E-Filed Document Mar 29 2018 15:36:58 2017-KA-01112-COA Pages: 13 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JEFFREY MARTIN APPELLANT VS. NO. 2017-TS-01112 STATE OF MISSISSIPPI APPELLEE APPEAL FROM THE CIRCUIT COURT OF RANKIN COUNTY, MISSISSIPPI REPLY BRIEF OF APPELLANT WM. ANDY SUMRALL THOMAS P. WELCH, JR. ATTORNEYS FOR APPELLANT SUMRALL & WELCH, PLLC 419 S. STATE STREET, SUITE B 102 P.O. BOX 1068 JACKSON, MS 39215 601-355-8775 APPELLANT REQUESTS ORAL ARGUMENT
CERTIFICATE OF INTERESTED PARTIES 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 judges of this Court may evaluate possible disqualifications or recusal. 1. Hon. Steve Ratcliff, P.O. Box 1626, Canton, MS 39046; 2. Jeffrey Martin, Appellant; 3. Michael Guest, District Attorney for Rankin County, P.O. Box 68, Brandon, MS 39043; 4. Thomas P. Welch, Jr., Wm. Andy Sumrall, Attorneys for Appellant; BY: /s/ Wm. Andy Sumrall Wm. Andy Sumrall /s/thomas P. Welch, Jr. Thomas P. Welch, Jr. i
TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS...i TABLE OF CONTENTS...ii REQUEST FOR ORAL ARGUMENT...iii TABLE OF AUTHORITIES...iv REPLY BRIEF OF THE APPELLANT...1 CONCLUSION...7 CERTIFICATE OF SERVICE...8 ii
ORAL ARGUMENT REQUESTED The Appellant feels it should be important for this Court to hear about the effects the lie told by the State in the instant case had on the outcome. iii
TABLE OF AUTHORITIES CASES Ross v. State 954 So. 2d 968 (Miss. 2007)...1,3 Sheppard v. State, 777 So.2d 659 (Miss.2001)...1 Hughes v. State 90 So. 3d 613 (Miss. 2012)...2 Grayson v. State 879 So. 2d 1008 (Miss. 2004)...2 Williams v. State 684 So. 2d 1179 (Miss. 1996)...2 Payton v. State, 897 So. 2d 921 (Miss. 2003)...3 Index Drilling Co. v. Williams 137 So. 2d 525 (1962)...3 Simmons v. State, 805 So. 2d 452 (Miss. 2001)...3 Beal v. State, 86 So.3d 887 (Miss. 2012)...5 Kirk v. State 160 So. 3d 685 (Miss. 2015)...5,6 Cox v. State, 365 So. 2d 627 (Miss. 1978)...6 STATUTES 97-3-68...4 97-3-65...4 97-3-71...4 97-3-67...4 97-3-95 (1) (d)...6 MISSISSIPPI RULES OF EVIDENCE MRE 412...3,4 MRE 106...5 iv
REPLY BRIEF OF THE APPELLANT I. The State did commit prosecutorial misconduct during its closing argument. The Appellee, in its brief, concedes that the Assistant District Attorney (ADA), an Officer of the Court, lied in her closing argument to the jury, but incredibly submits that it is ok because the jury did not know they were being lied to. 1 The Appellee goes on to state that there was no prejudice because the Appellant (Martin) was found guilty of one of the charges. The Appellee cites to Ross v. State, 954 So. 2d 968 (Miss. 2007) regarding closing arguments of attorneys. Attorneys are afforded wide latitude in arguing their cases to the jury but are not allowed to employ tactics which are inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. Id., 1001 (citing Sheppard v. State, 777 So. 2d 659, 661 (Miss.2001)). An ADA lying in a closing argument would certainly fall into the category of not being allowed to employ tactics which are,...inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. Further, allegations of misconduct will be reviewed to determine whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created. Id. There can be no other answer than the probable effect of the lie was to create unjust prejudice. But again, the Appellee argues that lying to the jury is ok, if the jury doesn t know it is being lied to. Frankly, the Appellee s position boggles the mind. This can not be a precedent that this Court wishes to adopt. The Appellee fails to address the ADA s later attempts to explain away her lie. The ADA came up with three different reasons why her lie was ok. First was the alleged sexual contact 1 Appellee s Brief, pages 5-6. 1
between the alleged victim and Martin was the victim s first sexual experience with an adult. (RE, 1). Secondly, it wasn t a material fact. (RE, 1) The final excuse was made by the ADA herself in the hearing on the JNOV. A lot of the same themes tend to come up in each case, and I guess that day I got on autopilot because a lot of times in closing the case is a child's first sexual experience. This child also was touched by some cousins, and that was not brought out in trial; and I can assure the Court that there was no intentional act on my part to mislead this jury or the Court. (TR, 298-299). Apparently, the ADA should have merely stated that it doesn t matter, as the jury did not know they were being lied to. The trial court knew that the ADA had lied to the jury, as the trial court warned the ADA to not go further. (TR, 271). The Appellee then makes the incredulous leap that there was no prejudice because As the CAC interview was not presented to the jury, the jurors might have just assumed that sexual abuse of an eleven year old girl was likely the child s first sexual encounter. 