E-Filed Document Jul 29 2016 14:31:24 2014-CT-00615-SCT Pages: 8 IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-CT-00615-SCT WILLIAM MICHAEL JORDAN APPELLANT VS. STATE OF MISSISSIPPI APPELLEE SUPPLEMENTAL BRIEF OF APPELLANT CHARLES W. WRIGHT, JR. (MSB No. 7395) REBECCA TAFF WRIGHT (MSB No. 104320) CHARLES W. WRIGHT, JR., PLLC POST OFFICE BOX 1677 1208 22 ND AVENUE MERIDIAN, MS 39302-1677 (601) 693-6555 ATTORNEYS FOR APPELLANT 1
TABLE OF CONTENTS TABLE OF CONTENTS... 2 TABLE OF AUTHORITIES... 3 STATEMENT OF THE ISSUES... 4 ARGUMENT... 5 I. THE COURT OF APPEALS INCORRECTLY FOUND THAT THE TRIAL COURT COMMITTED NO ERROR IN ADMITTING YOUTUBE RAP VIDEO INTO EVIDENCE. I. DEFENDANT JORDAN PRESERVED ISSUE FOR APPEAL. II. THE COURT OF APPEALS INCCORECTLY FOUND NO ERROR IN THE TRIAL COURT S REFUSAL TO GIVE CAUTIONARY JURY INSTRUCTION. CONCLUSION...7 CERTIFICATE OF SERVICE...8 2
TABLE OF AUTHORITIES CASES Brooks v. State, 903 So.2d 691(Miss. 2005)... 5, 6 McKee v. State, 791 So.2d 804(Miss. 2001)... 6 Carter v. State, 722 So.2d 1258(Miss. 1998)... 6 Hudson v. State, 977 So.2d 344(Miss. Ct. App. 2007)... 6 Jones v. State, 381 So. 2d 983(Miss. 1980)... 7 Rules M.R.E. 403, 404(b)... 6 3
STATEMENT OF THE ISSUES II. THE COURT OF APPEALS INCORRECTLY FOUND THAT THE TRIAL COURT COMMITTED NO ERROR IN ADMITTING YOUTUBE RAP VIDEO INTO EVIDENCE I. DEFENDANT JORDAN PRESERVED ISSUE FOR APPEAL. II. THE COURT OF APPEALS INCCORECTLY FOUND NO ERROR IN THE TRIAL COURT S REFUSAL TO GIVE CAUTIONARY JURY INSTRUCTION. 4
SUPPLEMENTAL BRIEF FOR THE APPELLANT William Jordan was convicted by a jury of murder and felon in possession of a firearm. The Court of Appeals affirmed the jury's verdict and denied rehearing. On July 21, 2016, this Court granted Jordan s petition for certiorari. Pursuant to Rule 17(h) of the Mississippi Rules of Appellate Procedure, Jordan files this Supplemental Brief in support of his contention that the Court of Appeals Opinion in this case is incorrect and that Jordan s conviction and sentence should be reversed. ARGUMENT III. THE COURT OF APPEALS INCORRECTLY FOUND THAT THE TRIAL COURT COMMITTED NO ERROR IN ADMITTING YOUTUBE RAP VIDEO INTO EVIDENCE. The Court of Appeals incorrectly found that the trial court committed no error in admitting YouTube rap video into evidence. The YouTube rap video was erroneously admitted into evidence based on false and misleading testimony, without proper authentication or predicate to introduce under Rule 404(b). The Court of Appeals decision upholding the trial court s admission of the YouTube rap video and accompanying testimony into evidence conflicts with this Court s prior decision in Brooks v. State, 903 So.2d 691, 700 ( 34-35) (Miss. 2005), which held that rap lyrics were erroneously admitted because of the tenuous connection to the case. Also, Jordan was denied his constitutional right to a fair trial by the admission of the video and the prosecution s improper bolstering of its case with the rap video. Further, the issue of admission of electronic evidence such as the YouTube rap video in this case is fundamental in nature and of broad public importance, worthy of review by this Court. IV. JORDAN PRESERVED ISSUE FOR APPEAL. Defense counsel made continuous timely objections to the admission of the YouTube rap video throughout the trial, therefore properly preserving the issue for appeal. The Court of Appeals incorrectly asserts a procedural bar as to the issue of admission of the YouTube rap video, and contends that Jordan 5
failed to cite Rule 404 or challenge the prejudicial impact of the video at trial. Jordan s counsel objected during the trial as to hearsay, relevance, probative value, lack of foundation and failure to authenticate. (R3/152-157, 220-223). Defense counsel objected repeatedly to the admission of the video and any testimony thereof by State witness Investigator Knight, which the court continued to overrule, before expressly asking for a continuing objecting and permission to make a motion on the issue at a later time. According to the State, the YouTube video was being offered as proof of consciousness of guilt, which is admissible only through Rule 404(b). As the Court of Appeals dissenting opinion states, Defendant Jordan