BRIEF OF THE APPELLANT

E-Filed Document May 5 2014 14:44:19 2013-KA-02048-COA Pages: 14 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CLARENCE DWAYNE JEFFERSON APPELLANT V. NO. 2013-KA-02048-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Benjamin A. Suber, MS Bar No. 102214 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: bsube@ospd.ms.gov Counsel for Clarence Jefferson

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CLARENCE DWAYNE JEFFERSON APPELLANT V. NO. 2013-KA-02048-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. Clarence Dwayne Jefferson, Appellant 3. Honorable Haldon J. Kittrell, District Attorney 4. Honorable Joe Turney, Trial Attorney for Appellant 4. Honorable Prentiss Greene Harrell, Circuit Court Judge This the 5 th day of May, 2014. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER /s/benjamin A. Suber Benjamin A. Suber, Appellant Counsel i

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES...1 ISSUE NO. 1 THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT AGAINST CLARENCE DWAYNE JEFFERSON....1 STATEMENT OF THE CASE...1 STATEMENT OF THE FACTS...1 SUMMARY OF THE ARGUMENT...4 ARGUMENT...5 ISSUE NO. 1 THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT AGAINST CLARENCE DWAYNE JEFFERSON......5 CONCLUSION...9 CERTIFICATE OF SERVICE...10 ii

TABLE OF AUTHORITIES MISSISSIPPI CASES Bush v. State, 895 So. 2d 836, 843 ( 16) (Miss. 2005)...8 Christian v. State, 859 So. 2d 1068, 1071 ( 12) (Miss. Ct. App. 2003)...8 Fair v. State, 789 So. 2d 818, 820 (Miss. 2001)...5 Franklin v. State, 676 So. 2d 287, 288 (Miss. 1996)...5 McClain v. State, 625 So. 2d 774, 778 (Miss. 1993)...5 McKee v. State, 756 So. 2d 793, 795 (Miss. Ct. App. 1999)....5 Nelson v. State, 69 So. 3d 50, 52 ( 10) (Miss. Ct. App. 2011)...8 Randolph v. State, 852 So. 2d 547, 554 (Miss. 2002)...5 Stewart v. State, 909 So. 2d 52, 56 (Miss. 2005)...5 Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987)...5 MISSISSIPPI STATUTES Mississippi Code Annotated Section 63-11-30 (1972)...1, 5, 6, 8 Mississippi Code Annotated Section 99-19-81 (1972)...1 iii

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CLARENCE DWAYNE JEFFERSON APPELLANT V. NO. 2013-KA-02048-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES ISSUE NO. 1 THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT AGAINST CLARENCE DWAYNE JEFFERSON. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Marion County, Mississippi, and a judgment of conviction for the crime of Felony DUI, 3 rd Offense in violation of Mississippi Code Annotated Section 63-11-30. The trial court subsequently sentenced Clarence Dwayne Jefferson as a habitual offender under Mississippi Code Annotated Section 99-19-81 to Five (5) years in the custody of the Mississippi Department of Corrections, with four (4) years to serve, with one (1) year suspended. The conviction and sentence followed a jury trial on October 17, 2013, Honorable Prentiss Harrell, Circuit Judge, presiding. Jefferson is currently in the custody of the Mississippi Department of Corrections. STATEMENT OF THE FACTS Officer Justin McKenzie testified that on October 15, 2012, he was working for the Columbia Police Department as a DUI enforcement officer. Tr. 68-69. McKenzie claims that approximately 1

