BRIEF OF THE APPELLANT

E-Filed Document Nov 12 2014 12:40:07 2014-KA-00266-COA Pages: 14 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI STEWART CHASE VAUGHN APPELLANT V. NO. 2014-KA-0266-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT W. Daniel Hinchcliff, MS Bar No. 2470 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: dhinc@ospd.ms.gov Counsel for Stewart Chase Vaughn

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI STEWART CHASE VAUGHN APPELLANT V. NO. 2014-KA-0266-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. Stewart Chase Vaughn, Appellant 3. Honorable Michael Guest, District Attorney 4. Honorable John H. Emfinger, Circuit Court Judge This the 12th day of November 2014. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER /s/ W. Daniel Hinchcliff W. Daniel Hinchcliff, Appellant Counsel i

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS...................................... i TABLE OF CONTENTS....................................................... ii TABLE OF AUTHORITIES.................................................... iii STATEMENT OF THE ISSUES.................................................. 1 STATEMENT OF THE CASE................................................... 1 FACTS...................................................................... 1 SUMMARY OF THE ARGUMENT.............................................. 4 ARGUMENT................................................................. 4 ISSUE NO. 1: WHETHER THE TRIAL COURT ERRED IN NOT SUA SPONTE ENFORCING ITS RULING PRECLUDING HEARSAY EVIDENCE VIA STATEMENT OF NON-TESTIFYING WITNESS?............................ 4 ISSUE NO. 2: WHETHER A PRETRIAL MOTION TO AMEND THE INDICTMENT TO HABITUAL OFFENDER VIOLATED THE INTENT OF GOWDY V. STATE, WHERE THE PLEA DEADLINE HAD ALREADY PASSED?.............................................................. 7 CONCLUSION............................................................... 8 CERTIFICATE OF SERVICE................................................... 9 ii

FEDERAL CASES TABLE OF AUTHORITIES Crawford v. Washington, 541 U. S. 36, 124 S. Ct. 1354 (2004)..................... 6, 7, 8 STATE CASES Burke v. State, 576 So. 2d 1239 (Miss 1991)........................................ 6 Gowdy v. State, 56 So. 3d 540 (Miss. 2010)....................................... 1, 8 Hill v. State, 865 So. 2d 371 (Miss. App. 2004)...................................... 4 STATE STATUTES None iii

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI STEWART CHASE VAUGHN APPELLANT V. NO. 2014-KA-0266-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES ISSUE NO. 1: WHETHER THE TRIAL COURT ERRED IN NOT SUA SPONTE ENFORCING ITS RULING PRECLUDING HEARSAY EVIDENCE VIA STATEMENT OF NON-TESTIFYING WITNESS? ISSUE NO. 2: WHETHER A PRETRIAL MOTION TO AMEND THE INDICTMENT TO HABITUAL OFFENDER VIOLATED THE INTENT OF GOWDY V. STATE, WHERE THE PLEA DEADLINE HAD ALREADY PASSED? STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Warren County, Mississippi, and a judgement of conviction for the crime of sale of a controlled substance (methamphetamine), second subsequent, as an habitual offender, against Stewart Chase Vaughn following a jury trial commenced October 28, 2013, the honorable John Huey Emfinger, Circuit Judge, presiding. Appellant, Stewart Chase Vaughn was sentence to an enhanced term of sixty (60) years as an habitual offender, without possibility of probation or parol. Stewart Chase Vaughn is presently incarcerated in an institution under the supervision of the Mississippi Department of Corrections. FACTS Prior to trial, a defense motion to suppress evidence was filed and heard. The trial judge ruled that prior statements of Tammy Brewer, who claimed to see Stewart Chase Vaughn throw a 1

