BRIEF OF THE APPELLANT

E-Filed Document May 22 2017 21:22:44 2016-KA-01351-COA Pages: 16 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JAMES LEE BRENT APPELLANT V. NO. 2016-KA-01351-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Mollie M. McMillin, MS Bar No. 102708 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi 39207-3510 Telephone: 601-576-4290 Fax: 601-576-4205 Email: mmcmi@ospd.ms.gov Counsel for James Lee Brent

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JAMES LEE BRENT APPELLANT V. NO. 2016-KA-01351-COA STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of this court may evaluate possible disqualifications or recusal. 1. State of Mississippi 2. James Lee Brent, Appellant 3. Honorable Michael Guest, District Attorney 4. Honorable Steve S. Ratcliff, III, Circuit Court Judge This the 22 nd day of May, 2017. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel i

TABLE OF CONTENTS Certificate of Interested Persons.................................................. i Table of Contents............................................................. ii Table of Authorities......................................................... tatiii Brief of the Appellant.......................................................... 1 Statement of Assignment........................................................ 1 Statement of the Issues.......................................................... 1 Statement of the Case........................................................... 1 Statement of the Facts.......................................................... 2 Summary of the Arguments...................................................... 3 Arguments................................................................... 4 I. The trial court erred in denying Brent s motion for directed verdict on Count III, because there was no evidence at trial that Brent actually had a gun, which is an essential element of the crime of being a felon in possession of a firearm.............................................. 4 II. III. The trial court erred in not severing the felon in possession charge from the other two counts in the indictment.............................. 5 The trial court erred when it improperly instructed the jury to continue deliberations...................................................... 8 Conclusion.................................................................. 11 Certificate of Service.......................................................... 12 ii

TABLE OF AUTHORITIES Bell v. State, 202 So. 3d 1239 (Miss. 2016)....................................... 9, 10 Body v. State, 147 So. 3d 890 (Miss. Ct. App. 2014).................................. 5 Brantley v. State, 610 So. 2d 1139 (Miss. 1992)..................................... 10 Bush v. State, 895 So. 2d 836 (Miss. 2005)........................................ 4, 5 Carr v. State, 208 So. 2d 886 (Miss. 1968).......................................... 4 Davis v. State, 199 So. 3d 701 (Miss. Ct. App. 2016).................................. 5 Edlin v. State, 523 So. 2d 42 (Miss. 1998)......................................... 10 Edwards v. State, 469 So. 2d 68 (Miss. 1985)........................................ 5 Jackson v. State, 443 U.S. 307 (1979).............................................. 4 Sharplin v. State, 330 SO. 2d 591 (Miss. 1996)...................................... 9 State v. McGuire, 204 Wis.2d 372 (Wis. App. 1996).................................. 6 Williams v. State, 37 So. 3d 717 (Miss. Ct. App. 2010)................................ 6 iii

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JAMES LEE BRENT APPELLANT V. NO. 2016-KA-01351-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Statement of Assignment This case is properly assigned to the Court of Appeals. Statement of the Issues I. The trial court erred in denying Brent s motion for directed verdict on Count III, because there was no evidence at trial that Brent actually had a gun, which is an essential element of the crime of being a felon in possession of a firearm. II. III. The trial court erred in not severing the felon in possession charge from the other two counts in the indictment. The trial court erred when it improperly instructed the jury to continue deliberations. Statement of the Case This case proceeds from the circuit court of Madison County and a judgment of conviction entered against James Lee Brent for armed robbery, kidnapping, and being a felon in possession of a firearm. (C.P. 71, R.E. 12). After a jury trial on August 23 and 24, 2016, the Honorable Steve S. Ratcliff, presiding, the jury returned a verdict of guilty on all three counts. (C.P. 69, R.E. 10). Brent was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-83 to life without parole on each of the three counts of the indictment. (C.P. 71, R.E. 12). Brent filed a motion for new trial or judgment notwithstanding the verdict (JNOV), which 1

