E-Filed Document Jul 10 2017 16:24:53 2016-KM-01753-COA Pages: 22 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI KEITH HIGGINBOTHAM APPELLANT VS. CAUSE NO. 2016-KM- 01753- COA CITY OF LOUISVILLE, MISSISSIPPI APPELLEE BRIEF FOR APPELLEE ORAL ARGUMENT NOT REQUESTED TAYLOR TUCKER ATTORNEY AT LAW 440 NORTH COURT AVENUE P. 0. O. BOX 7 LOUISVILLE, MS 39339 TELEPHONE: (662 ) 773-9254 MSB# 8292 ATTORNEY FOR APPELLEE
CERTIFICATE OF INTERESTED PERSONS KEITH HIGGINBOTHAM VS. CITY OF LOUISVILLE, MI SSISSIPPI APPELLANT CAUSE NO. 20l6-KM-01753- COA APPELLEE 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 the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualifications or recusal. The State of Mississippi Keith Higginbotham, Appellant Honorable George M. Mitchell, Jr., Circuit Judge The Ci ty of Louisville, Mississippi, Appellee Taylor Tucker, Prosecuting Attorney f or the City of Louisville, Mississippi i
TABLE OF CONTENTS PAGE CERTIFICATE OF INTERESTED PERSONS. TABLE OF CONTENTS.. TABLE OF AUTHORITIES STATEMENT OF THE ISSUE STATEMENT OF THE CASE. SUMMARY OF THE ARGUMENT. ARGUMENT. I. THE TRIAL COURT DID NOT ERR IN DENYING THE ADMISSION OF THE VIDEOTAPE AS EVIDENCE FOR THE DEFENSE........... II. THE TRIAL COURT DID NOT ERR IN HOLDING THE DEFENDANT REPRESENTING HIMSELF, TO THE SAME STANDARD AS AN ATTORNEY..... III. THE TRIAL COURT DID NOT ERR IN FAILING TO ADVISE KEITH H~GGINBOTHAM OF THE CHARGES AND THE SENTENCE DID NOT EXCEED THE PENALTY AS SET FORTH IN THE STATUTE i ii iii 1 2 3 6 6 7 8 IV. THE TRIAL COURT DID NOT ERR IN ANY WAY TO DENY KEITH HIGGINBOTHAM OF A FAIR TRIAL. IN THAT ANY OF THE POINTS RAISED UNDER NUMBER 4 OF THE STATEMENT OF ISSUES WERE AFTER THE COMPLETION OF THE TRIAL 9 CONCLUSION.. CERTIFICATE OF SERVICE REPRODUCTION OF STATUTES, ETC. 10 12 13 ii
TABLE OF AUTHORITIES CASES Jones v State o f Mississippi, 381 So 2d 983 (Miss 1980) Mayflower Mills v Breeland, 168 Miss 207, 149 So 787 (Miss 1 933) Redmond v Hilliard, 190 Miss 839, 199 So 83, 200 So 230 (Miss 1 940). Shaw v Bula Cannon Shops, Inc, 38 So 2d 916 (Miss 1949)... PAGE 4, 7 11 11 11 STATUTES Secti on 11-51-3, Mississippi Code of 1972, Annotated, as amended..... Secti on 97-29- 47, Mississippi Code of 1972, Annotated, as amended......... 9 2,4,8 OTHER AUTHORITIES Mississippi Rules of Evidence, Rule 90 1 (a)........ Mississippi Rules of Ev i dence, Rule 901 (b)....... Mississi ppi Rules of Evidence, Rule 1002.... 6 3, 6 6 III
STATEMENT OF THE ISSUE I. THE TRIAL COURT DID NOT ERR IN DENYING THE ADMISSION OF THE VIDEO TAPE AS EVIDENCE FOR THE DEFENSE II. THE TRIAL COURT DID NOT ERR IN HOLDING THE DEFENDANT, REPRESENTING HIMSELF, TO THE SAME STANDARD AS AN ATTORNEY III. THE TRIAL COURT DID NOT ERR IN FAILING TO ADVISE KEITH HIGG!NBOTHAM OF THE CHARGES AND THE SENTENCE DID NOT EXCEED THE PENALTY AS SET FOURTH IN THE STATUTE IV. THE TRIAL COURT DID NOT ERR IN ANY WAY TO DENY KEITH HIGGINBOTHAM OF A FAIR TRIAL. I N THAT ANY OF THE POINTS RAISED UNDER NUMBER 4 OF THE STATEMENT OF ISSUES WERE AFTER THE COMPLETION OF THE TRIAL 1
STATEMENT OF THE CASE A criminal affidavit was signed on July 29, 2016, against Keith Higginbotham by officer Vernon Eichelberger of the City of Louisv~lle, Mississippi, Police Department for publi c profanity in violation of Section 97-29- 47, Mississippi Code of 1972, Annotated, as amended by profanely swear or curse, or use vulgar and indecent language in the presence of two (2 ) or more persons, within the city limits of the City of Louisville, Mi ssissippi. (RE 8) On September 13, 2016, Keith Higgi nbotham was convicted in the Municipal Court of the City of Louisville, Mississippi of Disorderly Conduct. (RE 5) Keith Higginbotham filed a Notice of Appeal to the Circuit Court of Winston County, Mississippi on September 22, 2 016. (RE 3) The Circuit Court of Winston County, Mississippi conducted a Bench Trial on November 14, 2016, and entered an order finding Keith Hi gginbotham guilty of publi c profanity and ordered h i m to pay a fine i n the amount of to hundred forty-six and 25/100 dollars ($246. 25), plus all costs of court (RE 28, T- 16) which was a fine of Eighty- Four and 2
