REPLY BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Jul :56: KA COA Pages: 9 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI RODISE JENKINS APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE REPLY BRIEF OF THE APPELLANT Appeal from the Circuit Court of Harrison County, Miss. Cause No. B Oral Argument Not Requested Mollie M. McMillin, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: mmcmi@ospd.ms.gov Counsel for Rodise Jenkins

2 TABLE OF CONTENTS Table of Contents...i Table of Authorities... i i Reply Brief of the Appellant... 1 Reply issue I: The trial court erred in refusing Jenkins s heat of passion manslaughter instruction... 1 Reply Issue II: Ineffective Assistance of Counsel Conclusion... 4 Certificate of Service i

3 TABLE OF AUTHORITIES CASES Blunt v. State, 55 So. 3d 207 (Miss. Ct. App. 2011)... 3 Brown v. State, 39 So. 3d 890 (Miss. 2010)... 1, 2, 3 Evans v. State, 797 So. 2d 811 (Miss. 2000)... 1, 2 McTiller v. State, 113 So. 3d 1284 (Miss. Ct. App. 2013) , 3 Reddix v. State, 731 So. 2d 591 (Miss.1999)... 1 ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI RODISE JENKINS APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE Reply Brief of the Appellant Reply issue I: The trial court erred in refusing Jenkins s heat of passion manslaughter instruction. Simply because Jenkins s defense at trial was self-defense does not prevent him from having the jury instructed on alternative theories of defense when the evidence at trial supports the instruction. In this case, as argued in Jenkins s initial brief, the evidence and testimony from other witnesses establish a basis for instructing the jury on heat of passion manslaughter. The supreme court has held that [a] criminal defendant has a right to assert alternative theories of defense, even inconsistent alternative theories. Brown v. State, 39 So. 3d 890, 899 (Miss. 2010) (citing Reddix v. State, 731 So. 2d 591, 593 (Miss.1999)) (emphasis added). Further, the supreme court has held [i]n homicide cases, the trial court should instruct the jury about a defendant's theories of defense, justification, or excuse that are supported by the evidence, no matter how meager or unlikely. Id. (citing Evans v. State, 797 So. 2d 811, 815 (Miss. 2000)). Jenkins testified that he killed Wheaton in self-defense. It is clear from the verdict that the jury did not accept Jenkins s testimony as true and gave more weight to testimony from other witnesses who testified at trial. One witness, Turner, provided evidence that is the basis for a heat of passion manslaughter instruction. She testified that Jenkins was not himself. (Tr. 100). She testified that he 1

5 was angry and had a certain look on his face when he fired the gun. (Tr. 76). She described his facial expression, then stated that Jenkins was beyond rage and at the time of the shooting was agitated, frustrated, mad, angry... (Tr. 110). Jenkins testified that Wheaton cussed at him and raised his arm as if to hit Jenkins. (Tr. 238). In Brown v. State, 39 So. 3d 890, 900 (Miss. 2010), the supreme court reversed Johnny Brown s conviction for murder after the trial court refused to instruct the jury on Brown s alternative theory of defense that he killed his girlfriend accidentally. Brown s theory of defense during trial was that he killed her in self-defense. Id. at 38. The State had objected to the defense instruction in that case because the theories of defense were incompatible one dealt with an intentional shooting and the other an accidental shooting. But, relying on its holding in Reddix v. State, 731 So. 2d 591, 593 (Miss. 1999), the supreme court held that [a] criminal defendant has a right to assert alternative theories of defense, even inconsistent alternative theories. Brown, 39 So. 3d at 899 (quoting Reddix, 731 So. 2d at ). Additionally, the Court held that [i]n homicide cases, the trial court should instruct the jury about a defendant's theories of defense, justification, or excuse that are supported by the evidence, no matter how meager or unlikely. Brown, 39 So. 3d at 899 (quoting Evans v. State, 797 So. 2d 811, 815 (Miss.2000)). This Court found reversible error in a trial court s failure to grant a defendant s self-defense jury instruction where there was evidence to support giving the instruction, despite the instruction being at odds with the accident theory relied on at trial. McTiller v. State, 113 So.3d 1284 (Miss. Ct. App. 2013). This Court, relying on Brown, held that it was reversible error to deny the instruction because there was evidence that McTiller thought the victim was going to pull a gun from his pocket. Id. at 38. Jenkins asserts that his testimony that he acted in self-defense does not preclude him from 2

6 having the jury instructed on a defense theory that is contradictory to his main theory of defense, and there is evidence in the record to support the instruction. Further, the error in this case is not harmless. A proper heat of passion manslaughter instruction could have made a difference in severity of the crime Jenkins was convicted of. See Brown, 39 So. 3d at 899. Therefore, Jenkins requests this Court reverse his conviction and remand his case for a new trial. Reply Issue II: Ineffective Assistance of Counsel. Jenkins asserts that his trial counsel s failure to properly object to the self-defense instruction containing at peril language and his failure to procure an imperfect self-defense instruction constitutes deficient performance and was prejudicial. This Court has found trial counsel s failure to offer proper jury instructions can result in constitutionally ineffective assistance of counsel. In McTiller, 113 So. 3d at , this Court held: Id. at 23. We have upheld claims for ineffective assistance of counsel in the face of inadequate jury instructions. See Blunt v. State, 55 So. 3d 207, ( 13 17) (Miss. Ct. App. 2011).... We have reversed criminal convictions on the basis of ineffective assistance of counsel due to the introduction of or lack of objection to jury instructions that [are] contradictory and confusing and do[ ] not correctly state the applicable law. Blunt, 55 So.3d at 211 ( 14) (citation omitted). Jenkins submits that the record is sufficient in his case to show deficient performance and resulting prejudice in his trial counsel s failure to properly object to the self-defense instruction or to offer an imperfect self-defense manslaughter instruction. However, should this Court determine that the record is not sufficient, Jenkins requests that the issue of ineffective assistance of counsel be preserved for post-conviction relief proceedings. CONCLUSION 3

7 Based on the propositions cited and briefed in this reply brief, together with the issues briefed in his initial brief before this Court, Jenkins respectfully requests this Court reverse his conviction and sentence and remand his case for a new trial. Respectfully submitted, BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel 4

8 CERTIFICATE OF SERVICE I, Mollie M. McMillin, Counsel for Rodise Jenkins, do hereby certify that on this day I electronically filed the forgoing REPLY BRIEF OF THE APPELLANT with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Jason L. Davis Attorney General Office Post Office Box 220 Jackson, MS Further, I have this day caused to be mailed via United States Postal Service, First Class postage prepaid, a true and correct copy of the above to the following non- MEC participants: Honorable Christopher Schmidt Circuit Court Judge P.O. Box 1461 Gulfport, MS Honorable Joel Smith District Attorney, District 2 Post Office Box 1180 Gulfport, MS Rodise Jenkins, MDOC # Central Mississippi Correctional Facility Post Office Box Pearl MS This the 10th day of July, BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel Mollie M. McMillin, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi

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