E-Filed Document Aug 25 2014 22:25:29 2013-KA-01408-COA Pages: 18 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI KENDRICK D. SMITH APPELLANT VS. NO. 2013-KA-1408 STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LAURA H. TEDDER SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 9530 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 ISSUE.................................................... iii STATEMENT OF THE CASE..................................................... 1 STATEMENT OF THE FACTS.................................................... 2 SUMMARY OF THE ARGUMENT................................................ 7 ARGUMENT.................................................................. 8 CONCLUSION............................................................... 13 CERTIFICATE OF SERVICE.................................................... 14 i
TABLE OF THE AUTHORITIES ii
STATEMENT OF THE ISSUE THE TRIAL COURT CORRECTLY DENIED SMITH MOTIONS FOR MISTRIAL MADE DURING THE COURSE OF THE TRIAL. ANY ERROR WAS REMEDIED BY THE ACTIONS OF THE TRIAL COURT. SMITH RECEIVED A FAIR TRIAL. iii
STATEMENT OF THE CASE On December 27, 2013, an Adams County Grand Jury indicted Kendrick D. Smith with one count of armed robbery, three counts of aggravated assault on a law enforcement officer and one count of aggravated assault. C.P. 1-2. He was tried in Adams County Circuit Court on July 22, 2013, and was convicted of one count of armed robbery and one count of aggravated assault on a law enforcement officer. C.P. 162. Smith was sentenced to serve a term of 40 years in the custody of the MDOC for the crime of armed robbery and a term of 30 years in the custody of the Mississippi Department of Corrections for the crime of aggravated assault against a law enforcement officer, with the two sentences to run consecutively. C.P. 163. Aggrieved of his conviction, Smith filed the instant appeal. C.P. 169. SUMMARY OF THE FACTS Cartell Stampley testified that he lived in Natchez and worked at KFC in June of 2011. He testified that he was going to take the trash out and saw a black man with a bandana around his face laying in the bushes. Tr. 94-96. The man gestured and said shh for Stampley to be quiet. Stampley went back into to the store and got the manager, LaKrystal Barnes. Barnes looked out the back door and saw the man laying in the bushes facing the bank. Barnes got a sheriff s deputy who was in the restaurant for lunch. He got the two other deputies who were with him, and Barnes lead them to the back door of the restaurant. The man was not in the bushes any more, but one of the deputies saw the man, and said, There he goes!. Barnes heard gunshots and went back inside and locked the doors. Tr. 100-101. Patricia McRaney testified that in June of 2011 she was living in Natchez, MS and working as a teller at United Mississippi Bank. On June 24 th, the bank was robbed. McRaney had 1
just come back from lunch and got her station set back up. Customers were coming in and she was chasing a check for an employee of Natchez Ford. McRaney did not see who came in the door, but then heard a gunshot and knew it was a robbery. The customer turned to the side and McRaney could see the robber. He came to her window and took the customer s money that McRaney was holding out for the customer. The robber then ordered her to give him money out of her drawer. McRaney testified that during the robbery he shot over her head and she heard a total of three gun shots. Tr. 108. McRaney testified that the man was black and had a baseball cap on and a red bandana across his face. He had on a t-shirt, long shorts and tennis shoes. He had a gun in his hand. McRaney last saw the robber running out of the bank. He slipped and when he did he started dropping money. Sabrina McMorris was also working at United Mississippi Bank that day. McMorris heard the robber walk in and fire a shot. It started McMorris. The robber demanded money from the first teller, Patricia McRaney. Sabrina could see that Patricia was nervous and it was taking her a while to give him the money. McMorris stepped and said, Look. Take it. and threw everything she had out of the top drawer. The robber shot up again above her head. He was still trying to get McRaney to give him the money she had which she eventually did. McMorris testified that the man was black and had on a brown bandana. The man did not go to any other tellers. Then he ran out and McMorris and McRaney locked up. Jacob Bonnette worked at Natchez Ford and went to the United Mississippi Bank to cash his check. He had a clear view of the bank from Natchez Ford. The two buildings were next door. When he got to the bank he waited in line to get his check cashed. Just as the teller was counting 2
out his cash, someone burst through the back door saying, Give me all your money. He had a gun in his hand and a brown bandanan on his face. He shot up in the air and ran straight to where Bonnette was getting his check cashed. The robber pointed the gun at Bonnette and told him to step away from the counter, backed him in the side corner and told him not to move. The robber jumped on the counter grabbing stuff out of the register, shouting, Give me all the money. Give me all the money. and firing shots in the bank. Bonnette was so startled that, he did not notice that his wallet and money were gone until after the robbery. Tr. 120. Bonnette testified that he heard three shots in the bank. He followed the robber out of the bank and hear gunfire exchange between the robber and the police officers. Bonnette testified that the man had a brown