BRIEF OF THE APPELLANT

E-Filed Document Sep 30 2016 18:05:43 2016-CA-00638-COA Pages: 33 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI SHAWN LABARRON DAVIS APPELLANT V. NO. 2016-CA-00638-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT On Appeal from the Circuit Court of Jackson County, Mississippi Erin E. Briggs, MS Bar No. 102352 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: eprid@gmail.com Counsel for Shawn Labarron Davis

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI SHAWN LABARRON DAVIS APPELLANT V. NO. 2016-CA-00638-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. Shawn Labarron Davis, Appellant 3. Honorable Anthony Lawrence, III, District Attorney 4. Honorable Dale Harkey, Circuit Court Judge This the 30 th day of September 2016. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER BY: /s/ Erin E. Briggs Erin E. Briggs Counsel for Appellant i

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS...................................... i TABLE OF CONTENTS....................................................... ii TABLE OF AUTHORITIES.................................................... iv STATEMENT OF THE ISSUES.................................................. 1 STATEMENT OF ASSIGNMENT................................................ 1 STATEMENT OF THE CASE................................................... 2 STATEMENT OF THE FACTS.................................................. 3 SUMMARY OF THE ARGUMENTS............................................. 4 ARGUMENTS................................................................ 5 Standard of Review...................................................... 5 The United States Supreme Court s Trilogy.................................. 5 I. The Trial Court Erred in Sentencing Davis to Life -Without-parole, as Davis Is Not One of the Uncommon and Rare Juvenile Homicide Offenders Who May Be Sentenced to Die in Prison.............................................. 10 Miller Factors......................................................... 10 1. The Child s Chronological Age and Its Hallmark Features......... 11 2. The Family and Environment that Surrounds Him............... 13 3. Mitigating Circumstance of the Homicide Offense................ 14 4. Whether He Might Have Been Charged and Convicted of a Lesser Offense................................................... 17 5. The Possibility of Rehabilitation.............................. 18 II. III. Davis s Sentence Was Imposed in Violation of His Constitutional Right to Have His Sentence Determined by a Jury.......................................... 20 Davis Sentence Must Be Vacated and He Must Be Re-sentenced to Life With ii

Parole, Because the Practice of Sentencing Children to Life-Without-Parole Violates the Federal and State Constitutional Prohibitions Against Cruel and Unusual Punishment........................................................... 21 CONCLUSION.............................................................. 26 CERTIFICATE OF SERVICE.................................................. 27 iii

TABLE OF AUTHORITIES FEDERAL CASES Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002)............................... 6 Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869 (1982)............................ 12 Graham v. Florida, 130 S.Ct. 2011, 560 U.S. 48 (2010)....................... 1, 4, 6, 7, 9, 10, 18, 19, 20, 21,24, 25 Johnson v. Texas, 509 U.S. 350, 113 S.Ct. 2658 (1993).............................. 13 Miller v. Alabama, 132 Southern Ct. 2455 (2012)............................ 1, 2, 3, 4, 5, 6, 7, 9, 10, 11,12, 14, 15, 17, 18,19, 21, 22, 23, 24,25 Montgomery v. Louisiana, 136 Southern Ct. 718 (2016)..................... 11, 19, 22, 25 Ring v. Arizona, 536 U.S. 584 (2002)............................................. 22 Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183 (2005)...................... 6, 7, 8, 9, 10, 13, 17, 18, 24 STATE CASES Bennett v. State, 990 So. 2d 155 (Miss. 2008)....................................... 5 Brown v. State, 995 So. 2d 698 (Miss. 2008)....................................... 23 Diachenko v. District Att y, 466 Mass. 655 (2013).................................. 25 Fernando Martinez Parker v. State, 30 So. 3d 1222 (Miss. 2010)....................... 26 Kambule v. State, 19 So. 3d 120 (Miss. Ct. App. 2009)................................ 6 State v. Null, 836 N.W.2d 41 (Iowa 2013)......................................... 18 Parker v. State, 119 So. 3d 987 (2013)................................ 11, 12, 14, 15, 18, iv

19, 20, 21, 22, 23,25, 26 State v. Riley, 110 A.3d 1205 (Conn. 2015).................................... 6, 9, 12 Scarborough v. State, 956 So. 2d 382 ( 3).................................. 3, 4, 16, 17 State v. Seats, 865 N.W.2d 545 (Iowa 2015)................................. 11, 14, 18 People v. Skinner, 315 Mich. App. 15 (2015)...................................... 21 States v. Riley, 110 A.3d 1205 (Conn. 2015)....................................... 12 Veal v. State, 298 Ga. 691 (2016)............................................. 19, 21 Walker v. State, 913 So.2d 198 (Miss. 2005)........................................ 6 Workman v. Commonwealth, 429 Southern W.2d 374, 378 (Ky. 1968)................ 8, 19 STATUTES Miss. Const. Art. 3 14,15.................................................... 22 OTHER AUTHORITIES Amicus Br. For American Med. Associate., et al., 2012 WL 121237 (Jan. 13, 2012)........ 13 Amicus Br. For American Psych. Associate., et al., 2012 WL 174239 (Jan. 17, 2012).... 17, 25 v