50/100 Dollars ($84.50) plus state assessments of One Hundred Sixty- One and 75/100 Dollars ($161. 75). SUMMARY OF THE ARGUMENT I. The Trial Court did not err in denying the admission of the videotape as evidence for the defense. Keith Higginbotham stated to the court that he had a video surveillance with Wal-Mart but failed to present the proper predicate for admission into evidence of that tape. (T -12) Rule 901 (b), Mississippi Rules of Evidence clearly sets forth the failure to show the item of evidence to be genuine the item is inadmissible and should be excluded. This can be done by testimony that a matter is what it is claimed to be. Rule 901 (b) (1), Mississippi Rules of Evidence. Rule 1002, Mississippi Rules of Evidence requires the original of the recording to be admissible. In the present case, Keith Higginbotham only announced to the court that he had a video recording, but never presented any evidence f or it to be admitted into evidence. II. The Trial Court did not err in holding the Defendant, representing himself, to the same standard as an attorney. 3
It has consistently been held by the Courts of the State an individual proceeding pro se is not exempt from following the rules of court procedure. Jones v State 381 So?d 983, (Miss 1980). Also all of the Mississippi Rules apply to the courts and not to individuals. Therefore, all of the rules of court must be followed by all participants in a trial whether an attorney or not. III. The Trial Court did not err in failure to advise Keith Higginbotham of the charges and the sentence did not exceed the penalty as set forth by statute. Keith Higginbotham was served with an arrest warrant which clearly states that it is a charge of public profanity in violation uf Mississippi Code 97-29-47 (RE 7). Section 97-29-47, Mississippi Code of 1972, Annotated, as amended clearly states that the maximum punishment f or public profanity is a one hundred dollar ($100.00 ) fine, or imprisonment in the than thirty (30) days, or by county jail for not more both. The order of the Trial Court set the punishment of a total of Two Hundred Fourty-Six and 25/100 Dollars ($246.25) plus all costs of court (RE 28, T-16 ) which was a fine of Eighty- Four and 50/100 Dollars ($84.50) plus state 4
assessments of One Hundred Sixty-One and 75/100 Dollars ($161.75). This is well in the guidelines of the Public Profanity Statute. IV. The Trial Court did not err in any way to deny Keith Higginbotham of a fair trial. The Trial Court at the conclusion of the evidence found Keith Higginbotham guilty of the charge (RE 28, T- 15). All of the remarks after the sentence of the court were pursuant to matters that cafle to the attention of the Trial Court after the case was completed. These matters had no bearing of the case in any fashion. The Trial Court went back on the record so no one could contest what was said on that harassment of witnesses would not be tolerated by the Trial Court. 5
ARGUMENT I. THE TRIAL COURT DID NOT ERR IN DENYING THE ADMISSION OF ~ HE VIDEOTAPE AS EVIDENCE FOR THE DEFENSE After the prosecution had rested it's case (T - 12 ), Keith Higginbotham advised the court that he had a video surveillance with Wal - Mart. Keith Higginbotham did not take the witness stand or call any witnesses to have the video admitted into evidence (T - 15). The defense then rested. Rule 90l(a), Mississippi Rules of Evidence states : "The requirement of authentication or identification as a condition precedent to admissibility." Rule 901(b) (1 ), Mississippi Rules of Evidence requires the testimony that a matter is what it is claimed to be. In the present case Keith Higginbotham never called any witnesses either to testify what the video was or anyone to testify that the video depicted what it is alleged to depict. In addition, Rule 1002, Miss i ssippi Rules of Evidence requires the origi nal recording. Keith Higginbotham never alleged that the recordi ng in his possession was the original video recording. 6