flat bill hat and a brown bandana on. He was also wearing gloves. An officer later gave Bonnette back his wallet. Major William Neely testified that he worked for the Adams County Sheriff s Department. On June 24, 2011, he went to KFC to each lunch with some of his colleagues, Charles Harrigill, Gordon Brown and Buddy Frank. Tr. 123. When he arrived the others were eating, so Neely went to the buffet to get a plate. The manager walked up to him and told him that on e of their employees had walked out of the back door and saw a man sitting in the hedges with a mask on. Neely went to the table and told Buddy Frank, since Neely and Charles Harrigill had left their guns in the lock box at the office. The officers went to the back of the store. When they walked out, Neely asked the employee where the man had been. The employee pointed at the hedges. The officers walked out into the driveway and were scanning both ways. Neely caught sight of the man out of the corner of his eye and said, There he is. The man was running from the bank. He had a bandana over his face. The man fired three shots in the direction of the officers and 3
Buddy Frank was hit. Tr. 128. Neely described the man as a black male with a bandana and a cap on his head, wearing a t-shirt type shirt. After he was hit, Buddy Frank pulled out his weapon and shot three times, hitting the man in his shoulder. The man spun around and money flew in the air, and the man took off in the direction of Natchez Ford. Neely grabbed Buddy Frank s gun and ran after the man. The man left a trail of money behind him. Neely followed the trail of money down a row of hedges and into the back of Natchez Ford. He entered the back door and then went down the right side of the shop on the outside, still following the piles of money. He came to another pile of money at a locked gate. About half way down was a little alley and there was another pile of money right there. Tr. 129. Unable to get over the fence, Neely went through the shop s back door and down the middle of the shop and everybody was pointing in the direction of Highland Boulevard. A Natchez Ford employee was also chasing the suspect. Neely lost sight of them, but saw the direction they were going and went to cut them off on Woodville Drive. While Neely and Stephen Guido looked for the suspect in Catherine Creek, they learned that he had been apprehended. They found him lying on the ground in custody. His shirt was off and his hat and bandana were done. He had a bullet wound that was bleeding. Tr. 132. Buddy Frank testified that when they came out of the back of the KFC, as quick as he saw the suspect, the man shot him. The suspect was running toward the fence, and when Frank spun around and saw him, he could see the yellow glove and the pistol. He could remember the smoke coming from the pistol. Frank fired three times after he had been shot and was certain that he had hit the suspect. He gave his gun to Major Neely so that Major Neely could continue the chase. 4
Tr. 145. Major Charles Harrigill testified that he worked in the sheriff s office reviewing and revising policies and procedures. He was with the three other officers at KFC that day and got his plate and sat down. Deputy Neely came to the table and said that an employee had contacted him and said there was a man out back with a mask on. They got up from the table and went out back to confront the person, but did not see him. All of the deputies were in uniform that day. They searched the area briefly and didn t find anyone with a mask on. After about 20 or 30 second, Major Neely said, there he is, aaand he was running from the bank and started running towards the officers. The suspect raised his hand and fired at least two rounds. He had a yellow glove on. Fired at least two rounds. Then Deputy Frank returned fire. The man had a brown bandana on, a pair of shorts and a very distinctive yellow glove. Deputy Frank hit the suspect somewhere in the shoulder area. When the suspect was hit, he turned, and money flew every where. The impact from the bullet made him run towards the Ford place on the left. Buddy told them he was hit. Harrigill then called the sheriff s office for assistance and stayed with Deputy Frank until the ambulance got there and gave him assistance. Major Neely continued chasing the suspect. Larry Wilson testified that he worked at Natchez Ford Lincoln Mercury. On June 24, 2011, he was walking ou thte back bay door heading to lunch, a black male rounded the corner wearing yellow gloves and a brown bandana across his face. He rounded the curve and pointed the gun at Wilson and shot. When he shot, Wilson just turned around and ran. The officers came through chasing him down after that. Wilson remembered a yellow glove, a brownish-yellowish bandana on his face and a small caliber hand gun. The man was also carrying a bunch or cash which was scattered from one end of the parking lot to the other. Tr. 159. 5