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI SHAWN LABARRON DAVIS APPELLANT V. NO. 2016-CA-00638-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES I. The Trial Court Erred in Sentencing Davis to Life -Without-Parole, as Davis is Not One of the Uncommon and Rare Juvenile Homicide Offenders Who May be Sentenced to Die in Prison. II. III. Davis s Sentence Was Imposed in Violation of His Constitutional Right to Have His Sentence Determined by a Jury. Davis Sentence Must Be Vacated and He Must Be Re-sentenced to Life With Parole, Because the Practice of Sentencing Children to Life-Without-Parole Violates the Federal and State Constitutional Prohibitions Against Cruel and Unusual Punishment. STATEMENT OF ASSIGNMENT This case should be transferred to the Mississippi Supreme Court for review because this case involves the sentencing of a juvenile to a term of life imprisonment without parole. A life-without-parole sentence is the ultimately penalty available for a juvenile offender. Miller v. Alabama, 132 S. Ct. 2455, 2466 (2012). For this reason, it is treated akin to the death penalty. Id. (citing Graham v. Florida, 130 S.Ct. 2011, 2027, 560 U.S. 48, 69-70 (2010). Pursuant to MRAP 16(b)(1), the Mississippi Supreme Court shall retain jurisdiction over cases involving the imposition of the death penalty. Because of the necessary heightened scrutiny required in this case, the case should be re-assigned to the Mississippi Supreme Court. 1

STATEMENT OF THE CASE In July 2004, Shawn Labarron Davis, having been charged with capital murder, entered into a guilty plea for simple murder. [R.E. 10, 12; C.P. 10, 12]. Davis was sixteen-years-old (16) at the time of the offense. [R.E. 12; C.P. 12]. The trial court sentenced Davis to serve a term of life imprisonment. [R.E. 16;C.P. 17]. Because homicides committed after June 30, 1995 are excluded from parol-eligible offenses under the Mississippi Probation and Parole Law, Davis sentence was a term for his natural life, without the possibility of parole. Eight years later, the United States Supreme Court s issued an intervening decision in Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012), which held that mandatory life imprisonment without parole for juveniles, who were under the age of eighteen years old (18) at the time of the crime, violated the Eighth Amendment s prohibition against cruel and unusual punishment. Following this decision, Davis counsel petitioned to the court to vacate his sentence. [R.E. 17; C.P. 18]. The trial court treated Davis Motion to Vacate Sentence as a request for relief pursuant to to the Uniform Post-Conviction Collateral Relief Act. The trial court reinstated Davis case to the active docket for the purpose of conducting a sentencing hearing pursuant to the requirements in Miller. [R.E. 42; C.P. 74]. The Honorable Dale Harkey, Circuit Court Judge, presided over Davis s guilty plea hearing in 2004, as well the re-sentencing hearing held on August 3, 2015. Although the hearing was held in August, the trial court did not announce Davis s sentence until April 15, 2016. The trial court sentenced Davis to a term of life imprisonment, without the possibility of parole. [R.E. 66; C.P. 148]. Aggrieved of this re-sentencing decision, Davis timely noticed this appeal. [R.E. 67; C.P. 150]. 2

STATEMENT OF THE FACTS Seventeen-year-old Mary Scarborough had a sexual relationship with Dorian Johnson, a married, retired Navy serviceman in his fifties. Scarborough v. State, 956 So. 2d 382, 383 ( 3) (Miss. Ct. App. 2007). In exchange for sexual contact with Scarborough, Johnson paid Scarborough s bills and gave her spending money. Id. However, at some point, Scarborough claimed that Johnson started treating her aggressively. Id. at ( 4). Scarborough s ex-boyfriend, Anthony Booker, warned Johnson to stay away from her. Id. This warning ended in an altercation where Johnson punched Booker so hard the he required several stitches in his head. Id. Johnson refused to end the relationship with Scarborough and began stalking her. Id. at ( 5). She enlisted the help of her friends, Booker and Shawn Davis, to scare Johnson into ending his contact with Scarborough. Id. While high on powder cocaine, the trio devised a plan to rob Johnson. Id.; (Tr. 17). At some point, the plan changed to include killing Johnson after the robbery. (S.E. 1, 3, Pg. 262). Davis, who turned sixteen years old a month and a half before the incident, had known Scarborough for about five years. (Tr. 59; S.E. 1, 3, Pg. 259) He lived with Scarborough after running away from home. (S.E. 1, 3, Pg. 271). His home life was unstable at best. He was raised by his mother who had long been addicted to drugs and alcohol. (Tr. 61). His step-father abused drugs as well. (Tr. 76). His father was not around. (Tr. 80). Often times, Davis went without food and children would harass him about his hygiene and clothing. (Tr. 71). Growing up, Davis did not have any friends and he would do what other children told him to do just to fit in. (Tr. 95). That fact that Davis considered Scarborough a friend had significant meaning. Many of the people that brought stability to Davis life ended up leaving him. (Tr. 85-86, 87-88). As far as the plan for Johnson, Scarborough, Davis and Booker decided that Scarborough and Davis would meet with Johnson at a park and smoke marijuana. Scarborough, 956 So. 2d at 383( 6). They would fabricate an argument with Johnson as a distraction while Booker, who would remain out of sight until he 3