The failure to comply with the Missi ssippi Rules of Evidence clearly make the video inadmissible. Therefore, the ruli ng o f the Tri a l Court Judge wa s correct. II. THE TRIAL COURT DID NOT ERR IN HOLDING THE DEFENDANT REPRESENTING HIMSELF, TO THE SAME STANDARD AS AN ATTORNEY In Jones v StAte, 381 So 2d 983, (Mi ss 1980) the Missis sippi Supreme Court held that the Mississippi Consti tution does not exempt a def endant who argues pro se from following the rules of court procedure. The Ru l e that apply to the Mississippi Courts were adopt ed e stablish proper procedure for conducting court. These include the rules in regard to the admissibility of evidence and the way matter s are handl ed. Ke ith Hi gginbotham made the d ecis ion to try h i s case, both in the Municipal Court and the Circuit Court, and should not have been allowed to p r oceed outsi de the rules of the l dw. The Court is to allow some l eeway when a non attorney is representing himself, but cannot just i gnore the well established methods o f conducting court. The Tr i a l Court did not commit reversible error in the expectation of the action of Ke i th Hi gginbotham. 7
III. THE TRIAL COURT DID NOT ERR IN FAILING TO ADVISE KEITH HIGGINBOTHAM OF THE CHARGES AND THE SENTENCE DID NOT EXCEED THE PENALTY AS SET FORTH IN THE STATUTE Keith Higginbotham was served with an arrest warrant which clearly showed on a charge of public profanity in violation of Mississippi Code 97-29-4 7 (RE 7). Keith Higginbotham gave an appearance bond which showed public profanity (RE 17). Both of these documents show that Keith Higginbotham had been advised of the charges. Secti on 97-2 9-47, Mississippi Code of 1972, Annotated, as amended sets forth that the maximum penalty or sentence for viol ation of this statute is a fine of not more than one hundred dollars ($100.00) or imprisonment in the county jail for not more than thirty (30) days, or both. The Trial Court sentenced Keith Higginbotham to a fine of Two Hundred Forty Six and 25/100 Dollars ($246. 25) plus cost (RE 28, T-1 6) which was a fine of Eighty-Four and 50/100 Dollars ($84.50) plus state assessmenls of One Hundred Sixty- One and 75/100 Dollars ($161. 75). The order of the Trial Court ordered Keith Higginbotham to pay a fine in the amount of Two Hundred Fourty-Six and 25/100 Dollars ($246. 25), plus all costs of court (RE 28) which was a fine of Eighty-Four and 50/100 Dollars ($84. 50) plus state assessments of One 8
Hundred Sixty-One and 75/100 Dollars ($161.75). The sentence of the court were within the parameters of the sentence authorized by the statute. IV. THE TRIAL COURT DID NOT ERR IN ANY WAY TO DENY KEITH HIGGINBOTHAM OF A FAIR TRIAL. IN THAT ANY OF THE POINTS RAISED UNDER NUMBER 4 OF THE STATEMENT OF ISSUES WERE AFTER THE COMPLETION OF THE TRIAL All of the issues raised in this statement of the issues involved allegations which occurred after the decision of the Trial Court, these may be issues which could be addressed by Keith Higginbotham, but have nothing to do with the trial on the Disorderly Conduct charge. It appears that Keith Higginbotham is attempting for this Court to consider matter which have never been presented to a Trial Court. Section 11-51- 3, Mississippi Code of 1972, Annotated, as amended set forth that an appeal may be taken from any final judgment of a Circuit Court. These issues were never heard or considered by the Circuit Court and therefore were not included in the final judgment. If these issues were not in the final judgment then they are not subject to appeal. 9
