E-Filed Document Jan 22 2018 16:02:20 2017-KA-00055-COA Pages: 15 IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-KA-00055 ERIC DARRELL LOTT APPELLANT V. STATE OF MISSISSIPPI APPELLEE APPEAL FROM THE CIRCUIT COURT OF JEFFERSON DAVIS COUNTY, MISSISSIPPI REPLY BRIEF OF APPELLANT Oral Argument Not Requested HONORABLE TAMEKIA R. GOLIDAY GOLIDAY LAW FIRM 1500 Jacksonian Plaza, Suite C Post Office Box 13632 Jackson, Mississippi 39236 Tel: 601/368.1800 Fax: 769/233.8095 Email:trgoliday@yahoo.com Counsel for Appellant
TABLE OF CONTENTS PAGES TABLE OF CONTENTS............................................... ii TABLE OF AUTHORITIES........................................... iii ARGUMENT...................................................... 1 CONCLUSION..................................................... 11 CERTIFICATE OF SERVICE........................................... 12 ii
TABLE OF AUTHORITIES CASES PAGES Alexander v. State, 749 So.2d 1031 (Miss.1999).............................. 6 Blunt v. State, 55 So.3d 207 (Miss. Ct. App. 2011)............................ 5 Chaupette v. State, 136 So. 3d 1041(Miss. 2014)............................ 6,9 Cheeks v. Bio Medical Applications, Inc., 908 So.2d 117(Miss.2005).............. 7 Green v. State, 183 So.3d 28 (Miss. 2016)..................................... 9 Griffin v. McKenney, 877 So.2d 425 (Miss. Ct. App. 2013)...................... 6 Harris v. State, 2017 WL 3869006 (Miss. Ct. App. 2017)....................... 5 Manuel v. State, 667 So.2d 590 (Miss. 1995)............................... 2,3 Roberson v. State, 569 So.2d 691 (Miss. 1990)............................... 9 Robinson v. State, 858 So.2d 887 (Miss. Ct. App. 2003).................... passim Smith v. State, 986 So.2d 290 (Miss.2008)................................... 9 Troupe v. McAuley, 955 So.2d 848 (Miss.2007)............................... 7 iii
ARGUMENT A. THE SELF-DEFENSE INSTRUCTIONS GIVEN AT TRIAL DID NOT OBVIATE THE NEED FOR A MANUEL INSTRUCTION. In its brief, the State argues that the following self-defense instructions given at trial adequately presented Eric s theory of the case: and Jury Instruction No. 10 The Court instructs the jury that in order to justify the plea of self-defense in this case, there must be something shown in the conduct of [the victim] at or about the time of his killing, indicating a present intention to kill Eric Lott or to do him some great personal injury, and imminent danger of such intention being accomplished. Mere fears or beliefs of Eric Lott are insufficient. The danger to Eric Lott from [the victim] must have been such as to lead a reasonable person under similar circumstances to reasonably believe that some infliction of serious bodily harm was necessary to prevent [the victim] from then and there killing Eric Lott or doing some great bodily harm. (CP 256) Jury Instruction No. 11 The Court instructs the Jury that to make an assault justifiable on the grounds of selfdefense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the party of the victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the grounds upon which the defendant acts. (CP 257) In the case of homicide, failure by the trial court to give an instruction which presents defendant s theories of justification, defense, or excuse is reversible error so long as there is some evidence to support the theory. Robinson v. State, 858 So.2d 887 (Miss. Ct. App. 2003). Despite contrary evidence, a defendant is entitled to an instruction on his principal theory if there is some evidence to support it, no matter how meager or unlikely. Id. at 897. -1-
A practical examination of the self-defense instructions given in the case sub judice failed to obviate the need for a Manuel instruction. Although the jury was instructed to consider Eric s actions using the reasonableness standard, the instructions failed to explicitly address the right in some situations to use a deadly weapon to ward off an attack with fists. Id. at. 898. In Manuel v. State, 667 So.2d 590, 593 (Miss. 1995), the defendant stabbed and killed her boyfriend, who was unarmed and substantially bigger than her, after they got into a verbal altercation which ultimately turned into a physical assault. The Mississippi Supreme Court found reversible error since the trial court failed to give a jury instruction which suggested the defendant was justified in using a deadly weapon against a larger, unarmed assailant. The court held that where an individual is unjustifiably attacked by a larger and unarmed person, and the individual is incapable of coping with that person in a physical confrontation, and the individual reasonably perceives that she will receive serious and great bodily injuries as a result, that individual is justified in killing her attacker with a deadly weapon. Id. at 592. The Manuel jury was given the following self-defense instruction: The Court instructs the jury that not every taking of human life is a violation of the law because some forms of homicide are excused or justified by the law. The Court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the Defendant, Nancy Manuel, must be either actual, present and urgent, or the Defendant, Nancy Manuel, must have reasonable grounds to apprehend a design on the part of the deceased, Wendell Norris, to kill her or to do her so great bodily harm, and in addition to this she must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for -2-
