E-Filed Document Jun 21 2017 11:06:32 2016-KA-01267-COA Pages: 7 IN THE COURT OF APPEALS OF MISSISSIPPI HUNTER LANE SARRETT vs. VS. STATE OF MISSISSIPPI APPELLANT NO. 2016-TS-01267-COA APPELLEE APPELLANT'S APPelLANT'S REPLY BRIEF APPEAL FROM THE CIRCUIT COURT OF RANKIN COUNTY Prepared by: Donald W. Boykin Attorney at Law 515 Court Street Jackson, MS 39201 601-969-3015 MB #4231
~B~OFCONnN~ Table of Authorities......... i A~umen~ Issue One........................................... 1 Issue Two................................. 1 Issue Three....................................... :......... 2. Issue Four................. 3 Issue Five............................................. 3 Certificate of Service..................................... 4
TABLE OF AUTHORITIES Barnette v. State, 481 So.2d 788 (Miss. 1985)............ 1 Bradley v. State, 562 SO.2d 1275 (Miss. 1990).............................. 1
ARGUMENT OF ISSUES ISSUE ONE: SARRETT'S MOTION TO DISALLOW EVIDENCE OF ANY OF HIS ALLEGED OTHER CRIMES, ACTS OR WRONGS SHOULD HAVE BEEN GRANTED. The State says, "it can be easily inferred that Sarrett is talking about selling drugs". There is nothing in the record to substantiate that the phrase "business is picking up" was referring to the sale of drugs. There was no evidence as to what Sarrett's business was. He could have been engaged in a virtually unlimited number of sales' occupations, particularly sales at houses. Even if Sarrett was referring to drug sales, it would have been pure speculation that they were "so interrelated or form part of a series or occurrences", or that they were "closely related acts", as the State suggests. Contrary to the facts in Bradley v. State, 562 So.2d 1275 (Miss. 1990), cited by the State, even if Sarrett had been referring to drug sales, they were not part of the one alleged transaction with Young. Unlike in Barnette v. State, 481 So.2d 788 (Miss.1985), any other alleged sales by Sarrett were not part of the alleged transaction with Young. The improper words used by the prosecution in its opening statement and closing argument were absolutely unnecessary to convey "a rational and coherent story of what happened". The improper words, not in evidence, were designed purely to prejudice the jury. To permit the State's theory, the rules of evidence would permit testimony of other sales at any time to any other person regardless if they were part of the same transaction. ISSUE TWO: SARRETT'S TRIAL COUNSEL SHOULD HAVE OBJECTED TO IMPROPER STATEMENTS MADE BY THE PROSECUTORS DURING OPENING STATEMENTS AND CLOSING ARGUMENTS, SHOULD HAVE MOVED FOR A MISTRIAL AND A MISTRIAL SHOULD HAVE BEEN GRANTED. Contrary to what the State says in its brief, the prosecution did not "paraphrase" in its opening statement and in its closing argument about what was heard on the video. In both 1
cases the prosecution added the word "drops". Considering that word was added both in the opening statement and in the closing argument (even immediately after the prosecutor played a purported excerpt of the video), it appears the prosecution's false statements were intentional. Further evidence of that is that the trial judge acknowledged during a pre-trial hearing the word "drops" could not be heard on the video. In its brief the State says, "While the State did mention the 'business is picking up' line again later in its closing, there were no additional references to any 'drops"'. That is incorrect, for the prosecution did use the word "drops" a second time, in its closing argument. The State's brief incorrectly says the word "fifteen" can be heard in the video in reference to people's houses. Whether, as the State suggests, the jury could have inferred that Sarrett was talking about drugs, is highly debatable, the prosecution in neither its opening statement or closing argument ever contended it was inferring that Sarrett was talking about drugs, in both instances the prosecution categorically said Sarrett used the word "drops". The State suggests Sarrett's trial counsel may have had a "trial strategy" for not objecting to the prosecution's opening statement and closing argument. That is merely a conclusory statement without any explanation from the State as to why such a strategy may have been used. Clearly, the State's erroneous comments were highly prejudicial to Sarrett. ISSUE THREE: SARRETT'S COUNSEL SHOULD HAVE OBJECTED TO EXHIBITS S4, S12 AND S13 BEING ADMITTED AS EVIDENCE, AND THEY SHOULD NOT HAVE BEEN ADMITTED AS EVIDENCE. The alleged drug transaction was purportedly recorded on a key fob camera. A disk was introduced into evidence as Exhibit S4. Yet, as stated in Sarrett's Brief no evidence was presented in trial as to how whatever was recorded on the camera was transferred to a disk. 2
Exhibit S4 was apparently a disk copied from another disk, if a disk was made from a recording on a computer hard drive, the original disk was not introduced into evidence, and contrary to M.R.E. 1002, no explanation was given for the absence of the "original" disk. ISSUE FOUR: THE STATE FAILED TO MEET ITS BURDEN OF PROOF AS TO COUNTS I AND II AND SARRETT'S MOTIONS FOR DIRECTED VERDICT AND PEREMPTORY INSTRUCTIONS AS TO COUNTS I AND II SHOULD HAVE BEEN GRANTED. The issue is not whether Conville testified that the substance was a controlled substance or that there was sufficient proof there was a controlled substance. The issue is that there was insufficient proof the substance was Cathinone. Further, it is inconsequential that Sarrett's trial counsel did not allege in his motion for directed verdict that the substance was not Cathinone. That is not a procedural bar. While Sarrett's motion for jnov, or for new trial, did not specifically mention insufficient proof the substance was Cathinone, he did allege there was insufficient proof of guilt as to Counts I and II, for which the State had to prove the substance was Cathinone. Simply stated, the issue is whether there was proof beyond a reasonable doubt the substance was Cathinone. Conville's initial testimony was that it was Ethylone. Then she testified that Ethylone was "a substituted drug known as Cathinone. Thus, was the substance Ethylone, or was it Cathinone? Her testimony leaves considerable doubt. ISSUE FIVE: THE TRIAL COURT SHOULD HAVE GRANTED SARRETT A HEARING ON HIS MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, OR IN THE ALTERNATIVE FOR A NEW TRIAL. Other than to cite this court's previous rulings concerning this issue, the State does not address any of the points raised in the Brief for Appellant as to why the trial court improperly 3
denied a hearing on Sarrett's motion. Further, the State says Sarrett did not indicate in his brief whether the Judgment of Conviction or Order of Conviction had been "sent" to his attorneys. While both documents were obviously received by at least one of his attorneys, the issue is not whether the documents were received by his attorney, but when the documents were transmitted to or received by his attorney. There is nothing in the court's records to indicate when the documents were transmitted to or received by Sarrett's attorneys. However, even if Sarrett's attorneys had received the Judgment of Conviction within ten days after it was filed, the trial judge would not have granted a_ hearing. Respectfully submitted, HUNTER LANE SARRETT BY: /s Donald W. Boykin Attorney for Hunter Lane Sarrett CERTIFICATE OF SERVICE I certify that on June 21, 2017 I filed with the Clerk of the Court the foregoing pleading using the CM/ECF system which is to notify counsel of record: Abby Eason Koonce Special Assistant Attorney General P.O. Box 220 Jackson, MS 39205-0220 and that I mailed same by U.S. mail, postage prepaid to: Honorable John H. Emfinger Circuit Judge P.O. Box 1885 Brandon, MS 39043 and Honorable Michael Guest District Attorney P.O. Box 68 Brandon, MS 39043 Is Donald W. Boykin 4