BRIEF OF THE APPELLANT

E-Filed Document Nov 2 2015 18:30:21 2015-KA-00898-COA Pages: 14 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI GREGORY LORENZO PRITCHETT APPELLANT V. NO. 2015-KA-00898-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT On Direct Appeal From the Circuit Court of Harrison County, Mississippi Erin E. Pridgen, MS Bar No. 102352 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: eprid@ospd.ms.gov Counsel for Gregory Lorenzo Pritchett

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI GREGORY LORENZO PRITCHETT APPELLANT V. NO. 2015-KA-00898-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. Gregory Lorenzo Pritchett, Appellant 3. Honorable Joel Smith, District Attorney 4. Honorable Lisa P. Dodson, Circuit Court Judge This, the 2 nd day of November 2015. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER BY: /s/ Erin E. Pridgen Erin E. Pridgen, Appellant Counsel i

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS...................................... i TABLE OF CONTENT........................................................ ii TABLE OF AUTHORITIES.................................................... iii STATEMENT OF THE ISSUE................................................... 1 STATEMENT OF THE CASE................................................... 1 STATEMENT OF THE FACTS.................................................. 2 SUMMARY OF THE ARGUMENT.............................................. 3 ARGUMENT................................................................. 4 The Trial Court Committed Reversible Error in Allowing the State to Introduce Pritchett s Prior Thirteen-Year-Old Drug Conviction as This Conviction was Unrelated to the Current Charge and Highly Prejudicial To Pritchett s Defense... 4 a. Standard of Review.......................................... 4 b. Pritchett s Prior Conviction for Transfer of a Controlled Substance.. 4 CONCLUSION............................................................... 9 CERTIFICATE OF SERVICE.................................................. 10 ii

TABLE OF AUTHORITIES STATE CASES Brown v. State, 890 So. 2d 901 (Miss. 2004)........................................ 7 Cole v. State, 126 So. 3d 880 (Miss. 2013).......................................... 5 Hargett v. State, 62 So. 3d 950 (Miss. 2011)......................................... 6 Meek v. State, 806 So. 2d 236 (Miss. 2001)......................................... 6 Mitchell v. State, 110 So.3d 732 (Miss. 2013)........................................ 5 Moore v. State, 933 So. 2d 910 (Miss. 2006)........................................ 4 Ware v. Entergy Mississippi, Inc., 887 So.2d 763 (Miss. 2003).......................... 4 White v. State, 842 So. 2d 565 (Miss. 2013)......................................... 5 STATE STATUTES Miss. Code Ann. 41-29-139(a)(1)................................................ 1 Miss. Code Ann. 41-29-147.................................................... 1 Miss. Code Ann. 99-19-81..................................................... 1 COURT RULES Miss. R. Evid. 404(b)........................................................... 5 Miss. R. Evid. 403........................................................... 6-7 iii

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI GREGORY LORENZO PRITCHETT APPELLANT V. NO. 2015-KA-00898-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUE The Trial Court Committed Reversible Error in Allowing the State to Introduce Pritchett s Prior Thirteen-Year-Old Drug Conviction as This Conviction was Unrelated to the Current Charge and Highly Prejudicial To Pritchett s Defense. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Harrison County, Mississippi where Gregory Lorenzo Pritchett was tried before a jury on the charge of transfer less than 2.0 grams of cocaine, a Schedule II Controlled Substance, in violation of Mississippi Code Annotated Section 41-29- 139(a)(1). (R.E. 4, C.P. 6). Pritchett s indictment also included an enhanced penalty, pursuant to Section 41-29-147, and it subjected him to sentencing as a habitual offender, pursuant to Section 99-19-81. (Id.) The Honorable Lisa P. Dodson, Circuit Court Judge, presided over the jury trial. At the conclusion, the jury rendered a guilty verdict. (R.E. 17, C.P. 69). The court sentenced Pritchett to serve a term of sixteen (16) years, without the possibility of parole or probation, in the custody of the Mississippi Department of Corrections. (R.E. 18, C.P. 70). This sentence was pursuant to 41-1