received the signal, would join the group. At that point, all three of them would rob Johnson. Id. The night s events started off as planned. After receiving the signal, Booker approached Davis, Johnson and Scarborough while they were at the park. Id. at 384 ( 7). Davis and Booker began beating Johnson. Id. at ( 9). After the beating, they all drove to Vancleave. Id. at ( 10). On the way, they picked up Desmond Shields. Id. While in the car, Davis continued beating Johnson. Id. When they arrived at Vancleave, Booker and Davis dragged Johnson out of the car and beat and kicked him. Id. at ( 11). Davis also cut Johnson many times with a knife. Id. Later, Davis and Booker searched Johnson for money. Id. at ( 12). Scarborough suggested that they search Johnson s undergarments for money. Id. They removed his wallet and left him. Id. Afterwards, they cleaned Johnson s car to remove any blood stains. Id. Davis and Booker took off their clothes and burned them. Id. They left Johnson s Jeep in the short-term parking lot of the airport. Id. According to the pathologist, Johnson died from a combination of head injuries that caused brain swelling. (S.E.1 4, Pg. 229). Booker, Davis, Scarborough and Shields were indicted for capital murder. (R.E. 10, C.P. 10). Hoping to serve as a sedative to the Johnson family, Davis entered accepted a plea deal that reduced his capital murder charge to murder. (S.E. 1, 3, Pg. 287). Davis was sentenced to serve a term of life imprisonment. SUMMARY OF THE ARGUMENTS In 2004, Shawn Labarron Davis, along with several co-defendants, was indicted for the capital murder of Dorian Johnson. Davis later pled to simple murder and the court sentenced him to life. At the time, the only sentence available for his crime was life. Read in conjunction with the parole statute, this was really a life without parole sentence. Eight years later, the Supreme Court announced that mandatory life-without-parole sentencing schemes for juvenile homicide offenders, who were under 18 years old at the time of the crime, was a 4

violation of the Eighth Amendment. Miller v. Alabama, 132 S.Ct.2455 (2012). Davis was granted a resentencing hearing due to the Miller decision. However, the trial court improperly applied some of the Miller factors and ignored other factors. The court also considered irrelevant information in re-sentencing Davis to life-without-the-possibility- of- parole. Although the Supreme did not categorically ban life-without-parole sentences for juvenile homicide defenders, this practice is cruel and unusual punishment under the federal and state constitutions. In addition to these errors, Davis had a constitutional right to re-sentencing hearing by jury. The trial court should not have been the finder of fact in this re-sentencing hearing. ARGUMENTS Standard of Review Life-without-parole sentences is the ultimate penalty for juveniles and should be treated similarly to that of the death penalty for adult offenders. Miller v. Alabama, 132 S.Ct. 2455, 2466 (2012). For this reason, the Court should review this case under heightened scrutiny as is applied in death penalty cases. Bennett v. State, 990 So. 2d 155, 158 ( 6) (Miss. 2008) ( The standard for this Court s review of convictions for capital murder and sentences of death is heightened scrutiny. ) The heightened scrutiny standard requires that all doubts be resolved in the accused s favor because what may be harmless error in one case with less at stake becomes reversible error when the penalty is death. Walker v. State, 913 So.2d 198, 216 (Miss. 2005). Additionally, the Court applies a de novo standard of review for mixed questions of law and facts. Kambule v. State, 19 So. 3d 120, 122 (Miss. Ct. App. 2009). The United States Supreme Court s Trilogy Through a trilogy of cases, the United States Supreme Court changed the direction of juvenile sentencing to conform to the Eighth Amendment s ban on cruel and unusual punishment. State v. Riley, 110 5

A.3d 1205, 1205 (Conn. 2015). The Eighth Amendment, made applicable to the states through the Fourteenth Amendment, guarantees that individuals have the right to be free from cruel and unusual punishment. Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 1190 (2005). Implicit in this prohibition is the guarantee that individuals have the right to be free from excessive sanctions. Atkins v. Virginia, 536 U.S. 304, 308, 122 S.Ct. 2242, 2246 (2002). This right flows from the basic precept of justice that punishment for crime should be graduated and proportioned to the offense. Roper, 543 U.S. at 560. Although the Supreme Court had long recognized the distinct aspects of youth, it was not until Roper v. Simmons 1, Graham v. Florida 2, and Miller v. Alabama 3, that the Court acknowledged that youth and its attendant characteristics have constitutional significance for purposes of assessing proportionate punishment under the eighth amendment. Riley, 110 A.3d at 1208. Simply put, for the purposes of sentencing, juveniles are constitutionally different than adults. Miller, 132 S.Ct. at 2469. In the first of this trilogy, Roper, the Supreme Court held that the Eighth and Fourteenth Amendments prohibited juveniles, who committed crimes before the age of eighteen years old, from receiving the death penalty. Roper, 543 U.S. at 568. The Court reasoned that the death penalty, being the most severe punishment allowed, had to be limited to those offenders who committed the most serious crimes and whose extreme culpability makes them the most deserving of executions. Id. However, the Court recognized that there were three general differences between children (under eighteen years old) and adults that would prevent children from being classified as the worst offenders. Id. at 569. First, juveniles lack maturity and do not possess a fully -developed sense of responsibility. Id. 1 Roper v. Simmons, 125 S.Ct. 1183, 543 U.S. 551 (2005). 2 Graham v. Florida, 130 S.Ct. 2011, 560 U.S. 48 (2010). 3 Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). 6