9:45 p.m. on October 15, 2012, he came in to contact with Jefferson. Tr. 69. McKenzie, along with another officer, were conducting a safety checkpoint on Highway 13 South at the intersection of Town Square Shopping Center. Id. According to McKenzie, Jefferson came through the safety checkpoint. Tr. 70. Initially Officer Rick Guy approached the vehicle and made contact with Jefferson. Id. Guy requested the assistance of McKenzie. Id. McKenzie stated that he recognized Jefferson and was asked to exit the vehicle. Id. McKenzie testified that Jefferson seemed pretty nervous. Id. Jefferson was pacing back and forth and had bloodshot eyes. Id. McKenzie stated that he smelled the aroma of intoxicating beverages coming from the person of Jefferson. Id. Based on that information, McKenzie decided to perform some field sobriety tests and possibly a portable Breathalyzer on Jefferson. Tr. 70-71. McKenzie initiated the preliminary breath test, and it indicated positive for the presence of alcohol. Tr. 71. McKenzie then asked Jefferson to perform standardized field sobriety testing. Id. McKenzie began with the horizontal gaze nystagmus. Id. McKenzie claimed that he received six clues when he evaluated Jefferson. Id. McKenzie then attempted the walk-and-turn with Jefferson, which was completed. Tr. 73. McKenzie stated that he proceeded with the instruction stage of the walk-and-turn test 1. According to McKenzie, Jefferson continuously attempted to start the test and do it on his own. Id. McKenzie stated that the first clue he noted when the test was complete was that Jefferson could not maintain the balance and he began the test before he was instructed to do so. Id. McKenzie listed six of the eight clues available: Jefferson used his arms to balance; he 1 Walk-and-turn test was defined by Officer Justin McKenzie that use a line or imagine there is a line, out his left foot on that line and the right foot in front heel to toe and remain in that position. 2

missed heel to toe; he stepped off the line to the left and to the right; when he made the turn, he made an incorrect turn by making a wide radius turn; and then he took three steps backwards in an attempt to regain his balance before proceeding with nine steps in the other direction. Tr. 73-74. McKenzie then attempted the one-leg stand test, and McKenzie claimed that the test was discontinued after Jefferson incorrectly performed the test. Tr. 74. After the field sobriety tests, McKenzie placed Jefferson into custody and transported him to Marion County Jail. Id. Jefferson was offered the Intoxilyzer 8000 once he was taken into custody. Id. McKenzie stated that initially Jefferson refused, but eventually decided on taking the test. Id. McKenzie further testified that he made three attempts to run the Intoxilyzer 8000 at the Marion County Jail. On all three attempts, the machine failed on the diagnostics failure. Id. When you hit the start button, it runs through an air blank calibration check, diagnostics check, part of a self-test. Id. The machine was rejecting to do a test because of the diagnostic failure. Id. McKenzie continued to state that after the machine failed, he tried to explain to Jefferson what was happening. Tr. 75. According to McKenzie, Jefferson became belligerent and was very adamant about taking the test with the Intoxilyzer 8000. Id. Jefferson was offered a blood test, but Jefferson never acknowledged whether he would take the test. Id. Jefferson never did refuse the blood test. Tr. 85. McKenzie told the court that due to Jefferson s blood shot eyes, his behavior pacing back and forth, being nervous, odor of alcohol coming from his person, he believed that Jefferson was under the influence of alcohol. Tr. 75-76. On cross-examination, McKenzie stated that he did not have a video of the incident with Jefferson. Tr. 78. However, McKenzie said that there would have been video capability in the 3

police car at that time. Id. Video capability was not used in the alleged field sobriety tests of Jefferson. Id. McKenzie also admitted that he has stopped Jefferson on prior occasions. Tr. 82. Melissa Creel also testified on behalf of the prosecution. Tr. 88. Creel works for the Petal Municipal Court as the deputy court clerk. Id. She testified that Clarence D. Jefferson, Social Security Number xxx-xx-6856, date of birth of October 31, 1969, was convicted of DUI First refusal on April 6, 2010, in Petal Municipal Court. Tr. 89-90. The offense occurred on January 17, 2010. Tr. 92. On cross-examination Creel admitted that she does not know what Jefferson looks like and could not recognize him in the court room. Tr. 93. Wynette Parkman next testified for the prosecution. Tr. 95. Parkman works for the Marion County Justice Court as a clerk. Tr. 96. Parkman stated that she knows Jefferson from justice court. Tr. 97. She told the court that Jefferson was convicted of DUI first on January 29, 2010. Tr. 98. Jefferson s date of birth of October 31, 1964, Social Security Number xxx-xx-6856. Tr. 101. On cross-examination, Parkman stated that Jefferson s address was listed as 39 Harrison Jefferson Drive in Columbia. Tr. 102. However, she acknowledged that a Clarence D. Jefferson had an address of 1501 Hendricks Street in Columbia on the court abstract from Petal Municipal Court. Id. She further stated that she did not know if there was only one Clarence D. Jefferson in Marion County. Id. SUMMARY OF THE ARGUMENT The evidence was insufficient to support the guilty verdict of Clarence Dwayne Jefferson. Jefferson is entitled to have his guilty verdict reversed and rendered or in the alternative, reversed and remanded for a new trial. 4

