BRIEF OF THE APPELLANT

E-Filed Document Apr 28 2015 16:28:45 2014-KA-01783-COA Pages: 15 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI ANDREW GRAHAM APPELLANT v. No. 2014-KA-1783-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Appeal from the Circuit Court of the Lincoln County, Mississippi No. 12-078-LT Justin T. Cook, MB # 102622 OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION P.O. Box 3510 Jackson MS 39207 jcook@ospd.ms.gov T: (601) 576-4290 F: (601) 576-4205 Attorney for the Appellant

CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies pursuant to Mississippi Rules of Appellate Procedure 28(a)(1) that the following persons have an interest in the outcome of the case. These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal. Andrew Graham Appellant Ivan Burghard Trial Counsel for the Appellant Justin T. Cook George T. Holmes Appellate Counsel for the Appellant Hon. Michal M. Taylor Trial Judge Brendon Adams Trial Counsel for the State Jim Hood, Esq Attorney General of Mississippi John Henry, Esq. Appellate Counsel for the State This the 28th day of April, 2015. /s/ Justin T. Cook Justin T. Cook, MB # 102622 OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Attorney for the Appellant i

TABLE OF CONTENTS Certificate of Interested Persons... i Table of Contents... ii Index of Authorities... iii Statement of Issue Presented for Review... 1 Statement of the Case... 1 Procedural History... 1 Facts... 2 Summary of the Argument... 3 Argument... 3 Issue One: The State failed to present any evidence that Graham conspired with Terrance D. Hudson to possess a controlled substance inside of a correctional facility. Therefore, the evidence is insufficient to support the conviction on this count of the indictment.... 3 Issue Two: Graham s Indictment for Conspiracy was Deficient.... 5 Issue Three: The Trial Court Erred in Sentencing Graham as a Habitual Offender?... 6 Conclusion... 10 Certificate of Service... 11 ii

Cases INDEX OF AUTHORITIES Clark v. State, 960 So. 2d 521 (Miss. Ct. App. 2006)... 6 Flanagan v. State, 605 So. 2d 753 (Miss. 1992)... 4 Franklin v. State, 676 So. 2d 287 (Miss. 1996)... 4 Hull v. State, No. 2013-KA-01813-COA (Miss. Ct. App. Mar. 17, 2015).... 8 Jefferson v. State, 958 S0. 2d 1276 (Miss. Ct. App. 2007)... 6 Moore v. State, 755 So. 2d 1276 (Miss. Ct. App.2000)... 6 Nixon v. State, 533 So. 2d 1078 (Miss. 1987)... 4 Sneed v. State, 722 So.2d 1255 (Miss.1998)... 6 Vince v. State, 844 So. 2d 510 (Miss. Ct. App. 2003)... 6, 7 Warren v. State, No. 2013-KA-00926-COA (Miss. Ct. App. Jan. 27, 2015)... 5 Rules URCCCP 7.06... 5 iii

STATEMENT OF ISSUE PRESENTED FOR REVIEW Issue One: The State failed to present any evidence that Graham conspired with Terrance D. Hudson to possess a controlled substance inside of a correctional facility. Therefore, the evidence is insufficient to support the conviction on this count of the indictment. Issue Two: Graham s Indictment for Conspiracy was Deficient. Issue Three: The Trial Court Erred in Sentencing Graham as a Habitual Offender. STATEMENT OF THE CASE Procedural History On May 10, 2012, a Lincoln County Grand returned a multi-count indictment against the appellant, Andrew Graham, charging him with knowingly brining a controlled substance into a correctional facility and conspiracy to possess a controlled substance in a correctional facility. (C.P. 5-6, R.E. 5-6 ). This matter was assigned and docketed to the Honorable Michael M. Taylor, circuit court judge. On October 30, 2014, Graham was brought to trial and ultimately convicted of only conspiracy. (C.P. 103, R.E. 111). At a later sentencing hearing, Graham was sentenced to a total of five years in the custody of the Mississippi Department of Corrections, pursuant to Mississippi Code Annotated section 99-19-81. (C.P. 102, R.E. 10). On, November 5, 2014, Graham filed his motion for new trial. (C.P. 104-106, R.E. 12-14), which was denied on December 8, 2014. (C.P. 113, R.E. 16). Notice of appeal was filed on December 17, 2014. (C.P. 118, R.E. 17). 1

