E-Filed Document Aug 23 2017 16:38:55 2017-KA-00181-COA Pages: 11 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI EDDIE EARL DAVIS APPELLANT VS. NO. 2017-KA-00181 STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 8007 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF AUTHORITIES..................................................... ii STATEMENT OF THE CASE.................................................... 1 COURSE AND DISPOSITION IN THE CIRCUIT COURT............................. 1 STATEMENT OF THE FACTS................................................... 2 SUMMARY OF THE ARGUMENT............................................... 3 ARGUMENT.................................................................. 4 CONCLUSION................................................................ 7 CERTIFICATE OF SERVICE.................................................... 8 i
TABLE OF AUTHORITIES Federal Cases: Whren v. United States, 517 U.S. 806 (1996).... 5 Mississippi State Cases: Clark v. State, 503 So.2d 277, 280 (Miss.1987)... 4 Drennan v. State, 695 So.2d 581, 585-586 (Miss.1997)... 4 Eaddy v. State, 63 So. 3d 1209, 1212, ( 11) (Miss.2011).... 4 Lee v. State, 100 So.3d 982, 984-985, ( 9) (Miss.App.2012).... 5 Melton v. State, 118 So.3d 605, ( 10) (Miss.App.2012)... 4 Mosley v. State, 89 So.3d 41, 46, ( 14) (2011).... 5 White v. State, 818 So. 2d 369, ( 7) (Miss.App.2002)... 4 Mississippi State Statutes: M.C.A., Section 27-19-31(2).... 5 ii
STATEMENT OF THE CASE This appeal is a direct appeal from a judgment of conviction for possession of methamphetamine. Eddie Earl Davis is appealing his conviction and sentence. The Circuit Court of Scott County, Honorable Vernon Cotton presiding, sentenced Eddie Earl Davis to a term of six(6) years as a habitual offender. The Indigent Appeals Division of the Office of State Public Defender filed a brief on behalf of Davis which asserted that, after scouring the record, it found no arguable issues. The is commonly referred to, in Mississippi jurisprudence, as a Lindsey Brief. The procedure allows the defendant to file a supplemental brief on any issues he or she believe to be arguable. Eddie Earl Davis did file a Supplemental Brief. He asserts a single issue. Davis claims that the stop of his vehicle was illegal. COURSE AND DISPOSITION IN THE CIRCUIT COURT The Grand Jury returned an indictment charging Eddie Earl Davis, also known as Brown Davis, with possession of methamphetamine. C.P. 3. The indictment was later amended to charge that Davis had three prior felony convictions and at least one of them was for violating the controlled substance laws. C.P. 14. The court tried Davis before a jury. The jury returned a verdict of guilty as charged. C.P. 37. The Court conducted a hearing and found that Davis had been convicted of at least two prior felonies, at least one being for a violation of the controlled substance law. The court sentenced Davis to serve a term of six (6) years as a habitual offender. Tr. 76-78. C.P. 38-40. The circuit court granted an out-of-time appeal to Davis. C.P. 48. Davis filed a notice of appeal. C.P. 57. 1
STATEMENT OF THE FACTS On January 30, 2015 Eddie Earl Davis was driving his truck near Morton, Scott County, Mississippi. Davis was traveling south on Highway 13. Davis drove past Scott County Deputy Michael Townsend. It was dark, and Townsend saw that Davis s tag was not visible. Davis did not have a working light. Deputy Townsend knew Eddie Earl Davis, but he did not know Davis was the driver until he walked up to the vehicle. Tr. 32, 37, 57. Deputy Townsend put on his blue lights and stopped Eddie Earl Davis. Deputy Townsend determined that Davis was driving a suspended license and placed Davis under arrest. Tr. 32, 37-38. Deputy Townsend saw something in Davis s hand as Davis got out of the vehicle. Davis put that hand behind his back. Deputy Townsend grabbed Davis s hand and opened it. Davis was holding a clear baggy containing a crystal-like substance. Tr. 38. Davis testified at trial and denied that his tag light was not working. Tr. 57. Davis admitted that he held the methamphetamine in his hand. Tr. 61. Jamie Johnson was a drug identification specialist working for the Mississippi Crime Laboratory. Johnson tested the substance that Deputy Townsend took from the hand of Eddie Earl Davis. Johnson said it contained 1.226 grams of methamphetamine. Tr. 52. 2
SUMMARY OF THE ARGUMENT Davis makes two claims in his supplemental brief. He says he is appealing because the stop was illegal. Davis also says that Deputy Townsend lied when he said he did not know Davis. Deputy Townsend s testimony that Davis s tag light was not working at a time it was needed to see the tag and Davis s tag was not visible was sufficient to support a finding that Townsend had probable cause to stop Davis. Deputy Townsend testified that he did know Davis, but he did not realize Davis was the driver of the vehicle until he was walking to the vehicle. 3
