E-Filed Document Oct 21 2014 07:12:28 2013-KA-02103-COA Pages: 14 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI DARRELL ROSS BROOKS APPELLANT VS. NO. 2013-KA-02103 STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 104233 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 ISSUES................................................... 1 STATEMENT OF THE CASE.................................................... 1 STATEMENT OF FACTS....................................................... 1 SUMMARY OF THE ARGUMENT............................................... 4 ARGUMENT.................................................................. 4 I. THE JURY S VERDICT IS NOT AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE...................... 4 CONCLUSION............................................................... 10 CERTIFICATE OF SERVICE................................................... 11 i
TABLE OF AUTHORITIES State Cases Anthony v. State, 23 So. 3d 611 (Miss. Ct. App. 2009)................................. 7 Bush v. State, 895 So. 2d 836 (Miss. 2005)...................................... 4, 5, 8 Carr v. State, 208 So.2d 886 (Miss.1968)............................................ 4 Lynch v. State, 877 So. 2d 1254 (Miss. 2004)........................................ 6 Smith v. State, 897 So. 2d 1002 (Miss. 2004)....................................... 6, 9 State Statutes Mississippi Code Annotated 97-3-19(a).......................................... 1, 5 Mississippi Code Section 99-19-81................................................. 1 ii
STATEMENT OF THE ISSUES I. WHETHER THE CIRCUIT COURT ERRED IN FAILING TO GRANT APPELLANT S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT. II. III. WHETHER THE CIRCUIT COURT ERRED IN DENYING APPELLANT S MOTION FOR NEW TRIAL. WHETHER THE CIRCUIT COURT ERRED IN DENYING APPELLANT S MOTION FOR DIRECTED VERDICT AND IN REFUSING DEFENDANT S PROPOSED PEREMPTORY JURY INSTRUCTION. STATEMENT OF THE CASE The Grand Jury of Harrison County indicted Darrell Brooks for deliberate design murder in violation of Mississippi Code Annotated 97-3-19(1)(a). (Indictment, CP 9). After a trial by jury, Circuit Judge John C. Gargiulo, presiding, the jury found defendant guilty as charged. (Verdict, CP 316). The trial court sentenced Brooks as a habitual offender under Mississippi Code Section 99-19- 81 to serve life in the custody in the Mississippi Department of Corrections without the possibility of parole or probation. (CP 314). After denial of Brooks Motion for Judgment Notwithstanding the Verdict and Motion for New Trial, this instant appeal was timely noticed. (CP 368). STATEMENT OF FACTS On December 7, 2009, David Shivers was shot through his kitchen window at close range with a shotgun and died. (TR 256). His mother, brother, and his brother s girlfriend lived with David and were at the home at the time; however, no one saw who shot David. (TR 28). Darrell Brooks ( Brooks ) was considered a person of interest and was later arrested, tried, and convicted for the murder. (TR 231). Although David and Brooks were both married at the time of the murder, they were also both separated from their wives. (TR 22-23 and 82). David happened to be dating Brooks 1
wife, Amy Brooks, whom he met while they were both working at the Best Western hotel. (TR 26). Several weeks before the murder, Brooks and Amy were having marital problems and Brooks left town and went to Chicago, Illinois, to see his brother. (TR 82). He stayed in Chicago for a couple of weeks, but eventually came back to Mississippi to attempt to work things out with Amy and to see his three step-children. (TR 83). Although Brooks made efforts to rekindle his relationship with his wife when he returned, Amy was not interested. (TR 84). At some point, Brooks discovered that Amy and David were seeing each other and commented to a co-worker and also to a friend that if Amy cheated on him with David, Brooks would kill him. (TR 86, 93, 165-66). He told several people that he knew who David was and where he lived and admitted that he had been following Amy and that he watched her while she was at work. (TR 86-87, 119, 159, and 208). He also knew that Amy and David had spent the night together. (TR 90-91). In the days that preceded the murder, Brooks made efforts to obtain a gun. He asked his coworker, Charles Oatis, if he could help him find a gun and mentioned that he had $50 to spend. (TR 160-63). He also contacted Michael Thomspon, an acquaintance, to ask him if he could borrow or rent his gun for $50. (TR 188-89). When the Thompson told him no, he asked him if he knew of anyone else who could get him a gun for $50. (TR 189). Brooks told both men that he would only need to use the gun one time. (TR 162-63). Brooks never asked them for help finding a gun after David was killed. (TR 164). And on the day of the murder, Brooks was very upset and told a friend that he was dead without Amy, that he had a gun in his car, and that he was going to kill himself. (TR 91). Also, on the night of the murder, shortly after David was shot, Brooks showed up at his friend Jennifer Diaz s home, sat in her living room for ten to fifteen minutes, did not say a word, and 2
