IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI FILED NOV OFFICE OF fhe: CLERK SUPREME COURT COURT OF APPEALS BRIEF FOR THE APPELLEE

Transcription

1 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TROYLANDEN HARRIS VS. FILED NOV OFFICE OF fhe: CLERK SUPREME COURT COURT OF APPEALS APPELLANT NO.2016-KA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: KA TY GERBER SPECIAL ASSIST ANT 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 REGARDING ORAL ARGUMENT... 1 ST ATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS... 1 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 6 I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT ADMITTED HARRIS'S WRITTEN CONFESSION... 6 II. III. THE TRIAL COURT DID NOT ERR WHEN IT INSTRUCTED THE JURY ON THE ESSENTIAL ELEMENTS OF THE CRIME THE TRIAL COURT DID NOT ERR WHEN IT DENIED A LESSER-INCLUDED OFFENSE INSTRUCTION IV. HARRIS RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL CONCLUSION CERTIFICATE OF SERVICE

3 TABLE OF AUTHORITIES Cases Anderson v. State, 79 So. 3d 501 (Miss. 2012) Berry v. State, 882 So. 2d 157 (Miss. 2004) Brooks v. State, 18 So. 3d 833 (Miss. 2009)... 9, 10 Carol v. State, 540 So. 2d 1330 (Miss. 1989)... 8 Freeman v. State, 121 So. 3d 888 (Miss. 2013)... 7 Mease v. State, 539 So. 2d 1324 (Miss. 1989) Miranda v. Arizona, 384 U.S. 436 (1966)... 2 Myers v. State, 145 So. 3d 1143 (Miss. 2014)... 6 Ramos v. State, 710 So. 2d 380 (Miss. 1998) Strickland v. Washington, 466 U.S. 668 (1984) Thompson v. State, 726 So. 2d 233 (Miss. Ct. App. 1998)... 8,9 Tillis v. State, 176 So. 3d 37 (Miss. Ct. App. 2014)... 7 Timmons v. State, 176 So. 3d 168 (Miss. Ct. App. 2015)... 11, 12 Statutes Mississippi Code Annotated section , 9 Mississippi Code Annotated section ,5,9,10 Mississippi Code Annotated section

4 STATEMENT REGARDING ORAL ARGUMENT The State of Mississippi submits that the issues raised by the appellant involve well-settled principles oflaw. Due to the straightforward application of the law to the facts in this case, the State of Mississippi does not request oral argument. STATEMENT OF THE ISSUES 1. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT ADMITTED HARRIS'S WRITTEN CONFESSION. II. III. IV. THE TRIAL COURT DID NOT ERR WHEN IT INSTRUCTED THE JURY ON THE ESSENTIAL ELEMENTS OF THE CRIME. THE TRIAL COURT DID NOT ERR WHEN IT DENIED A LESSER-INCLUDED OFFENSE INSTRUCTION. HARRIS RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL. STATEMENT OF THE CASE The Grand Jury of the First Judicial District of Hinds County indicted Troylanden Harris for attempted armed carjacking under Mississippi Code Annotated section (c.p. 5). After a trial by jury, Circuit Judge Jeff Weill Sr. presiding, the jury found Harris guilty as charged. (c.p. 94). The trial court sentenced Harris to a term of twenty-five years in the custody of the Mississippi Department of Corrections, with five years suspended, twenty years to serve, and five years of probation. (C.P.95). After denial of Harris's motion for judgment notwithstanding the verdict or, in the alternative, a new trial, Harris appealed. (c.p. 100; 108). STATEMENT OF THE FACTS On January 14, 2013, Henry Judd and his girlfriend, Jasmine Polly, drove up to the end of their driveway in Judd's 2004 Nissan Titan. (T ). Judd jumped out of the Nissan to move