Facts On the night of February 24, 2012, Chief Deputy Johnny Hall of the Lincoln County Sheriff s Department received a call to come to the Lincoln County Jail. (Tr. 113-18). After When he arrived, he viewed a video recording of the jail s yard. (Tr. 120, Exhib. S-2). A door located on the back of the jail connected to the yard had a small crack, where contraband was able to be slid through. (Tr. 122). In the video, Chief Deputy Hall identified the Appellant, Andrew Graham, as wearing a sheet. (Tr. 122). In the video, individuals go the area of the yard where the crack in the door was. (Tr. 129). Law enforcement testified that, from the video, they saw Graham bending down and picking up objects. (Tr. 128-30). The video, however, is incomplete, skips time, and does not offer a clear vision of what, if anything, was passed through the back door of the jail yard. Larry Morris, who monitored inmates at the jail, searched them as they reentered from the yard. (Tr. 137-41). Officers found three envelopes on Hudson. (Tr. 151). As Graham was searched, authorities noticed Graham attempting to pass the blanket to Hudson. (Tr. 141). The blanket was confiscated from Graham. (Tr. 143). In the blanket and the envelopes on Hudson, authorities found what they believed to be marijuana. (Tr. 150-57). Crime Laboratory confirmed those beliefs. (Tr. 185). Terrance Hudson did not testify at trial. 2

SUMMARY OF THE ARGUMENT The State failed to present sufficient evidence to convict Graham of conspiring with Hudson to possess drugs in a correctional facility. The State s circumstantial case rests solely on speculation and conjecture not evidence. Furthermore, Graham s indictment was fatally defective for failing to allege the specific contraband that he and Hudson were alleged to have conspired to possess. Lastly, the State presented no evidence at sentencing to prove, beyond a reasonable doubt, that Graham was a habitual offender. ARGUMENT Issue One: The State failed to present any evidence that Graham conspired with Terrance D. Hudson to possess a controlled substance inside of a correctional facility. Therefore, the evidence is insufficient to support the conviction on this count of the indictment. follows: In the second count of the indictment, the State charged that: [O]n or before February 24, 2012, in Lincoln County Mississippi, and within the jurisdiction of this court, the said ANDREW GRAHAM AND TERRANCE D. HUDSON did willfully, unlawfully, feloniously and knowingly conspire and agree, each with the other, and/or with some other person or persons to the grand jurors unknown, to commit the crime of possession of a controlled substance inside a correctional facility, contrary to and in violation of Sections 97-1-1 and (47-5-198). The Mississippi Supreme Court has explained the law regarding conspiracy as For there to be a conspiracy, there must be recognition on the part of the conspirators that they are entering into a common plan and knowingly intend to further its common purpose. The conspiracy agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the 3

alleged conspirators. Furthermore, the existence of a conspiracy, and a defendant s membership in it, may be proved entirely by circumstantial evidence. Franklin v. State, 676 So. 2d 287, 288 (Miss. 1996) (quoting Nixon v. State, 533 So. 2d 1078, 1092 (Miss. 1987)). The trial court recognized that the State s case, at least as it relates to the conspiracy charge, was purely circumstantial. To that end, the trial court granted instruction D-11, a proper statement of the law, regarding circumstantial evidence. (C.P. 82). Accordingly, any sufficiency analysis undertaken by this Court should take into consideration the trial court s properly-given instruction. The supreme court further explained that conspiracy is a joint or group offense requiring a concert of free will. Id. (quoting Flanagan v. State, 605 So. 2d 753, 757 (Miss. 1992)). Most importantly, for a conspiracy to exist, there must be a union of the minds among the alleged conspirators. Id. There is no proof in this case of a union of the minds between Graham and Hudson. There is testimony that Graham attempted to hand something to Hudson. This is not indicative of any agreement or union. The State presented no evidence whatsoever that Hudson knew what was being handed to him, that he had agreed to it, or that he was aware of it being contraband. The State s case rested solely on speculation and not evidence. Because the State failed to present sufficient evidence to convict Graham of conspiracy, this honorable Court should reverse his conviction, and render a verdict of not guilty. 4

