E-Filed Document Feb 27 2017 23:07:58 2016-KA-01441-SCT Pages: 18 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI JOHN NORMAN COLE APPELLANT V. NO. 2016-KA-01441-SCT STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Benjamin A. Suber, MS Bar No. 102214 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: bsube@ospd.ms.gov Counsel for John Norman Cole
IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI JOHN NORMAN COLE APPELLANT V. NO. 2016-KA-01441-SCT 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. John Norman Cole, Appellant 3. Honorable M. A. Bass, Trial Attorney for the Appellant 4. Honorable Dee T. Bates, District Attorney 5. Honorable Michael M. Taylor, Circuit Court Judge This the 27th day of February, 2017. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant i
TABLE OF CONTENTS TABLE OF AUTHORITIES..................................................... iii STATEMENT OF THE ISSUE.................................................... 1 ISSUE NO. 1 THE TRIAL COURT ERRED IN OVERRULING COLE S MOTION TO SUPPRESS................................................. 1 STATEMENT OF ASSIGNMENT................................................. 1 STATEMENT OF THE CASE.................................................... 1 STATEMENT OF THE FACTS................................................... 2 SUMMARY OF THE ARGUMENT............................................... 6 ARGUMENT.................................................................. 6 ISSUE NO. 1 THE TRIAL COURT ERRED IN OVERRULING COLE S MOTION TO SUPPRESS................................................. 6 CONCLUSION............................................................... 12 CERTIFICATE OF SERVICE................................................... 13 ii
TABLE OF AUTHORITIES FEDERAL CASES Florida v. Royer, 460 U.S. 491, 499, 103 S. Ct. 1319 (1983)......................... 9-10 Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675 (2000).................... 9, 11 Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868 (1968).............................. 7, 9, 11 U.S. v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S. Ct. 2574 (1975)........................ 9 STATE CASES Barker v. State, 241 So. 2d 355, 358 (Miss. 1970)..................................... 7 Carr v. State, 770 So. 2d 1025 (Miss. Ct. App. 2000).............................. 10-11 Dies v. State, 926 So. 2d 910, 918 (Miss. 2006)....................................... 9 Floyd v. City of Crystal Springs, 749 So. 2d 110, 113 (Miss. 1999)..................... 6, 10 Harper v. State, 635 So. 2d 864 (Miss. 1994)........................................ 7 Jones v. State, 841 So. 2d 115, 126 (Miss. 2003)...................................... 7 McCray v. State, 486 So. 2d 1247, 1250 (Miss. 1986)................................. 10 McFarlin v. State, 883 So. 2d 594, 598 (Miss. Ct. App. 2004)............................ 7 McNeal v. State, 617 So. 2d 999, 1007 (Miss. 1993)................................. 6-7 Rainer v. State, 944 So. 2d 115, 118 (Miss. Ct. App. 2006)......................... 7, 9, 11 Smith v. State, 128 So.2d 857 (Miss. 1961)......................................... 11 Walker v. State, 881 So. 2d 820, 827 (Miss. 2004)..................................... 7 STATE STATUTES Mississippi Code Annotated Section 99-19-81........................................ 1 Mississippi Code Annotated Section 99-3-7........................................ 7-8 Section 23 of the Mississippi Constitution of 1890.................................. 6-7 iii
IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI JOHN NORMAN COLE APPELLANT V. NO. 2016-KA-01441-SCT STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES ISSUE NO. 1 THE TRIAL COURT ERRED IN OVERRULING COLE S MOTION TO SUPPRESS. STATEMENT OF ASSIGNMENT This case is appropriately assigned to the Mississippi Supreme Court of the State of Mississippi and should retain the case. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Lincoln County, Mississippi, and a judgment of conviction for the crimes of Count One, Unlawful Possession of a Less Than Thirty (30) Grams of Marihuana With Intent to Distribute and Count Two, Possession of a Firearm By A Convicted Felon. The conviction and sentence followed a jury trial on September 22, 2016, Honorable Michael Taylor, Circuit Judge, presiding. The trial judge subsequently sentenced John Norman Cole as a Habitual Offender under Mississippi Code Annotated Section 99-19-81 to ten (10) years on Count One and three (3) years on Count Two with the sentences to run consecutively with each other in the Mississippi Department of Corrections. John Norman Cole was also ordered to pay fines in the 1