5 another vehicle from the driveway to the back of the house. (T. 162). Polly remained in the passenger seat of the Nissan, which was still running. (T ). Two men in a Mercury Mountaineer drove up alongside of the Nissan. (T. 175). The driver remained in the Mercury. (T. 175). But Harris got out, leaving the passenger door ajar. (T. 175). With his face partially-covered, Harris opened the Nissan's passenger door and demanded that Polly get out of the vehicle. (T. 163). When Polly refused, Harris put a Glock.40 caliber handgun to her leg. (T. 164; C.P. 5). Polly then got out of the vehicle. (T. 165). By that time, Judd noticed what was happening and started running towards Harris. (T ). Judd was able to pin Harris against the Mercury. (T. 166). During the scuffle, the covering fell from Harris's face, and the two men realized that they knew each other. (T ). Harris apologized to Judd, got back in the Mercury, and drove off. (T. 168). By the time Officer Lincoln Lampkin, with the Jackson Police Department, arrived at the scene, Harris had already fled. (T. 96; 102). However, Judd identified Harris as the suspect. (T. 98). And Polly later picked Harris out of a photo lineup. (T ). A few weeks later, on February 5, 2013, the Jackson Police Department received a disturbance call for an unrelated incident. (T. 97). While responding to the call, Officer Lampkin noticed Harris-the individual that was wanted in connection with the attempted armed carjacking that occurred on January 14, (T. 98). Officer Lampkin arrested Harris and transported him to police headquarters where he was interviewed by Detective Dunn. (T. 99; 102). Before the interview, Harris signed a waiver of rights form. 1 (E. I). At the bottom of the form is the following confession: 1 See Miranda v. Arizona, 384 U.S. 436 (1966). 2

6 My name is Troylanden Harris[.] I am 18 years old, [and] my date of birth [is] 11/3/ I am here at police HQ talking to Detective Kenneth Dunn, I have waived my rights and will provide... Detective Dunn with a statement. Q. Did you attempt to carjack a White [N]issan Titan? A. Yes Q. Did you pull a gun and put it up to the driver[']s head? A. I didn't put it to her head, I had it down by the seatbelt pointed down and I told her to get out. She said "No" at that time "Henry was coming to the truck." Q. Who is Henry? A. A guy I grew up with Q. What did he say to you? A. He called my name and we made eye contact[.] I said "Henry" and that's when I said "Henry it[']s over[.]" He said ok it[']s over, I told him I'm thr[ough] with it. When I left[,] I went home and he called my mother's phone. Q. Did Henry have a gun? A. Ummhmm Q. Do you know what kind? A. I wanna say a.32 Q. When you pulled up to the truck did you know whose truck it was? A. No sir, I thought it was just running Q. Where is the gun that you had? A. I threw it in the river on Eminence Row under the bridge ****End of Written statement***** Rest of interview audio taped... (E. 1) (Emphasis added). Harris initialed each of his responses. (E. 1 ). 3

7 At a pretrial hearing, defense counsel requested a copy ofthe audio tape that was referenced at the bottom of the waiver form. (T.4). The State explained that the investigator who handled the case was no longer with the District Attorney's office, and no audio tape was ever found. (T. 8). The State offered to allow defense counsel to review the evidence that it had in the State's office. (T. 8). And the State agreed: "[I]f an audio [tape] was listed and we don't have it, the State would concede that and we won't get into a confession. But I'll have to review it with [defense counsel]." (T.8). The trial court responded: "[I]t sounds like y'ai\ have pretty well worked that out. IfI need to deal with that any further... let me know." (T. 10). On the date of his trial, Harris did not appear in court. (T. 17). Defense counsel requested a continuance, which was seemingly granted. (T ). On the date of Harris's rescheduled trial, Harris briefly appeared in court but was not present when his trial began. (T. 27). As a result, the trial court granted the State's motion to try Harris in absentia. (T. 32). After opening statements, defense counsel made a preliminary objection to the admission of Harris's written confession that was on the waiver form. (T ). Defense counsel argued that, according to the waiver forni, the rest of Harris's interview was audio taped; therefore, Harris's interview should be admitted in its entirety. (T ). After listening to arguments from both sides, the trial court overruled the objection. (T. 95). When the State offered the waiver form into evidence, defense counsel asked the trial court ifhe could cross-examine Detective Dunn as to whether there was more to Harris's confession than what was included on the waiver form. (T ). Detective Dunn proffered that there had been an audio tape; the audio tape had been lost; but the waiver form contained Harris's complete confession. (T ; ). Detective Dunn explained that the audio was recorded on a cell phone and then transferred to a computer. (T. 118). However, the audio tape was lost when 4

