E-Filed Document Aug 21 2014 17:48:58 2014-KA-00188-COA Pages: 9 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JEFFREY ALLEN APPELLANT VS. NO. 2014-KA-00188-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 9390 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE...1 STATEMENT OF FACTS...1 SUMMARY OF THE ARGUMENT...2 ARGUMENT...3 ISSUE I. ISSUE II. THE TESTIMONY THAT IS NOW ASSERTED AS ERROR JUST TOLD THE ENTIRE STORY AND WAS NOT TO SHOW HIS ACTS WERE IN CONFORMITY THEREWITH....3 THE WEIGHT OF THE EVIDENCE WAS OF SUCH WEIGHT AND CREDIBILITY THAT SUPPORTS THE JURY VERDICT OF GUILTY....4 CONCLUSION...5 CERTIFICATE OF SERVICE...6 i
TABLE OF AUTHORITIES FEDERAL CASES Crawford v. Washington, 541 U.S. 36 (2004)...4 STATE CASES Ables v. State, 850 So.2d 172 (Miss. App. 2003)...5 Catchings v. State, 394 So.2d 869, 870 (Miss.1981)...4 Conley v. State, 790 So.2d 773, 807 (Miss. 2001)...5 Crawford v. State, 754 So.2d 1211, 1220 (Miss. 2000)...3 Foster v. State, 2013 WL 1200263 (Miss. App. 2013)...4 Gilmore v. State, 119 So.3d 278 (Miss. 2013)...3 Jones v. State, 635 So.2d 884, 887 (Miss.1994)...4 Moore v. State, 859 So.2d 379 (Miss. 2003)...4 Welde v. State, 3 So.3d 117 (Miss. 2009)...3 STATE STATUTES Miss. Code Ann. 97-3-19(2)(e)...1 STATE RULES Miss. R. Evid. 404...3 ii
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JEFFREY ALLEN APPELLANT VS. NO. 2014-KA-00188-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE The grand jury of Jackson County indicted defendant Jeffery Grey Allen for the crime of Murder during the commission of Robbery in violation of Miss. Code Ann. 97-3-19(2)(e). (Indictment & Capias, C.p. 5-6). After a trial by jury, the Honorable Robert P. Krebs, presiding, the jury returned the verdict of Guilty of Capital Murder (C.p. 237). The trial Court sentenced defendant to Life without the Possibility of parole in the custody of the Mississippi Department of Corrections. (C.p. 238). After denial of post-trial motions, (c.p. 244), this instant appeal was timely noticed. (C.p. 245). STATEMENT OF FACTS Defendant Allen and his co-indictee (Donna Freeman) were heard talking about defendant knowing where the victim (Charles Mason) had some money and that they (Allen and co-indictee) were going to get it. Tr. 374. On the evening of March 1, 2011, defendant and Donna Freeman picked up Joshua Davis and they all proceeded to Mr. Mason s property. According to the testimony Donna Freeman entered 1
the residence, stayed a few minutes, then came out and stated: I just shot him, and he s got the gun. Tr 380. Defendant and Mr. Davis approached the residence; defendant went inside and Mr. Davis peered in from the door. Tr. 380. Mr. Mason appeared dead with a gun across his lap. Defendant picked up the gun, emptied the spent shell casing, chambering a fresh round, then leaned over and emptied the victim s pocket of a wallet and cash. Tr. 381-82. At that point defendant stated: In case he s not alive, I ll have to shoot him again; or in case he s not dead, I m going to have to shoot him again. Tr. 384. Photographic Exhibit 10 essentially shows the view the witness, Mr. Davis, had standing in the doorway. Defendant and Mr. Davis got back in the car with Donna and drove away. With defendant driving they proceeded to a bridge where defendant parked, then exited the car, throwing the gun, wallet and the victim s cell phone into the water. Tr.385. The defendant was identified in the Courtroom, tr. 374, and venue evidence was before the jury and the court. Tr. 238. SUMMARY OF THE ARGUMENT ISSUE I. The testimony that is now asserted as error just told the entire story and was not to show his acts were in conformity therewith. To most of the specific complains of improper character evidence or prior bad acts there was no objection, or the acts were not to show that he acted in conformity therewith. The references to some of the claimed bad acts were in fact legal at the time of the actions. ISSUE II. The weight of the evidence was of such weight and credibility that supports the jury verdict of guilty. The testimony of the witnesses was not so impeached as to be reasonable, plausible and not self-contradictory. 2
ARGUMENT ISSUE I. The testimony that is now asserted as error just told the entire story and was not to show his acts were in conformity therewith. 