amount of $2,500 and $3,000, along with restitution of $300 to the Mississippi Bureau of Narcotics and court costs. John Norman Cole is currently in the custody of the Mississippi Department of Corrections. STATEMENT OF THE FACTS On August 6, 2015, Jesse Leggett along with other officers received information about individuals sitting outside a residence with a chiminea out in front of the house on Martin Luther King, Jr. Drive. Tr. 87. Leggett stated that one of his agents was informed that these individuals were selling drugs to people when they pulled up in vehicles. Tr. 87-88. Leggett testified that he arrived at the location with the chiminea right next to the driveway and began talking to the individuals sitting outside. Tr. 88. Leggett told the court that he along with other officers began questioning the individuals out in front of the house. Tr. 88-90. Leggett stated that a couple of the individuals had marijuana on them, and then a third subject had marijuana and a pistol. Tr. 90. Leggett then claimed for safety reasons that Cole needed to be checked for a weapon. Id. Leggett continued to claim that Cole began acting nervously and as officers got close to him, he took off running. Id. Leggett told the court that a pistol was recovered from the path that Cole had ran, but Leggett did not see him drop a pistol or anything else. Id. Leggett identified the pistol as a.38 Special, Charter Arms. Id. Leggett also claimed that four little baggies of marijuana were found on Cole and another was found on the ground. Tr. 93-94. Inside the bags of marijuana was what the officers believed to be marijuana. Tr. 94. Leggett claimed that upon interviewing Cole, that Cole stated that he usually does not sell marijuana, that he usually sells cocaine, but he was selling the marijuana for ten ($10) dollars. Tr. 2
100. Leggett then claimed that Cole admitted that the weapon was his and that he had purchased the gun for one hundred twenty ($120) dollars. Id. On cross-examination, Leggett stated that this incident occurred at 219 Martin Luther King Jr. Drive. Tr. 102. Leggett admitted that he did not see anyone breaking the law when he pulled up to the house or before he arrived at the house. Id. Leggett said one of the first things that the officers did once they arrived at the house was just talking to the group of individuals sitting in front of the house. Tr. 103. The officers told the group that they had received some information about subjects selling narcotics at that location, and they were there to investigate. Tr. 104. According to Leggett, the first individual during the investigation had hid something under his shirt. Tr. 106. That individual produced a marijuana joint. Id. He also had his foot on the ground, and when asked to remove his foot, it revealed a CD case on the ground that had marijuana stuck in it. Id. When asked if anyone else had any drugs, another individual pulled out a bottle that contained marijuana. Id. The next individual after stating that he did not have any drugs on him was searched by another officer and marijuana and a pistol was found on the individual to which Leggett stated that lead them to continue the investigation. Id. Leggett further stated that he was not aware if Cole was in possession of a firearm and did not take a weapon from then person of Cole. Tr. 107. Leggett also admitted that no audio or video equipment was available to record the statements of Cole. Tr. 108. Leggett stated that the crime lab report listed the total weight of the marijuana as 14.88 grams. Tr. 108-09. Officer Hunter Huff testified that they had received a tip of narcotic activity in a location on or about, near Martin Luther King, Jr. Drive. Tr. 112. Huff along with other agents got into vehicles 3
and drove up to the area that was described and saw individuals sitting outside. Id. The officers started talking to the individuals and told them they had gotten a complaint of narcotic activity. Id. Huff stated that they had found marijuana on one of the subjects at the location. That led to patdowns of clothing for officer safety. Tr. 113. Another subject had a firearm on him and that led to everyone getting their clothing patted down for weapons. Id. When officers attempted to pat down Cole, Huff claimed that Cole acted very nervous, unstable, and he began pacing away a little bit, started to walk away and then he broke and ran. Id. Huff further claimed that he saw Cole discard a white rag and a firearm. Id. Huff stated that after recovering the firearm, finding the marijuana in his pocket, an additional bag of marijuana was found on the ground close to the firearm that was associated with Cole. Tr. 115. Huff told the court that Cole had the marijuana individually bagged up to sell and that he sold the bags for ten ($10) dollars. Tr. 116. When asked about the gun, according to Huff, Cole said that he had bought it for one hundred twenty ($120) dollars a few weeks prior. Id. On cross-examination, Huff stated that they have never used audio or video to record a statement. Tr. 117-18. Huff stated that generally everything that happens is written up in a report and occasionally a subject is asked to sign the report. Tr. 118. However, no report was written up in the case for Cole to sign. Id. Officer Thomas Barlow testified that he arrived on the scene to assist the other officers. Tr. 126. Barlow stated that he saw Cole take off running and he heard a dinging sound and he looked down and saw a pistol. Tr. 127. However on cross-examination, Barlow admitted that he did not see Cole drop a pistol and that it was possible for the gun to have already been on the ground. Tr. 128. 4