s Rule 404/403 objection seems to have been implicit, if the evidence being offered as proof of consciousness of guilt, which is admissible only through Rule 404(b). Unfair prejudice was obvious, and as the Supreme Court has stated, a Rule 403 balancing test must be undertaken before admitting all evidence, Rule 403 is the ultimate filter through which all otherwise admissible evidence must pass. McKee v. State, 791 So.2d 804, 810 ( 22) (Miss. 2001). Where the specific grounds for objection are apparent from the context, a general objection is sufficient to preserve the error for appeal. Carter v. State, 722 So.2d 1258, 1261-62 ( 13) (Miss. 1998). In accordance with this Court in McKee and Carter, Jordan properly preserved the issue. Further, Jordan elaborated on his objection later in the trial, and unambiguously argued improper admittance of the video in violation of Rule 404, and that it was improperly allowed under Rule 403, citing Brooks v. State, 903 So. 2d 691, 699-700 ( 29-35) (Miss. 2005), and Hudson v. State, 977 So.2d 344, 348 (Miss. Ct. App. 2007) in support. Jordan also expressed the Rule 403 argument in his Motion for a New Trial. As such, Jordan clearly preserved the issue for appeal. III. THE COURT OF APPEALS INCCORECTLY FOUND NO ERROR IN THE TRIAL COURT S REFUSAL TO GIVE CAUTIONARY JURY INSTRUCTION. The Court of Appeals incorrectly found that the trial court committed no error in refusing to give cautionary jury instruction because Smith and Baker were never charged with being accomplices, which 6
conflicts with prior Mississippi Supreme Court decision. This Court held, a confessed accessory after the fact is considered an accomplice within the rule that the testimony of an accomplice must be considered with caution. Jones v. State, 381 So. 2d 983 (Miss. 1980). Therefore, Smith and Baker s testimony should have been considered with caution and the trial court committed error in refusing to give the cautionary jury instruction. The trial court s error in failing to give the cautionary jury instruction violated Jordan s constitutional right to a fair trial. CONCLUSION The Court of Appeals incorrectly found the trial court did not err in admitting the YouTube rap video and accompanying testimony into evidence. Jordan preserved the issue for appeal by timely objecting to its admission throughout the trial. Admission of the YouTube rap video and the associated, unfounded allegations of the prosecutors denied Jordan his constitutional right to a fair trial. Also, the Court of Appeals incorrectly found that the trial court did not err in refusing to give the cautionary jury instruction, which denied Jordan a fair trial. Based on the foregoing errors, Defendant, William Jordan, respectfully requests this Honorable Court to reverse and render, or in the alternative, reverse and remand the case for further proceedings, including a new trial. RESPECTFULLY SUBMITTED, this the 29th day of July, 2016. WILLIAM MICHAEL JORDAN, APPELLANT BY: /s/charles W. Wright, Jr. CHARLES W. WRIGHT, JR. (MSB No. 7395) REBECCA TAFF WRIGHT (MSB No. 104320) CHARLES W. WRIGHT, JR., PLLC POST OFFICE BOX 1677 1208 22ND AVENUE MERIDIAN, MS 39302-1677 (601) 693-6555 ATTORNEYS FOR APPELLANT WILLIAM MICHAEL JORDAN 7
CERTIFICATE OF SERVICE I do hereby certify that I have on the 29th day of July, 2016, I electronically filed the above and foregoing document with the Clerk of the Court using the MEC system, which sent notification of such filing to the following: Hon. Jim Hood Attorney General P.O. Box 220 Jackson, MS 39205-0220 John R. Henry, Jr. Office of the Attorney General P.O. Box 220 Jackson, MS 39205-0220 Further, I hereby certify that on this day I have mailed by United States Postal Service the document to the following non-mec participants: Hon. E.J. Bilbo Mitchell District Attorney P.O. Box 5172 Meridian, MS 39302 Lauderdale County Circuit Court Judge P.O. Box 1167 Meridian, MS 39302 This the 29th day of July, 2016. /s/charles W. Wright, Jr. CHARLES W. WRIGHT, JR. (MSB No. 7395) REBECCA TAFF WRIGHT (MSB No. 104320) CHARLES W. WRIGHT, JR., PLLC P.O. BOX 1677 MERIDIAN, MS 39302-1677 Telephone No. (601) 693-6555 Facsimile: (601) 485-6571 Email: charlie_wright@comcast.net ATTORNEYS FOR APPELLANT 8