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

Transcription

1 E-Filed Document Oct :36: KA COA Pages: 25 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI BRYAN MORTON APPELLANT VS. NO KA STATE OF MISSISSIPPI APPELLEE SUPPLEMENTAL BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: SCOTT STUART 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 CASE COURSE AND DISPOSITION OF THE CASE IN THE CIRCUIT COURT STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENT ARGUMENT CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Federal Cases: Giglio v. U.S. 405 U.S. 150, (1972) , 17 Strickland v. Washington, 466 U.S. 668 (1984)... 6 Mississippi Cases: Ballenger v. State, 667 So.2d 1242 (Miss.1995) Bester v. State, 212 Miss.641, 645, 55 So.2d 379 (1951)... 12, 14 Bolden v. State, 23 So.3d 491 (Miss.App.2009) , 12, 13, 14 Brown v. State, 483 So.2d 328 (Miss.1986)... 9 Carter v. State, 722 So.2d 1258( 13) (Miss.1998).... 8, 13, 15 Conners v. State, 92 So.3d 676 ( 15) (Miss.2012) Duplantis v. State, 644 So.2d 1235 (Miss.1994) Flora, 925 So.2d 797, at 811, ( 42)(Miss.2006) Fultz v. State, 822 So.2d 994, 998, ( 13) (Miss.App.2002) Knight v. State, 72 So.3d 1056, ( 10) (Miss.2011) Lenoir v. State, 222 So.3d 273, ( 41) (Miss.2017)... 8 Palmer v. State, 939 So.2d 792, ( 8) (Miss.2006) Rankin v. State, 636 So.2d 652 (Miss.1994) Rogers v. State, 166 So.3d 537, 544 (15) (Miss.App.2014)... 8 Sellers v. State, 183 So.3d, 86, ( 3) (Miss.App.2015)... 8, 13, 15 Shipp v. State, 215 Miss. 541, 61 So2d 329(1952) Simmons v. State, 813 So.2d 710 (Miss.2002)... 9 ii

4 Smith v. State, 797 So. 2d 854, ( 16) (Miss.2001)... 13, 14 Mississippi Court Rules: M.R.E., Rule 103(f).... 8, 13 Miss. R. Evid. 404(b)... 9 Mississippi Rule of Evidence 103(a)(1) Mississippi Rules of Evidence, Rule , 12 M.R.E., Rule iii

5 This is a supplemental Appellee s brief filed pursuant to an order of the Mississippi Supreme Court dated September 8, The order instructed the State to... file a supplemental appellee s brief responding to the issues raised in Morton s pro se appellant s brief filed on February 21, STATEMENT OF THE CASE This is a direct appeal from a judgment of conviction for attempted murder, armed robbery, and burglary of a dwelling. The Circuit Court of Warren County, Honorable Isadore W. Patrick, presiding, sentenced Bryan Morton to serve thirty years for the attempted murder, thirty years for the armed robbery, and twenty years for the burglary of a dwelling. COURSE AND DISPOSITION OF THE CASE IN THE CIRCUIT COURT The grand jury indicted Bryan Morton and Kimberly Chapman for attempted murder, armed robbery, and burglary of a dwelling. C.P The court tried Morton before a jury. The jury returned verdicts of guilty on each count. C.P The court sentenced Morton to serve thirty years on the attempted murder, Count I, thirty years for the armed robbery, Count II, and twenty years for the burglary of a dwelling, Count III. C.P Counts I and II were to run consecutively to each other, and Count III was to run concurrently with them. Morton filed a notice of appeal. 1