8 Detective Dunn left the department. (T ). The trial court ruled: "Given that [Detective Dunn] testified that no substantive content... from the [audio], is not on the [waiver form], I'm going to allow it to be received into evidence... I'll also note [the waiver form] is a Q [&] A summary rather than a direct transcript...." (T. 126). On cross-examination, in the jury's presence, Detective Dunn was asked the following questions: COUNSEL: WITNESS: Okay. Was the rest of the interview audio taped? There was no rest of the interview. It's all done at the same time. When the written statement is completed[,] the audio tape is completed at that time as well. (T. 138). COUNSEL: WITNESS: COUNSEL: WITNESS: There is no rest ofthe interview. But you typed on this document rest of interview audio taped? That's correct. Why did you put that on there if there was no rest of this interview? I think it was an error on my part. (T. 142). SUMMARY OF THE ARGUMENT First, the trial court did not abuse its discretion when it admitted Harris's written confession. Second, Harris was indicted under the carjacking statute-mississippi Code Annotated section as opposed to the general attempt statute-mississippi Code Annotated section Therefore, the trial court did not err when it instructed the jury on the essential elements of the crime. Third, no reasonable jury could have found that Harris was not armed. Thus, the trial court did not err in denying an instruction on attempted carjacking as a lesser-included offense of 5

9 attempted armed carjacking. Finally, even if a discovery violation had occurred, the State had chosen to forgo using the allegedly undisclosed evidence. Therefore, even though Harris' s counsel did not request a continuance or mistrial, Harris's counsel was not ineffective. ARGUMENT I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT ADMITTED HARRIS'S WRITTEN CONFESSION. In his first issue, Harris claims the trial court erred when it admitted his written confession that was on the waiver form. (Appellant's brief p. 9). Harris argues his written confession was inadmissible for two reasons: ( 1) the State committed a discovery violation by not producing the audio tape; and (2) the State agreed to not offer the confession into evidence. (Appellant's brief p. 9). 1. Discovery Violation First, Harris argues that a discovery violation occurred when the State did not produce the audio tape that was referenced at the end of his written confession. 2 However, an audio tape was never found. The State could not produce what it did not possess. 3 Perhaps the more logical argument is one of spoliation. But that argument fails as well. Where a defendant claims that his due-process rights have been violated because the State lost or destroyed evidence, this Court employs the following three-part test: 2 Harris does not argue that a discovery violation occurred with respect to the written confession. Harris only argues a discovery violation occurred with respect to the audio tape. 3 Even if a discovery violation had occurred, the general rule is that the evidence must not be excluded unless the discovery violation is "willful and motivated by a desire to obtain a tactical advantage." Myers v. State, 145 So. 3d 1143, 1149 (i\15) (Miss. 2014). But there is no evidence of that in this case. 6

10 ( 1) the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed; (2) the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; and (3) the [State's] destruction of the evidence must have been in bad faith. Tillis v. State, 176 So. 3d 37, 52 (i!46) (Miss. Ct. App.2014) ( quoting Freeman v. State, 121 So. 3d 888, 895 (i!i6) (Miss. 2013)). With regard to the first prong of the test, neither the State nor the defense had listened to the audio tape. Furthermore, Detective Dunn testified that the waiver form contained Harris 's complete confession. There was no substantive content on the audio tape that was not on the waiver form-the audio was merely cumulative. As a result, the evidence does not satisfy the first prong of the test since the State never possessed evidence with an exculpatory value that it failed to preserve. See id. at 53 (i!48). The evidence also fails to satisfy the third prong of the test and does not show that the State acted in bad faith by intentionally causing the loss or destruction of the audio tape. The record contains no evidence that the State acted fraudulently or with a desire to conceal the truth. See id. at (i!49). Instead, the record indicates that the audio was recorded on a cell phone and then transferred to a computer. And the audio tape was lost when Detective Dunn left the department Agreement Second, Harris argues that the State agreed that it would not introduce evidence of Harris's confession if it could not produce the audio tape. However, that is not exactly what the State agreed 4 Furthermore, Harris was not entitled to a spoliation instruction because there was no evidence that the State committed intentional wrongdoing or intentionally failed to disclose the audio tape. See Tillis, 176 So. 3d at 53 (i!52). 7