CONCLUSION The record shows that the only evidence presented was testimony of the arresting officer. Keith Higginbotham never presented evidence. The attempt of Keith Higginbotham to introduce the video failed to comply in any way with the Mississippi Rules of Evidence. The facts contained in the record would justify the Trial Court in a Bench Trial to find Keith Higginbotham guilty of public profanity. Therefore, this court pursuant to the standard of review should affirm the action of the trial event. Other issues, which seem to be raised on appeal were never raised at the ~rial Court level and therefore not presented before the court. Therefore, the Circuit Court of Winston County, Mississippi, was correct in i ts ruling. However, as an officer of the court, I feel that one other issue needs to be considered. The record shows that a Motion to Dismiss was filed by Keith Higginbotham on November 7, 2016, (RE 27) but has never been presented to the Trial Court. It appears that this court has consistently held that a Motion for a New Trial suspends the final judgment as a final judgment until the Motion for a New 10
Trial was overruled. Mayflower Mills v Breeland, 168 Miss 207, 149 So 787 (Miss 1933); Redmond v Hilliard, 190 Miss 839, 199 So 83, 200 So 130 (Miss 1940); Shaw v Bula Cannon Shops, Inc, 38 So 2d 916 (Miss 1949). However in this case a Motion for New Trial was never filed and a Motion to Dismiss cannot be filed after trial and judgment. Respectfully submitted, CITY OF LOUISVILLE, MISSISSIPPI BY; ~ rlrb, Tayl Tuckef TAYLOR TUCKER ATTORNEY AT LAW 440 NORTH COURT AVENUE P. O. BOX 7 LOUISVILLE, MS 39339 TELEPHONE: (662) 773-9254 MSB# 8292 11
CERTIFICATE OF SERVICE I, the undersigned, Taylor Tucker, Counsel o f record for the Appellee, City of Louisville, Mississippi, do hereby certify that I have this day electronically filed a true and correct copy of the above and foregoing Brief Of Appellee with the Clerk of the Court using the MEC system which sent notification of such filing to the following : Honorable George M. Mi tchell, Jr. Circuit Court Judge Post Office Box J Eupora, MS 39744 Furthe r, I hereby certify that I have mailed by United States mail, postage prepaid the foregoing Brief Of Appellee to the following non-mec participant: Keith Higginbotham, Pro Se 1415 Ricks Road Noxapater, MS 39346 THIS the day of July, 2017. 12
REPRODUCTION OF STATUTES, ETC. 13
11-51-3. Appeals to Supreme Court. Mississippi Statutes Title 11. CIVIL PRACTICE AND PROCEDURE Chapter 51. APPEALS Current through Chapter 7 of the 2017 First Extraordinary Session 11-51-3. Appeals to Supreme Court An appeal may be taken to the Supreme Court from any final judgment of a circuit or chancery court in a civil case, not being a judgment by default, by any of the parties or legal representatives of such parties; and in no case shall such appeal be held to vacate the judgment or decree. Cite as Miss. Code 11-51-3 Source: Codes, Hutchinson's 1848, ch. 54, art. 34; 1857, ch. 62, art. 103; 1871, 410; 1880, 2309; 1892, 32; 1906, 33; Hemingway's 1917, 8; 1930, 13; 1942, 1147; Laws, 1991, ch. 573, 79, eff. 7/1/1991.
97-29-47. Profanity or drunkenness in public place. Mississippi Statutes Title 97. CRIMES Chapter 29. CRIMES AGAINST PUBLIC MORALS AND DECENCY IN GENERAL Current through Chapter 7 of the 2017 First Extraordinary Session 97-29-47. Profanity or drunkenness in public place If any person shall profanely swear or curse, or use vulgar and indecent language, or be drunk in any public place, in the presence OT two (2) or more persons, he shall, on conviction thereof, be fined not more than one hundred dollars ($ 100.00) or be imprisoned in the county jail not more than thirty (30) days or both. Cite as Miss. Code 97-29-47 Source: Codes, Hutchinson's 1848, ch. 64, art. 4(1); 1857, ch. 64, art. 340; 1871, 2833; 1880, 2974; 1892, 1219; 1906, 1295; Hemingway's 1917, 1028; 1930, 1059; 1942, 2291; Laws, 1912, ch. 212; Laws, 1971, ch. 448, 2, eff. 3/25/1971.