role of money from the vehicle, were not admissible unless she testified. (T. 97-98). Yet, the State, in its opening statement told the jurors that Brewer had told investigators that Vaughn had thrown some items out of the window of the car. (T 107). On November 9, 2012, James Christopher Denton was arrested for possession of methamphetamine. He was given the opportunity to get out of trouble that very day by assisting law enforcement in setting up Chase Vaughn. (T. 116-117). He was handed over to Investigator McAlpin. Denton then made a phone call, which he said was to Vaughn, but not otherwise confirmed, and said he had $300.00. (T. 118-119). Searched, given marked money, and wired, although no recording was introduced into the trial, Denton left with Deputy Covington to make the buy. According to Denton, but not otherwise corroborated, Denton and Covington drove to what was purported to be Vaughn s subdivision. Before reaching any location, Denton said they were instructed to turn around and drive out. A car pulled in behind and they stopped. Denton went to the driver s window of the car, a red Ford Explorer, and came back. He handed Covington a package. However, Covington could not see what had happened. Denton claimed that Vaughn was driving and had a female passenger. (T. 121-122). Tim Covington, a Rankin County deputy, had been asked to participate in a buy bust. (T. 132-133). As Covington and Denton drove into Pelahatchie Estates, Denton called a person said to be Vaughn for instructions. Denton told him they were to go to the end of the road and turn around. They did so and were followed by a car. They pulled over and Denton went to the car. He returned and handed Covington a bag. Covington could not see what transpired. (T. 136-138). As they were leaving, the car, a red Ford explorer pulled up beside the van. The driver said something about be careful and 5-0. Covington saw a man and woman. The van drove away, 2

then returned. He saw a man in custody and claimed to recognize him as the driver of the red Explorer. (T. 140-142). The car the man was riding in when arrested was not the red Explorer. (T. 149). The red Explorer was parked at a house said to be Vaughn s. (T. 155). Rankin County deputy Raymond Duke was in the takedown vehicle. (T. 161). They took a male and female into custody. The female, Tammy Brewer, was put in his vehicle. Without objection, but in apparent violation of the Court s pretrial ruling, Duke relayed that the female said the male had thrown something from the car. (T. 162-163). The State asked: Q. After you learned that something had been thrown from that car, was any attempt made to recover anything...? (T. 163-164). The next day a role of money was found along the road. (T. 164-165). Detective Bret McAlpin had arrested Denton, and a deal was reached for Denton to get help by making a buy from Vaughn. According to McAlpin, it was Denton that said he could buy from Vaughn. (T. 178-179). A buy was set up by Denton on a cell phone. Denton was the only person to actually talk on the phone. (T. 189). McAlpin identified both the money recovered and the drugs. (T. 186-187). A forensic drug analyst, accepted as an expert, tested the drugs and found methamphetamine. (T. 197-202). Closing argument again breached the pre-trial ruling excluding mention of Tammy Brewer, who was not a witness for the State, having informed the police that an item was tossed from the vehicle. (T. 237-238). The defense objection was sustained, but the trial judge noted that this had come in during testimony. The jury was instructed to disregard the remark. (T. 239). A verdict of guilty was rendered and Stewart Chase Vaughn was sentenced to sixty years 3

without hope of release. SUMMARY OF THE ARGUMENT Before the trial began, it was evident that the State had no intention of calling Tammy Brewer as a witness. Brewer was the woman in the tan car with Chase Vaughn when they were pulled over by the take down squad. She told police that Vaughn had thrown an item from the car. The item, the marked buy money, was searched for and found the next morning. It was the only corroboration to the testimony of James Denton, a criminal who was acting as an informant to get himself out of a drug charge. Though the court ruled in a pre-trial hearing that use of her statement constituted hearsay and was excluded, her statement was utilized in the State s opening statement, introduced in evidence, and again utilized in closing argument. The State filed a motion to amend the indictment charging Vaughn as an 81" habitual. However, as was indicated in the record, the plea deadline had passed prior to the amendment, thus negating any meaningful chance for Vaughn to consider the possible sentence in making his plea decision. ARGUMENT ISSUE NO. 1: WHETHER THE TRIAL COURT ERRED IN NOT SUA SPONTE ENFORCING ITS RULING PRECLUDING HEARSAY EVIDENCE VIA STATEMENT OF NON-TESTIFYING WITNESS? The case against Stewart Chase Vaughn was dependant upon the testimony of James Denton. Denton had been arrested for possession within the previous 24 hours and was working a deal to get his own charges dropped or reduced. Such testimony has long been recognized as unreliable. There is obvious potential for abuse it being obvious that one facing criminal charges may lie in order to better one s own position with the authorities. Hill v. State, 865 So. 2d 371, 378 (Miss. App. 2004). 4

