BRIEF OF THE APPELLANT

E-Filed Document Jun 1 2015 20:59:33 2013-KA-02110-COA Pages: 12 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NATHANIEL HAMPTON APPELLANT V. NO. 2013-KA-02110-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 Nathaniel Hampton

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NATHANIEL HAMPTON APPELLANT V. NO. 2013-KA-02110-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. Nathaniel Hampton, Appellant 3. Honorable Dewayne Richardson, District Attorney 4. Honorable Aelicia L. Thomas and Debra Giles, Trial Attorney for Appellant 5. Honorable Betty W. Sanders, Circuit Court Judge st This the 1 day of June, 2015. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER BY: /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant i

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS.... i TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES...1 ISSUE NO. 1 THE COURT ERRED IN NOT GRANTING A MISTRIAL AFTER MEMBERS OF THE JURY WERE ALLOWED TO VIEW THE DEFENDANT WHILE SHACKLED AND BEHIND BARS........... 1 ISSUE NO. 2 THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE VERDICT OF GUILTY......1 STATEMENT OF THE CASE...1 STATEMENT OF THE FACTS...2 SUMMARY OF THE ARGUMENT....3 ARGUMENT...4 ISSUE NO. 1 THE COURT ERRED IN NOT GRANTING A MISTRIAL AFTER MEMBERS OF THE JURY WERE ALLOWED TO VIEW THE DEFENDANT WHILE SHACKLED AND BEHIND BARS........... 4 ISSUE NO. 2 THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE VERDICT OF GUILTY......5 CONCLUSION...6 CERTIFICATE OF SERVICE....7 ii

TABLE OF AUTHORITIES U.S. CASES Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, (1979)........................... 5 MISSISSIPPI CASES Arthur v. State, 735 So. 2d 213, 219 (Miss. 1999)... 5-6 Bush v. State, 895 So. 2d 836, 843 (Miss. 2005)...5 Crocker v. State, 272 So. 2d 664, 665 (Miss. 1973)...5 Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)....5 Garner v. State, 944 So. 2d 934. 939-40 (Miss. App. Ct. 2006)........................... 5 Hickson v. State, 472 So. 2d 379, 382 (Miss. 1985)...4 Payton v. State, 897 So. 2d 921, 931 ( 12) (Miss. 2003)................................ 4 Pearson v. State, 790 So. 2d 879, 880 ( 6) (Miss. Ct. App. 2001)......................... 4 Rush v. State, 301 So. 2d 297, 300 (Miss. 1974)....4 STATUTES Mississippi Code Annotated Section 97-3-19(2)(e).................................... 3 iii

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NATHANIEL HAMPTON APPELLANT V. NO. 2013-KA-02110-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES ISSUE NO. 1 THE COURT ERRED IN NOT GRANTING A MISTRIAL AFTER MEMBERS OF THE JURY WERE ALLOWED TO VIEW THE DEFENDANT WHILE SHACKLED AND BEHIND BARS. ISSUE NO. 2 THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE VERDICT OF GUILTY. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Sunflower County, Mississippi, and a judgment of conviction for the crime of Count 1: Capital Murder against the Appellant, Nathaniel Hampton. The trial judge subsequently sentenced Hampton to a life sentence without possibility of parole in the custody of the Department of Corrections. C.P. 889. The conviction and sentence followed a jury trial on May 27th, 2014, Honorable Betty W. Sanders, Circuit Judge, presiding. Mr. Hampton is currently in the custody of the Mississippi Department of Corrections. 1

STATEMENT OF THE FACTS On or about the evening of June 30, 2011, in Sunflower County, Mr. Marcus Haney was walking on Hannah Street with Richard O'Neal and Nathaniel Hampton. Tr. 475. He then testified that Gerod Nellum eventually joined them on their walk. Tr. 476. Shortly thereafter, Gerod Nellum told the group that, "dude owed him some money." Tr. 477. According to Marcus Haney, Nathaniel Hampton then gave Gerod Nellum a padlock. Tr. 477. Shortly thereafter, according to Marcus Haney, the group walked passed the victim David Melton, who Gerod was referring to as the man who owed him money, and Gerod Nellum started beating the man. Tr. 477. Marcus Haney testified that he witnessed the victim fall to the ground and that Gerod Nellum then got on top of the man. Tr. 477. Marcus Haney then witnessed Nathaniel Hampton try to push Gerod Nellum off of the victim. Tr. 477. Marcus Haney then witnessed Gerod Nellum go through the pockets of the victim on the ground. Tr. 479. Richard O'Neal testified to similar facts at trial. He stated that he was at the home of Nathaniel Hampton on June 30, 2011. Tr. 617. Richard O'Neal left Hampton's home with the Appellant and walked down Roosevelt Street and up Hannah Street where they met up with Marcus Haney. Tr. 618. After meeting up with Marcus Haney, they all three went back to Hampton's home and stayed there for approximately thirty (30) minutes. Tr. 619. When they left there, they went down Hannah Street. Tr. 620. It was during this walk that the group of men met Gerod Nellum. Tr. 620. Richard O'Neal testified that Mr. Nellum told them that he was "fixing to whoop Dude, Dude owed him one-hundred and twenty dollars ($120.00)." Tr. 620. Richard O'Neal stated that the Appellant then took the padlock that he was wearing around his neck on a shoestring and put it into Gerod Nellum's hand. Tr. 621. Then, according to Mr. O'Neal, Gerod Nellum began to jog towards the victim and stated, "You ain't going to pay me my money?" and then he knocked him down and 2