1 then asked her to tell anyone who asked that he had been there since 8:00 pm. (TR 125-127, 146, and 152). Diaz and her boyfriend testified that Brooks was wearing dark pants, a dark jacket, a skully hat, and a dark blue hoody. (TR 125 and 146). One of David s neighbors, Dustin Cottrell, testified that, on the night of the shooting, he was on his front porch smoking and heard a gunshot. (TR 57). Then, he witnessed someone wearing a dark-colored jogging suit with a hood covering his head running from an alleyway and jumping over chain-link fences to get away. (TR 57-60 and 63). Cottrell explained that it was dark and raining outside and that the man was running away from him and was wearing a hood over his head; however, Cottrell testified that the person appeared to be a black male. (TR 64 and 76-78). Brooks theory of defense was that, although he was looking to obtain a gun, he never did, and although he told people that he would kill any man who cheated with his wife, he did not shoot David, someone else did. Although he did not testify, the defense did call several witnesses to show that a number of burglaries had taken place recently in the neighborhood and that someone else (possibly an unidentified black man) could have murdered David. (TR 263, 266-67, 289-91, and 312-26). After considering all of the evidence and instructions that were presented, the jury found Brooks guilty of deliberate design murder and he was sentenced as a habitual offender to life imprisonment. 1 The witness could not remember what time Brooks came to her home; however, she did testify that he arrived at the end of a Monday Night Football game. (TR 128). One of the detectives who investigated the case testified that, on the night of the murder, the Baltimore Ravens played the Green Bay Packers and that the game ended at 11:01 central time. (TR 224). 3
SUMMARY OF THE ARGUMENT The evidence presented was legally sufficient and of adequate weight and credibility to support the jury's finding that Brooks committed deliberate design murder. Therefore, the trial court acted within its discretion when it denied Brooks Motion for Judgment Notwithstanding the Verdict, his Motion for a New Trial, his Motion for a Directed Verdict, and his proposed peremptory jury instruction. ARGUMENT I. THE JURY S VERDICT IS NOT AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE. 2 a. The verdict is supported by sufficient evidence. Brooks has challenged the sufficiency of the evidence and argues that the trial court erred when it denied his Motion for JNOV and his Motion for Directed Verdict. (Appellant s Brief p. 10 and 47). When considering whether the evidence presented is sufficient to sustain a conviction in the face of a motion for judgment notwithstanding the verdict or for directed verdict, the critical inquiry is whether the evidence shows "beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction." Carr v. State, 208 So.2d 886, 889 (Miss.1968). However, this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Bush v. State, 895 So. 2d 836, 843 (Miss. 2005)(citations omitted). Instead, the Court views the evidence in the light most favorable to the prosecution, and asks whether "any rational trier of fact could have found the 2 On appeal, Brooks challenges both the weight and sufficiency of the evidence. Although Brooks has raised three issues, the State will discuss them together. 4
essential elements of the crime beyond a reasonable doubt." Id. If the facts and inferences considered in a challenge to the sufficiency of the evidence "point 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," this Court should reverse and render. Id. (citations omitted). However, where the evidence presented is of such quality and weight that, "having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense," the evidence will be deemed to have been sufficient. Id. Brooks argues that the State failed to present evidence sufficient to prove each element of murder. (Appellant s Brief p. 11). Brooks was charged with murder in violation of Section 97-3-19 of the Mississippi Code, which provides, in pertinent part that The killing of a human being without the authority of law by any means or in any manner shall be murder...