Rule 901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION. Mississippi Court Rules Mississippi Rules Of Evidence Article 9. AUTHENTICATION AND IDENTIFICATION As amended through January 12, 2017 Rule 901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION (a) (b) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Illustrations. 8y way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be. (2) Non-expert Opinion on Handwriting. Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. (3) Comparison by Trier or Expert Witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. (4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. (5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. (6) Telephone Conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or busines::i, if (A) in the case of a person, circumstances, including selfidentification, show the person answering to be the one called, or (8) in the case of a business, the call was made to a place of business and the conversation related to business reaso'1ably transacted over the telephone. (7) Public Records or Reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. (8) Ancient Documents or Data Compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (8) was in a place where it, if authentic, would likely be, and (C) has been in existence twenty years or more at the time it is offered.
(9) Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. (10) Other Methods. Any method of authentication or identification provided by the Mississippi Supreme Court or by the Constitution of Mississippi. Cite as Miss. R. Evid. 901 History. Amended July 1, 1998. Note: Advisory Committee Note (a) The authentication and identification aspects of evidence are central to the concept of relevancy. Unless it be satisfactorily shown that an item of evidence is "genuine," the item is irrelevant and should be excluded. (b) This subsection illustrates some of the possibilities under Rule 901. It is only illustrative; it does not serve as a limitation. Some of the illustrations are dist:ussed below: (2) Nonexpert Opinion on Handwriting. This authentication method has been traditionally allowed in the Mississippi courts. The rule does not set forth what the necessary criteria are for the nonexpert opinion. However, from common law practice it appears that the opinion m3y be based on several different standards including the witness's familiarity with the person's handwriting or the witness's corresponding with the person. See Western Union Telegraph Co v. Goodman, 166 Miss. 782,146 So. 128 (1933); Wiggins v. State, 224 Miss. 414, 80 SO.2d 17 (1955); McCarty v. Love, 145 Miss. 330,110 So. 795 (1927). (3) Comparison by Trier or Expert Witness. Under Rule 901 (3) it is not necessary for the judge to rule first that the exemplars are genuine before the expert compares them. The standard for comparison is no different, therefore, from the standard used in other situations, e.g., ballistics comparison. See FRE 901 Advisory Committee's Note. (4) Distinctive Characteristics and the Like. The possibilities under the rule are myriad. Letters or phone conversations disclosing knowledge peculiar to an individual may qualify, as well as distinctive language patterns. See FRE 901 Advisory Committee's Note. (5) Voice Identification. This authentication method has been utilized in Mississippi practice. Familiarity may be acquired either before or after the speaking which is the subject of the identification. (6) Telephone Conversations. One may authenticate a conversation when he calls the number listed for a person or a business and the answering party either identified himself as that individual or conducted a transaction on behalf of the business called. (7) Public Records or Reports. This represents the existing law in Mississippi. Rule 901 (7) extends the common law principle to include electronically-stored information. Proving a record is public and that it is in the custody of a public official is sufficient. (8) Ancient Documents or Data Compilation. The twenty-year rule for ancient documents under Rule 803(16) is repeated here. The illustration extends the authentication to electronically-stored information as in Rule 901 (7). Except for the reduction of the years required for ancient documents, this illustration is consistent with Mississippi practice. (9) Process or System. This illustration covers systems such as x-rays, some chemical tests, and computers. Example (9) does not foreclose taking judicial notice of the accuracy of a process or system. (10) Other Methods. This illustration is given as notice that other methods are not superseded.
Rule 1002. REQUIREMENT OF ORIGINAL. Mississippi Court Rules Mississippi Rules Of Evidence Article 10. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS As amended through January 12, 2017 Rule 1002. REQUIREMENT OF ORIGINAL To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as other wise provided by law. Cite as Miss. R. Evid. 1002 Note: Advisory Committee Note This rule is a statement of the so-called best evidence rule. The best evidence rule only applies to writings, recordings, or photographs, as defined in Rule 1001, when a party seeks to prove their contents.