These qualities often result in impetuous and ill-considered actions and decisions. Id. Second, juveniles are more receptive to peer -pressure and negative influences. Id. Third, a child s personality trait is still forming. Id. at 570. As opposed to adults, a child s character is not fixed and is, in fact, more transitory. Id. The Court in Roper concluded that these general differences render suspect any conclusion that a juvenile falls among the worst offenders. Id. Following Roper, the Supreme Court was tasked with deciding if a life- without -parole sentence was a disproportionate sentence for juveniles, under eighteen years old, who committed non-homicide offenses. Graham, 560 U.S. at 52-53, 59. In expanding on the groundwork laid by Roper, the Court acknowledged that there had been continued advancements in psychology and brain science that proved the minds of children and adults are fundamentally different. Id. at 68. Children s brains, in particular the parts concerning behavior control, continue to mature through late adolescence. Id. at 68. For this reason, children have a better capability to change than adults, and their actions are less likely to be evidence of irretrievably depraved character than are the actions of adults. Id. at 69. In considering the life-without-parole sentence, the Court acknowledged that this sentence was the second most severe penalty allowed by law. Id. at. 69. For the juvenile, however, it is even more detrimental. Id. at 70. On average, the young offender would serve a greater length of sentence than an adult offender and the punishment would be the same as an adult in name only. Id. The Court likened the life-without-parole sentence for juveniles to that of the death penalty. Id. at 69-70. While the juvenile s life does not end by execution, the sentence alters the offender s life by a forfeiture that is irrevocable. Id. For a young offender, this sentence leaves the juvenile with no hope because whether his or her behavior and character improves over time, it is immaterial since he or she will remain in prison for the rest of their lives. Id. The Court realized that none of the penological justifications for punishment (retribution, deterrence, incapacitation, and rehabilitation) would be met in sentencing a non-homicide juvenile offender to life- 7

without-parole. Id. at 71. A sentence lacking any legitimate penological justifications is by its nature disproportionate to the offense. Id. In rejecting incapacitation as a legitimate justification, the Court noted that this justification would require the sentencer to make an assumption that the child would forever be a danger to society and that the child was incorrigible. Id. at 72. However, incorrigibility is inconsistent with youth. Id. at 73 (quoting Workman v. Commonwealth, 429 S. W.2d 374, 378 (Ky. 1968)). It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. Id. (quoting Roper, 543 U.S. at 572). Even if the sentencer s judgment of incorrigibility were later corroborated by a prison record that showed the offender never matured and remained in consistent trouble, the sentence would still be disproportionate because the determination of incorrigibility was made at the beginning. Id. The Court also reasoned that, for a non-homicide offender, rehabilitation cannot be the goal of a life-without-parole sentence because of the child s capacity for change and limited moral blameworthiness. Id. at 74. Based on the inadequate penological justifications, limited culpability of the offender, and the severity of a life-without-parole sentence, the Court held that a juvenile offender who committed a nonhomicide offense could not receive a life-without-parole sentence. Id. The Court added that a State is not required to ensure that a juvenile defender will have eventual freedom in non-homicide cases. Id. at 75. What the State is required to do, however, is give the juvenile a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Id. Both in Roper and Graham, the Court applied the Eighth Amendment s proportionality jurisprudence to categorically ban certain sentencing practices for particular groups of offenders. Riley, 315 Conn. at 649. This was based on one strand of the proportionality jurisprudence that considers the... mismatches 8

between the culpability of [that] class of offenders and the severity of a penalty. Id. (quoting Miller v. Alabama, 132 S.Ct. at 2463). In Miller, the Court had to answer the question of whether the Eighth Amendment allowed mandatory life-without-parole sentencing schemes for juveniles of homicide offenses. Miller, 132 S.Ct. at 2461-63. In Miller, the Court drew on the mismatched proportionality strand, as well as a second strand, applied in death penalty cases. Id. This second strand requires individualized sentencing practices that consider the defendant s mitigating factors and the details of the offense. Id. This was necessary because of Graham s announcement that life-without-parole for juvenile offenders is likened to the death penalty. Id. at 2466. The Court recognized that, while Graham only applied to non-homicide offenses,... none of what is said about children - about their distinctive (and transitory) mental traits and environmental vulnerabilities - is crime-specific. Id. at 2465. In considering the culpability of juvenile homicide offenders and the severity of a mandatory lifewithout-parole sentence, it concerned the Court that the mandatory schemes would prevent the sentencer from taking into account an offender s youth and all of the considerations that are central to the juvenile s status. Id. at 2465-66. Likewise, mandatory sentencing schemes prohibit the sentencer from considering mitigating circumstances before imposing the harshest possible penalty for juveniles. Id. at 2475. To this end, the Miller Court found mandatory sentencing schemes, that sentence homicide juveniles offenders to life-without-parole, violate the Eighth Amendment. Id. The Court fell short of applying a categorical ban because its holding sufficiently addressed the petitioner s chief arguments. Id. at 2469. However, the Court made the following declaration:... [G]iven all we have said in Roper, Graham, and this decision about children s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing 9