Denton called a man he claimed was Vaughn on his cell phone. However, no evidence was adduced that it was in fact Vaughn who he called. None of the officers confirmed the number called, nor checked the cell phone log. That Denton called Vaughn and not some other number was left entirely to Denton testifying. (T. 189). Premised on the call, Denton drove to a location said to be Vaughn s residence, but this was not corroborated by the testimony of anyone not otherwise facing drug charges. At the location a car pulled up behind the police van. Again, only Denton said what went on when Denton walked up to that car. While there was proof by Deputy Tim Covington that Vaughn was driving the car, neither Covington, nor anyone else saw who passed the drugs to Denton. Covington testified that he watched Denton from the rearview mirror, but that he was unable to see what happened. That Denton went to the car is as far as proof went. Denton was wired prior to the set up buy. This is standard police drug bust practice. It is done so that the word of the informant is confirmed by physical evidence. While Denton was wired, that recording was not introduced into evidence, nor was the absence thereof adequately explained. The absence of standard physical evidence corroborating Denton s testimony was suspiciously absent from the trial. No one but the man already arrested for drugs and who had cut a deal to get himself out of trouble, heard or saw what transpired at the sale. No recorded corroboration was in evidence. Thus, the use of hearsay testimony of the accomplice, contrary to the order of the court was not only improper, but cannot be said that it was not the primary basis of the jury s guilty verdict. But, the highly suspicious accomplice testimony was then corroborated with prohibited and improper hearsay testimony. As with a snitch/informant, an accomplice testifying is suspicious and there testimony 5

should be viewed with caution. Burke v. State, 576 So. 2d 1239 (Miss 1991). Accomplice testimony has inherent in it the assumption that there is a reason to lie. In this case Tammy Brewer was clearly an accomplice, and may well have been the person who actually sold the methamphetamine. She was in the car on both the occasion of the sale, and the occasion of the take-down stop. Without her self serving hearsay out of court statements, the case against Stewart Chase Vaughn rested solely on the testimony of James Denton, a man desperate to buy his way out of trouble. And Brewer s motive is equally suspicious. The statements made by Tammy Brewer were prohibited by pre-trial order. ( T. 19-26). The statements use at trial were in direct violation of Crawford v. Washington, 541 U. S. 36, 124 S. Ct. 1354 (2004). Brewer was implicated in the crime and was being questioned by the police. Hence, her statements were testimonial in nature. She was not in any sense subject to cross examination at that time. And she did not testify at trial. Her out of court statements inculpating Vaughn and exculpating herself were simply not subject to cross examination or any scrutiny. Yet the State, while not using the video per se, introduced the statements of Brewer throughout the trial. The statements of Tammy Brewer were the critical corroborating evidence that had to have tilted the scales from an acquittal to a verdict of guilty. The improper use of Tammy Brewer s statements began in the State s opening statement: In their investigation, they learn from Ms. Brewer that Mr. Vaughn had thrown some items out of the window of the car before they stopped for the police. (T. 107). Next, investigator Raymond Duke, after testifying to the arrest of Tammy Brewer, gave the following answers during direct examination: Q. Did you speak to her [Brewer] at any point - - concerning why she was being arrested? 6