6 STATEMENT OF THE FACTS Charlie Arnold lived on Warrior s Trail, in Warren County, Mississippi. Tr Kimberly Chapman Testified That Bryan Morton Participated With Her in the Crimes: On May 4, 2014 Kimberly Chapman and Bryan Morton agreed to break into Charlie Arnold s house while Arnold was asleep and steal some items without Arnold knowing it. Tr Morton and Chapman drove to Charlie Arnold s house. They broke a window and entered Charlie Arnold s house. Tr Morton entered first. By the time Chapman reached Charlie Arnold s bedroom, Morton was already there. Morton had Charlie Arnold on the floor. He was tiring(sic) her up. Morton had rope around Arnold s feet and around her hands. Tr Charlie Arnold was covered in blood. She had a gash on her head. Tr Morton and Chapman began to look around the room. Morton gave Chapman a sharp object. He told her that if he was going to have Arnold s blood on his hands, that Chapman would, too. Chapman began to strike Arnold with the object. Tr Arnold asked Chapman to help her get onto the bed. Chapman did. Tr Kimberly Chapman then went outside and saw that Morton had driven away in her car. Chapman called Morton on the phone, but he did not answer. Tr Morton finally came back when it was almost daylight. Chapman got into the car, and the two of them drove away. Tr Charlie Arnold Described the Events, Her Injuries, and the Items Stolen: Kimberly Chapman also beat Charlie Arnold by striking her head with Arnold s walking stick. Tr. 207, 212. Charlie Arnold got up, and Bryan Morton hit her on the head with a shotgun. Tr

7 Chapman and Morton cut Charlie Arnold on her hand, her arm, and her face underneath her left eye. Tr Morton and Chapman continued to beat Charlie Arnold. Arnold lost consciousness. Tr After she was found, Charlie Arnold was in the hospital and was mostly unconscious for a day or two. Tr Chapman and Morton took the cash from Arnold s purse, the purse itself, her wedding ring, and all of her pills. Tr Charlie Arnold was in the hospital and then in an old folk s home until October. Tr Bryan Morton Testified and Denied He Ever Went to Charlie Arnold s Home or Met Arnold: Bryan Morton testified. He said he did not know Charlie Arnold and had never been to Charlie Arnold s residence. Tr Morton said that Chapman told Morton that she had to kill Charlie Arnold because Arnold had recognized her. Tr. Tr DNA Testing Found Charlie Arnold s DNA From Her Blood to be on a Jacket: Law enforcement found a jacket on the floor of the front seat passenger side of the Cadillac driven by Kimberly Chapman. The jacket had, what appeared to be, blood on the outside. The jacket was State Exhibit 30. Tr Forensic scientist Amy Malone of the Mississippi State Crime Lab specialized in serology. Malone determined that the substance was blood. Tr DNA testing showed that the blood contained Charlie Arnold s DNA. The DNA testing 3

8 also showed the Y-chromosome on another sample taken from the jacket. The testing showed that it belonged to Bryan Morton, his father, his brother, or his grandfather. Tr Joseph Heflie of the Mississippi State Crime Lab was accepted as an expert in DNA analysis. Tr Heflie found the blood on the jacket to be consistent with Charlie Arnold s DNA. Tr Heflie found a second DNA signature on the jacket. Heflie found that the DNA test results were consistent with the reference sample of Bryan Morton. Heflie found that Bryan Morton and all male individuals within his biological fraternal lineage could not be excluded as the donor of the male DNA. Tr Lee Ann Elliott Testified that Bryan Morton Told Her That He Went to Charlie Arnold s House and Helped to Rob Her: Bryan Morton told Lee Ann Elliott how he and Kimberly Chapman went to Charlie Arnold s home, beat, and robbed Arnold. Tr Bryan Morton told Lee Ann Elliott that he and Kimberly Chapman went to the home of Charlie Arnold with the intention of stealing her Lorcet and money. Morton said he hit Charlie Arnold because she saw Kimberly Chapman s face. Tr Bryan Morton told Elliott that Kimberly Chapman told him that she guessed that she was going to have to kill Charlie Arnold. This was after Arnold saw Kimberly Chapman s face. Tr