was denied by the trial court. (C.P. 76, R.E. 17). Brent is presently incarcerated and appeals to this Honorable Court for relief. Statement of the Facts At around 3:00 a.m. on November 12, 2015, Rayshaun Banks took his lunch break from his job at the Excel plant in Canton. (Tr. 121-22). Banks noticed that his back tire was low, so he drove to the service station to put air in his tire before going back to finish his shift. (Tr. 122-23). While he was bent down putting air in his tire, Banks felt something hard against his head, and a man, later identified as Brent, demanded his money. (Tr. 123). Banks believed Brent had a gun, though he never saw a gun and Brent never said he had one. (Tr. 123). When Banks told Brent he did not have any money, Brent said, You re going to give me something, and ordered Banks to get in his car. (Tr. 123). Banks drove toward Jackson on I-55, while Brent demanded money from him. Banks told Brent he could get money from the ATM with his bank card. (Tr. 123). Banks exited I-55 at Gluckstadt, and pulled into the bank parking lot. (Tr. 123). Banks convinced Brent that he had to get out of the car in order to get his bank card out of his wallet. (Tr. 124). When he got out of the car, he ran across the street to a Sonic restaurant for help. (Tr. 124). Brent drove away in Banks s car. (Tr. 124). A Canton Police officer was close by, and after hearing that Banks s car had been stolen, he tried to chase down Brent. (Tr. 124-25). He was not able to catch up to him. Canton Police issued a be on the lookout for Banks s 2008 Chrysler Sebring, which had front-end damage. (Tr. 157-58, 161). Later that morning, a Jackson Police Officer noticed the car near Northside Drive in Jackson; there were two men in the car. (Tr. 162). When they saw the police approaching, the two men got out of the car and ran. (Tr. 163). Brent was caught and arrested. (Tr. 168). 2

After he was transferred to the Canton Police Department, Brent gave a statement to Officer Terrance Ware. (Tr. 178). He told a different version of events from Banks, denying that he kidnapped Banks or that he robbed him. (Tr. 182). Brent insisted that all he wanted was a ride to Jackson. (Tr. 182-83). He did admit that he took Banks s car without permission, but he intended to return it to him. (Tr. 189-90). At trial and in his statement to police, Brent was adamant that he did not have a gun at any point that night and that he never pointed a gun at Banks. (Tr. 182). Instead, he told police that he poked Banks with his fingers, mimicking a gun. (Tr. 183). Before trial, Brent, through his public defender, moved to sever the felon in possession of a firearm charge from the armed robbery and kidnapping charges. (Tr. 6). Brent asserted that it was necessary because he believed the State lacked proof that Brent had an actual gun when he approached Banks. (Tr. 6). Brent asserted that he would be prejudiced when the jury considered Counts I and II because they would be aware that he was a convicted felon during their deliberations. (Tr. 6). When he renewed his motion for directed verdict, the State offered to drop Count III and remand it to the file based on Brent s argument that the State failed to prove that he possessed a gun. (Tr. 289). Brent then moved for a mistrial based on his pre-trial argument that the charges should be severed. (Tr. 298). When Brent moved for a mistrial, the State withdrew their motion to nolle pros the felon in possession charge. (Tr. 292). Summary of the Arguments In order to be guilty of being a felon in possession of a firearm, the State must prove that the defendant is a prior convicted felon and that he had an actual firearm in his possession. In this case, there is no evidence that Brent had an actual gun when he robbed Banks. Thus, the State failed to 3