juveniles to this harshest penalty will be uncommon. That is especially because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. Roper, 543 U.S. at 573, Graham, 130 S.Ct. at 2026-2027. Although we do not foreclose a sentencer s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison. Miller, 132 S. Ct. at 2469. I. The Trial Court Erred in Sentencing Davis to Life -Without-parole, as Davis Is Not One of the Uncommon and Rare Juvenile Homicide Offenders Who May Be Sentenced to Die in Prison. In Davis re-sentencing hearing, the trial court failed to start with the Supreme Court s pronouncement that sentencing a juvenile to life in prison without the possibility of parole should be a rare and uncommon occurrence. State v. Seats, 865 N.W.2d 545, 555 (Iowa 2015) (citing, Miller, 132 S. Ct. at 2469). Instead, the trial court applied the wrong legal standard and failed to consider some of the Miller factors, while giving inappropriate weight to the mitigating aspects of other factors. Miller Factors While the Supreme Court fell short of applying a categorical ban against life-without-parole sentences for juvenile homicide offenders, the Court warned that this type of sentence will be disproportionate for all but the rarest of children, those whose crimes reflect irreparable corruption. Montgomery v. Louisiana, 136 S. Ct. 718, 726 (2016) (internal citations omitted). The Court identified several factors that must be considered by the sentencing authority in juvenile life-without-parole cases. Parker v. State, 119 So. 3d 987, 995 ( 19) (Miss. 2013). In taking into account how children are different, the sentencer must consider the following factors identified in Miller. [1] [The child s] chronological age and its hallmark features - among them, immaturity, impetuosity, and failure to appreciate risks and consequences... 10

And finally, [2] [T]he family and home environment that surrounds him - and form which he cannot usually extricate himself - no matter how brutal or dysfunctional... [3] The circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him... [4] [Whether] he might have been charged and convicted of a lesser offense if not for [incompetency] associated with youth - for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his inability to assist his own attorneys, [5]... the possibility of rehabilitation Parker, 119 So. 3d at 995-96 ( 19) (quoting Miller, 132 S.Ct. at 2468). In light of these factors, there is still a presumption against granting life-without-parole sentences for juvenile offenders that must be overcome by evidence of unusual circumstances. States v. Riley, 110 A.3d 1205, 1214 (Conn. 2015). However, the trial court did not acknowledge this presumption in sentencing Davis to life-without-parole. 1. The Child s Chronological Age and Its Hallmark Features First, Miller and Parker require the sentencer to consider the youth s chronological age and its hallmark features. Parker, 119 So. 3d at 995 ( 19) (quoting Miller, 132 S.Ct. at 2468). Davis was sixteen years old at the time of the offense. However, youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and psychological damage. Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 877 (1982). Our history is replete with laws and judicial recognition that minors... are generally less mature and responsible than adults. Id. at 115-116. The trial court only mentioned Davis age at the time of the offense for the purpose of explaining that Davis was procedurally before the court for a Miller pre-sentencing hearing. There was no further discussion about the immaturity, impetuosity or failure to appreciate risks and consequences that commonly 11

characterize sixteen-year-olds. To the contrary, the court s only discussion of Davis youth centered around the psychological testing performed when Davis was thirteen years old, three years before the offense took place. (S.E. 1, 10). Davis was referred for testing by the intake officer at the Jackson County Youth Court. The court announced the following: (Tr. 125). The intellectual testing that was performed at that time [thirteen years old] indicated that he was of average intelligence, although he had poor performance in spelling and math... [the] psychological testing [also] indicate[d] trouble in conduct disorders. Apparently stemming from a tumultuous family life, the defendant was described as moody, angry, defiant, antisocial and hostile. As expected of a youth a 13 years of age, he had impulse control issues according to the psychological and, on occasion, short-sightedness to his conduct. The school transcripts reflect up until the 10 th grade that he had passing grades an average if not a little bit above average, grades in his scholastic courses, but in the 10 th grade... he quit high school and was on his own from that point forward. A juvenile s age as a mitigating factor is an important consideration for the court because, the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. Roper, 543 U.S. at 570 (quoting Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct. 2658, 2658 (1993). The difference between juvenile and adult behavior is not caused by the juvenile s lack of intelligence or the inability to understand right from wrong. Amicus Br. For Am. Med. Assoc., et al., 2012 WL 121237 *6 (Jan. 13, 2012). Instead, the difference can be attributed to the psychosocial limitations in their ability to consistently and reliably control their behavior. Id. As articulated in Roper, [t]he susceptibility of juveniles to immature and irresponsible behavior means their irresponsible conduct is not as morally reprehensible as that of an adult. Roper, 543 U.S. at 570. While the trial court acknowledged that Davis s impulse control issues and short-sightedness to 12