11 to. During a pretrial hearing, the State offered to allow defense counsel to review the evidence in the State's office. And the State agreed: "[I] fan audio was listed and we don't have it, the State would concede that and we won't get into a confession. But I'll have to review it with [defense counsel]." (Emphasis added). The record does not indicate whether "an audio was listed." Furthermore, the State's proposed agreement was left open-ended. Cf Carol v. State, 540 So. 2d 1330, 1331 (Miss. 1989). In fact, the trial court stated: "[I]t sounds like y'all have pretty well worked that out. If I need to deal with that any further... let me know." The trial court did in fact deal with the matter further when defense counsel objected to the admission of Harris' s written confession. The trial court noted that the written confession was separate and distinct from the audio tape: "this is a Q [&] A summary rather than a direct transcript." Thus, the trial court did not abuse its discretion when it admitted Harris 's written confession. 5 This issue is without merit. II. THE TRIAL COURT DID NOT ERR WHEN IT INSTRUCTED THE JURY ON THE ESSENTIAL ELEMENTS OF THE CRIME. In his second issue, Harris claims that the trial court failed to instruct the jury on the essential elements of attempted armed carjacking. (Appellant's Brief p ). Specifically, Harris argues that the instruction that was given to the jury failed to mention the necessary element of attempt-that he either failed or was prevented from consummating the offense. (Appellant's Brief p. 14). In support of his argument, Harris cites to Thompson v. State, 726 So. 2d 233 (Miss. Ct. App. 1998). In Thompson, this Court held: "[ w ]hile the State provided the jury with sufficient, credible 5 Even ifthere was an abuse of discretion, the State contends it was harmless error based on Polly's testimony at trial. 8

12 evidence to find Thompson guilty of attempted armed carjacking, the lack of an instruction setting forth each of the necessary elements requires this Court to reverse and remand for a new trial." Thompson, 726 So. 2d at 238 (if23). The elements instruction failed to mention the necessary element that Thompson either failed or was prevented from consummating the offense. Id. at 23 7 (if22). But this case is distinguishable from Thompson. Thompson was indicted under the general attempt statute-mississippi Code Annotated section Id. at (if2 l ). Harris, on the other hand, was indicted under the carjacking statute-mississippi Code Annotated section This section provides in relevant part: (1) Whoever shall knowingly or recklessly by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempting to do so, or by any other means shall take a motor vehicle from another person's immediate actual possession shall be guilty of carjacking. (2) Whoever commits the offense of carjacking while armed with or having readily available any pistol or other firearm or imitation thereof or other dangerous or deadly weapon... shall be guilty of armed carjacking. (b) Any person who is convicted of attempted carjacking shall receive the same punishment as the person who is convicted of armed carjacking. Miss. Code Ann (emphasis added). 6 6 In Brooks v. State, 18 So. 3d 833, 839 (if23) (Miss. 2009), Brooks was indicted for aggravated assault under Mississippi Code Annotated section Brooks, 18 So. 3d at 839 (i-!23). "[T]he aggravated-assault-statute clearly and fully inform[ ed] the reader that causing or attempting to cause bodily injury to another, either with a deadly weapon or by some other means likely to produce death or serious injury, will constitute the crime of aggravated assault." Id. at (i-!24) ( citing Miss. Code Ann ). Likewise, the carjacking statute clearly and fully informed the reader that attempting to take a motor vehicle from another person's immediate actual possession will constitute the crime of carjacking. Miss. Code Ann Thus, even though a person 9

13 relevant part: (T ). The jury instruction setting forth the necessary elements of Harris's crime provides in Troylanden Harris has been charged with the offense of attempted armed carjacking. If you find from the evidence in this case beyond a reasonable doubt that[:] [1.] Troylanden Harris, on or about the 14 1 h day of January 2013, in the First Judicial District of Hinds County did; [2.] willfully, unlawfully and fclon[i]ously and knowingly, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear[,] or attempting to do so, or by any other means, take a motor vehicle from the actual possession of Jasmine Polly; [3.] said motor vehicle described as a 2004 Nissan Titan being then and there the personal property of Henry Judd; [4.] Troylanden Harris, being then and there armed with a deadly weapon, to wit[:] a handgun, or any object capable of inflicting death or serious bodily ham1, then you shall find the defendant guilty of attempted armed carjacking. This instruction tracks section almost verbatim. Thus, the jury was instructed on the essential elements of attempted armed carjacking. This issue is without merit. III. THE TRIAL COURT DID NOT ERR WHEN IT DENIED A LESSER-INCLUDED OFFENSE INSTRUCTION. In his third issue, Harris claims the trial court erred when it denied a jury instruction on attempted carjacking as a lesser-included offense of attempted armed carjacking. (Appellant's brief p. 14). is guilty of carjacking if he or she attempts to commit the crime, there is no requirement that the elements of attempt under the general attempt statute must be included in an indictment for aggravated assault. See Brooks, 18 So. 3d at 839 (9i]24). 10