prove the essential elements of that crime, and Brent s conviction and sentence should be reversed and a not guilty verdict rendered in Count III. Further, because the evidence that he was a prior convicted felon would have been inadmissible against him without the addition of the felon in possession charge, the trial court s failure to sever the charges before trial prejudiced Brent s defense on the remaining charges. Because Brent received an unfair trial, he requests this Court reverse his convictions for armed robbery and kidnapping and remand his case for a new trial. Finally, the trial court erred when it made coercive statements to the jury after it indicated that it was deadlocked on one of the charges, but had reached a verdict on the other two. Arguments I. The trial court erred in denying Brent s motion for directed verdict on Count III, because there was no evidence at trial that Brent actually had a gun, which is an essential element of the crime of being a felon in possession of a firearm. i. Standard of Review Brent challenged the sufficiency of the evidence against him in his motion for a directed verdict, which the trial court denied. When reviewing a challenge to the sufficiency of the evidence, the critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction. Bush v. State, 895 So. 2d 836, 843( 16) (Miss. 2005) (quoting Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). The appellate court considers the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found each of the essential elements of the crime beyond a reasonable doubt. Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979)). Should the facts and inferences considered in a challenge to the sufficiency of the 4

evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render. Id. (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)). ii. The State s evidence fails to prove that Brent possessed a firearm. The evidence provided by the State does not prove that Brent possessed a firearm at any time during the robbery or kidnapping. Banks testified that as he was putting air in his tire, he felt something at the back of his head that felt like a gun. (Tr. 123). While Banks said he believed that Brent had a gun, he admitted that he never saw a gun; he only felt something. (Tr. 136, 145, 152). According to Banks, Brent never showed him a gun, and he never heard a gun click. (Tr. 148). According to Investigator Terrence Ware, Brent admitted that he wanted to make Banks believe he had a gun by putting his fingers to the back of Banks s head. (Tr. 183). Further, in his own testimony, Brent stated that he did not have a gun and never showed one to Banks. (Tr. 249). Finally, no gun was ever recovered in this case. (Tr. 191). To establish a felon in possession of a firearm, the State has the burden to prove that the defendant was a convicted felon and willfully possessed a firearm. Davis v. State, 199 So. 3d 701, 703 (Miss. Ct. App. 2016) (quoting Body v. State, 147 So. 3d 890, 892 ( 11) (Miss. Ct. App. 2014) (internal quotation marks omitted)). Brent stipulated that he was a convicted felon. (Tr. 170). However, there is no proof on the second element of the offense that Brent willfully possessed a firearm. Because the State failed to prove the elements of this offense, Brent respectfully requests this Court reverse and render his conviction for being a felon in possession of a firearm. II. The trial court erred in not severing the felon in possession charge from the other two counts in the indictment. 5

Because the evidence was insufficient to support the verdict of being a felon in possession of a firearm, Brent is entitled to reversal of his remaining convictions for armed robbery and kidnapping under the doctrine of retroactive misjoinder, which occurs when joinder of multiple counts was initially proper but, through later developments such as an appellate court s reversal of less than all convictions, joinder has been rendered improper. Williams v. State, 37 So. 3d 717 (Miss. Ct. App. 2010) (quoting State v. McGuire, 204 Wis.2d 372, 556 N.W.2d 111, 114 (Wis.App. 1996)). In Williams, this Court adopted a test to determine whether a defendant was prejudiced by the improper joinder of charges: (1) was evidence admitted at trial on the vacated count that would not have otherwise been admissible on the remaining count, and, if so (2) can the defendant demonstrate clear prejudice as a result of the inadmissible evidence that was presented to the jury. Id. at 10. The facts and circumstances of the appellant s case are vitally important to the analysis. Id. In this case, evidence was presented in the felon in possession of a firearm charge that would not have otherwise been admissible to establish guilt of armed robbery and kidnapping. Specifically, the defendant offered a stipulation that Brent was a convicted felon, after the trial court refused to sever the charges. Brent s status as a convicted felon would not have been admissible were it not necessary to prove the felon in possession charge. Thus, the jury was given information that would have otherwise been excluded. Evidence that a defendant is a convicted felon is prejudicial; thus, it is inadmissible except in limited circumstances. See M.R.E. 404(b). After the State and defense had rested, and Brent had testified, Brent renewed his motion for directed verdict on the felon in possession charge. (Tr. 284). After argument, the State offered to drop Count III the felon in possession charge and proceed only on the kidnapping and armed robbery. (Tr. 289). The defense then moved for a mistrial on the remaining counts because without 6