the jury to determine the reasonableness of the grounds upon which the Defendant, Nancy Manuel, acts. Robinson v. State, 858 So.2d 887, 898-899 (Miss. Ct. App. 2003). The Manuel self-defense instruction and the self-defense instruction given in the case sub judice are nearly identical: they both require the jury to consider the reasonableness of the defendant s actions but neither specifically addressed the disparate size of the parties and the right in some circumstances to use a deadly weapon against an unarmed person. The Manuel court, having reviewed the self-defense instruction given at trial, determined that the defendant was entitled to a more specific self-defense instruction which would instruct the jury that where an individual is unjustifiably attacked by a larger and unarmed person, and the individual is incapable of coping with that person in a physical confrontation, and the individual reasonably perceives that she will receive serious and great bodily injuries as a result, that individual is justified in killing her attacker with a deadly weapon. Manuel v. State, 667 So.2d 590, 592 (Miss. 1995). In Robinson v. State, 858 So.2d 887 (Miss. Ct. App. 2003), the defendant angered another driver by cutting him off while merging into traffic. Ultimately, the driver followed defendant while honking his car horn and flashing his headlights. Defendant stopped his vehicle and the men begin to argue. The argument became physical and defendant ended up killing the other driver. At trial, the jury found the defendant guilty of manslaughter after being given the following self-defense instruction: -3-
The Court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present, and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him great bodily harm, and in addition to this, he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts. The Mississippi Court of Appeals reversed the conviction after it determined that the defendant was entitled to a Manuel instruction. Specifically, the court reasoned that though the jury was told to consider Robinson s actions in light of the manner in which the circumstances reasonably appeared to the defendant on that occasion, this does not explicitly raise the issue of the right in some situations to use a deadly weapon to ward off an attack with fists. Id. at 899. The court further determine that without the Manuel instruction the most important part of the defense was not explained, namely, that the defendant was justified in using a deadly weapon against the larger and intimidating Parks if Robinson reasonably perceived that he was in danger of death or serious bodily injury from Park s fists. Id. Reading Robinson and Manuel together, it is clear that a general self-defense instruction does not obviate the need for a Manuel instruction where the defendant alleges he was justified in using a deadly weapon against a larger, unarmed person. The crux of this defense requires a Manuel instruction. Like Robinson and Manuel, the jury in the case sub judice was given a general selfdefense instruction that did not specifically address the most important part of Eric s defense, namely, that he was justified in using a deadly weapon against the larger and intimidating -4-
Bull. Considering Robinson and Manuel, cases that reversed convictions because no Manuel instruction was given, this Honorable Court should reverse the guilty verdict entered by the Circuit Court of Jefferson Davis County and remand this matter for a new trial. Eric admits he shot and killed Bull but his use of a deadly weapon was predicated on his fear for his safety and knowledge that he could not physically whoop nobody like Bull. (TT, Exhibit17B, p. 10-11). Bull was substantially bigger than Eric: Bull weighed over 200 pounds and Eric weighed approximately 150 pounds. (TT, p. 619-620)(TT, p. 720). The record is replete with evidence that described Bull as a big boy, who was a lot bigger than Eric. (TT, Exhibit 17B, p. 68)(TT, p. 619). This evidence supports a Manuel instruction. Trial counsel s failure to proffer a Manuel instruction essentially left Eric with no instruction on his theory of defense thereby prejudicing the outcome of his trial. The lack of a Manuel instruction violated Eric s due process rights: due process rights include the right to a properly instructed jury. Blunt v. State, 55 So.3d 207, 211 (Miss. Ct. App. 2011). Where the jury had incorrect or incomplete instructions regarding the applicable law, this Court s review task is nigh to impossible and reversal is generally required. Harris v. State, 2017 WL 3869006 (Miss. Ct. App. 2017)(citing Neal v. State, 451 So.2d 743, 757 (Miss. 1984). Eric was prejudiced because his conviction was rendered by an improperly instructed jury. He is entitled to have instructions on his theory of the case presented to the jury where they are supported by evidence, even though the evidence might be weak, -5-