29-147 and 99-19-81. Aggrieved, Pritchett s counsel filed a motion for a new trial or, in the alternative, for J.N.O.V. Pritchett also filed, pro se, a motion for reconsideration of sentence. (R.E. 20, 24, C.P. 75, 79). The court denied both requests and Pritchett timely noticed this appeal. (R.E. 30, 31, C.P. 86, 91). He is currently incarcerated in the custody of the Mississippi Department of Corrections. STATEMENT OF THE FACTS In May 2014, the Biloxi Police Department conducted several undercover drug buys. (Tr. 79, 104). On May 30 th, Officer Tiffany Menotti served as undercover agent to target the area of East Biloxi, Mississippi. (Tr. 80-82). At the time, she was wearing a portable audio recording device that was inside a pack of cigarettes in her pocket. (Tr. 80-81). She was not targeting any person in particular, but rather that specific area of town. (Tr. 81-82). According to Menotti s testimony, she first attempted to buy drugs off the street. (Tr.82). When she was unsuccessful, she was then directed to 268 Brown Street. (Tr. 82). She had been to this location a few weeks early, on May 12 th, when she purchased crack cocaine from Yoshi Carter. (Tr.82, 84). She went back to look for Carter at the house. (Tr. 96-97). On May 30 th, she parked her truck at the house on Brown Street and asked for Yoshi. (Tr. 82). A man outside of the house directed her into the house and inside the kitchen, she saw a person she later identified as Gregory Pritchett. (Tr. 82-84). She remembered him being at the house on the 12 th when she previously bought drugs from Yoshi. (Tr. 83). In the kitchen, the man asked her if she smoked hard. (Tr. 84). She took this to mean that the man was asking her if she smoked crack cocaine. (Tr. 84). Menotti told him she did not smoke but that she was purchasing drugs for her husband. (Tr. 84). They agreed on a price of forty dollars ($40). (Tr. 85). The man gave her two rocks of what she believed was crack cocaine. (Tr 85). 2

After this exchange, Menotti drove back to the police station and packed the substance as evidence. (Tr. 90-91). Sergeant Michael Brennan was one of the officers who was assisting Menotti on the 30 th. (Tr.102). He served as secondary surveillance by following her to and from the buy location. (Tr. 103). He monitored the exchange via the audio surveillance equipment that Menotti was wearing at the time. (Tr. 103). Brennan testified at trial that he did not personally witness the transfer. (Tr. 106). He told that jury that Pritchett had been previously charged with the transfer of a controlled substance and convicted on March 11, 2002. (Tr. 105). This information was taken into account when deciding to charge Pritchett. (Tr. 105). Pritchett s 2002 conviction was the subject of the defense s pre-trial motion to suppress and motion in limine. (Tr. 4). However, the court denied the motion, finding that the conviction was admissible to show intent. (Tr. 6-7). The court granted a limited jury instruction regarding this conviction. (Jury Instruction S-2). Diamonisha Herrington, a forensic scientist employed by the Mississippi Crime Lab, testified that she analyzed the substance submitted in this case. (Tr. 112-117). She concluded that the substance contained 0.17 grams of cocaine - a Schedule II substance. (Tr, 120). SUMMARY OF THE ARGUMENT During pre-trial motions, Pritchett s defense counsel argued that the court should not allow the introduction of Pritchett s 2002 conviction of transfer of a controlled substance. This conviction occurred thirteen years before trial. This previous conviction was not relevant to the issues at trial and was not required in order for the State to tell a complete story. Furthermore, the introduction of this conviction served only to prejudice Pritchett by implying that, since Pritchett had been convicted 3

