IN THE MISSISSIPPI COURT OF APPEALS No.2016-KP-01753-COA No.2016-KP-01755-COA ". I,'.' i KEITH HIGGINBOTHAM v. STATE OF MISSISSIPPI APPELLEE Appeal from the Circuit Court of Winston County, Fifth Judicial District, No. 2016-037(038)-CR REPL Y BRIEF OF APPELLANT Keith Higginbotham 1415 Ricks Rd. Noxapater, MS 39346 (662)266-6063 A TTORNY FOR APPELLANT (Pro Se).,. " ' JUL :: C Z017 1
- Certificate of Interested Persons Keith Higginbotham v. State of Mississippi No. 2016-KP-01755-COA No. 2016-KP-01753-COA The undersigned counsel of record certifies pursuant to Mississippi Rules of Appellate Procedure 28(a)(l) that the following listed persons have an interest in the outcome of the case. These representations are made in order that the Justices of this Court may evaluate possible disqualifications or recusal. Hon. George M. Mitchell Jr. Presiding Judge (Circuit Court) I 5 Mitchell Ave. Eupora, MS 39744 Hon. David T. Wilson Jr. Presiding Judge (Municipal Court) 508 S. Church Ave. Louisville, MS 39339 Hon. Taylor Tucker City Prosecutor 314 N. Court Ave. Louisville, MS 39339 Keith Higginbotham, Defendant/ Appellant 1415 Ricks Rd. Noxapater, MS 39346 This the 28th day of March 2017 Attorney of record for Keith Higginbotham (Pro Se) AB refers to appel/ee's brief 2
Table of Contents Certificate of Interested Persons... 2 Table of Contents... 3 Table of Authorities... 4,5 Reply Statement of the Issues... 6 Reply Statement of the Case... 6 Reply Summary of the Argument..... Reply Argument..... Conclusion... 3
- - Table of Authorities Cases Box v. State of Mississippi, 437 So. 2d 19 (1983). Cabello v. State of Mississippi, 471 So. 2d 332, 343 (Miss. 1985). Carraway v. State of Mississippi, 562 So. 2d 1199 ( 1990). Cole v. State of Mississippi, 525 So.2d365 (1987). Darby v. State of Mississippi, 538 So.2d 1168 ( 1989). Darghty v. State a/mississippi, 530 So.2d 27 (1988). Griffin v. State of Mississippi, 504 So2d. 186, 195 ( 1987). Henry v. State of Mississippi, 484 So.2d 1007, 1012, 1014 (Miss. 1986) Hill v. State o_{texas. 482 U.S. 451,463, 107 S. Ct. 2502, 96 L.Ed.2d 398 (1987). Kelly v. State of Mississippi, 553 So. 2d 517, 520 (Miss. 1989). Mastin v. State of Mississippi, 180 So. 3d 732 (2015). McKinney v. State o.f Mississippi, 482 So. 2d 1129, 1131 (Miss. 1986). Mississippi Commission on Judicial Performance v. Patton, 57 So. 3d 626 (2011 ). Mississippi Commission on Judicial Performance v. Boone, 60 So. 3d 172 (2011 ). Morris v. State of Mississippi, 927 So. 2d 744 (2006). Sendelweek v. State of Mississippi, 10 I So. 3d 734 (2012). Traylor v. State of Mississippi, 582 So. 2d 1003 ( 1991). 4
- - Statutes Miss. Code 97-35-7 Miss. Code 97-29-47 Miss. Code of Judicial Conduct Cannon 3 M.R.C.P Rule 7 M.R.C.P Rule 16 M.R.C.P Rule 17 M.R.C.P Rule 25 M.R.C.P Rule 34 U.S. Const. amend. I U.S. Const. amend. VI U.S. Const. amend. XIV 5
REPL Y STATEMENT OF THE ISSUES The four main points here are consistent with the Appellant's Brief. REPLY STATEMENT OF THE CASE This case is built on a lie, and the appellee can produce no witnesses or any other physical evidence in this case other than the officer's testomy. That fact by itself should be enough to overturn this conviction. The burden of proof is always on the prosecution, and in this case, that burden came nowhere close. The appellee's brief contains no explanation to what the abbreviation means (RE, T-16 etc.). Appellant cannot conclude what document(s) appellee is getting this information from. The appellant has a copy of the entire case file, and has found no. explanation of the fine. All the document(s) show is ($246.25) and no other explanation to any breakdown of that amount as the appellee claims 6
(AB pg.2,3). The other facts are accurate, but appellee never explains how we got to the point where he started his statement of the case. The defendant argues he cannot because there is no proof beyond a reasonable doubt of what happened that lead to the criminal affidavit. REPLY SUMMARY OF THE ARGUMENT/ARGUMENT I. The trial court did err in denying the admission of the video as evidence for the defense. The appellee argued at trial on basis of discovery violation (CT pg. 12 In. 18-29) (CT pg. 13 In. 1-21). The rules of evidence he is arguing now was never mentioned at trial as reason to not admit evidence, and should not be considered by this court same as he says in section IV of his brief. The whole exchange between the court and defendant was because he did not serve it onto prosecutor which is a discovery violation. AB refers to appel/ee's brief 7
The appellant understood he was not an attorney from the start. This fact is apparent in Municipal Court. Before the proceeding the defendant ask the court about the motions he had filed weeks before. The motion to subpoena (RE pg. 1-2) was heard at that time, and was denied. There was never an order from the court with any explanation why it was denied. In Circuit Court, the defendant figured out how to do a subpoena, and served the subpoena on Wal-Mart for the security cameras (RE pg. 3-4). The defendant got the disk from Wal-Mart then took it back to the court clerk where he was told at that time to hold on to it. Appellant understand the court cannot give legal advice, but there is no law that would have prohibited somebody from telling him to take it to the prosecutor, or read the rules of evidence that the appellee referred to in this section. The appellant got no help from anybody on anything during this entire case. The appellee admits in section II that courts usually grant 8