Issue Two: Graham s Indictment for Conspiracy was Deficient. The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. URCCCP 7.06 In Warren v. State, No. 2013-KA-00926-COA, 2015 WL 326660, at *2 (Miss. Ct. App. Jan. 27, 2015), this Court reversed a conviction where an indictment for possession of a controlled substance in a correctional facility failed to specifically identify the controlled substance. In Warren, the indictment deficient for failing to specify the nature of the controlled substance that defendant was alleged to have possessed in a correctional facility. Warren should similarly apply to inchoate offenses with possession of a controlled substance as the crime alleged to have been conspired to. Furthermore, it could reasonably be argued that inchoate offenses should require more specificity and clarity such offenses possess a mens rea element separate from that of the principle offense. Graham was not on notice of what possible controlled substance he was purported to have conspired to possess. Indeed, Graham was left to speculate, by nature of the indictment, what of any of the numerous controlled substances under various schedules the State would accuse him of conspiring to possess. It is inconsequential that Graham was accused of possessing marijuana under Count 1 of the indictment. Count 2 and Count 1 or wholly separate charge. Due process demands that Graham be fully apprised of what the State is charging on each count. 5

Because the State s indictment for conspiracy was deficient, this Court should reverse Graham s conviction, and remand this case for a new trial. Issue Three: The Trial Court Erred in Sentencing Graham as a Habitual Offender. In a motion, and at a pre-trial hearing, the State sought to amend Graham s indictment to charge him as a habitual offender. (C.P. 38, Tr. 2-6). During sentencing, the trial court simply stated that Graham was a habitual offender and sentenced him to the maximum amount proscribed by law. (Tr. 230-32). However, the State never attempted to submit into evidence a certified copy of Graham s purported prior offenses. Indeed, the State presented nothing other than the fact that Graham had been charged as a habitual offender. This is not sufficient. Although no challenge or objection was made by Graham s trial counsel as to the sufficiency of the State s proof of habitual status, this Court reviews issues as plain error where a fundamental right of the defendant has been impacted. Jefferson v. State, 958 So. 2d 1276, 1281 (Miss. Ct. App. 2007) (citing Moore v. State, 755 So. 2d 1276, 1279 (Miss. Ct. App.2000)). It is well settled that a defendant has a fundamental right to be free from an illegal sentence. Clark v. State, 960 So. 2d 521, 524 (Miss. Ct. App. 2006) (citing Sneed v. State, 722 So. 2d 1255, 1257 (Miss.1998)). In order to sentence a defendant as a habitual offender, the State bears the burden of proving all of the section s elements beyond a reasonable doubt. Vince v. State, 844 So. 2d 510, 517 ( 22) (Miss. Ct. App. 2003) (emphasis added). 6

In the instant case, the State presented insufficient evidence to prove that Graham s habitual status because no evidence whatsoever was admitted in the sentencing hearing. The trial court merely concluded that Graham was a habitual offender, despite the fact that the State had to prove such. This court s opinion in Vince v. State, 844 So. 2d 510, 517-18 ( 22-26) (Miss. Ct. App. 2003), is informative of this issue. In Vince, the State sought to prove that the defendant therein was a habitual offender under Section 99-19-81 by producing an NCIC compilation of a defendant's criminal history at the sentencing hearing. Vince, 844 So. 2d. at 517 ( 21-22). The Vince Court, did not reach the issue of whether the NCIC document was sufficient to establish the defendant s status a habitual offender; instead, this Court held that the State failed to prove the defendant s habitual status beyond a reasonable doubt because the NCIC document was not a part of the record, did not appear as an exhibit, and was not listed as such in the court reporter s official transcript. Id. at 517 ( 22). Accordingly, this Court vacated Vince s sentence, reversed and rendered the judgment finding him a habitual offender, and remanded the case for the sole purpose of re-sentencing. Id. at 517 ( 22), 519 ( 30). The Vince Court further observed the long-standing admonition of the supreme court warning against the tendency to routinely allow the state to produce some documentation of prior offenses and for the trial court to perfunctorily find the defendant [a] habitual offender.... Id. (citing Seely v. State, 451 So. 2d 213, 215 (Miss.1984)). 7