9 SUMMARY OF THE ARGUMENT PROPOSITION I. Bryan Morton claims that the court erred when it admitted evidence that Morton had committed other crimes. The evidence was admitted to prove why Melissa Chapman asked Bryan Morton to help her rob Charlie Arnold. It was appropriate to admit the testimony to give the jury the whole coherent story of what happened. PROPOSITION II. Morton claims the court erred when it allowed Investigator Randy Lewis to testify that he did not find Waylon Jones to have given a credible statement about Bryan Morton being with him all night. Jones claims that the court improperly allowed a lay witness to give an opinion. Morton argues that a lay person cannot give his opinion. He argues that only experts can give opinions. Bryan Morton did not object. The issue is procedurally barred. The State does not waive the procedural bar, but the state does argue that the Mississippi Rules of Evidence, Rule 701, do allow a lay witness to give opinion testimony. PROPOSITION III. Morton claims that the court erred when it admitted Kimberly Chapman to testify that the District Attorney had not promised her anything in exchange for her testimony. Bryan Morton argued that this was improper bolstering of her testimony. Bryan Morton did not object on the ground that it improperly allowed the state to bolster Chapman s testimony. The issue is procedurally barred. 5

10 PROPOSITION IV. Morton claims that he was denied effective assistance of counsel because counsel did not file a motion to suppress and exclude the evidence seized in the search warrant. He claims the warrant was issued based upon false statements. Morton has not met his burden. He has not proven both prongs of the test set out in Strickland v. Washington, 466 U.S. 668 (1984). Morton has not identified the individuals who gave the false statements, the statements themselves, or the content of the statements. Nor has Morton demonstrated that the statements were false or identified that the evidence that was admitted at trial as a result. 6

11 ARGUMENT PROPOSITION I. WHETHER THE TRIAL COURT ERRED WHEN IT ADMITTED EVIDENCE THAT MORTON COMMITTED OTHER CRIMES. Bryan Morton claims that the trial court erred when it admitted inadmissible testimony solicited by the prosecution. The testimony elicited by the prosecutor prejudiced the minds of the jurors against the defendant, and the testimony therefore plain error as stipulated in Supreme Court Rue 6(b). Supplemental Brief of Appellant, Pages 2-3. Morton states that the following is the complained of inadmissible testimony : Because I was trying to find a way to make some money and I knew he had broke into a house before with my ex-boyfriend and my cousin. Morton does not identify the testifying witness or cite the record. It appears, however, that he is referring to the testimony of Melissa Chapman on page 598 of the transcript. Melissa Chapman testified that she was going to have to immediately move with her four-month old son from where they were staying. Chapman said she did not have money or a job. She then called Bryan Morton. Tr The statement was admissible to tell the complete story to the jury. Chapman explained that she called Morton because she was trying to find a way to make some money and she knew that Morton had broken into a house with her ex-boyfriend and cousin. Tr Morton objected on the ground of hearsay. The court explained to Chapman that she could only testify to what she saw, not what someone else told her. Tr The State then asked Chapman why she thought Morton would help her find some 7

12 money. Chapman again said because Morton and her cousin had previously broken into a house. Morton objected on the ground that the state had not laid the proper predicate. The court then struck the last answer about breaking into someone s house. Tr Morton waived any all other grounds when he objected solely on the grounds of hearsay and failure to state a proper predicate. It is well established that [o]bjection on one ground at trial waives all other grounds for objection on appeal. Carter v. State, 722 So.2d 1258, 1261( 13) (Miss.1998) (citation omitted). Sellers v. State, 183 So.3d, 86, 88, ( 3) (Miss.App.2015). Morton is procedurally barred from raising this issue on appeal for the first time. That is presumably the reason Morton raises the issue as plain error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved. M.R.E., Rule 103(f). Plain Error Review: Under the plain-error standard of review, we consider: (1) whether there was an error; (2) that adversely affected a defendant's substantive rights, causing a manifest miscarriage of justice. See Flora, 925 So.2d at 811 ( 42). For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity or public reputation of judicial proceedings. Conners v. State, 92 So.3d 676, 682 ( 15) (Miss.2012). Lenoir v. State, 222 So.3d 273, 281, ( 41) (MIss.2017). Rogers v. State, 166 So.3d 537, 544, ( 15) (Miss.App.2014). Other Crimes or Bad Acts: The general rule is that evidence of a crime, other than the one for which the accused is 8

