IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI APPELLANT'S S REPLY BRIEF APPEAL FROM THE CIRCUIT COURT OF DESOTO COUNTY, MISSISSIPPI

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1 E-Filed Document Aug :03: KA-0171-COA Pages: 8 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI Zachary Cozart Appellant VS. Case No. 201-KA-0171-COA State of Mississippi Appellate APPELLANT'S S REPLY BRIEF APPEAL FROM THE CIRCUIT COURT OF DESOTO COUNTY, MISSISSIPPI APPELLANT REQUESTS ORAL ARGUMENT Prepared By: Stewart Guernsey, MBA# 02 Fondren Law Firm 90 N. Lamar Ave. P.O Box 22 Oxford Ms. 386 (662) (T) (662) (F)

2 TABLE OF CONTENTS Cover page Table of Contents 1 Table of Authorities 2 Statement of the Case (Supplemental) 3 Argument Conclusion 6 Certificate of Service 7

3 TABLE OF AUTHORITIES Federal Case Law Calder v. Bull, 3 U.S 30, 308 (1798) Weems v. U.S., 217 U.S 39, 362 (1910) U.S. v. Hickman, d 39 ( th Circ. 2003) U.S. v. Marcus, 60 U.S 28, 262 (2010) Bouie v. City of Columbia, 378 U.S 37, 33 -,6 6 Federal Rules U.S Supreme Court Rule 3 Federal Rule Criminal Process 2(b) Miss Constitution, Article 3, Section 16 State Statutes MCA MCA State Case Law Flowers v. State of Mississippi, 3 So. 3d 16,18-19,6 State Rules MRAP 28 (a) (3) MRE 103 (d) 2

4 Zachary Cozart was convicted of "Child Homicide" manslaughter pursuant to MCA The Deceased child died in July Section did not take effect until July I, The defense requested the change from "ordinary" manslaughter, MCA to child homicide, which the judge granted. No one observed that the effective date of was nearly two years after the death of the child. "Child Homicide" manslaughter is substantially different from "ordinary" manslaughter. Its elements are different. The perpetrator must be over 21, and the victim under 18. Intent, but not malice, must be proved to convict on "child homicide." It is a different crime from capital murder or "ordinary homicide," having a different penalty - ( 30 years instead of 20), different elements, (as above), and a different degree of culpability - ( intent, not malice or recklessness). There is no question that defendant was convicted of child homicide which became effective long after the death of the victim. Defendant was undeniably convicted of an ex post facto crime, in violation of the most basic criminal laws of the United States and Mississippi. Indeed, as Justice Lamar intimated in the Flowers case, infra. Mississippi's commitment not to convict on an ex post facto law may be stronger than the federal commitment. Defendants' brief laid out a brief summary of ex post facto law, taking off on a comment by Justice Lamar that conviction on an ex post facto law is a conviction on a law not in existence at the time of the crime and, therefore, the indictment is fatally flawed and must be dismissed or altered by the grand jury. Jury instructions cannot affect or remedy the fatal flaw in the indictment. The state's response focused on the acceptability of the jury instructions. The state completely ignored the doctrine of plain error making no comment on a frequently cited, crucial doctrine to correct "overlooked" error. Under Mississippi law, "plain error" is permitted by MRAP 28(a) (3), MRE 103 (d), Mississippi Constitution, Article 3, Section 16 and case law ad infinitum. While still hewing to his earlier assignments of error as to erroneous "indirect amendment" of the indictment, insufficiency of the evidence, ex post facto law conviction or, alternatively, insufficient representation by counsel, this document will focus on "plain error," since the state eschewed the very doctrine, by ignoring it. 3