2 The Appellee appears to be making the case, that despite Jury Instructions to the contrary (Your verdict should be based on the evidence and not be open to speculation, guesswork or conjecture.) (RE, 11) jurors should just assume things. This is also in direct contradiction of years of precedent....the jury is presumed to follow the instructions of the trial court. Hughes v. State, 90 So. 3d 613, 624 (Miss. 2012), quoting Grayson v. State, 879 So. 2d 1008, 1020 (Miss. 2004) (quoting Williams v. State, 684 So. 2d 1179 (Miss. 1996)). To exacerbate this position, the Appellee reurges its position that an Officer of the Court lying to the jury is ok, since the jury didn t know it was being lied to. It was immaterial to the jury whether M.G. s sexual abuse was her first sexual encounter as they were not informed that 2 Appellee s Brief, page 6. 2
she had also been sexually abused by her cousins. 3 The Appellee further quotes Ross in its brief. [a]rguing statements of fact which are not in evidence or necessarily inferable from facts in evidence is error when those statements are prejudicial. Ross, 1002. This was not fact[s] which are not in evidence. This was not necessarily inferable from facts in evidence. This was a blatant lie. This was intentional misleading of the jury by the ADA. The blanket assertion by the Appellee that there was no prejudice in the ADA s lie to the jury is merely that, an assertion, not supported by anything. As jurors can not impeach their verdict, there is no way to make that claim. Jurors cannot impeach their duly rendered verdict. Payton v. State, 897 So. 2d 921, 954 (Miss. 2003) quoting Index Drilling Co. v. Williams, 242 Miss. 775, 789, 137 So. 2d 525, 530 (1962). II. The trial court s exclusion of the CAC video was in error. The Appellee recites part of MRE 412 and states, Therefore, evidence of previous sexual abuse of M.G. at the hands of her cousin, as stated in the CAC interview, was inadmissible. 4 The Appellee s brief fails to cite relevant authority in its argument that the trial court s exclusion of the Children s Advocacy Center (CAC) video was proper. Failure to cite relevant authority obviates the appellate court's obligation to review such issues. Simmons v. State, 805 So. 2d 452, 487 (Miss. 2001). Despite the Appellee s failure to cite relevant authority, Martin will address the Appellee s argument. The Appellee states that the video was provided in discovery. That is true. The State 3 Appellee s Brief, page 6. 4 Appellee s Brief, Page 11 3
provided an unredacted copy of the CAC video to Martin in discovery. However, on May 2, 2017, after the venire had been sat, the ADA stated her intent to offer an edited version of the CAC recording.(tr, 56). This edited version of the CAC recording was never provided to Martin prior to the venire being sat and voir dire beginning. The ADA stated that she intended to offer an edited version of the CAC recording because the Appellant had not served notice under MRE 412. As none of the exceptions applied in this case, there was no need for Martin to provide notice under MRE 412. As was pointed out in the Appellant s Brief, the State should have filed a Motion in Limine to attempt to redact the previously provided copy of the CAC video. Instead, the State choose to wait until after the venire had been sat to announce it intended to offer a redacted copy of the CAC video. The State argued that the exclusion of the CAC video was not error and cited to Mississippi Code Annotated 97-3-68 which outlines the procedure for introducing evidence of sexual conduct of an alleged victim s sexual assault. (RE, 2). Martin was not indicted under 97-3-65, nor 97-3-71( 97-3-67 having been repealed in 1998), thus the State s reliance on that statute as why the exclusion of the CAC video was proper was misleading, at best. The State went on to say that the purpose of introducing the CAC interview was for the tender years hearing, and the Appellant should have been aware that the CAC video would be redacted in accordance with the applicable rules of evidence. (RE, 3). The State failed to cite the applicable rule of evidence that would allow the redaction of the video, as has the Appellee in it s brief. Martin is still unaware of any such rule of evidence. The Appellee states in its brief that the State choose not to play the interview at trial and only used it for the tender years hearing. 5 While this statement is true, on its face, it is 5 Appellee s Brief, Page 11. 4