continued to hit him while he was on the ground. Tr. 621. Mr. O'Neal testified that Hampton told Gerod Nellum to stop and then Hampton went into his pockets and took out the victim's wallet. Tr. 622. Nathaniel Hampton was arrested in June of 2011. He was subsequently indicted by a grand jury on December 29, 2011, for Capital Murder pursuant to Mississippi Code Annotated Section 97-3-19(2)(e). C.P. 23. On February 7, 2013, the jury returned a verdict of guilty. C.P. 196. The trial judge subsequently sentenced Defendant Nathaniel Hampton to a life sentence in the custody of the Department of Corrections. Tr. 889. SUMMARY OF THE ARGUMENT The court erred in not granting the Defendant's motion for mistrial. Defense counsel requested a mistrial because after the jury returned from a break, Defense Counsel brought to the Court's attention that the Defendant had been viewed by the trial jurors while being handcuffed and behind bars in the courthouse holding cell. This incident tarnished the defendant's fundamental right to a presumption of innocence and a fair trial. The evidence presented by the state during their case in chief is insufficient to support a verdict of guilty as to the charge of capital murder. The state did not present sufficient evidence to establish the defendant's intent to rob the victim. Therefore, this Court should reverse Hampton's conviction and sentence and remand this case for a new trial. 3

ARGUMENT ISSUE NO. 1 THE COURT ERRED IN NOT GRANTING A MISTRIAL AFTER MEMBERS OF THE JURY WERE ALLOWED TO VIEW THE DEFENDANT WHILE SHACKLED AND BEHIND BARS. The trial court's denial of a request for a mistrial requires an abuse of discretion standard of review. Pearson v. State, 790 So. 2d 879, 880 ( 6) (Miss. Ct. App. 2001). The defense counsel requested a mistrial because after the jury returned from a break, Defense Counsel brought to the Court's attention that the Defendant had been viewed by the trial jurors while being handcuffed and behind bars in the courthouse holding cell. Tr. 464. The fact that members of the jury did in fact see the Defendant in a cell was also admitted by the Prosecution. Tr. 466. The Court has held that the accused has a fundamental right to the presumption of innocence and a fair trial. Payton v. State, 897 So. 2d 921, 931 ( 12) (Miss. 2003); Rush v. State, 301 So. 2d 297, 300 (Miss. 1974); Hickson v. State, 472 So. 2d 379, 382 (Miss. 1985). When a defendant is paraded before a jury with restraints on, this tarnishes the impression of innocence entitled to all accused and may be grounds for reversible error. Id. Unless there is evidence of danger of escape or the defendant poses a threat to attacking others, restraints should not be used on a defendant in the presence of the jury. Payton v. State, 897 So. 2d at 931 ( 12). There is a limitation, however, to this general rule. The Court has previously found that there would not be grounds for reversal in cases where the defendant remained in restraints for only a short period of time as a matter of oversight or technical violation. Rush v. State, 301 So. 2d at 300. In the case sub judice the fact that members of the jury saw the Defendant in shackles and in a cell tarnished the defendant's impression of innocence. Tr. 466. 4

ISSUE NO. 2 THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE VERDICT OF GUILTY. In reviewing the sufficiency of the evidence, the relevant inquiry is whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush v. State, 895 So. 2d 836, 843 (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, (1979)). The verdict will not be disturbed where the evidence so reviewed is such that "reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense." Id. (citing Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)). However, the proper remedy is to reverse and render where the evidence "point[s] in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty[.]" Id. The indictment in this case charged capital murder with the underlying offense of robbery. C.P. 23. However, the appellant's position under this issue is that there was no robbery occurring when the victim was killed, and, therefore, no capital murder. There are three elements of robbery: "(1) felonious intent; (2) force or putting in fear as a means of effectuating the intent; and (3) by that means, taking and carrying away the personal property of another from the person or in his presence." Crocker v. State, 272 So. 2d 664, 665 (Miss. 1973). See also Garner v. State, 944 So. 2d 934. 939-40 (Miss. App. Ct. 2006). In Arthur v. State, the Court reiterates that Mississippi follows the "one continuous transaction" rule. Arthur v. State, 735 So. 2d 213, 219 (Miss. 1999). In Arthur, the defendant was charged with capital murder in which the defendant robbed the corpse of the victim. The Court stated 5

that: "If the robbery was a total afterthought then no indictable attempt ever began until the victim was dead, therefore, no continuous transaction linking Arthur with the murder. Id. In the case sub judice, the State failed to present testimony to support that there was intent to rob the victim present before the victim was attacked. Therefore, the first element of robbery, felonious intent, was not established, and the evidence was clearly insufficient to support a verdict of guilty. CONCLUSION Nathaniel Hampton asks this court to reverse and remand his conviction for a new trial. Respectfully submitted, NATHANIEL HAMPTON, APPELLANT /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant 6

CERTIFICATE OF SERVICE I, Benjamin A. Suber, Counsel for Nathaniel Hampton, 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: This the 1st day of June, 2015. 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 Honorable Betty W. Sanders Circuit Court Judge Post Office Box 244 Greenwood, MS 38935 Honorable Dewayne Richardson District Attorney, District 4 P.O. Box 426 Greenville, MS 38702 Nathaniel Hampton, MDOC #153164 Wilkinson County Correctional Facility Post Office Box 1889 Woodville, MS 39669 /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant 7

Email: bsube@ospd.ms.gov 8