26. Mississippi Rule of Evidence 404(B) provides that [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith, but may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Miss. R. Evid. 404. We employ a two-part test for determining when evidence of other crimes is admissible under Rule 404. Welde [v. State], 3 So.3d [113] at 117 [(Miss 2009)]. First, the evidence offered must... be relevant to prove a material issue other than the defendant's character, and second, the probative value of the evidence must outweigh the prejudicial effect. Id. (quoting Crawford v. State, 754 So.2d 1211, 1220 (Miss.2000)). Gilmore v. State, 119 So.3d 278 (Miss. 2013). Defendant claims incidents of bad acts and character evidence were improperly allowed before the jury. For example during the trial, what defendant asserts as hearsay witnesses Paula Belk, there is no objection, at all, to her testimony, Tr. 494-96 and as to Frank Miller, again no objection. Tr. 450-51. There are repeated arguments of them smoking spice and being on dope. Well, the prosecutor made a point to get before the jury that at the time they were smoking Spice was legal. Tr. 39-370. Further, such testimony put the context of the friendship and relationship with the witness and the defendant and how that witness came to be near the defendant and co-defendant. Also, it would appear the defense was trying to get the witnesses to show the relationship between defendant and his co-defendant Donna as his girlfriend. In fact the supposed hearsay witness number four Kathy Mason, the ex-wife of the victim, testified mainly and mostly regarding the relationship and bad acts of Donna Freeman and not this defendant. Tr. 285-295. The accusation of theft and that the victim intended to press charges, referred to Donna Freeman as the bad actor. 3
It would also appear that the actions now asserted as bad acts were not brought before the jury to show that defendant s actions were in conformity therewith. But that those acts were just part and parcel of his existence and relationship with his co-defendant and interaction with witnesses over a long period of time. As such those incidents were not error. Moore v. State, 859 So.2d 379 ( 31)(Miss. 2003)(defendant s acts not in conformity and no objection, affirmed). Defendant complains of testimonial hearsay in violation of Crawford v. Washington, 541 U.S. 36 (2004). However, the specific statements and how they were testimonial is not clear. No relief should be granted on this claim of trial court error. ISSUE II. The weight of the evidence was of such weight and credibility that supports the jury verdict of guilty. 9. [... ]The Mississippi Supreme Court consistently has held that [t]he uncorroborated testimony of an accomplice may be sufficient to sustain a guilty verdict. Catchings v. State, 394 So.2d 869, 870 (Miss.1981) (citations omitted). As Foster points out in his brief, accomplice testimony should be viewed with caution and must be reasonable, not improbable, self-contradictory[,] or substantially impeached. Id. Foster v. State, 2013 WL 1200263 (Miss. App. 2013)(decided Mar.13, 2013). While defendant claims the testimony of the snitch and the accomplice were impeached and contradicted, they were in fact not so impeach or self-contradictory to be unbelievable. There were, as there are in all trials, inconsistencies and as such could be, and where decided by the jury. The jury was given accomplice and informant instruction, (D-5, c.p. 223) and instruction about inconsistent and contradictory prior statements. (D-7, c.p. 225). The defense offered no evidence to challenge or rebut the State s evidence and witnesses. 9. A motion for a new trial challenges the weight of the evidence. Jones v. State, 635 So.2d 884, 887 (Miss.1994). We may reverse only where, taking the State's evidence as true, the trial court's failure to grant a new trial was an abuse of discretion and the verdict amounts to an unconscionable injustice. Id. Ables argues that the 4
jury's finding that he formed a deliberate design to kill McCullough was against the overwhelming weight of the evidence. The argument is without merit. It is the province of the jury to weigh conflicting evidence and to evaluate the credibility of witnesses. *175 Conley v. State, 790 So.2d 773, 807 ( 138) (Miss. 2001). We find from the evidence described above that the verdict of murder was not an unconscionable injustice. Ables v. State, 850 So.2d 172 (Miss. App. 2003). No relief should be granted as the testimony is not so self-contradictory or implausible that to affirm the jury verdict would sanction an unconscionable injustice. CONCLUSION Based upon the arguments presented herein as supported by the record on appeal the State would ask this reviewing court to affirm the jury verdict and sentence of the trial court. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 BY: /s/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 9390 5
CERTIFICATE OF SERVICE I, JEFFREY A. KLINGFUSS, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable Robert P. Krebs Circuit Court Judge P.O. Box 998 Pascagoula, MS 39568-0998 Honorable Anthony Lawrence, III District Attorney P.O. Box 1756 Pascagoula, MS 39568-1756 George T. Holmes, Esq. Indigent Appeals Division Office of State Public Defender P.O. Box 3510 Jackson, MS 39207-3510 This the 21st day of August, 2014. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE NO. 602-359-3680 FAX NO. 601-576-2420 Email: /s/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS SPECIAL ASSISTANT ATTORNEY GENERAL 6