misleading. The State attempted to play the redacted CAC video, but was precluded by the trial court due to MRE 106. (TR, 60). similar issue. In Beal v. State, 86 So. 3d 887 (Miss. 2012) the Mississippi Supreme Court dealt with a As a result, the trial court committed prejudicial error by allowing the State's witness to testify to the contents of the videotape and by prohibiting the defense from showing the jury the videotape. This Court respects the trial court's caution on this issue in finding the videotape more prejudicial than probative, but suggests that if the defense wishes to err in this regard, then that is its unfortunate choice to do so. The videotape became relevant once the prosecution elicited testimony from the contents of the tape, and therefore, the defense should have been allowed to show the videotape to the jury even if it did show Beal selling drugs. Beal, 894 As was the case in Beal, the State elicited testimony from the contents of the video, but Martin was precluded from playing the video for the jury. (TR, 199). The Supreme Court reversed Beal s conviction and remanded the case for a new trial. III. The trial court erred when it separated the foreman from the rest of the jury. The Appellee s brief also cites to Kirk v. State 160 So. 3d 685 (Miss. 2015) regarding the trial court s separation of the foreman from the rest of the jury. While the Appellee states that the Kirk trial court told the foreperson to stand in the hall alone, the opinion states the record is unclear as to that point. The Appellee also states that the circumstances in the instant case and Kirk are vastly different, in that the separation in the instant case was brief, purposeful, supervised by law enforcement, and done with the consent and understanding of both the jury and foreperson. 6 The foreperson was alone with a member of law enforcement, the same agency that initiated the case against Martin and while the Appellee states it was done with the consent 6 Appellee s Brief, Page 21. 5
and understanding of the jury and foreperson, Martin wonders how either could have objected to the trial court s directive. Another vast difference in the instant case and Kirk is the fact Martin immediately moved for a mistrial. (TR, 281). Nevertheless, considering the acquiescence of Kirk's counsel, (emphasis Martin) and without any identifiable prejudicial effect on the jury, we find no reversible error. Kirk, 702. Yet another vast difference is Martin was on trial for a capital offense. The jury could not reach a verdict on Count 1 of Martin s indictment, which was for sexual battery pursuant to 97-3-95 (1) (d). (RE, 11) That statute sets the possible penalty as life in prison. and Kirk. The rule in capital cases is that, " where the crime charged is punishable by death or a maximum of imprisonment for life in the state penitentiary, the jury shall be sequestered during the entire trial and this right cannot be waived either by the attorney for the accused or at the discretion of the trial court." Cox v. State, 365 So. 2d 627, 629 (Miss. 1978). Kirk, 701. Martin agrees with the Appellee that there were vast differences between the instant case 6
the Appellant. CONCLUSION For all the reasons stated above, this Court should reverse and render the conviction of 7
CERTIFICATE OF SERVICE I, Wm. Andy Sumrall, hereby certify that on this day I electronically filed the foregoing Appellant s Reply Brief with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Jason L. Davis, Esq. Jim Hood, Esq. and via United States mail to: 1. Hon. Steve Ratcliff, P.O. Box 1626, Canton, MS 39046; 2. Jeffrey Martin, Appellant; 3. Michael Guest, District Attorney for Rankin County, P.O. Box 68, Brandon, MS 39043; Submitted, this the 29 th day of March, 2017. BY: /s/ Wm. Andy Sumrall Wm. Andy Sumrall /s/thomas P. Welch, Jr. Thomas P. Welch, Jr. 8