insufficient, inconsistent or of doubtful credibility. Alexander v. State, 749 So.2d 1031, 1037 (Miss.1999). Like Robinson and Manuel, the general self-defense instruction given to the jury was insufficient and failed to set forth the crux of Eric s defense: he was justified in using a deadly weapon against the larger and intimidating Bull. Therefore, consistent with established Mississippi law, this Honorable Court should reverse the guilty verdict entered by the Circuit Court of Jefferson Davis County and remand this matter for a new trial. B. ERIC WAS GRAVELY PREJUDICED BY THE INADMISSIBLE TESTIMONY OF THE DECEDENT S TREATING PHYSICIAN, WILLIAM BOLLS, M.D. A physician can testify without being accepted as an expert regarding: 1) the facts and circumstances surrounding the care and treatment of the patient ; 2) what his records about the patient reveal ; and 3) what conditions the patient was suffering from if the opinion was acquired during the care and treatment of the patient. Griffin v. McKenney, 877 So.2d 425, 439 40 (citing Scafidel v. Crawford, 486 So.2d 370, 372 (Miss.1986)). However, a physician cannot testify about the significance of a patient's condition or industry standards without first being accepted as an expert. Chaupette v. State, 136 So. 3d 1041, 1046 (Miss. 2014). In the case sub judice, Eric was gravely prejudiced by the inadmissible testimony of William Bolls, M.D. since the testimony heavily implies that Eric shot Bull in the back as he was fleeing and the entire case ultimately centered on whether Eric acted in self-defense. Without being qualified as an expert, Dr. Bolls was forbidden from rendering opinions -6-
regarding the entry and exits wounds on Bull as well as rendering opinions as to the veracity of the autopsy report since such testimony requires specialized knowledge. Contrarily, even if Dr. Bolls had been qualified to testify as an expert, his opinions were inadmissible because was not sufficiently familiar with the standards which govern the field of forensic pathology. In Troupe v. McAuley, 955 So.2d 848, 856 (Miss.2007), the Mississippi Supreme Court held that the trial judge did not abuse his discretion by excluding the testimony of a neurosurgeon who attempted to testify about the standard of care for a neuro-otolaryngologist. Neurosurgery involves surgery upon the head, scalp, skull, brain, and arteries leading to the brain, while neuro-otolaryngology requires additional training in ear, nose, and throat surgery. As such, the appellate court agreed with the trial judge that the neurosurgeon was not sufficiently familiar with the standards of neuro-otolaryngology and he was not qualified to give expert opinion testimony about that specialty. Id. at 856. Similarly, in Cheeks v. Bio Medical Applications, Inc., 908 So.2d 117(Miss.2005), the Mississippi Supreme Court held that for a family physician to testify in a medical-malpractice action against a dialysis clinic, the physician had to be familiar with the standard of care to which a dialysis clinic, a nephrologist and a radiologist are held. Because the family physician had no special training or experience in the field of nephrology and had never participated in a dialysis procedure, the appellate court held that the family physician did not satisfy Rule 702. He lacked the specialized knowledge needed to assist the trier of fact in understanding the evidence regarding the dialysis procedure. -7-
Dr. Bolls is a board-certified general surgeon with the Department of Trauma at Forrest General Hospital and the testimony elicited from him at trial in no way suggests that he has any specialized training in the area of forensic pathology. Forensic pathologists are trained to determine the cause, manner and mechanism of death by examining a corpse. A surgeon is trained perform surgical operations on a living person. As a surgeon, Dr. Bolls was prohibited from rendering testimony that delved into the area of forensic pathology since there exists no record evidence as to his education, knowledge and training in the area of forensic pathology. Specifically, he was prohibited from giving testimony that implied that Eric shot Bull in the back as he was fleeing and questioning the veracity of the autopsy report. The inadmissible testimony of Dr. Bolls constitutes reversible error since the testimony addresses the ultimate issue of the case. Dr. Bolls rendered inadmissible expert witness testimony, contrary to the autopsy report and the expert testimony of J. Brent Davis, M.D. Specifically, Dr. Bolls testified that all of Bull s gunshot wounds entered through his back, when Dr. Davis testified that Bull received no gunshot wounds to the back. (TT, p. 228-230) (TT, p. 415-418). By placing greater weight on the inadmissible testimony of Dr. Bolls, a fact witness, the jury could easily disregard Eric s claim for self-defense, thereby prejudicing him. Because Dr. Boll s inadmissible testimony heavily implies that Eric shot Bull in the back as he was fleeing and the entire case ultimately centered on whether Eric acted in self-defense, the admission of Dr. Bolls testimony created reversible error. -8-
