E-Filed Document May 11 2017 16:34:51 2016-KA-01329-COA Pages: 11 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI GEROME MOORE APPELLANT V. NO. 2016-KA-01329-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Hunter N. Aikens, MS Bar No. 102195 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: haike@ospd.ms.gov Counsel for Gerome Moore
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI GEROME MOORE APPELLANT V. NO. 2016-KA-01329-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. Gerome Moore, Appellant 3. Honorable Robert S. Smith, District Attorney 4. Honorable Jeff Weill, Sr., Circuit Court Judge This the 11th day of May, 2017. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER BY: /s/hunter N. Aikens Hunter N. Aikens COUNSEL FOR APPELLANT i
TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS...................................... i TABLE OF CONTENTS....................................................... ii TABLE OF AUTHORITIES.................................................... iii STATEMENT OF THE ISSUES.................................................. 1 STATEMENT OF THE CASE................................................... 1 STATEMENT OF THE FACTS.................................................. 2 SUMMARY OF THE ARGUMENT.............................................. 4 ARGUMENT................................................................. 4 STATEMENT OF COUNSEL................................................... 4 CONCLUSION............................................................... 5 CERTIFICATE OF SERVICE................................................... 7 ii
TABLE OF AUTHORITIES STATE CASES Herrington v. State, 911 So. 2d 545 (Miss. Ct. App. 2005)........................... 2, 5 Lindsey v. State, 939 So. 2d 743 (Miss. 2005)....................................... 4 Weaver v. State, 996 So. 2d 142 (Miss. Ct. App. 2008)................................ 5 STATE STATUTES Mississippi Code Annotated Section 97-9-49(1)...................................... 2 Mississippi Code Annotated Section 97-17-67....................................... 2 iii
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI GEROME MOORE APPELLANT V. NO. 2016-KA-01329-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES None. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Hinds County, Mississippi, First Judicial District, and a judgment of conviction for felony escape of a prisoner entered against Gerome Moore following a jury trial on May 17, 2016, the Honorable Jeff Weill Sr., Circuit Judge, presiding. (C.P. 17, 20; R.E. 4). Moore was represented at trial by Aafram Sellers, Esq. The trial court sentenced Moore to serve a term of five (5) years in the custody of the Mississippi Department of Corrections. (C.P. 20; R.E. 6). Moore is presently incarcerated in the custody of the MDOC, and he now appeals to this Honorable Court for relief. 1
STATEMENT OF THE FACTS On May 3, 2015, Gerome Moore was confined in the Hinds County Detention Center (i.e., the jail ) in Jackson, Mississippi, 1 following his arrest on felony charges of capitol murder and carjacking. (Tr. 7). That day, Moore, and two fellow inmates, Antwain Dukes and William Smith, were apprehended outside of the jail near a barn on Jefferson Street after a detention officer noticed them running away from the jail. (Tr. 88-90, 93-97; Ex. 2, Ex. 3). The window in Smith s thirdfloor cell had been burned and removed. (Tr. 106-09, 115; Ex. 5, Ex. 8, Ex. 12). Moore was subsequently indicted for one count of felony escape under Mississippi Code Annotated Section 97-9-49(1) and one count of felony malicious mischief under Mississippi Code Annotated Section 97-17-67. (C.P. 4). 2 In order to prevent the jury from hearing that Moore was in custody for capital murder and carjacking, trial counsel and the State stipulated that [o]n May 3, 2015 Gerome Moore was lawfully in the custody of the Hinds County Detention Center, being on held on a felony charge. 3 (Tr. 6-9; Ex. 1). The trial court read the stipulation to the jury after opening statements. (Tr. 87; Ex. 1). At trial, detention officer Willie Brown of the Jackson Police Department testified that, on May 3, 2015, he pulled out of the basement of the jail and noticed three young men at least one of them wearing a prison jumpsuit running from the jail. (Tr. 87-89). Brown radioed dispatch and requested assistance, and he then followed the men in his vehicle. (Tr. 88-89). Brown followed the 1 The jail is located at 407 East Pascagoula Street in Jackson, Mississippi, which is in the First Judicial District of Hinds County. (Tr. 101-02, 111). 2 The jury found Moore not guilty of malicious mischief. (Tr. 168; C.P. 18; R.E. 5). 3 This Court has held that a stipulation under such circumstances is certainly a reasonable decision made by his counsel. Herrington v. State, 911 So. 2d 545, 549 ( 17) (Miss. Ct. App. 2005). 2
men to South Street and Jefferson Street, where other officers arrived and took them into custody. (Tr. 90). Officer Frederick Reginald of the Jackson Police Department received the dispatch, and responded to Jefferson Street, where he saw one black male being detained another officer already on the scene. (Tr. 93). Reginald was advised that the other two men had split away from the detained man, and Reginald began searching for the other two men. (Tr. 93, 100). Reginald and another officer went down Jefferson Street to the city barn, where they discovered Moore lying in a nearby grassy area. (Tr. 93-96; Ex. 2, Ex. 3). Reginald handcuffed Moore and took him into custody. (Tr. 96-97). Reginald identified Moore in court as the man he handcuffed and took into custody. (Tr. 97). Captain Charles Felton of the Jackson Fire Department responded to the jail in reference to the reported fire in Smith s cell cell 307C. (Tr. 104-06). Felton noticed that the window was missing and that black soot surrounded the window frame, indicating