Allison Conville, an analyst with the Mississippi Crime Lab, testified that she ran tests on the substance delivered to the crime lab. Tr. 130. Conville determined that the substance was marijuana. Tr. 132. Conville stated that the one bag tested contained 4.92 grams and the five bags together weighed 14.88 grams. Tr. 134. Mayor Joe Cox testified that he informed Huff that he had been hearing about illegal activity on Martin Luther King, Jr. Drive. Tr. 149. Randy Tyler testified that he knew Cole, and he was with him on August 6, 2015. Tr. 152. Tyler stated that they were sitting at Cole s aunt s house in the driveway. Tr. 153. Tyler told the court that he saw three vehicles pull up across the street and the men that got out had guns. Id. He figured the men were law enforcement. Id. The officers told the individuals that they had been hearing about some illegal drug activities and pointed to the house next door. Id. The individuals denied any activity. Id. Tyler stated that the house with the chiminea in the front yard was the house next door and they were not at that house. Tr. 153-54. Tyler stated that he told the officers that the owner of the house next door was around the corner. Tr. 154. Tyler further stated that one of the individuals that was with them had a CD case and he had weed in it. Id. When the officers came up, the individual tried to hide his CD case and he stepped on it and broke it and then it was apparent that weed was inside. Id. Tyler said that the officers then went down the line checking each individual. Tr. 154-55. Officers began asking each individual if they had anything on their person. Tr. 155. Tyler also stated that Cole s aunt lives at 135 Martin Luther King, Jr. Drive and not at 219 Martin Luther King, Jr. Drive. Id. 5
Suzette Denise Morgan testified that she is a cousin to Cole and that she lives at 135 Martin Luther King, Jr. Drive. Tr. 161. She further stated that Cole had permission to be at her house on her property on August 6, 2015. Tr. 162. Morgan also testified that Cole was at her house on the day in question. Tr. 162-63. Morgan stated that she law enforcement officers at her house and were searching the people on her property. Tr. 163. Morgan stated that she asked the officers what was going on and that they could talk to her but that they ignored her. Tr. 163-64. SUMMARY OF THE ARGUMENT The trial court erred in overruling Cole s Motion to Suppress. The officers s detention and search of the individuals violated Cole s Fourth Amendment rights of United States Constitution and Article 3, Section 23 of the Mississippi Constitution. Furthermore, if Cole s encounter is characterized as an investigatory stop, the officers conduct far exceeded the scope of an investigatory stop. Therefore, the gun and the marijuana were the product of an unreasonable seizure and the trial erred in overruling Cole s motion to suppress. This Court should reverse Cole s conviction and render a judgment of acquittal or in the alternative reversed a remand for a new trial. ARGUMENT ISSUE NO. 1 THE TRIAL COURT ERRED IN OVERRULING COLE S MOTION TO SUPPRESS. On appeal, determinations of reasonable suspicion and probable cause are subject to de novo. Floyd v. City of Crystal Springs, 749 So. 2d 110, 113 ( 11) (Miss. 1999) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663 (1996)). Also, the trial judge's findings [are reviewed] using the applicable substantial evidence / clearly erroneous standard. Id. (citing McNeal 6
v. State, 617 So. 2d 999, 1007 (Miss. 1993)). Under Mississippi law, it is well-established that the provisions for search and seizure are strictly construed against the state and in favor of the citizen. Barker v. State, 241 So. 2d 355, 358 (Miss. 1970). If a search [or seizure] is deemed unreasonable, then all evidence seized during that search [or seizure] is inadmissible for the jury or court to consider as evidence of the defendant's guilt. McFarlin v. State, 883 So. 2d 594, 598 ( 9) (Miss. Ct. App. 2004) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868 (1968)). The Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution of 1890 prohibit unreasonable searches and seizures made without probable cause, except under certain limited exceptions. Rainer v. State, 944 So. 2d 115, 118 ( 6) (Miss. Ct. App. 2006) (citing United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157 (1982)); Walker v. State, 881 So. 2d 820, 827 ( 14) (Miss. 2004)). Under Mississippi law, an arrest occurs when a person is subjected to actual or constructive seizure or detention of [his person], or his voluntary submission to custody.... Jones v. State, 841 So. 2d 115, 126 ( 19) (Miss. 2003) (quoting Bearden v. State, 662 So. 2d 620, 623 (Miss. 1995)); see also, Harper v. State, 635 So. 2d 864 (Miss. 1994) ( an arrest requires either physical force... or, where that is absent, submission to the assertion of authority. )(quoting California v. Hodari, 499 U.S. 621, 626, 111 S. Ct. 1547, 1551 (1991)). Thus, under the facts of the instant case, once the officers arrived on the scene and questioned the first individual, Cole was under arrest and not allowed to leave. Mississippi Code Annotated Section 99-3-7 addresses warantless arrests and provides in pertinent part that: (1) An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or 7
when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it.... Mississippi Code Annotated Section 99-3-7(1). Under this Section, a police officer may make a warantless arrest for an indictable offense committed... in his presence. Mississippi Code Annotated Section 99-3-7. As explained below, Cole s conduct did not amount to an indictable offense within the meaning of Section 99-3-7; therefore, the officers lacked authority to arrest him without a warrant. In the instant case, officers claimed that Cole ran and was in possession of marijuana and a gun. According to Officer Leggett and Officer Huff, they received a tip about narcotic activity 1 at an address on Martin Luther King, Jr. Drive. Tr. 87-88, 112, 153-54, 161. The officers arrived at a house with numerous individuals sitting outside. The officers observed one individual hiding something under their shirt and that individual produced a joint. Tr. 106. That individual also was asked to remove his foot and that revealed a CD case on the ground that contained marijuana. Tr. 106, 154. According to Leggett he then asked everyone if they had any drugs and another individual then pulled out a bottle containing marijuana. Tr. 106. Leggett then testified that a third individual was searched by another officers and marijuana and a pistol was found. Id. Leggett then stated that after searching the third individual lead them to continue the investigation. Id. Finally after searching a fourth individual, the officers stated that Cole took off running, which subsequently lead to the recovery of marijuana and a pistol that the officers state was in the possession of Cole. Tr. 90, 93-94, 113-115. 1 There was some disagreement as to the house that the arrest took place and the address pertaining to the narcotic activity. 8
Under Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868 (1968), a police officer may make a brief investigative stop so long as the officer possesses a reasonable, articulable suspicion that criminal activity is afoot. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675 (2000) (citing Terry, 392 U.S. at 30, 88 S. Ct. 1868); See also Florida v. Royer, 460 U.S. 491, 499, 103 S. Ct. 1319 (1983) (Terry stop proper upon articulable suspicion that a person has committed or is about to commit a crime. ); Dies v. State, 926 So. 2d 910, 918 ( 22) (Miss. 2006) (citation omitted). The reasonableness of a Terry stop is determined under a two-prong inquiry: whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Terry, 392 U.S. at 19-20. Under Terry, officers are allowed to conduct a limited search-a pat-down for weapons-for the protection of an officer investigating suspicious behavior of persons he reasonably believed to be armed and dangerous. U.S. v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S. Ct. 2574 (1975) (citing Terry, 392 U.S., at 19 n. 16, 88 S. Ct. at 1879)). However, to do so the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant a belief that his safety or that of others is in danger. Id. Significantly, this Court has held that the reasonableness of official suspicion must be measured by what the officers knew before they initiated the search [or seizure]. Rainer, 944 So. 2d at 118 ( 6) (citing Florida v. J. L., 529 U.S. 266, 271, 120 S. Ct. 1375 (2000)) (emphasis in original). Therefore, under the first prong of the Terry reasonableness inquiry, the officers action was not justified at its inception, as they did not possess a reasonable belief that Cole was armed. Thus, the officers conduct was unreasonable, and they lacked authority to conduct a Terry pat-down for weapons. 9