ARGUMENT ISSUE NO. 1 THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT AGAINST CLARENCE DWAYNE JEFFERSON. Denial of a directed verdict challenges the legal sufficiency of the evidence supporting the guilty verdict. Randolph v. State, 852 So. 2d 547, 554 (Miss. 2002); Fair v. State, 789 So. 2d 818, 820 (Miss. 2001); McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). With regard to the issue of the legal sufficiency of the evidence, the Mississippi Supreme Court has held "that reversal can only occur when evidence of one of more of the elements of the charged offense is such that 'reasonable and fair-minded jurors could only find the accused not guilty.'" Stewart v. State, 909 So. 2d 52, 56 (Miss. 2005); Randolph, 852 So. 2d at 555; Fair, 789 So. 2d at 820; Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987). "To grant a JNOV the trial court must be convinced that the State has not presented competent evidence to establish each essential element of the offense beyond a reasonable doubt. McKee v. State, 756 So. 2d 793, 795 (Miss. Ct. App. 1999). See Franklin v. State, 676 So. 2d 287, 288 (Miss. 1996). Moore was convicted of felony DUI. Mississippi Code Annotated Section 63-11-30 (1) (1972) states the elements for DUI conviction as follows: It is unlawful for any person to drive or otherwise operate a motor vehicle within this state who (a) is under the influence of liquor; (b) is under the influence of any other substance which has impaired such person's ability to operate a motor vehicle; (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law, or (.02%) or more for persons who are below the legal age to purchase alcoholic beverages under state law, in the person's blood based upon grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath as shown by a chemical analysis of such person's breath, blood or urine administered as authorized by this chapter; (d) is (.04%) or more in the person's blood, based upon grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath as shown by a chemical 5

(1972) states: analysis of such person's blood, breath or urine, administered as authorized by this chapter for persons operating a motor vehicle. And with regard to Felony DUI the Mississippi Code Annotated Section 63-11-30 (2) (c) Except as otherwise provided in subsection (3), for any third or subsequent conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be guilty of a felony and fined not less than Two Thousand Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,000.00), shall serve not less than one (1) year nor more than five (5) years in the custody of the Department of Corrections... At trial, the Prosecution failed to present sufficient evidence to establish that Jefferson was in fact under the influence of intoxicating liquor and that Jefferson had two prior convictions within the past five years. Jefferson came through a safety checkpoint and was stopped by Officer Guy. Tr. 70. Guy requested the assistance of Officer McKenzie. McKenzie testified that he recognized Jefferson and asked him to exit his vehicle. Id. According to McKenzie, Jefferson seemed nervous, was pacing back and forth, and had bloodshot eyes. Id. McKenzie also claimed to smell intoxicating beverages coming from the person of Jefferson. Id. McKenzie then proceeded to perform field sobriety tests on Jefferson. Tr. 71. McKenzie claimed that after Jefferson attempted to complete the field sobriety tests, Jefferson was placed into custody. Tr. 74. McKenzie claimed he asked Jefferson if he had any physical or medical disabilities or of he had any restrictions prior to performing the field sobriety tests. Tr. 82-83. McKenzie claims that he does ask prior to every test. Tr. 83. However, when asked on cross-examination whether arthritis or footwear could cause problems with some of the stand-and-walk procedures, he stated that it possibly could. Id. 6