In its brief, the State argues that Lott is procedurally barred from claiming the testimony was impermissible under Rules 701 and 702 for the first time on appeal. This Honorable Court can consider this assignment of error under the plain error doctrine. Plain-error review is properly utilized for correcting obvious instances of injustice or misapplied law. Smith v. State, 986 So.2d 290, 294 (Miss.2008). In order to prevail under the plain error doctrine, Eric must show that the trial court deviated from a legal rule, the deviation is plain, clear and obvious and the error prejudiced the outcome of the trial. Green v. State, 183 So.3d 28, 30-31 (Miss. 2016). The record evidence is clear that the trial court deviated from Rules 701 and 702 by allowing Dr. Bolls to testify as an expert in the field of forensic pathology and explaining the significance of the wounds when he was never tendered or qualified to testify as an expert witness. This error is plain, clear and obvious since Mississippi law has long held that a physician testifying as a fact witness cannot testify about the significance of a patient s condition or industry standards and may not use their expertise to explain the significance of the diagnosis to a jury without first being accepted as an expert. See Chaupette v. State, 136 So. 3d 1041, 1046 (Miss. 2014). Eric was prejudiced by this error since his defense was gravely eroded by the inadmissible testimony of Dr. Bolls which implied that Eric shot Bull in the back as he was fleeing. See Roberson v. State, 569 So.2d 691 (Miss. 1990)(where a lay witness is permitted to give inadmissible expert opinions that address the ultimate issue of the case, there exists reversible error). In sum, the testimony was inadmissible and never -9-
should have been considered by the jury. As such, this Honorable Court should reverse the guilty verdict entered by the Circuit Court of Jefferson Davis County and remand this matter for a new trial. B. ERIC PROPERLY CITED TO THE RECORD IN SUPPORT OF HIS ARGUMENT THAT THE TRIAL COURT DISPLAYED PARTIALITY DURING THE TRIAL. The State, in its brief, argues that Eric failed to present record citations in support of his argument that the trial court displayed partiality during the trial. This assertion is wholly untrue. A cursory review of the trial transcript indicates that each page of the transcript contains two different page numbers: there is a page number on the top right hand corner of the each page and one centered at the bottom of each page. When citing to the trial transcript, Eric used the page number centered at the bottom of each page. Conversely, the State appears to reference the page numbers on the top right hand corner of the pages which would explain it was not apparent to the State what he perceives to be the issue. Using the page numbers on the bottom of the page, this Honorable Court can easily reference the instances in the record which show that the trial court displayed partiality during the trial. -10-
CONCLUSION The constitutional rights to due process and a fair trial are the foundation of our judicial system and should guarded at all costs. When these fundamental rights are violated, this Court is duty bound to take swift, decisive action to restore the balance and protect a defendant s rights to due process and a fair trial. The record evidence in this case is clear that Eric D. Lott was denied his rights to due process and a fair trial as a result of judicial misconduct and ineffective assistance of counsel. As such, this Court has an obligation to correct this injustice by reversing the guilty verdict entered by the Circuit Court of Jefferson Davis County and remanding this matter for a new trial.. SO REPLIED, the 22nd day of January, 2018. Respectfully Submitted, ERIC DARRELL LOTT, APPELLANT By: /s/ Tamekia R. Goliday TAMEKIA R. GOLIDAY Attorney for Appellant OF COUNSEL: HONORABLE TAMEKIA R. GOLIDAY, MSB No. 99431 GOLIDAY LAW FIRM 1500 Jacksonian Plaza, Suite C Post Office Box 13632 Jackson, Mississippi 39236 Tel: 601/368.1800 Fax: 769/233.8095 Email:trgoliday@yahoo.com -11-
CERTIFICATE OF SERVICE I, Tamekia R. Goliday, counsel for appellant, certify that on January 22, 2018, I electronically filed the foregoing with the Clerk of the Court using the MEC system which sent notification of such filling to the following: following: Honorable Haldon Kittrell Honorable Morris Sweat 500 Courthouse Square, Suite 3 Columbia, Mississippi 39429 Honorable Lindsay G. Watts Post Office Box 369 Purvis, Mississippi 39475 Honorable Kaylyn Havrilla McClinton OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi 39205-0220 I hereby certify that I have mailed by United States Postal Service the document to the Honorable Claiborne McDonald, IV CIRCUIT COURT JUDGE Post Office Box 590 Poplarville, Mississippi 39470 THIS, the 22nd day of January, 2018. /s/ Tamekia R. Goliday TAMEKIA R. GOLIDAY Attorney for Appellant -12-