- some leeway if defendant is not an attorney, but there was none in either of the courts. The appellee's whole argument in this section is on the rules of evidence that was never a part of either court. _The appellant objected to the video being admitted (CT pg.12 In. 26-28). He claimed he had not seen it, and the court agreed. The appellee argued in court on basis of discovery violation, but never any mention of rules of evidence as he is arguing now. Therefore, as the appellee argues in section IV, this issue of rules of evidence was never raised at trial and should not be considered by this court. II. The appellant agrees, the law clearly says if you represent yourself you get treated the same as an attorney. That fact is not what the appellant is arguing in this case. 9
If a defendant cannot afford an attorney, and the law does not allow one to be appointed due to minor charges. Then how can courts tell a defendant he has to be treated the same as an attorney, and still get a fair trial he/she is entitled to under the Constitution. Both these statements cannot be true. The defendant asked for an attorney in both trials, and made it clear in circuit court he did not wish to represent himself (CT pg. 14 In. 19-21). III. Appellant is not arguing he was not advised of the charges. He is arguing the sentence exceeded the statute. $246.25 is the only amount on any paper in the file, and if there is a paper then it was added after the fact because the appellant has reviewed the file many times. The transcript only mentions the $246.25, and the circuit clerk said he had paid all the fees. The 246.25 each charge would have been paid in city court. The appeal fee was all separate to the $246.25 amount. AB refers to oppellee's brief 10
- IV. Just to point out the proceeding was not ended, and defendant was not dismissed until after this this occurred. The appellee says it was at the completion of the trial, and that is just not the case (CT pg. 18 In. 18-19). It was presented to the trial court and that is the point exactly. Mississippi Code on Judicial conduct as well as the Constitution prohibits judges/jury's from even the appearance of impartiality. That ex parte conversations between the states only witness and the court, at the very least, gives the appearance of impartiality. Either way violated the defendants right to a fair trial from an impartial judge/jury. Not only that but the court accused the defendant of other things that the defendant is saying right now never happened. As of today no arrest or charge relating to anything the judge said has been made on the defendant. Judges cannot be the police, the court should have never allowed the officer to approach, and never should have got involved. That is the police's job to investigate. 11
The defendant had two subpoenas that never was answered, and both containing evidence beneficial to the defendant (RE pg. 7-10). The appellee cannot argue the evidence here because the defendant never got it to do anything with it which also violates his right to a fair trial. The appellee coves this in the conclusion of his brief, but is another example of a violation of a right to a fair trial. Starting with the city court there were motions filed, and never answered by the trial court. The motion to dismiss was a pre-trial motion, and the defendant followed all steps in the criminal procedure with this and all motions. Why it was never scheduled to be heard is a question for the judge, and clerk. If the court would have heard this pre-trial motion then possibly the evidence problem could have been resolved at that time. It is also possible if the prosecutor had of seen video before trial he would have had no choice but to dismiss the case due to what it shows. 12
- Lastly, the booking sheet was never turned over on discovery. This is important because it contained names of a person that defendant could have called to testify if he had that paper with the information on it (RE pg. 11 ). REPLY TO CONCLUSION Appellee says only evidence presented was that of the arresting officer, and the defendant did not present any evidence. The only thing defendant had was a surveillance tape from a private company which was not allowed in, and the other items were part of the city. These items were subpoenaed but never received. The defendant also had to subpoenas for two people to testify as both of the officer commanders, but after defendant saw they and everybody else but him got to hang around the judges bench, he decided against calling them. Although, it would have made no difference because the non-attorney defendant didn't give anything to prosecutor. Anything defendant would have tried to present would have been excluded like the video. 13
The appellee says the facts contained in record would justify a public profanity conviction. Defendant argues there are no facts in the record. The officer had a body cam, police car camera, and Wal-Mart camera's. They chose not to use any of it. Public profanity has to be in the presence of 2 or more people. The state never proved that there was 2 or more people present. The state called no other witnesses to testify they actually heard profanity which the officer testified that there were many witnesses. The officer cannot testify to what other people may or may not have heard. That is called hearsay. Everything that was presented to this court was at least attempted to be presented to the trial court. The court did not want to hear some of it as it would have exposed the officer committing a felony in perjury. As the defendant said in his brief, the court used the fact the defendant was not an attorney and could not get one to take full advantage of him. They knew this and they knew they could get away with it. 14
CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the foregoing appellants reply brief for appeal was sent by USPS to Mr. Taylor Tucker, 314 North Court Ave, Louisville, MS, 39339 on this, 24th day of July 2017 1&-!~ K. Higginbotham (Pro Se) CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the foregoing appellants reply brief for appeal was sent by USPS to Hon. Judge George Mitchell Jr., 15 Mitchell Ave. Eupora, MS 39744 on this, 24th day of July 2017 -; v- 1~ K. Higginbotham (Pro Se) 15
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