13 being tried, is not admissible. Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995) (citing Duplantis v. State, 644 So.2d 1235, 1246 (Miss.1994)). Palmer v. State, 939 So.2d 792, 795, ( 8) (Miss.2006). However, there are exceptions to this general rule as provided by Miss. R. Evid. 404(b): Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Evidence of other crimes or bad acts is also admissible in order to tell the complete story so as not to confuse the jury. In Brown v. State, 483 So.2d 328, 330 (Miss.1986), this Court said the State has a legitimate interest in telling a rational and coherent story of what happened. Where substantially necessary to present to the jury the complete story of the crime, evidence or testimony may be given even though it may reveal or suggest other crimes. Simmons v. State, 813 So.2d 710, 716 (Miss.2002); Ballenger, 667 So.2d at Palmer, Id., 9. The State s Purpose was to Prove Intent, Motive, and to Tell the Complete Story: The State put on the evidence to show how and why Kimberly Chapman called Bryan Morton and asked him to help her to break in and steal from Charlie Arnold. Kimberly Chapman knew that Bryan Morton had experience in stealing property based upon her knowledge of Morton s past activities. She knew that he was involved before because Morton had done these things with Chapman s boyfriend and cousin. The State was attempting to tell the jury the whole and complete story, as well as proving motive and intent. Intent was a necessary element of the crimes charged. Chapman s testimony 9

14 supported a finding that Morton, as well as Chapman, had the intent to commit both the robbery of Charlie Arnold and the burglary of her home. The trial court did not err when it admitted Kimberly Chapman s testimony about her knowledge Bryan Morton stealing with her cousin and boyfriend was for the purpose of telling the complete story, as well as for proving their intent to commit the crimes. PROPOSITION II. WHETHER THE COURT ERRED WHEN IT ALLOWED THE PROSECUTOR TO SOLICIT THE OPINION OF A LAY WITNESS. Bryan Morton claims the court erred when it admitted testimony by a lay witness, Investigator Randy Lewis, as follows: Q. Did you find the statement of Waylon Jones to be credible? A. I m not going to say, hard to believe, but I didn t think that it was entirely true, no, sir. Tr There was no objection. Tr This issue is procedurally barred. It cannot be raised for the first time on appeal after Morton failed to put the issue before the Circuit Court Judge at trial. Fultz v. State, 822 So.2d 994, 998, ( 13) (Miss.App.2002). Morton had been putting evidence before the jury that the witness Waylon Jones told Investigator Randy Lewis that Morton did not leave Jones s house that night. The fact in issue was whether Morton stayed with Jones all night, or not. The District Attorney actually asked Lewis, Did you find the statement to be credible? Investigator Lewis was conducting an investigation to determine who broke into Charlie Arnold s house and robbed and beat her. 10

15 During the investigation Lewis found other witnesses who told him that Morton was involved in the crimes. Lewis s investigation also turned up evidence that a jacket contained DNA from Charlie Arnold and DNA from either Bryan Morton or his father s lineage. Lewis did not say he did not believe Jones. He said he found Jones s statement not to be entirely true. In other words, some of Jones s statements were not true. Based upon Lewis s investigation and findings, his statement about the credibility of Jones s statement was an accurate statement of fact. Bryan Morton s brief leaves out the end of the cross-examination which immediately preceded the above testimony. Counsel for Morton asked the following questions and Randy Lewis gave the following answers: Q. And he reiterated more than once that Bryan Morton could not have committed this crime? A. He did. He did. He said he was there. Q. He said he was with him all night and he didn t leave with Kimberly Chapman? A. He did say that, yes, sir. Tr That was the end of cross-examination. The District Attorney then began redirect examination of Randy Lewis. The District Attorney s first question was the above question when he asked Randy Lewis if he found Waylon Jones s statement to be credible. Morton argues that the court erred admitting evidence of Randy Lewis s testimony about Lewis s belief or credibility of a alibi defense witness testimony, since experts are the only witnesses allowed to express their opinion! Supplemental Brief of Appellant, Page 4. If Lewis s testimony was an opinion, with all due respect, lay witnesses can give opinion 11