Chuck Mayfield testified that he was the sheriff of Adams County and was serving as such on June 24, 2011. On that day, Major Charles Harrigill called him informing him that a deputy had been shot in a bank robbery and giving the Sheriff the general location. Tr. 164. The sheriff proceeded to the Plantation Manor Apartments. An individual was pointing down the hill at the back of the apartments. The hill was the bluff going down to St. Catherine s Creek. Maybe 15 yards down there in the kudzu and weeds on the side, they saw the suspect. His hands were down in the weeds. They ordered him to bring his hands up. He eventually did bring his hands up and Mayfield noticed that the suspect had been shot. Items collected as evidence included Smith s clothes, a pair of shoes, black sneakers, some ankle socks, a pair of black shorts and a pair of grey shorts as well as a cell phone. These items were collected at the hospital. Tr. 173. The brown and white bandana was collected at 105 Woodville drive behind a shed in the yard investigated by Officer Fleming. A green army style hat was found at the same location. Officers also recovered an Imperial Revolver,.22, six shot weapon. Tr. 191. A little over $8,000.00 was recovered out in the parking lots where it was dropped when the suspect fled. Officer Belling collected shorts, socks, shoes, yellow gloves. All the items had blood on them. Each item was packaged separately. Officer Ford testified that as an investigator, he was involved in collecting some of the money that was out on the ground. Some of the dollar bills had blood on them. 6
SUMMARY OF THE ARGUMENT Whether to grant a motion for mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for mistrial is abuse of discretion. Gunn v. State, 56 So.3d 568, 571 (Miss.2011) (quoting Caston v. State, 823 So.2d 473, 492 (Miss.2002)). The decision of whether to grant a mistrial is entrusted to the sound discretion of the trial court. Morgan v. State, 117 So.3d 619, 622 (Miss.2013). Smith does not allege that the jury was unfair to him or partial to the prosecution. The record does not indicate that the jury was anything but fair and impartial. As such, the circuit court did not abuse its discretion in refusing to grant a mistrial. There is no merit to this issue. Further, Smith did not make a motion for a mistrial at the time Mr. Johnson s conduct was before the court, thus waiving an argument that the court erred in failing to grant a mistrial for juror misconduct. Further, there was no request by the defense counsel that the jury be polled to see if any comments made by the dismissed juror had affected their ability to proceed with a fair deliberation. As such, any objection to the trial court s failure to conduct a polling of the jury is waived. The trial judge is in the best position to observe the courtroom and to determine if the actions of personnel in the courtroom have had a prejudicial or intimidating effect on the jury. The trial judge observed and then asked questions of the person taking pictures and determined that there had been no intimidation or prejudicial effect. It is within the trial judge s great discretion to make this determination and to weigh the effect of whether the further action of questioning the jury might create intimidation or prejudice where there was none. This issue is without merit and the jury s verdict and the rulings of the trial court should be affirmed. 7
The trial court correctly denied Smith motions for mistrial made during the course of the trial. Any error was remedied by the actions of the trial court. Smith received a fair trial. Case law unequivocally holds that the trial judge is in the best position for determining the prejudicial effect of an objectionable remark. The judge is provided considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared. Where serious and irreparable damage has not resulted, the judge should admonish the jury then and there to disregard the impropriety. The trial court correctly upheld Smith objection to the testimony regarding DNA evidence on the money and instructed the jury to disregard it. There is no error. The assignments of error presented by the Appellant are without merit and the jury s verdict and the rulings of the trial court should be affirmed. 8
ARGUMENT ISSUE: The trial court correctly denied Smith motions for mistrial made during the course of the trial. Any error was remedied by the actions of the trial court. Smith received a fair trial. I. Standard of Review Whether to grant a motion for mistrial is within the sound discretion of the trial court. The standard of review for denial of a motion for mistrial is abuse of discretion. Gunn v. State, 56 So.3d 568, 571 (Miss.2011) (quoting Caston v. State, 823 So.2d 473, 492 (Miss.2002)). The decision of whether to grant a mistrial is entrusted to the sound discretion of the trial court. Morgan v. State, 117 So.3d 619, 622 (Miss.2013). II. Juror Misconduct Towards the end of the trial, one of the attorneys for the defendant brought to the Court s attention that he had heard one of the jurors make some kind of statement about pleading guilty. The statement was not clear in its meaning and intent. The Judge was able to ascertain that the juror in question was Mr. A.J. Johnson who had approached the Judge the day before about calls for the Judge at his house. The Judge related that he had informed Mr. Johnson that would probably sufficient to have him removed if the defense so desired. The Judge then asked defense counsel if that was their desire. Defense counsel stated that it was. Tr. 304. The Judge then noted that he did not believe it was anything intentional and that the juror was 79 years of age. However, his comment, without knowing the context, was enough to concern the court. Accordingly the Court directed that the juror be removed and that he be replaced by the first alternate. The record does not reflect that defense counsel made a motion for 9