[w]hen done with deliberate design to effect the death of the person killed, or of any human being. Miss. Code Ann. 97-3- 19(1)(a). In order to establish that Brooks was guilty of murder, the State was required to prove that Brooks: (1) killed David; (2) without authority of law; and (3) with deliberate design to effect his death. Id. Brooks claims that the evidence against him was purely circumstantial; therefore, the State was required to prove that he was guilty not only beyond a reasonable doubt, but also to the exclusion of every reasonable hypothesis consistent with innocence. (Appellant s Brief p. 14-15 and 18). Brooks also argues that because the State did not produce any eyewitnesses to the crime, or a person who saw Brooks with a gun or ammunition, and because no confession was obtained, the evidence was not sufficient to support his conviction. (Appellant s Brief p. 14 and 17). Therefore, he argues, the trial court should have granted either his motion for JNOV or for directed verdict. 5
Brooks is correct: most of the evidence presented at trial was circumstantial. However, this was not a purely circumstantial case because Brooks admitted to multiple people that he wanted to kill David. The Supreme Court has explained that direct evidence includes eyewitness testimony, the defendant s confession to the offense charged, or the defendant s admission as to an important element of the crime charged. Smith v. State, 897 So. 2d 1002, 1009 (Miss. 2004)(citing Lynch v. State, 877 So. 2d 1254, 65 (Miss. 2004)). In Smith, the defendant was convicted of murder for killing his grandson after he burned down his ex-wife s house while their grandson was inside. Id. at 1004. At trial, Smith requested a circumstantial jury instruction, which the trial court denied. Id. at 1009. The Supreme Court affirmed the denial of the circumstantial instruction and explained that Smith admitted to a significant element of deliberate design murder deliberate design when he threatened to burn down his ex-wife s house and asked other people to burn down the house. Id. at 1009-1010. The Court found that Smith s admissions of a significant element of the offense for which he was convicted were direct evidence of his guilt. Id. at 1010. Therefore, the evidence against Smith was a combination of direct and circumstantial evidence. Id. Like the defendant in Smith, Brooks also admitted to his deliberate design, which is a significant element of deliberate design murder, when he told people that he wanted to kill David. Although the jury received a circumstantial jury instruction as well as a two-theory instruction, the evidence against Brooks was a mixture of direct and circumstantial evidence and was sufficient for the jury to find that he committed deliberate design murder. (CP 95-96). The fact that some of the evidence against Brooks was circumstantial does not mean that the State failed to present sufficient evidence to show that Brooks murdered David. The evidence which is presented to prove that a defendant committed a crime does not have to be direct evidence. 6
Anthony v. State, 23 So. 3d 611, 623 (Miss. Ct. App. 2009)(citation omitted). Circumstantial evidence in a criminal case is entitled to as much weight as any other kind of evidence, and, in fact, a conviction may be had on circumstantial evidence alone. Id. The jury may draw any reasonable inferences from all of the evidence that is presented at trial. Id. When circumstantial evidence is presented to prove that a defendant has committed a crime, the circumstantial evidence does not have to exclude every possible doubt, but only every other reasonable hypothesis of innocence. Id. Any conflicts that are created by the presentation of the evidence are for the jury to resolve and it is the jury s duty to weigh the credibility of each witness when considering conflicting testimony. Id. The hypotheses that Brooks presents in his appellate brief were presented to the jury at trial and were also presented to the judge through Brooks motions for new trial and directed verdict. This Court should find that there was sufficient evidence for the jury to find that Brooks committed murder, beyond a reasonable doubt, and that the hypotheses that Brooks presented at trial were not reasonable. Even though no one positively identified Brooks after seeing him at the crime scene, a person who lived in the neighborhood testified that, after the shooting, he saw a man running away from the home where the shot was fired. Although the neighbor did mention that, at the time that he saw the man, he thought he was a black male, he also testified that the man was dressed in dark clothing and was wearing a hoody over his head, that it was raining, and that the man was 100 feet away from him and was running away. Other people who saw Brooks on the night of the murder testified that he was dressed in dark clothing and was wearing a hooded pull over or jacket. Although Brooks was not wearing a jacket when he went to a gas station to buy beer after the murder, it was not unreasonable for the jury to conclude that the man that the neighbor saw fleeing the scene was Brooks. The jury was also entitled to believe that Brooks did eventually obtain a gun, even though 7