14 "Where there exists a claim that a defendant was entitled to a lesser-included offense instruction, this Court conducts a de novo standard of review." Anderson v. State, 79 So. 3d 501, 505 (~16) (Miss. 2012). A [lesser-included offense] instruction should be granted unless the trial judge-and ultimately [the appellate court]-can say, taking all the evidence in the light most favorable to the accused and considering all reasonable inferences which may be drawn in favor ofthe accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser[ -]included offense (and conversely not guilty of at least one essential element of the principal charge.) ld. at (~15) (quoting Mease v. State, 539 So. 2d 1324, 1330 (Miss. 1989)). Polly testified that when she refused to get out of the vehicle, Harris put a Glock.40 caliber handgun to her leg. And, in his written confession, Harris stated that he pointed a gun at Polly when he told her to get out of the vehicle. Even in the light most favorable to Harris, no reasonable jury could have found that Harris was not armed. This issue is without merit. IV. HARRIS RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL. Finally, Harris claims he received ineffective assistance of counsel because his trial counsel did not request a continuance or mistrial for an alleged discovery violation. (Appellant's Briefp. 16). On cross-examination defense counsel asked Polly if she had given a statement to the police. (T. 183). When Polly confirmed that she had, defense counsel stated that he did not recall receiving the statement during discovery. (T ). To establish ineffective assistance of counsel, Harris must demonstrate: (l) his attorney's performance was deficient, and (2) this deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). "There is a strong presumption that counsel's performance falls within the range of reasonable professional assistance." Timmons v. State, 176 So. 3d 168, 176 (~32) (Miss. Ct. App. 2015) (citation omitted). "To overcome this presumption, a defendant must show 'a 11

15 reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different."' Id. ( citation omitted). Furthermore, the decision not to request a continuance or a mistrial falls within the ambit of trial strategy. Berry v. State, 882 So. 2d 157, 166 (~29) (Miss. 2004). Our supreme court has established guidelines for trial judges to follow when dealing with discovery violations. The guidelines include: (1) Upon defense objection, the trial court should give the defendant a reasonable opportunity to become familiar with the undisclosed evidence by... inspecting the physical evidence, etc. (2) If, after this opportunity for familiarization, the defendant believes he may be prejudiced by lack of opportunity to prepare to meet the evidence, he must request a continuance. Failure to do so constitutes waiver of the issue. (3) If the defendant does request a continuance, the State may choose to proceed with trial and forego using the undisclosed evidence. If the State is not willing to proceed without the evidence, the trial court must grant the requested continuance. Id. at 165 (~28) ( quoting Ramos v. State, 710 So. 2d 380, 385 (Miss. 1998)) ( emphasis added). Even if a discovery violation had occurred, Harris' s trial counsel was not ineffective for failing to request a continuance or mistrial. Had Harris' s trial counsel requested a continuance, the State could have chosen to proceed with the trial and foregone using the undisclosed evidence. But from the beginning, the State chose to forego using the allegedly undisclosed evidence. 7 Thus, Harris cannot meet his burden under Strickland. This issue is without merit. 7 At trial, the State made no mention of a statement from Polly until after defense counsel opened the door. (T. 186). 12

16 CONCLUSION The issues raised by Harris are without merit. Accordingly, the State of Mississippi respectfully requests that this Honorable Court affirm Harris's conviction and sentence. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: sf Katy Gerber KATYGERBER SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

17 CERTIFICA TE 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 Jeff Weill, Sr. Circuit Court Judge Post Office Box Jackson, MS Honorable Robert Shuler Smith District Attorney Post Office Box Jackson, MS Hunter Aikens, Esq. Office of State Public Defender Post Office Box 3510 Jackson, MS This the 9th day of November, OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi Telephone: (601) s/katy Gerber KATYGERBER SPECIAL ASSISTANT ATTORNEY GENERAL 14