his conduct were expected behaviors of a thirteen - year-old, there were no similar findings that recognized what was expected of a sixteen- year- old. In the absence of evidence to the contrary, this factor weighs heavily against sentencing Davis to life without parole. 2. The Family and Environment that Surrounds Him Second, Miller and Parker require the sentencer to consider the family and home environment that surrounds [a child] - and from which he cannot usually extricate himself - no matter how brutal or dysfunctional. Parker, 119 So. 3d at 995 ( 19) (quoting Miller, 132 S.Ct. at 995). Unlike the first factor, the court made the following findings regarding Davis home environment.... [T]here is no doubt that [Davis] had a difficult and dysfunctional family life. He was born to a single mother, who was described as being an alcoholic and a drug user. He was exposed at an early age to, I believe, the unseemly life of public housing. Other family members testified the defendant s mother moved constantly, that she was mean to him and generally neglected his needs. For a short period of time, he had resided with an uncle, who apparently through structure, discipline, and stability, improved his grades... in his early life. Several witnesses testified that he was a good child, a good kid when he attended church for a year or two and was active in the youth programs. In the psychological evaluation performed in 2000... when [Davis] was 13 years old, [he] disclosed little of that information though that had been testified to... by family members at the [re-sentencing] hearing.... [A]t 13, when he was in Youth court, he resided with his mother and stepfather, both of whom were employed.. [Davis self-reported that he had difficult relationships with both of them]... He also self-reported a history of having been expelled for bringing a knife to school on one occasion and several suspensions, one of which was for threatening a teacher. (Tr. 124-125). In this case, the trial court should have taken into account the following considerations: any information regarding childhood abuse, parental neglect, personal and family drug and alcohol abuse, prior exposure to violence, lack of parental supervision, lack of adequate education, and the juvenile s susceptibility to psychological or emotional damage. Seats, 865 N.W.2d at 556. T h e r e c o r d provides an abundance of support that Davis was neglected by his mother who abused drugs and alcohol. 13

She was not concerned about his hygiene as a child. He often went hungry, because his mother sold their food stamps for drugs. (Tr. 71). As he got older, Davis also abused drugs. (Tr. 17). Although he made decent grades in school, he abandoned all hopes of education when he was in the tenth grade because he believed math was just too hard for him. (S.E. 1, 3, Pg. 271). As a youth, Davis had no friends and would often get into fights while trying to defend himself at school. (Tr. 71, 89, 95). He was teased by his peers about his mother and he would often do what other kids told him to do just so he could have friends. (Tr. 95). In Miller, the Court recognized that the sentencer must examine the juvenile s pathological background before concluding that life-without-parole is an appropriate sentence. Miller, 132 S.Ct. at 2469. Like Davis, Miller had a tumultuous home environment. The Court made the following finding, Id. If ever a pathological background might have contributed to a 14-year-old s commission of a crime, it is here. Miller s stepfather physically abused him; his alcoholic and drug-addicted mother neglected him; he had been in and out of foster care as a result; and he had tried to kill himself four times, the first when he should have been in kindergarten. The Court went on to conclude, That Miller deserved severe punishment for killing Cole Cannon is beyond question. But...a sentencer needed to examine all these circumstances before concluding that life without any possibility of parole was the appropriate penalty. Id. In light of the record in this case, this factor also weighs against sentencing Davis to life without parole. 3. Mitigating Circumstance of the Homicide Offense Third, Miller and Parker require the sentencing authority to consider the mitigating circumstances of the homicide offense, including the extent of [the child s] participation in the conduct and the way familial and peer pressures may have affected him. Parker, 119 So. 3d at 995-96 ( 19) (quoting Miller, 132 S.Ct. at 2468). The trial court spent a majority of its analysis describing the nature in which Davis committed the 14

homicide. The court began by saying,... as to the depravity of this murderous scheme, I could not help but despair an entire generation of our youth was possibly being raised without any vestige of human kindness whatsoever. (Tr. 127). The court then listed, in detail, the events that led up to the murder. The court credited Davis, and not Scarborough or Booker, as the person that enlisted the help of two other juveniles to carry out the plan to kill Johnson. The court went on to say: You beat him; you kicked him ; you stomped him ; you broke six of his ribs. You beat him so hard his brain bled, swollen. You viciously stabbed and sliced him with a knife across the face, neck, ears, as if he had been attacked by a wild animal and perhaps he had been. The photographs were chilling. His brain hemorrhaged from the beatings and he slowly bled to death alone in the woods, where you had left him to die. After you stole his cell phone, his car and a debit card, all of which netted you exactly nothing, you and your friends went to the beach in Harrison County and engaged in foot races. All that time, the family was searching for him frantically, couldn t find him. It took him hours to die. Through the entire criminal proceedings in this case... your plea hearing, your trial testimony and even the... re-sentencing hearing we conducted last year, I have not seen or observed one shred of remorse on your part for the part you played in this crime. At the trial of Mary Scarborough, you sought, in my opinion... to minimize her involvement in this, claiming contrary... to your plea testimony, that the murder... was all your idea and you hadn t discussed it with anyone, seeking to provide her some measure of defense I suppose to the charges that she was ultimately convicted of. I see no remorse here because I don t believe you have any. (Tr. 129-130) (emphasis added). The court completely ignored all of the mitigating circumstances of the homicide. First, glaringly absent from the court s analysis is any legitimate recognition that Johnson was not a random victim in this case. Johnson, in his fifties, had an inappropriate, extra-martial affair with an under-aged Scarborough. Scarborough, 956 So. 2d at 383 ( 3). Her attempts to end the relationship were not successful and Johnson began stalking her. While high on drugs, Booker, Scarborough, and Davis devised a plan to rob Johnson. It was Scarborough who initiated the contact between Johnson, Booker, and Davis. Scarborough wanted Davis help in scaring Johnson because she wanted him to leave her alone. Id. at ( 5). Scarborough knew 15