Otis and Thompson testified that they did not help him find a gun. On the day of the murder, Brooks told his friend that he had a gun. Although he told her after David s murder that he was lying when he said he had a gun, it was not unreasonable for the jury to conclude that Brooks was lying about not having the gun. Although Diaz testified that she thought that Brooks arrived at her home around 10:00 pm, she also testified that she had been drinking and that she had lost concept of time. She did, however, know that Brooks arrived at the end of a Monday Night Football game. An investigator testified that the football game ended at 11:01 pm. Therefore, the jury was entitled to believe that Brooks was at Diaz s home closer to 11:00 pm rather than 10:00 pm. The shooting occurred around 10:10 pm. Thereafter, he went to Diaz s home and told her to tell anyone who asked that he had been there since 8:00 pm. When Brooks left Diaz s home, he went to a gas station and bought a six pack of beer at approximately 11:30 pm. (TR 238). The jury could reasonably conclude that Brooks was attempting to establish an alibi when he asked Diaz to lie for him. All of the evidence that was presented at trial was sufficient to show, beyond a reasonable doubt, that Brooks murdered David. b. The verdict is not contrary to the overwhelming weight of the evidence. Brooks also argues that the trial court erred when it denied his Motion for a New Trial and claims that his conviction is contrary to the overwhelming weight of the evidence. (Appellant s Brief p. 41). When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, this Court will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush, 895 So. 2d. at 844. "The power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict." Id. The evidence should accepted as true and 8
should be weighed in the light most favorable to the verdict. Id. and Smith, 897 So. 2d at 1008. Brooks contends that most of the testimony that was presented at trial should have been weighed in his favor. (Appellant s Brief p. 42-47). Specifically, Brooks argues that the jury should have decided that none of the three people that the neighbors discussed (the man in the dark clothing, the man driving the van, and the woman driving the silver or gray car) were Brooks, that Brooks did not ever locate a gun, and that Brooks was at Diaz s home at the approximate time of the shooting. (Appellant s Brief p. 42-44). However, it is the jury s role, exclusively, to weigh the credibility of witnesses and to resolve conflicts in the evidence. Smith, 897 So. 2d at 1008 (citation omitted). After reviewing the facts that were discussed above regarding the sufficiency of the evidence, this Court should find that the verdict was not against the overwhelming weight of the evidence and that the trial court did not abuse its discretion when it left the jury s verdict intact and denied Brooks motion for a new trial. 9
CONCLUSION The issues raised by Brooks are without merit. Accordingly, the State of Mississippi respectfully requests that this Honorable Court affirm Brooks conviction and sentence. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Barbara Byrd BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 104233 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 10
CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed 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: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable John C. Gargiulo Circuit Court Judge Post Office Box 1461 Gulfport, Mississippi 39502 Honorable Joel Smith District Attorney Post Office Drawer 1180 Gulfport, Mississippi 39502 William Alex Brady, II, Esquire Attorney At Law Brady Law Firm, PLLC 520 E. Railroad Street, Suite B Long Beach, Mississippi 39560 This the 21st day of October, 2014. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI 39205-0220 TELEPHONE: (601) 359-3680 s/ Barbara Byrd BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL 11