on the same crime in 2002, he was more than likely to have committed this crime in 2014. This was an impermissible use of this evidence and the trial court should have excluded the evidence. ARGUMENT The Trial Court Committed Reversible Error in Allowing the State to Introduce Pritchett s Prior Thirteen-Year-Old Drug Conviction as This Conviction was Unrelated to the Current Charge and Highly Prejudicial To Pritchett s Defense. A. Standard of Review In reviewing the denial of a motion to suppress, we must determine whether the trial court's findings, considering the totality of the circumstances, are supported by substantial credible evidence. Price v. State, 752 So.2d 1070( 9) (Miss.Ct.App.1999) (citing Magee v. State, 542 So.2d 228, 231 (Miss.1989); Nicholson v. State, 523 So.2d 68, 71 (Miss.1988); Ray v. State, 503 So.2d 222, 224 (Miss.1986)). Where supported by substantial credible evidence, this Court shall not disturb those findings. Ray, 503 So.2d at 223 24. Moore v. State, 933 So. 2d 910, 914 ( 9) (Miss. 2006). In reviewing the denial of a motion in limine, the Court utilizes an abuse of discretion standard. Ware v. Entergy Mississippi, Inc., 887 So.2d 763, 766 ( 6) (Miss. 2003). The trial court does not abuse its discretion in granting a motion in limine if the court determines that (1) the material or evidence in question will be inadmissible at trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury. Id. B. Pritchett s Prior Conviction for Transfer of a Controlled Substance Prior to trial, Pritchett s defense counsel filed both an amended motion in limine, as well as a motion to suppress. The defense sought to prevent the State from introducing Pritchett s 2002 drug conviction for transfer of a controlled substance, as well as evidence that Officer Tiffany Menotti had three prior contacts with Pritchett that resulted in cocaine sales. The court permitted the introduction of the 2002 conviction, finding it was admissible to establish the requisite intent, as 4

allowed under Rule 404(b) under the Mississippi Rules of Evidence. As to the prior contacts, the court allowed testimony of Menotti s prior dealings with Pritchett on May 12 th and May 30 th. The court found that this information was admissible under Rule 404(b) to establish identity. Pritchett s 2002 drug conviction Rules 404(b) and 403 of the Mississippi Rules of Evidence govern the admissibility of an accused s prior bad acts. Cole v. State, 126 So. 3d 880, 884 ( 20) (Miss. 2013). Rule 404(b) is in place to prevent the State from raising the inference that since the accused has committed other crimes, he is likely guilty of the offense charged. White v. State, 842 So. 2d 565, 573 ( 24) (Miss. 2013). While this is an impermissible purpose, evidence of prior offenses may be admissible for purposes other than to show the accused s guilty tendencies. Id. at ( 25). These alternative purposes include if the evidence is offer to show proof of mistake, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Miss. R. Evid. 404(b). Whether or not the prior crimes, wrongs, or acts are admissible under 404(b) depends on the purpose for which the evidence was offered. White, 842 So. 2d at 573 ( 26). In Mitchell v. State, 110 So.3d 732, 733 ( 5) (Miss. 2013), Mitchell was tried as an habitual offender for possession of cocaine with the intent to distribute. Mitchell did not testify and at trial, the State presented evidence of Mitchell s prior possession convictions. Id. at ( 7). In reversing his conviction, the Court found that Mitchell s prior conviction satisfied none of the alternate purposes listed in the nonexclusive provisions of 404(b). Id. At 734 ( 11). The State alleged that the admission of the conviction was necessary to prove absence of mistake. Id. The Court recognized, however, that neither Mitchell or any witnesses, asserted that mistake was at issue 5