16 testimony. M.R.E., Rule 701. A lay witness s opinion may be given if it is: (a) (b) rationally based on the witness s perception; helpful to clearly understanding the witness s testimony or to determining a fact in issue:; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Rule 701 does not open the door to any and all opinion testimony. As we stated in Whittington, a lay witness may not express an opinion on the ultimate issue. He may not give an opinion that is not based upon his personal perceptions, nor that will not help the jury fairly resolve a controverted, material fact. Dale v. Bridges, 507 So.2d 375, 378 (Miss.1987). Lewis s testimony was based upon his perception of what he had learned during his investigation through what he was told and what he saw. Lewis s knowledge of the case came from the statements of various witnesses which they gave to Lewis. The District Attorney was attempting to have Lewis clearly convey what he found, specifically about Charlie Arnold s assault and the subsequent theft. He was asking Investigator Lewis to compared the facts Lewis discovered to have happened with Jones s statement to Lewis. Additionally, the District Attorney asked the question in response to defense counsel asking Lewis about Jones s statement to him about Morton not having committed the crime. Tr The question whether Jones s statement was credible was asked immediately after defense counsel questioned Lewis about Jones s statement. Tr The witness was Randy Lewis. During his investigation, Lewis had discovered other evidence which refuted Waylon Jones s statement to Lewis that Bryan Morton could not have committed the crime. Lewis conducted the investigation and had interviewed other witnesses 12

17 who had said that Morton did break into Charlie Arnold s house and participated in robbing and beating Arnold. Tr , A jacket was found on the floor of Kimberly Chapman s car. The jacket had blood on it that contained Charlie Arnold s DNA. The jacket also contained DNA from either Bryan Morton or his male lineage. Tr , 527. This issue of the State bolstering Randy Lewis s testimony was not preserved for appeal. In order to preserve the issue for appeal Morton had to object when the question was asked. If no contemporaneous objection was made, the error, if any, was waived. Bolden v. State, 23 So.3d 491, 16 (Miss.App.2009). Smith v. State, 797 So. 2d 854, 856, ( 16) (Miss.2001). In Bolden, Id., the appellant complained that improper lay opinion was given. The court found that Bolden failed to object, and the issue was barred. Bolden, Id., at 856, ( 16). Mississippi Rule of Evidence 103(a)(1) states that [e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1)[i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context... Miss. R. Ev. 103(a)(1) (emphasis added). Morton claims this was plain error. Morton cites Shipp v. State, 215 Miss. 541, 61 So2d 329(1952). The Court in Shipp said that testimony by the officers about the results of their investigations and what others told them was hearsay and inadmissible. It was prejudicial and damaging. Shipp is distinguished, however, because Shipp objected and the court overruled the objections. Shipp, Id. at 551. The facts are further distinguished from the facts in Shipp because Morton initially asked Randy Lewis about the statement he took from Waylon Jones. The court in Shipp said that the statement was admitted in error because it was hearsay. In Bryan Morton s trial, however, 13