the felon in possession charge, the defense counsel would have advised Brent not to testify. (Tr. 290). Defense counsel argued to the trial court: It would have altered our defense strategy to the point that I would have recommended that Mr. Brent not testify. The only reason that it became worthwhile for him to testify was because the jury already knew that he was a prior convicted felon, and that never would have been presented to the jury. I moved the Court to sever that charge yesterday. I told the Court yesterday I thought that would have fixed the problem. It would have prevented the situation we're in now. And now that jury has to go back to a jury room with us having stipulated that he was a prior convicted felon, and they never would have heard about it if we hadn't stipulated to it because Mr. Brent would not have testified. (Tr. 290-91). Once the defense made the argument that Brent s decision to testify was based on the trial court s failure to sever the felon in possession of a firearm charge from the remaining charges in the indictment, the State withdrew its motion to drop Count III and proceed only on the remaining charges. (Tr. 292). Brent testified that he used crack and drank alcohol. (Tr. 241). He admitted to putting his finger behind Banks s ear and telling him he could sure use this car tonight. (Tr. 243). He testified that he was drunk that night. (Tr. 243). On cross, the State was allowed to bring in the nature of Brent s felony convictions. Brent testified that he had three prior felony convictions, including a conviction for perjury. (Tr. 272). This evidence was highly prejudicial to Brent, and would not have been available to the jury if Brent had chosen not to testify. The trial court s failure to sever the felon in possession count of the indictment resulted in prejudicial evidence being presented to the jury regarding Brent s prior felony convictions. That evidence was otherwise inadmissible to prove that Brent committed the crimes he was accused of in this indictment. As discussed in Issue I, above, the evidence is insufficient to sustain the conviction for felon in possession of a firearm. Therefore, the joinder of these charges was improper. Accordingly, Brent is entitled to a new trial on Counts I and II of the indictment. 7

III. The trial court erred when it improperly instructed the jury to continue deliberations. The jury sent questions back to the trial court two separate times. The first questions from the jury were, Does the same clarification that applies to armed robbery also apply to the indictment in possession of a firearm by a convicted felon? and Does the State have to present evidence beyond a reasonable doubt that a firearm was actually present in order to convict on Count 3? (Tr. 347-48). The trial court responded as follows: (Tr. 349). Let me tell you how our -- how our system works, and this has been explained, but I know it's a lot easier for us to understand it sometimes sitting in here daily than it is for you. But the Court is of the opinion that you have sufficient -- you've heard sufficient testimony, you've heard sufficient, obviously, arguments of counsel. You have enough evidence, and with the instructions of the law and the exhibits that you have, to make a decision on those three counts. All right? That's what I can tell you, that's what I'm going to tell you. So I think you've got enough information to make the decision like you should make on those three counts. All right? Okay. So I'm going to send you back there with high hopes. All right. Thank you. A couple of hours later, the jury notified the Court that they had reached a verdict on two of the three counts in the indictment, but were deadlocked on one of the charges and ready to move forward. (Tr. 350) The trial court conferred with the attorneys and decided that the court should give the jury a Sharplin instruction and send them back one more time. (Tr. 351). The judge gave the following instruction to the jury orally: Before I get into any of the specifics of the indictments excuse me -- of the charges, I want to once again charge you to do this. Once again, I' 11 tell you the same thing I told you last time. I think that you've got sufficient evidence to come to a decision on each one of the counts, whatever that may be. I'd like to give you that chance to do that, that's what we're here for today. So in order to -- well, in order to do that, I'm going to charge you again that you have enough evidence, enough testimony, and statements of counsel, and the instructions of law to make a decision on each of those 8