ARGUMENT Eddie Earl Davis claims that Deputy Townsend stopped him illegally. Other than to say that his tag light was working, Davis makes no further argument. Nor does Davis cite any legal authority in support of his claim. The ultimate question in this appeal is whether Deputy Townsend had probable cause to stop Davis s vehicle. Failure to Provide Legal Authorities: The Mississippi Supreme Court has stated, (t)here is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to this Court. Clark v. State, 503 So.2d 277, 280 (Miss.1987). Furthermore, the appellant has the duty to make more than mere assertions and should set forth reasons for his arguments and cite authorities in their support. Id. If the party does not provide this support, this Court is under no duty to consider assignments of error when no authority is cited. Drennan v. State, 695 So.2d 581, 585-586 (Miss.1997). White v. State, 818 So. 2d 369, 371, ( 7) (Miss.App.2002). The court may consider this issue procedurally barred. White, Id., at 7. Standard of Review: Appellate courts apply a mixed standard of review to Fourth Amendment claims. Eaddy v. State, 63 So. 3d 1209, 1212 ( 11) (Miss.2011). Determinations of reasonable suspicion or probable cause are reviewed de novo. Id. However, the circuit court s factual findings are reviewed under the substantial evidence or clearly-erroneous standards. Id. Melton v. State, 118 So.3d 605 (( 10) (Miss.App.2012). 4
Probable Cause and Reasonable Stops of Automobiles: "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 810 (1996). Mosley v. State, 89 So.3d 41, 46, ( 14) (2011). License tags must be visible at night at a distance of sixty feet. M.C.A., Section 27-19-31(2). When the office saw that a license tag was not visible because the light was out, the officer had probable cause to believe that a traffic violation had occurred. Lee v. State, 100 So.3d 982, 984-985, ( 9) (Miss.App.2012). Testimony About the Tag Light and Its Visibility: Deputy Townsend testified that it was dark, and Townsend saw that Davis s tag was not visible. Davis did not have a working light. Deputy Townsend testified that he knew Eddie Earl Davis, but he did not know Davis was the driver until he walked up to the vehicle. Tr. 32, 37, 57. Davis testified that his tag light was working. Tr. 57. Substantial Evidence That a Traffic Violation Was Occurring: Did Eddie Earl Davis demonstrate that the court was clearly erroneous or lacked substantial evidence in finding that Davis s tag light was not working? Melton, Id., 10. Should the court have excluded the evidence because it was found after an illegal stop of Davis s vehicle? The answer is that the stop was legal. The record supports a finding that Deputy Townsend testified and gave substantial evidence that Eddie Earl Davis was operating his vehicle and committing a traffic violation. Townsend s stop of Davis s vehicle was legal and no error resulted 5
from admission of evidence recovered after the stop. Davis testified that his tag light was working. That joined the issue of the legality of the stop. It did not require the court, however, to find that the stop was illegal and to exclude the evidence. The court had sufficient evidence before it to find that the stop was either legal or illegal. In other words, there was evidence in the record that would have supported a finding that the tag light was or was not working. Therefore the court had the discretion to admit or exclude the evidence of Davis s possession of methamphetamine. The Judge did not abuse his discretion when he allowed the evidence to be presented to the jury after counsel for Davis objected and a hearing was conducted. 6
CONCLUSION The evidence in the appellate record supports a finding that Davis s tag light was not working, and it was dark at night when Davis drove past Deputy Townsend. The court did not err by admitting Deputy Townsend s testimony about the substance he found in Davis s hand after he stopped Davis s vehicle and arrested Davis for driving with a suspended license. Davis does not support his claim with argument or a citation of legal authorities. Counsel for appellee has examined the appellate record and finds no arguable issues. The State asks the court to affirm the judgment of conviction. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 8007 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 7
CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed (and mailed by United States Postal Service) the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Vernon R. Cotten Circuit Court Judge 205 E. Main Street Carthage, MS 39051 Honorable Steven Kilgore District Attorney Post Office Box 603 Philadelphia, MS 39350 Mollie M. McMillin, Esq. Office of State Public Defender Post Office Box 3510 Jackson, MS 39207-3510 I also certify that I have mailed by United States Postal Service to the following non- MEC party: Eddie Earl Davis, MDOC #R9295 Wilkinson County Community Work Center 84 Prison Lane Woodville, MS 39669 This the 23nd day of August, 2017. s/scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi 39205-0220 Telephone: (601) 359-3680 8