when Johnson was paid each month and she told Davis and Booker about the disability checks that Johnson received. Id. at 387 ( 28). Davis was high on drugs, committed this crime with a group of his peers he considered friends, and driven by an initial desire to help his friend. All of these are mitigating factors. As recognized by the American Psychological Association, et al, juveniles are much more likely than adults to commit crimes when they are in groups of their peers. Amicus Br. For Am. Psych. Assoc., et al., 2012 WL 174239 *18 (Jan. 17, 2012). A necessary condition for an adolescent to stay law-abiding is the ability to deflect or resist peer-pressure, a social skill that is not fully developed in adolescents. Id. In addition to the mitigating circumstances that the court failed to consider, the court also placed undue consideration on Davis remorsefulness for the crime. The court found that it did not believe Davis was ever remorseful for killing Johnson. However, to require that juveniles show remorsefulness ignores the established fact that children are immature and have an underdeveloped sense of responsibility. Roper, 543 U.S. at 569. Additionally, the court s findings are contradictory to the evidence in the record. At both his guilty plea hearing and the Miller re-sentencing hearing, Davis apologized to Johnson s widow and her family. He expressed regret for what he did and he asked for forgiveness from the Johnson family. In this case, the court allowed the details of the murder to outweigh the numerous examples of mitigating evidence. This was exactly the concern that lead the United States Supreme Court to categorically bar the death sentence for juvenile defenders. Roper, 543 U.S. at 572-573. The Court recognized that [a]n unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender s objective immaturity, vulnerability, and lack of true depravity should require a sentence less than death. Id. The trial court is required to move past a basic recantation of the nature of the murder and cannot 16

allow the nature of the crime to overwhelm the analysis required in the context of juvenile sentencing. Seats, 865 N.W.2d at 557 (quoting State v. Null, 836 N.W.2d 41,74-75 (Iowa 2013)). In light of the extensive mitigating circumstances surrounding the crime, this factor weighs against sentencing Davis to life in prison. 4. Whether He Might Have Been Charged and Convicted of a Lesser Offense Fourth, Miller and Parker require the sentencing authority to consider that [a] child might have been charged and convicted of a lesser offense if not for [incompetency] associated with youth - for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. Parker, 119 So. 3d at 996 ( 19) (quoting Miller, 132 S.Ct. at 2468). The characteristics that differentiate youth from adults are the features that also significantly disadvantage youth in criminal proceedings. Graham, 560 U.S. at 78. Juveniles have a mistrust for adults and do not fully understand how the criminal justice system works. Id. This leads to juveniles being less likely to assist their attorneys in their defense. Id. Difficulty in weighing long-term consequences; a corresponding impulsiveness; and a reluctance to trust defense counsel, seen as part of the adult world a rebellious youth rejects, all can lead to poor decisions by one charged with a juvenile offense. Id. Davis was charged with capital murder and the State offered him a plea to simple murder. Six months after accepting his plea, Roper v. Simmons was decided, which eliminated the death penalty for juveniles under eighteen years old. Admittedly, Roper was not decided at the time of Davis plea. However, if it had been decided, the worst that could have happened would have been that he went to trial and it resulted in the same situation he is in now. This does not support the argument that he negotiated the best possible deal for himself. This factor also weighs against sentencing Davis to life in prison. 5. The Possibility of Rehabilitation 17

Finally, Miller and Parker require the sentencing authority to consider the possibility of rehabilitation. Parker, 119 So.3d at 996 ( 19) (quoting Miller, 132 S.Ct. at 2465) A life without parole sentence is permitted only in exceptional circumstances, for the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible ; for those rarest of juvenile offenders...whose crimes reflect permanent incorrigibility ; for those rare children whose crime reflect irreparable corruption - and not...for the vast majority of juvenile offenders. Veal v. State, 298 Ga. 691, 702 (2016) (quoting Montgomery v. Louisiana, 136 S.Ct.718, 733-36 (2016)) (emphasis added). This final factor requires the sentencing authority to determine whether the juvenile is irreparably corrupt. See Miller, 132 S.Ct. at 2469. Just as the Supreme Court has reserved the death penalty for only the worst of the adult offenders, life-without-parole sentences can only be enforced on the worst-of-the-worst juvenile offenders. Veal, 298 Ga. at 702-03 (2016). However, incorrigibility is inconsistent with youth. Graham, 560 U.S. 48 at 73 (quoting Workman v. Commonwealth, 429 S.W.2d 374, 378 (Ky. 1968). Any determination that a juvenile is incorrigible is questionable at best, based on the characteristics of children. Graham, 560 U.S. 48 at 73. Even expert psychologist express difficulty in determining which crime is based on immaturity and which crime reflects an irreparably corrupt youth. Id. In its findings, the court brought special attention to the many infractions Davis had received since being incarcerated in the Mississippi Department of Corrections. The trial court noted the following: Records of [Davis ] incarceration since 2004 with the Mississippi Department of Corrections.. indicated that... on at least three occasions, [Davis ] cell was searched and homemade knives were removed from his possession. Other rule violations indicated that he was disciplined for fighting on several occasions, disciplined for inappropriate sexual conduct. The record...is devoid of any.. evidence that [Davis] availed himself of numerous programs or other resources available to incarcerated individuals, GED programs, drug, alcohol, nothing was presented to the Court... except for some but it was pretty much meager. (Tr. 126). 18