counts. So I'm going to send you back in there one more time to see if you can do it. Whatever that decision may be, once you come to a unanimous decision, I want you to knock on the door and let the deputy know. All right? Thank you. (Tr. 354). Shortly afterwards, the jury returned guilty verdicts on all three counts in the indictment. The trial court, in telling the jury that they had enough evidence, instruction, and comments from counsel to reach a unanimous verdict on all three of the charges in the indictment, could have influenced the jury to reach a verdict despite being deadlocked, even if the trial court did not intend for the statement to improperly influence the jury s deliberations. The Mississippi Supreme Court has outlined the proper response to a jury that is deadlocked where the judge feels that further deliberations may lead to a verdict. Sharplin v. State, 330 So. 2d 591, 596 (Miss. 1976). The Court held that if the judge feels that the jury may be able to reach a verdict, he can tell the jury, Please continue your deliberations. Id. Or, the judge may give the following instruction: Id. I know that it is possible for honest men and women to have honest different opinions about the facts of a case, but, if it is possible to reconcile your differences of opinion and decide this case, then you should do so. Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberations. Recently, the Mississippi Supreme Court reversed Donald Bell s conviction for attempted 9

armed robbery following a comment from the trial court for the jury not to be stubborn. 1 The supreme court held that the trial court s deviation from the two options outlined in Sharplin required reversal of Bell s conviction. Bell v. State, 202 So. 3d 1239, ( 9) (Miss. 2016). The Court held that the trial court s statements could be seen as improperly coercive and designed to produce a verdict. Id. at ( 10). The supreme court noted that the trial court has a great power to influence the jury, even unintentionally, because of his position. The Sharplin instruction was designed to prevent the judge from having unintended influence over the jury during deliberations. Id. at ( 10). In Brantley v. State, 610 So. 2d 1139, 1142 (Miss. 1992), the supreme court held The procedure we set forth in Edlin and Sharplin for instructing a deadlocked jury is clear and unambiguous. The trial judge's departure from the guidelines of Edlin and Sharplin is clear error. Id. (citing Edlin v. State, 523 So. 2d 42 (Miss. 1988)). Because the trial judge s instruction could be seen as coercive, the instruction was improper; and as in Bell and Edlin, this Court should reverse Brent s conviction and remand his case for a new trial. 1 The judge instructed, But I don t want you going back there just being stubborn. Go back there with the seriousness of purpose because you came here to do a job and if we can get a unanimous decision from you, we would like to. All right. Go retire back to the jury room. Bell v. State, 202 So.3d 1239, 1241 (Miss. 2016). 10

CONCLUSION Brent asserts that, based on the proposition cited and briefed above, together with any plain error noticed by the Court which has not been specifically raised, the judgment of the trial court and Brent s convictions and sentences should be reversed and remanded to the trial court for a new trial. Respectfully submitted, BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel 11

CERTIFICATE OF SERVICE I, Mollie M. McMillin, Counsel for James Lee Brent, do hereby certify that on this day I electronically filed the forgoing BRIEF OF THE APPELLANT with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Jason L. Davis Attorney General Office Post Office Box 220 Jackson, MS 39205-0220 Further, I have this day caused to be mailed via United States Postal Service, First Class postage prepaid, a true and correct copy of the above to the following non- MEC participants: Honorable Steve S. Ratcliff, III Circuit Court Judge P O Box 1689 Brandon, MS 39043 Honorable Michael Guest District Attorney, District 20 Post Office Box 68 Brandon, MS 39043 James Lee Brent, MDOC #L5739 South Mississippi Correctional Institution Post Office Box 1419 Leakesville MS 39451 This the 22nd day of May, 2017. BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel Mollie M. McMillin, MS Bar No. 102708 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi 39207-3510 Telephone: 601-576-4290 Fax: 601-576-4205 Email: mmcmi@ospd.ms.gov 12