5 ARGUMENT EX POST FACTO LAWS AND PLAIN ERROR In Calder v. Bull, 3 US 30,308 (1798), the U.S. Supreme Court first enforced the Constitution's prohibitions against passage and enforcement of ex post facto laws. Justice Chase tracked the history of ex post facto abuse in England and condemned it as one of the principle nemeses of criminal law. Since those halcyon days, it is true reviewing courts have made "plain error" review of ex post facto laws optional to the Courts, with guidelines as to when waiver is appropriate. In Weems v. U.S., 217 US 39, 362 (1910) the Courts, discussing "plain error" under the Supreme Court's Rule 3, commented: "As we have already said, the rule is not a rigid one, and we have less reluctance to disregard prior examples in criminal cases than in civil cases, and less reluctance to act under it when rights are asserted which are of such high character as to find expression and sanction in the Constitution or Bill of Rights. And such rights are asserted in this case." In U.S. v. Hickman, 331 F. 3d 39,7-8 ( th CIR., 2003), having long since indentified the prohibition against ex post facto laws, the Fifth Circuit undertook to analyze when plain error review is warranted. At p. 7, the Fifth Circuit summarized the question as "how the error has affected her substantial rights" In Hickman, defendant was convicted of false MedicaidlMedicare claims, the first three of which occurred before the operative date of the Medicaid Fraud law. Nevertheless, defendant was found guilty of the three violations. The Fifth Circuit concluded that "we hold the Ex Post Facto error affected Hickman's substantial rights because it affected the outcome of the district court proceedings." Therefore, the matter was reversed for sentencing under plain error review because the ex post facto law "affected the outcome of the district court proceeding." In other words, if defendant is convicted of a pre - enactment law, plain error is invoked because it substantially affects defendant's rights. Justice Lamar echoes this "substantial affect" rule in Flowers by her emphasis on the fundamental ill of conviction of a crime that is not a crime when (and if) committed. Flowers, 3 So. 3d 16,18-19 (Miss. 2010). So, too, this case ended in the conviction of a crime that did not exist at the time of its "commission." At about the same time, the U.S. Supreme Court was hearing U.S. v. Marcus, 60 U.S. 28,262 (2010), Based on Federal Rule Criminal Process 2(b), the court reminded lower courts that they are bound by USSC holding. The four elements of "plain error" analysis in the High Court's jurisprudence are: (1) the error is 'clear or obvious' rather than subject

6 to reasonable dispute (3) the error "affected the appellant's" substantial rights, which in the ordinary case means it 'affected the outcome of the district court proceedings'; and () 'the error seriously affects' the fairness, integrity or public reputation of judicial proceedings." In the Cozart case, the error of convicting defendant of a crime not in effect at the time of his arrest is clear and not debatable. Since he was convicted only on that count, his rights were substantially affected and, since he was convicted, the error was to his detriment. Another state case Porter v. State, d 20, (1999) tracks the four point test. In Porter the defendant was arrested for a second DUI offense before graduated penalties for progressive offenses were put in place, but he was convicted and sentenced after the law took effect. Justice Diaz found the extended penalty was a prejudicial result, and reversed for sentencing of the crime as it was on the books on the date of commission. The bottom line, mentioned in Appellant's brief - in - chief, is that plain error should be invoked where it prejudicially affects defendant's fundamental rights. This fourth element of the U.S. (and state) test is satisfied by conviction on the ex post facto crime, as in the instant case. See also Bouie v. City of Columbia, 378 US 37,33- (196). The Flowers case, at 18, makes the same finding. So, too, should be the ruling in the instant case.

7 CONCLUSION For all of the above reasons and for reasons of fundamental jurisprudence well spoken in the Flowers case, this court should reverse the conviction herein. Since capital murder has been "taken off the table" by acquittal, Appellant prays for rendering. In the alternative, Defendant prays for reversal, release and remand to the De Soto County grand jury. And Appellant prays for general relief. Respectfully submitted this 13th day of August, 201 ZACHARY COZART BY: lsi Stewart Guernsey Stewart Guernsey MBA# 02 Fondren Law Firm 90 N. Lamar Ave. P.O. Box 22 Oxford, Ms. 386 (662) (T) (662) (F) ( ) 6

8 CERTIFICATE OF SERVICE I, Stewart Guernsey, 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 to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non - MEC participants: Hon. Gerald W. Chatham Circuit Judge P.O Box 27 Hernando, Ms Honorable John W. Champion District Attorney 26 Losher Street, Suite 210 Hernando, MS This is the day of August, 201. /s/ Stewart Guernsey Stewart Guernsey