in this case. Id. The Court went further to agree that unless he alleges a mistake, there is no reason to prove absence of mistake. Id. (citing Hargett v. State, 62 So. 3d 950, 953 (Miss. 2011)). At trial, the State argued that Pritchett s 2002 conviction was admissible to establish intent, one of the permissible alternative purposes under 404 (b). However, the defense argued that intent was not at issue in this case. The defense did not allege that Pritchett committed an unintentional act so the State should not have been allowed to use this evidence for this purpose. This case is distinct from White, where the Court stated that we have followed the general trend and held that previous involvement with drugs can be admitted on the issue of intent to distribute. White, 842 So. 2d at 574 ( 26). White is readily distinguishable from this case in that White, and the cases it relied on, dealt with convictions of possession with the intent to distribute whereas intent was a constituent element of the crime. Here, Pritchett was charged with transfer of a controlled substance. Unlike possession cases, to prove a transfer, there is no need to show an intent to sell, as is necessary under an indictment for possession with intent to sell... [T]he only intent necessary is an intent to relinquish possession and control. Meek v. State, 806 So. 2d 236, 240 ( 15) (Miss. 2001). Pritchett s prior conviction would not have been permissible to show intent or any of the other non-exhaustive 404(B) purposes. Even if the Court finds that the introduction of Pritchett s 2002 conviction was permissible under Rule 404(b), the evidence still has to be filtered through Rule 403. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger or unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Miss. R. Evid. 403. 6

In this case, the 2002 conviction was irrelevant to the 2014 charge of transfer of a controlled substance. There were no details given about Pritchett s prior charge so the jury did not know if the circumstances surrounding the 2002 charge were similar to the 2014 charge. There was no evidence to establish that Pritchett s 2002 conviction was similar to the 2014 charge or that it was part of a common scheme. or similar occurrence. While evidence of other crimes may be admissible to tell a complete story as not to confuse the jury, Pritchett s 2002 conviction did not fit this exception because conviction happened 13 years prior to trial. Hargett v. State, 62 So.3d 950, 953 ( 10) (Miss. 2011). The only use of Pritchett s 2002 conviction was to show that he committed a similar crime which would likely mean that he committed the crime he was charged for. This was an impermissible use of the evidence. The probative value of this evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and the danger of misleading the jury. The prejudice to Pritchett s defense was not cured by the limiting jury instruction in S-2. Where 404(b) evidence is offered and there is an objection which is overruled, the objection shall be deemed an invocation to the right to MRE 403 balancing analysis and a limiting instruction... [if requested by counsel]. Brown v. State, 890 So. 2d 901, 912-13 ( 31, 36) (Miss. 2004). Jury Instruction S-2, instructed the jury on the following: [A]ny evidence of prior bad acts or crimes of the defendant may be considered solely for the purpose of determining the defendant s intent or knowledge in this case. If the defendant has committed bad acts or crimes, they are not evidence corroborating or suggesting that the defendant is guilty of the crime charged in this case. Jury Instruction S-2 (C.P. 58). Once the highly prejudicial evidence of Pritchett s prior conviction was before the jury, it 7

poisoned the jury and made it virtually impossible for the jury not to consider that as evidence that since Pritchett was convicted of transferring a controlled substance in the past, he was acting in conformity with his character in this case. The limiting instruction was insufficient to overcome the prejudicial nature of this evidence. Because he was improperly prejudiced by this evidence, the only proper disposition is for this Court to reverse the verdict and remand this case for a new trial. 8

CONCLUSION Pritchett asserts that, based on the propositions 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 Pritchett's conviction and sentence should be reversed and remanded to the trial court for a new trial. Pritchett states to the Court that the individual and cumulative errors, as cited above, are fundamental in nature and, therefore, cannot be harmless beyond a reasonable doubt. Respectfully submitted, GREGORY LORENZO PRITCHETT, APPELLANT BY: /s/ Erin E. Pridgen Erin E. Pridgen, Appellant Counsel 9

CERTIFICATE OF SERVICE I, Erin E. Pridgen, Counsel for Gregory Lorenzo Pritchett, 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 John R. Henry, Jr. 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 Joel Smith District Attorney, District 2 Post Office Box 1180 Gulfport, MS 39502 Honorable Lisa P. Dodson Circuit Court Judge P.O. Box 1461 Gulfport, MS 39502 Gregory Lorenzo Pritchett, MDOC# 00115 Mississippi State Penitentiary Post Office Box 1057 Parchman, MS 38738 This, the 2 nd day of November 2015. BY: /s/ Erin E. Pridgen Erin E. Pridgen, Appellant Counsel Erin E. Pridgen, MS Bar No. 102352 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: eprid@ospd.ms.gov 10