a person commit an act which, if accomplished would constitute an offense of murder... but shall fail therein. Miss. Code Ann The jury was never instructed on those elements. Instead, the State s elements instruction merely provided that the jury must find beyond a reasonable doubt that: 1. On or about October 31, 2013, in Lauderdale County, Mississippi 2. The Defendant, Willie Carl Pickett, individually or while aiding and abetting and or acting in concert with another, did willfully and unlawfully attempt to murder Decarlos Clark. 3. By shooting at him with a firearm. 4. With deliberate design to effect death, 5. Without authority of law and not in necessary self-defense. (C.P. 80). 5

6 Failure to instruct the jury on the essential elements of the crime is plain error. Prokasy v. State, 189 So. 3d 703, 706 (Miss. 2016) (quoting Rogers v. State, 95 So. 3d 623, 632 (Miss. 2012)). Issue Four: The attempted murder statute is unconstitutional. Lastly, the Court of Appeals erred in Issue IV, when it determined that the Attempted Murder Statute was constitutional. Mississippi Code section (2) is unconstitutional for three specific reasons: vagueness, overbreadth, and its violation of the Eight Amendment of the United States Constitution s prohibition against cruel and unusual punishment. The Court of Appeals s analysis was incomplete and rehearing is required. WHEREFORE, PREMISES CONSIDERED, Pickett prays that this Court will issue a Writ of Certiorari, review and reverse the decision of the Court of Appeals, and remand this case to the trial court for further proceedings. By /s/ Justin T. Cook Justin T. Cook Justin T. Cook, Miss. Bar No OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, MS T: (601) jcook@ospd.ms.gov 6

7 CERTIFICATE OF SERVICE I, Justin T. Cook, counsel for Willie Pickett, hereby certify that I have this day filed by means of the electronic case filing system the foregoing Petition for Writ of Certiorari, pursuant to Mississippi Rule of Appellate Procedure 25 by which immediate notification to all ECF participants in this cause is made including: Alicia Marie Ainsworth Assistant Attorney General Post Office Box 220 Jackson, MS This, the 26th of June, /s/ Justin T. Cook Justin T. Cook, Miss Bar # Justin T. Cook Miss. Bar No OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Post Office Box 3510 Jackson, MS T: (601) F: (601) jcook@ospd.ms.gov Attorney for the Petitioner 7