Should this court determine that the officers had a reason to conduct a Terry stop, the officers conduct was not reasonably related to the reason that justified the stop in the first place, and the officers conduct in immediately executing a full-blown arrest far exceeded the scope of a permissible investigatory stop. The Mississippi Supreme Court has explained that an improper seizure results when an investigative stop of a suspect exceeds its limitations. McCray v. State, 486 So. 2d 1247, 1250 (Miss. 1986) (citing Florida v. Royer, 460 U.S. 491, 502, 103 S. Ct. 1319, 1326 (1983)). To this end, the Mississippi Court of Appeals addressed a situation legally similar to that of the instant case in Carr v. State, 770 So. 2d 1025 (Miss. Ct. App. 2000). In Carr, police officers were patrolling an area after a reported auto burglary when they noticed the defendant riding his bicycle down the street with a cordless telephone in his hand and a flashlight sticking out of his pocket. Carr, 770 So. 2d at 1027 ( 2). A police officer ordered the defendant to stop, but the defendant dismounted his bicycle and fled on foot as the officer approached him. Id. at ( 3). After a chase, officers detained the defendant, searched him, and discovered gold jewelry and another person s checkbook, which was allegedly taken in a home burglary. Id. at ( 4). On appeal, the defendant argued that the evidence was the product of an unreasonable search and seizure, as he did not consent and he was arrested without a warrant and/or probable cause. Id. at ( 6). The Carr court easily found that the officers lacked probable cause to arrest the defendant when they saw him riding down the street on his bicycle. Id. at ( 8). This Court then held that the defendant s riding a bicycle at 2:30 a.m. in an area where a crime had just been reported gave the officers reason to undertake a brief investigatory stop to determine the circumstances of that individual's presence in that area. Id. (citing Floyd, 749 So. 2d 110). This Court noted that officers 10
may conduct a Terry stop; however, it found that the officer s conduct was substantially more intrusive than a Terry patdown. Id. at ( 9) (citing Terry, 392 U.S. 1, 88 S. Ct. 1868). concluded: In reversing the trial court s denial of the defendant s motion to suppress, the Court The fact, standing alone, that Carr fled rather than voluntarily submit to the officer's verbal command to stop justified further investigatory work by the officer, but it did not give rise to reasonable cause to arrest. Absent a lawful arrest, there could, of course, be no search incident to arrest. Carr's motion to suppress those items discovered as the result of his detention and involuntary search had merit and should have been granted. Id. at ( 10) (emphasis added). Turning to the instant case, even assuming that the officers had a reasonable suspicion justifying a brief investigatory stop of Cole and the other individuals, their conduct was not reasonably related in scope to the reason justifying the stop. The officers inquiring with the individuals outside of a house on Martin Luther King, Jr. Drive and finding marijuana on one person does not give the officers reasonable cause to search or arrest Cole. Under Carr, the officers conduct was unreasonable and far exceeded the permissible scope of the stop, notwithstanding Cole s alleged flight. A defendant s refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. Rainer, 944 So. 2d at 118 ( 6) (quoting Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673 (2000)). Furthermore, one has the right to resist an unlawful arrest, see Smith v. State, 128 So.2d 857 (Miss. 1961). Cole asks this Honorable Court to reverse the conviction and sentence entered in the trial court and render a judgment of acquittal in Cole s favor. Alternatively, Cole submits that he is entitled to a new trial. 11
CONCLUSION Based on the propositions briefed and the authorities cited above, together with any plain error noticed by the Court which has not been specifically raised, Cole respectfully requests this Court to reverse the trial court s judgment of conviction for possession of a firearm by a convicted felon, and possession of marijuana with intent and render a judgment of acquittal, and order Cole s immediate release. Alternatively, Cole requests this Court to reverse and remand this case for a new trial. Respectfully submitted, BY: /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant 12
CERTIFICATE OF SERVICE I, Benjamin A. Suber, Counsel for John Norman Cole, 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 Jason L. Davis 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: This the 27th day of February, 2017. Honorable Michael M. Taylor Circuit Court Judge Brookhaven, MS 39602 Honorable Dee T. Bates District Attorney, District 14 284 East Bay Street Magnolia, MS 39652 John Norman Cole, MDOC # 94824 South Mississippi Correctional Institution Post Office Box 1419 Leakesville MS 39451 /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant Benjamin A. Suber, MS Bar No. 102214 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi 39207-3510 13
Telephone: 601-576-4290 Fax: 601-576-4205 Email: bsube@ospd.ms.gov 14