mistrial at the time of the objection to Juror Johnson and that the motion made by the defense was simply to excuse the juror. Tr. 304. Smith does not allege that the jury was unfair to him or partial to the prosecution. The record does not indicate that the jury was anything but fair and impartial. As such, the circuit court did not abuse its discretion in refusing to grant a mistrial. There is no merit to this issue. Further, Smith did not make a motion for a mistrial at the time Mr. Johnson s conduct was before the court, thus waiving an argument that the court erred in failing to grant a mistrial for juror misconduct. Further, there was no request by the defense counsel that the jury be polled to see if any comments made by the dismissed juror had affected their ability to proceed with a fair deliberation. As such, any objection to the trial court s failure to conduct a polling of the jury is waived. This issue is without merit and the jury s verdict and the rulings of the trial court should be affirmed. III. Officer Taking Photographs in Jury Room In a separate discussion, in chambers with counsel during the noon recess, it was reported that an individual from the sheriff s office was seen taking a picture of the jury. The Judge stated that he did notice an individual who he understood to be with public relations with the sheriff was in the court room some time during the morning. However, the Court did not notice her taking any pictures. Defense counsel requested a mistrial based on the previously excused juror and the sheriff s employee allegedly taking a photograph. The Court noted that it had already taken the requested corrective action regarding Juror Johnson, excusing him and replacing him with the alternate. The court then noted with regard to the photographer from the sheriff s office that in 10
high profile cases, the employee was often in the courtroom taking pictures of the defendant. The Court instructed that he would make sure that the Sheriff and/or the employee are made aware that never are pictures of the jury to be taken, but I did not see anything that would remotely rise to the level of declaring a mistrial. The Motion for Mistrial was overruled both on its on and as to any cumulative affect of the elderly juror, 79, who had made a comment and was then excused. The trial judge later spoke with the sheriff s department employee who informed him that she had not taken any photographs of the jury. The Mississippi Supreme Court has held that the trial judgeis in the best position to determine whether an objectionable remark has had any prejudicial effect[,] and for that reason the trial court is allowed considerable discretion in determining whether a remark was so prejudicial as to warrant a mistrial. ); see also Brent v. State, 632 So.2d 936, 941 (Miss.1994) ( The decision to declare a mistrial is within the sound discretion of the trial judge. ). Accordingly, the trial judge is in the best position to observe the courtroom and to determine if the actions of personnel in the courtroom have had a prejudicial or intimidating effect on the jury. The trial judge observed and then asked questions of the person taking pictures and determined that there had been no intimidation or prejudicial effect. It is within the trial judge s great discretion to make this determination and to weigh the effect of whether the further action of questioning the jury might create intimidation or prejudice where there was none. This issue is without merit and the jury s verdict and the rulings of the trial court should be affirmed. IV. Testimony Regarding DNA Evidence The trial judge sustained Smith s objection to the of DNA on a $2 bill because the State had failed to produce the information regarding the DNA on the cash prior to trial. The court 11
refused to allow any further question of the forensic expert regarding the DNA found on the money and agreed to instruct the jury not to consider the DNA evidence from the money. Smith moved for a mistrial. have held: With regard to a circuit court's grant or denial of a mistrial, Mississippi Appellate Courts Case law unequivocally holds that the trial judge is in the best position for determining the prejudicial effect of an objectionable remark. The judge is provided considerable discretion to determine whether the remark is so prejudicial that a mistrial should be declared. Where serious and irreparable damage has not resulted, the judge should admonish the jury then and there to disregard the impropriety. Edwards v. State, 856 So.2d 587, 593 (Miss.Ct.App.2003) (quoting Coho Res., Inc., v. McCarthy, 829 So.2d 1, 18 (Miss.2002)). The trial court was well within it s discretion to sustain the objection, admonish the jury and deny the motion for mistrial. This issue is without merit and the jury s verdict and the rulings of the trial court should be affirmed. CONCLUSION The assignments of error presented by the Appellant are without merit and the jury s verdict and the rulings of the trial court should be affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL STATE OF MISSISSIPPI BY: s/ Laura H. Tedder 12
OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI 39205-0220 TELEPHONE: (601) 359-3680 Laura H. Tedder, MSB # 9530 Special Assistant Attorney General 13
CERTIFICATE OF SERVICE I 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 Forrest A. Johnson, Jr. Circuit Court Judge P. O. Box 1383 Natchez, Mississippi 39121 Honorable Ronnie Harper District Attorney Post Office Box 1148 Natchez, Mississippi 39121 Mollie M. McMillan, Esquire Attorney At Law Mississippi Office of the State Public Defender Indigent Appeals Division Post Office Box 3510 Jackson, Mississippi 39207-3510 This the 25 th day of August, 2014. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI 39205-0220 TELEPHONE: (601) 359-3680 s/ Laura H. Tedder LAURA H. TEDDER SPECIAL ASSISTANT ATTORNEY GENERAL 14