The instant case is indistinguishable in any material particular from Vince. In the case sub judice, there was absolutely no evidence admitted at the sentencing hearing trial to support the sentencing enhancement under section 99-19-81. While it is true that the State was allowed to amend Graham s indictment to charge him as a habitual offender, the amendment, just as any indictment, simply charged Graham as a habitual offender. Just as any charge in any indictment, the State must prove the charges of an indictment beyond a reasonable doubt. Were his indictment on the principle charge to be treated the way that Graham s sentencing was, there would have been no need for a trial. Furthermore, it cannot be reasonably argued that the failure for trial counsel to challenge the sentencing was somehow an acquiescence to the State s charging Graham as a habitual offender. As noted above, the State must prove beyond a reasonable doubt that a defendant should be sentenced as a habitual offender. To shift the burden to defense because of trial counsel s inadequacies is to run afoul of the most fundamental axioms of our criminal law - the burden of proof is on the State. Just recently, this Court held that failure to object to habitual status did not eliminate the State s burden to prove a defendant s status as a habitual offender. See Hull v. State, No. 2013-KA-01813-COA, 2015 WL 1186662, at *12 (Miss. Ct. App. Mar. 17, 2015). Any acquiescence on the part of defense counsel as to the State s burden of proof at the sentencing hearing was, if somehow relieving the State of its task of proving a defendant s habitual defendant s status beyond a reasonable doubt, is undoubtedly ineffective assistance of counsel. 8

Mississippi s habitual offender statutes have been in use for over thirty-five years. By now, the State should be well-versed in what is required at a sentencing to prove habitual status. Accordingly, Mississippi s appellate and trial courts should, at this point, not be lowering the bar as it to what the State has to do in order to put a defendant in prison on an enhanced penalty. Graham s habitual status must have been proven beyond a reasonable doubt during the sentencing proceeding. Simply put, the State was required to do so. Failure to do so resulted in an unlawful sentence. The trial court s conclusion in the sentencing order is akin to finding a defendant guilty of a crime, via court order, despite the State not proving guilt beyond a reasonable doubt during the guilt phase. Put differently, evidence of prior convictions must be admitted: there was no proof submitted during the sentencing proceeding. Accordingly, the trial court erred in sentencing Graham as a habitual offender. 9

CONCLUSION Graham submits that based on the propositions cited and briefed herinabove, together with any plain error noticed by this Court which has not been specifically raised but may appear to the Court on a full review of the record, the judgment of the trial court and his conviction and sentence should be reversed and vacated, respectively, and this matter remanded to the lower court for further proceedings. In the alternative, Graham requests this honorable Court reverse his conviction and render a verdict of not guilty. Respectfully submitted, Andrew Graham, Appellant /s/ Justin T. Cook Justin T. Cook Miss. Bar No. 102622 OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Post Office Box 3510 Jackson, MS 39207 10

CERTIFICATE OF SERVICE I, Justin T. Cook, counsel for the appellant, hereby certify that I have this day filed by means of the electronic case filing system the foregoing Brief of the Appellant, pursuant to Mississippi Rule of Appellate Procedure 25 by which immediate notification to the following ECF participants in this cause is made: John Henry, Esq. Assistant Attorney General In addition, the following non-ecf participants are served by United States Mail, first class first-class postage prepaid: Honorable Michael M. Taylor Circuit Judge P.O. Box 1350 Brookhaven, MS 39602 Dewitt Bates, Jr. District Attorney 284 E. Bay St. Magnolia, MS 39652 THIS the 28th day of April, 2015 /s/ Justin T. Cook Justin T. Cook, Miss Bar #102622 11