A. Oh, absolutely. Q. As part of your investigation and your talking to Ms. Brewer, were you able to determine if anything was thrown from the vehicle? A. Based on my investigation, yes, items were thrown out of the vehicle. (T. 163). Duke went on to explain that the items were thrown from the passenger side of the vehicle where Vaughn was seated. The police then began to search for the items, which they found the next day. A bundle of money, then identified as containing the buy money was introduced into evidence. The connection to Vaughn was thus made by violating Crawford, supra. The search for the money was done in an area where [Duke] was told that the items were tossed. (T. 170). No one had any idea about the money being thrown out of the vehicle till they talked to tammy Brewer who was the driver, he threw something out of the vehicle. This closing argument drew an objection which was sustained by the court. The connection of the buy money to Vaughn was, as the State described it, gravy on the biscuit. It was the corroboration that gave credibility to the testimony of a paid informant. A mistrial was denied and the Court offered an instruction. But, as defense counsel argued, the bell could not be unrung. (T. 239). As Crawford, supra, makes trenchant, statements taken by the police, being neither sworn to, nor subject to cross examination, violate the Sixth Amendment to the Constitution and thus a conviction premised thereon cannot be allowed to stand. ISSUE NO. 2: WHETHER A PRETRIAL MOTION TO AMEND THE INDICTMENT TO HABITUAL OFFENDER VIOLATED THE INTENT OF GOWDY V. STATE, WHERE THE PLEA DEADLINE HAD ALREADY PASSED? At a pretrial hearing held on August 5, 2013, the trial judge noted that the plea deadline had passed, and that Vaughn had elected to go to trial. Any plea after that date and henceforth 7

would have to be an open plea. THE COURT : All right. Mr. Vaughn, I can tell by the petition that was filed, the pretrial conference checklist that was filed, you had received those offers and rejected them and elected to proceed to trial; is that corect? DEFENDANT STEWART CHASE VAUGHN : Yes, sir. THE COURT : All right. So you know hereafter then it will either be a trial, an open plea, or the state will have to nolle prosequi the charge. Do you understand that? (T. 10). Thus, Vaughn had an offer, or offers, and, not knowing he was to be charged as an habitual offender, had rejected the offers. 18, R. E. 8). The next day, August 6, 2013, the State filed its Motion to Amend the Indictment. (C.P. Thus, Gowdy v. State, supra, was violated. Finally, notice of the charge includes notice of the applicable minimum and maximum penalties. Under Rule 8.04(A)(4)(b), before a defendant can plead guilty, the trial court has a duty to ensure that he understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law. The rule should not be different for defendants who choose to exercise their right to trial by jury. Gowdy v. State, 56 So. 3d 540, 546 (Miss. 2010). Under the pronouncement in Gowdy, supra, this cause must be reversed and remanded for a new sentencing hearing and the order allowing amendment to the indictment must be set aside. CONCLUSION Appellant respectfully submits, premised upon the foregoing argument, that the judgement and sentence of the lower court must be reversed and the cause remanded for a new 8

trial or for resentencing. Respectfully submitted, For STEWART CHASE VAUGHN, APPELLANT /s/ W. Daniel Hinchcliff W. Daniel Hinchcliff, Appellant Counsel CERTIFICATE OF SERVICE I, W. Daniel Hinchcliff, Counsel for Stewart Chase Vaughn, 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 John H. Emfinger Circuit Court Judge Post Office Box 1689 Brandon, MS 39043 Honorable Michael Guest District Attorney, District 20 Post Office Box 68 Brandon, MS 39043 Stewart Chase Vaughn, MDOC #167429 Marshall County Correctional Facility P O Box 5188 Holly Springs, MS 38634-5188 9

This the 12 th day of November 2014. /s/ W. Daniel Hinchcliff W. Daniel Hinchcliff, Appellant Counsel W. Daniel Hinchcliff, MS Bar No. 2470 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: dhinc@ospd.ms.gov 10