PETITION FOR REHEARING

E-Filed Document Mar 6 2018 19:55:11 2016-KA-00932-COA Pages: 6 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-KA-00932-COA JACARRUS ANTYONE PICKETT APPELLANT V. STATE OF MISSISSIPPI APPELLEE PETITION FOR REHEARING Robert G. Whitacre, Jr., MSB No. 102944 Whitacre Law, P.L.L.C. P. O. Box 107 Hattiesburg, MS 39403-0107 Telephone: 601-583-1500 Fax: 866-523-6440 E-mail: whitacrelaw@gmail.com Counsel for Appellant

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-KA-00932-COA JACARRUS ANTYONE PICKETT APPELLANT V. STATE OF MISSISSIPPI APPELLEE PETITION FOR REHEARING COMES NOW, Jacarrus Antyone Pickett, pursuant to Miss. R. App. P. 40, and respectfully moves the Court of Appeals, to rehear this case and, in support hereof, shows the following: 1. The Appellant, Jacarrus Antyone Pickett, was convicted of attempted murder and sentenced to 25 years with 15 years to serve in the custody of the Mississippi Department of Corrections. 2. Jacarrus appealed his conviction and sentence raising five issues, including that the indictment was erroneously amended on the second day of trial, that the indictment sufficiently charged the elements of attempted murder, that the jury was improperly instructed as to the elements of attempted murder, that the attempted murder statute is unconstitutional, and that the verdict was against the sufficiency and weight of the evidence supporting his conviction. 1

This Court affirmed the ruling of the trial court on February 6, 2018. Jacarrus takes issue with the following holding in this case: 3. 4. The amendment to the indictment reflected the language used at trial and did not prejudice the defense. The amendment did not change the nature of the charges and, thus, did not deprive Jacarrus... of a fair opportunity to present [his] defense 10 Jacarrus respectfully contends that the trial court erred in allowing the indictment to be amended on the second day of trial and after the testimony of several witnesses. This Court s holding allows an indictment to be amended despite a material change in a factual scenario alleged in an indictment to match the proof after jeopardy has attached. Additionally, Jacarrus submits that there is a material factual difference between being shot, as alleged in the indictment at the time jeopardy attached, and being shot at, as alleged in the indictment as amended on the second day of trial. The amended indictment fails to specify an act committed by Jacarrus which, if accomplished, would constitute an offense of murder under 97-3-19, as required by Mississippi s attempted murder statute. The act of shooting at another person is not an act which, if accomplished, constitutes an offense of murder. Instead, the statute criminalizing shooting at another person is Mississippi Code section 97-3-7(2)(a), Mississippi s attempted aggravated assault statute. Accordingly, rehearing is required. 5. 6. It is respectfully submitted this Court erred in finding the State s elements instruction to 2

be proper. (Op. 16-20). Attempted murder includes the element that a person commit an act which, if accomplished would constitute an offense of murder...but shall fail therein. Miss. Code Ann. 97-1-2. The jury was never instructed on those elements. It is fundamental error for an elements instruction to omit an essential element of the offense. This Court should grant rehearing. 7. This Court erred in Issue IV, when it determined that the Attempted Murder Statute was constitutional. Mississippi Code section 97-1-7(2) is unconstitutional for three specific reasons: vagueness, overbreadth, and its violation of the Eight Amendment of the United States Constitution s prohibition against cruel and unusual punishment. This Court s analysis was incomplete and rehearing is required. 8. The Court of Appeals erred in its analysis of the weight and sufficiency of the evidence used to convict Jacarrus. Jacarrus specifically takes issue with the following holding: Jacarrus then fired multiple rounds at him. Clark testified that all shots were directed at him, and Culpepper corroborated this testimony. (Op. 29). It is respectfully submitted that no witness, including Culpepper, corroborated Clark s testimony, with regard to Jacarrus. In fact, Clark s testimony, with regard to Jacarrus s involvement in the garbage truck shooting, was contradicted by all of the eyewitnesses and physical evidence. Culpepper never testified that he saw a second shooter. Culpepper testified that he saw Clark run away after the shooting stopped, but never testified he saw Jacarrus, or anyone else, chase Clark with a gun and shoot 15 additional rounds at Clark. 3

Clark s testimony was also contradicted by James Taylor, the other garbage truck worker, who testified he only saw one shooter and that he heard approximately 12 gunshots. This testimony contradicts Clark s story that Jacarrus shot 15 rounds at Clark after Clark exited the cab of the garbage truck. The physical evidence from the scene also contradicts Clark s in that only 13 shell casings were recovered. Additionally, all 13 shell casings were of the same caliber, indicating that it is more likely than not that there was only one shooter. Therefore, the physical evidence does not support Clark s testimony that Jacarrus shot a gun at him with deliberate design to effect death. The result, as to Jacarrus, is a verdict that is contrary to the overwhelming weight of the evidence and to allow it to stand would sanction an unconscionable injustice. Jacarrus respectfully requests rehearing. WHEREFORE, PREMISES CONSIDERED, Jacarrus respectfully moves this Court to rehear this case, and upon so doing, to reverse Jacarrus s conviction and sentence and remand the case to the trial court. Respectfully submitted, Jacarrus Antyone Pickett By: s/ Robert G. Whitacre, Jr. Robert G. Whitacre, Jr., MSB No.102944 Counsel for Appellant 4

CERTIFICATE OF SERVICE I, Robert G. Whitacre, Jr., Counsel for Jacarrus Antyone Pickett, do hereby certify that I have electronically filed the foregoing Petition For Rehearing with the Clerk of the Supreme Court using the MEC system, which sent notification of such to the following: Hon. Jason L. Davis Office of the Attorney General P. O. Box 220 Jackson MS 39205 th So certified, this the 6 day of March, 2018. Robert G. Whitacre, Jr., MSB No. 102944 Whitacre Law, P.L.L.C. P. O. Box 107 Hattiesburg, MS 39403-0107 Telephone: 601-583-1500 Fax: 866-523-6440 E-mail: whitacrelaw@gmail.com s/ Robert G. Whitacre, Jr. Robert G. Whitacre, Jr. Counsel for Appellant 5