The court s analysis does not include any finding with Davis, rehabilitation was impossible. While Davis record in the Mississippi Department of Corrections includes a list of infractions, the court failed to consider that, by sentencing Davis to life, Davis had no incentive to achieve a stellar prison record. As Graham recognized, A young person who knows that he or she has no chance to leave prison before life s end has little incentive to become a responsible individual. Graham, 560 U.S. at 79. Davis understood that he would have to serve a minimum of 47 years before he could become parole eligible. Even this, however, was an incorrect assumption as his only option for release would have been a conditional release, which is more akin to clemency than actual parole eligibility. See Parker, 119 So. 3d at 996-97 ( 22,23) (Miss. 2013). The court then made the following determination, The nature of the offense, pitiless, prolonged agony of the victim, the family, caused as a result of Davis planning, convinces the Court that Davis release into society through parole would constitute a danger to the public in general and especially to vulnerable citizens in particular. (Tr. 130). The court incorrectly placed overwhelming weight on the nature of the crime and the victim s family, without placing sufficient weight on the considerations required under Miller and Parker. Furthermore, the trial court misunderstood its role in the re-sentencing hearing. Davis request was not that he receive immediate release through parole. Instead, Davis requested a meaningful opportunity for release based on demonstrated maturity and rehabilitation. See Graham, 560 U.S at 75. In order to be released from prison, Davis would still have to meet the criteria established by the parole board. However, the parole board is in much better position than the trial judge to determine that Davis has or has not demonstrated maturity and rehabilitation over a period of time. The trial court is simply required to grant him the opportunity to demonstrate these characteristics to the parole board. The trial court failed to make a finding that Davis was irreparably corrupt or permanently 19

incorrigible, a necessary requirement for him to be placed in the narrow class of juvenile murders from whom a life without parole sentence would be proportional under the Eighth Amendment. See Veal, 298 Ga. at 703. For this reason, the Court should remand this case to the trial court for re-sentencing under the proper considerations of the Miller factors. Davis requests that his new sentencing include eligibility for parole, notwithstanding the present provisions of Missisippi Code Annotated Section 47-7-3(1)(f). II. Davis s Sentence Was Imposed in Violation of His Constitutional Right to Have His Sentence Determined by a Jury. Neither the US Supreme nor the Mississippi Supreme Court have addressed who should be the sentencing authority in Millerv v. Alabama 4 sentencing hearings. People v. Skinner, 315 Mich. App. 15, 33 (2015); See Parker v. State, 119 So. 3d 987 (Miss. 2013). However, based on the Sixth and Fourteenth Amendments, as well as Miss. Const. Art. 3 14,15, Davis was entitled a jury determination, as opposed to a judge s finding, that he was one of the uncommon and rare juvenile homicide offenders that could be sentenced to life without the possibility of parole. Due process requires any fact that expose[s] the defendant to a greater punishment than that authorized by the jury s guilty verdict is an element that must be submitted to a jury. Hurst v. Florida, 136 S.Ct.616, 621 (2016) (quoting Apprendi v. New Jersey, 530 U.S.466, 494, 120 S.Ct.2348 (2000)). If a State makes an increase in a defendant s authorized punishment contingent on the finding of a fact, that fact - no matter how the State labels it- must be found by a jury beyond a reasonable doubt. Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct.2428, 2439 (2002). For juvenile homicide offenders, life imprisonment with eligibility for parole notwithstanding the present provisions of Mississippi Code Section 47-7-3[(f)] is the default sentence for non-capital murder. Parker, 119 So.3d at 999 ( 28-29). Our courts have not been empowered by the Legislature to sentence 4 Miller v. Alabama, 132 S.Ct. 2455, 2466 (2012). 20

a criminal defendant to life without parole save for the crime of capital murder and for certain habitual offenders. Id. at 996 ( 21). The court can only impose a greater sentence than life after holding an individualized sentencing hearing and making additional findings of fact that the juvenile is irreparably corrupt. See generally Miller, 132 S.Ct. at 2455; Parker, 119 So. 3d at 987; Montgomery v. Louisiana, 136 S.Ct.718, 733 (2016). Davis is entitled to have a jury conduct the fact-finding of whether or not he is one of the rare children whose crimes reflect irreparable corruption. Montgomery, 136 S.Ct. at 734. Because Miller and Parker require additional findings of fact before a life-without-parole sentence can be issued, Davis has a constitutional right to have that fact-finding conducted by a jury. Davis sentence should be vacated because the court deprived Davis of his constitutional right to have a jury determine the facts that exposed him to the enhanced sentence of life without parole. See e.g. Brown v. State, 995 So. 2d 698, 704-05 ( 28-30) (Miss. 2008) (vacating defendant s thirty-year sentence enhancement because the Sixth Amendment required the issue of the enhancement to be submitted to a jury). This Court should conclude that Davis must be re-sentenced to life with eligibility for parole. If the Court finds that a rehearing is constitutionally permissible, Davis submits that the jury must consider the factors required by Miller and Parker in determining whether or not Davis is the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified. Montogomery, 136 S.Ct. at 733. III. Davis Sentence Must Be Vacated and He Must Be Re-sentenced to Life With Parole, Because the Practice of Sentencing Children to Life-Without-Parole Violates the Federal and State Constitutional Prohibitions Against Cruel and Unusual Punishment Finally, this Court should address the question that was left open in Miller and hold that the US and State constitutions categorically prohibit imposing life-without-parole sentences on juveniles. In his 21