18 Morton s lawyer first asked Lewis about the statement he took from Jones. The same is true of the other case cited by Morton. Bester, also, is distinguished. Bester v. State, 212 Miss.641, 645, 55 So.2d 379 (1951). Bester objected, the trial court overruled the objection, and the reviewing court on appeal found that the evidence was hearsay and incompetent. Morton, unlike Bester who did object, did not object. In the text of the Supplemental Brief, Morton argues that in addition to the opinion testimony issue, that the testimony was improper bolstering. This argument, too, is barred because Morton failed to object and give the trial judge an opportunity to rule. Morton waived any objection. Bolden v. State, 23 So.3d 491, 16 (Miss.App.2009). Smith v. State, 797 So. 2d 854, 856, ( 16) (Miss.2001). PROPOSITION III. WHETHER THE COURT ERRED WHEN IT ADMITTED TESTIMONY BY THE CO-DEFENDANT ABOUT WHAT SHE WAS PROMISED OR TOLD ABOUT HER TESTIMONY. Bryan Morton complains that the prosecution bolstered its case, as follows: The prosecution solicited testimony from co-defendant about what if anything was she promised or told about her testimony. Supplemental Brief of Appellant, Page 4. Bryan Morton then claimed the court erred when it admitted the following testimony by Kimberly Chapman: Q: What if anything have I told you about testifying? A: Nothing. Tr

19 Supplemental Brief, Page 5. Morton is Procedurally Barred: Bryan Morton did not object on the ground of improper bolstering. Morton failed to object on any ground after the question was asked. Tr Before the questions were asked, Morton objected on the ground that the District attorney was asking leading questions and was testifying. The court overruled the objection as to leading. Tr The District Attorney then asked Chapman, what if anything, he promised her in exchange for her testimony. She said, Nothing. Then he asked Chapman what he told Chapman about her testimony, and she again said Nothing. Tr As is argued above, [o]bjection on one ground at trial waives all other grounds for objection on appeal. Carter v. State. 722 So.2d 1258, 1261( 13) (Miss.1998) (citation omitted). Sellers v. State, 183 So.3d, 86, 88, ( 3) (Miss.App.2015). Did Morton preserve the issue for appeal? Morton did not object on the ground that the State was bolstering Chapman s testimony. He waived the issue for appeal and is procedurally barred from raising it on appeal for the first time. The State does not waive the bar, but the State does address the merits. Bryan Morton s Cross-Examination on Promises Made to Chapman: Bryan Morton asked Kimberly Chapman if she testified in order to save her own neck. He asked Chapman she made her deal with the District Attorney to testify. Morton asked Chapman if she expected that by testifying she might get out of the indictment and charges or get a lighter sentence. Finally, Morton asked Chapman if she ever asked the District Attorney about 15

20 trying to work out a deal. Tr The Jury s Entitlement to Know: In Giglio v. U.S., 405 U.S.150, (1972), the court said: Here the Government's case depended almost entirely on Taliento's testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento's credibility as a witness was therefore *155 an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it. It is standard practice for defense counsel to cross-examine a co-defendant or accomplice in order to determine if the witness has any motive to give false testimony. In order to avoid false testimony at trial, the appellate courts have held that the failure to disclose an offer of a favorable recommendation, if it is found to be material, made to a testifying accomplice can be a denial of due process. Giglio v. U.S., 405 U.S. 150, (1972). The court said in Giglio, at , that, when the government s case depends almost entirely on the accomplice s testimony, the witness s... credibility is an important issue, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know it. If It Had Been Error, It Would Have Been Harmless: The opinion in Giglio made clear that a new trial was not automatically required when 16

21 combing the prosecutor s files discloses... evidence possibly useful to the defense but not likely to have changed the verdict Id. at 154. A new trial is required if the false testimony could... in any reasonable likelihood have affected the judgment fo the jury... Giglio, at 154. In other words, even if false testimony is discovered, it is subject to harmless error analysis. The question, as it almost always is, was Bryan Morton denied a fair trial? Specifically, was Bryan Morton denied a fair trial when Kimberly Chapman testified on direct examination that she was not promised anything for her testimony and the District Attorney told her nothing about her testifying? Bryan Morton s Argument: Bryan Morton complains that the prosecution bolstered its case, as follows: The prosecution solicited testimony from co-defendant about what if anything was she promised or told about her testimony. Supplemental Brief of Appellant, Page 4. Bryan Morton then claimed the court erred when it admitted the following testimony by Kimberly Chapman: Q: What if anything have I told you about testifying? A: Nothing. Tr These questions and answers did not produce improper bolstering. They merely gave the jury information which the jury was entitled to know. It was evidence of what was, or was not, Chapman s motive to testify. Giglio, at