Jefferson was offered the Intoxilyzer 8000 once he was taken into custody. Tr. 74. Although initially refusing the test, Jefferson decided to blow in the Intoxilzer 8000. Id. McKenzie told the court that the Intoxilyzer 8000 was rejecting to do test because of diagnostic failure. Id. McKenzie made three attempts to run the Intoxilyzer 8000 at the Marion County Jail, but all three attempts failed on the diagnostic failure. Id. Jefferson was later offered a blood test, to which Jefferson never refused. Tr. 85. McKenzie further testified that he did not have a video of the incident with Jefferson, even though there would have been video capability in the police car. Tr. 78. Video capability was not used during the alleged field sobriety tests either. Id. Furthermore, McKenzie stated that he has stopped Jefferson on other occasions. Tr. 82. The prosecution offered into evidence two court abstracts showing prior DUI convictions. Tr. 90-91, 97-98. One abstract was from Petal Municipal Court and the other was from Marion County Justice Court. Tr. 88, 96. The court abstract from Petal Municipal Court listed the name as Clarence D. Jefferson, date of birth as October 31, 1969, with an address of 1501 Hendricks Street in Columbia. Tr. 89-90, 102. However, the court abstract from Marion County Justice Court listed the name as Clarence Dwayne Jefferson 2, date of birth as October 31, 1964, with an address of 39 Harrison Jefferson Drive in Columbia. Tr. 98-101. As prosecution witness, Parkman, testified regarding the court abstract from Marion County Justice Court, she was certain that the court abstract was the Appellant; however, she was unsure as to whether there was another Clarence Jefferson in Marion County. Tr. 102. Creel stated that she did not know Jefferson and could not recognize him in the courtroom. Tr. 93. She further stated 2 It should be noted that the social security number on both court abstracts was the same. 7

that she had no way of determining whether the Jefferson in the courtroom is the same Jefferson that was listed on the court abstract. In reviewing a challenge of legal sufficiency, this Court must determine whether any rational juror could have found that the State proved each and every element of the crime charged beyond a reasonable doubt. Bush v. State, 895 So. 2d 836, 843 ( 16) (Miss. 2005) (citation omitted). Nelson v. State, 69 So. 3d 50, 52 ( 10) (Miss. Ct. App. 2011). The State must be given the benefit of all reasonable inferences that may be drawn from the evidence. Christian v. State, 859 So. 2d 1068, 1071 ( 12) (Miss. Ct. App. 2003) (citation omitted). Id. One of the elements of Felony DUI is that there must be two prior DUI offenses committed within a period of five years. Mississippi Code Annotated Section 63-11-30 (2)(c). Two court abstracts were admitted into evidence of two prior DUI s, however with differing information. The two abstracts had different addresses and even a different birthday. Therefore, the prosecution failed to prove all the elements of Felony DUI as the abstracts did not show that Jefferson was in fact the same person as the person on trial. Therefore, the Prosecution failed to present sufficient evidence to establish that Jefferson was in fact under in influence of intoxicating beverages and did not meet the elements set forth in Mississippi Code Annotated Section 60-11-30 (1972). 8

CONCLUSION Clarence Dwayne Jefferson asks this court to reverse and render his conviction or in the alternative, reverse and remand his conviction for a new trial. Respectfully submitted, For CLARENCE DWAYNE JEFFERSON, APPELLANT /s/benjamin A. Suber Benjamin A. Suber, Appellant Counsel 9

CERTIFICATE OF SERVICE I, Benjamin A. Suber, Counsel for Clarence Jefferson, 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 Prentiss Greene Harrell Circuit Court Judge Post Office Box 488 Purvis, MS 39475 Honorable Haldon J. Kittrell District Attorney, District 15 500 Courthouse Square, Suite 3 Columbia, MS 39429 Clarence Dwayne Jefferson, MDOC #130209 Pearl River CSWP 200 South Main Street Poplarville, MS 39470 This the 5 th day of May, 2014. /s/benjamin A. Suber Benjamin A. Suber, Appellant Counsel Benjamin A. Suber, MS Bar No. 102214 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: bsube@ospd.ms.gov 10