that the window had been burned. (Tr. 106-07, 109; Ex. 5, Ex. 8). He noticed charred clothing under the window. (Tr. 108-09; Ex. 11). And he discovered wires with charred ends pulled from a light fixture in the cell. (Tr. 107-08; Ex. 6, Ex. 7). Felton concluded that the fire was started by creating a spark with the wires to ignite the clothes, creating a fire on the windowsill which burned the adhesive around the window and enabled the window to be weakened and removed. (Tr. 108-10). Felton also testified that a lighter was found on the ground outside of jail under the missing window; he photographed and collected the lighter. (Tr. 111-12; Ex. 13). Felton could not determine whether the lighter was also used to start the fire. (Tr. 114). Robert Nelson prepared quote for the repair of the window in cell 307 C. (Tr. 124). According to Nelson s quote and testimony, the cost of repairing the window to its original state was 3
$1,225. (Tr. 125-256; Ex. 16). The State rested its case-in-chief after Nelson s testimony. (Tr. 130). Trial counsel moved for a directed verdict on both counts, and the trial court denied the motion as to both counts. (Tr. 131-34). The trial court advised Moore of right to testify or not testify, and, after conferring with trial counsel, Moore stated on the record that he decided not to testify. (Tr. 134-36). Moore rested his case without calling any witnesses or offering any evidence. (Tr. 143). After hearing closing arguments, receiving instructions and retiring for deliberations, the jury returned verdicts finding Moore guilty of felony escape under Count I and not guilty of malicious mischief under Count II. (Tr. 167-68; C.P. 17-18; R.E. 4-5). The trial court sentenced Moore to serve five (5) years in the custody of the Mississippi Department of Corrections. (C.P. 20; R.E. 6). No motion for JNOV or new trial was filed in this matter; trial counsel later filed a motion for leave to file an out-of-time appeal, which the trial court granted. (C.P. 22-25). Trial counsel then perfected the appeal by filing a notice of appeal, designation of the record and certificate of compliance. (Tr. 26-32). Trial counsel filed a pauper s oath on Moore s behalf, which the trial court granted. (Tr. 33-34). And trial counsel then filed a motion to withdraw and substitute the office of the undersigned on appeal, which this Court granted. See Online Docket, Motion #2017-1402. SUMMARY OF THE ARGUMENT None. ARGUMENT None. STATEMENT OF COUNSEL 1. The undersigned Counsel for the Appellant hereby represents to this Honorable Court, pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005), that he has diligently and thoroughly scoured the record searching for any arguable issue(s) which could, in good faith, be presented to 4
this Court on Moore s behalf for appellate review, and upon conclusion, has found none. 2. Counsel has scrupulously reviewed the entire record and transcript, and counsel is unable to argue, in good faith, any prejudicial error. Counsel s search for error included examination and consideration of the following: (a) the reason for Moore s arrest and the surrounding circumstances; (b) any possible violations of Moore s right to counsel, including ineffective assistance; (c) the entire trial transcript and record; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted or not; (h) possible misapplication of the law in sentencing; (i) the sufficiency of the indictment; and (j) the weight and sufficiency of the evidence. More specifically, counsel considered the effectiveness of counsel in failing to file a motion for JNOV/new trial and in stipulating that Moore was lawfully confined in jail on a felony charge. In light of this Court s decisions in Weaver v. State, 996 So. 2d 142, 147 (Miss. Ct. App. 2008) (failure to file motion for JNOV/new trial) and Herrington v. State, 911 So. 2d 545, 549 (Miss. Ct. App. 2005) (agreeing to stipulation in trial for felony escape), counsel has concluded that he cannot in good faith present the issue of ineffective assistance to this Court in this appeal. 3. Counsel confirms that he has, as of the date of filing this brief, mailed by first class mail, postage prepaid, a copy of this brief and correspondence informing Moore that counsel finds no arguable issues in the record and advising Moore that he has the right to file a pro se brief. 4. Counsel requests that this Court grant Moore forty (40) days of additional time in which to prepare and file a pro se brief if he desires to do so. 5. Counsel stands ready and willing to prepare a supplemental memorandum/brief on Moore s behalf on any issue(s) requested by this Court. CONCLUSION After reviewing the record in this case, counsel submits that he can find no arguable issues 5
that can, in good faith, be raised before this Honorable Court on direct appeal. On Moore s behalf, counsel requests an extension of forty (40) days within which Moore may prepare and file a pro se brief, should he wish to do so. Respectfully Submitted, OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION For Gerome Moore, Appellant BY: /s/ Hunter N. Aikens Hunter N Aikens, MSB# 102195 COUNSEL FOR APPELLANT OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Post Office Box 3510 Jackson, Mississippi 39207-3510 Telephone: 601-576-4290 Fax: 601-576-4205 email: haike@ospd.ms.gov 6
CERTIFICATE OF SERVICE I, Hunter N. Aikens, Counsel for Gerome Moore, 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 11th day of May, 2017. Hunter N. Aikens, MS Bar No. 102195 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: haike@ospd.ms.gov Honorable Jeff Weill, Sr. Circuit Court Judge Post Office Box 22711 Jackson, MS 39225 Honorable Robert S. Smith District Attorney, District 7 Post Office Box 22747 Jackson, MS 39225 Gerome Moore, MDOC#204305 Central Mississippi Correctional Facility Post Office Box 88550 Pearl, MS 39208 /s/hunter N. Aikens Hunter N. Aikens COUNSEL FOR APPELLANT 7