22 PROPOSITION IV. WHETHER MORTON WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO THE FAILURE TO ASK FOR A FRANKS HEARING TO CHALLENGE THE VERACITY OF THE OF THE EVIDENCE UNDERLYING THE SEARCH WARRANT. Bryan Morton claims that he was denied effective assistance of counsel because counsel failed to request a Frank s Hearing. He argues that counsel was not effective because he failed to... request and procure a veracity challenge or Franks Hearing of the validity of the search warrant. Morton claims that... Morton s case turned on the jury s evaluation of physical evidence obtained from a search warrant that was granted by use of untrustworthy multiple statements that were given during the course of Warren County s investigation. Morton is claiming a Fourth Amendment violation in support of his claim that he was denied effective assistance of counsel. His argument is that there was not sufficient probable cause to issue the search warrant, and the evidence found and recovered during the resulting search should have been excluded. Therefore, the failure of counsel to make that argument was deficient representation and, as a result, he was convicted by the jury. With all due respect, Bryan Morton must do more than allege in his direct appeal brief that he was denied effective assistance of counsel due to counsel s failure to file a motion claiming that the underlying facts and circumstances were false. He has a duty to state the facts supporting his claim and cite the record. Bryan Morton does not identify the parties who gave the false statements. Nor does Morton tell us what information in the statements he is now claiming was false. Bryan Morton does not demonstrate that the search warrant was not supported by probable cause. His failure to demonstrate that the search warrant should not have been issued defeats Morton s claim that trial 18

23 counsel s representation was deficient. Nor does Bryan Morton demonstrate that evidence seized was admitted at trial and caused Morton to be convicted. There is a strong but rebuttable presumption that trial counsel was competent and performed within the wide range of reasonable conduct expected from counsel. To rebut the presumption of competence the appellant must show that the appellate record supports a finding that (1) trial counsel s performance was deficient, and (2) the deficiency prejudiced the appellant. Knight v. State, 72 So.3d 1056, 1060, ( 10) (Miss.2011). The defendant has the burden of proving both prongs. The defendant must show that, but for his attorney s errors, there is a reasonable probability that he would have received a different result in the trial court. Rankin v. State, 636 So.2d 652, 656 (Miss.1994). Morton has not met his burden of proving both prongs of the test of ineffective assistance of counsel. Bryan Morton makes general allegations, but he does not cite the record or state the names of the persons who gave untrustworthy statements. Nor does Morton tell us the contents of the untrustworthy multiple statements. Bryan Morton does not identify or describe the evidence that was admitted at trial as a result of the search. Morton has not rebutted the presumption that trial counsel... was competent and performed within the wide range of reasonable conduct expected from counsel. Knight, Id., at 1060, ( 10). The record does not support a finding that, but for the deficient representation by Morton s counsel, the result at trial would have been different. Bryan Morton has not met his burden of proving that he was denied effective assistance of counsel. 19

24 CONCLUSION Bryan Morton has not demonstrated that the trial judge was in error when he admitted certain testimony. Nor has Bryan Morton proven that he was denied effective assistance of counsel because counsel failed to challenge the evidence supporting the search warrant. The State asks this court to affirm the judgment of the Circuit Court of Warren County, Mississippi. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

25 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 Isadore W. Patrick, Jr. Circuit Court Judge Post Office Box 351 Vicksburg, MS Honorable Richard Smith, Jr. District Attorney Post Office Box 648 Vicksburg, MS Mollie McMillin, Esq. Office of State Public Defender Post Office Box 3510 Jackson, MS I also certify that I have sent by U.S. Mail a copy to the non-mec party: This the 9 th day of October, Bryan Morton Hwy. 80 West Meridian, MS OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi Telephone: (601) s/scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL 21