SUPPLEMENTAL BRIEF OF THE APPELLANT

E-Filed Document Mar 8 2016 16:35:53 2013-KA-02011-SCT Pages: 12 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI ROBERT CARSON APPELLANT V. NO. 2013-KA-02011-SCT STATE OF MISSISSIPPI APPELLEE SUPPLEMENTAL BRIEF OF THE APPELLANT PURSUANT TO ORDER ENTERED FEBRUARY 3, 2016 Mollie M. McMillin, MS Bar No. 102708 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: mmcmi@ospd.ms.gov Counsel for Robert Carson

TABLE OF CONTENTS TABLE OF CONTENTS........................................................ I TABLE OF AUTHORITIES.................................................... ii STATEMENT OF THE CASE................................................... 1 ARGUMENTS................................................................ 1 I. The identity of the victim of the robbery is an essential element that must be contained in an indictment for capital murder with the underlying crime of robbery.......................................................... 1 II. The identity of the victim of the armed robbery is an essential fact that must be included in an indictment for capital murder with the underling crime of armed robbery to notify a defendant of sufficient facts to plead double jeopardy....... 3 III. Objections to indictments may be raised for the first time on appeal........... 6 CONCLUSION............................................................... 7 CERTIFICATE OF SERVICE................................................... 8 i

TABLE OF AUTHORITIES FEDERAL CASES Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).............. 2 STATE CASES Batiste v. State, 121 So. 3d 808 (Miss. 2013)...................................... 5, 6 State v. Berryhill, 703 So. 2d 250 (Miss. 1997).................................... 2, 6 Burks v. State, 770 So. 2d 960 (Miss. 2000)....................................... 4, 5 Carter v. State, 965 So. 2d 705 (Miss. Ct. App. 2007)................................. 5 Gilmer v. State, 955 So. 2d 829 (Miss. 2007)...................................... 2, 3 Goff v. State, 14 So. 3d 625 (Miss. 2009)......................................... 2, 5 Milano v. State, 790 So. 2d 179 (Miss. 2001)..................................... 2, 6 Rowland v. State, 98 So. 3d 1032 (Miss. 2012).................................. 3, 4, 6 Turner v. State, 732 So. 2d 937 (Miss. 1999)........................................ 2 STATUTES Miss. Code Ann. 97-3-19(2)(e).................................................. 1 Miss. Const. art. 3, 26 (1890)................................................... 2 U.S. Const. amend. VI......................................................... 2 ii

STATEMENT OF THE CASE Robert Carson was convicted of capital murder with the underlying offense of robbery, being a convicted felon in possession of a firearm, and conspiracy to commit armed robbery. (C.P. 88, R.E. 12). Carson was sentenced to life without parole, probation, or early release on the capital murder conviction, ten years for possession of a firearm by a convicted felon, and five years for conspiracy to commit armed robbery, all in the custody of the Mississippi Department of Corrections. (C.P. 88, R.E. 12). The convictions in Counts II and III are to run consecutive to each other, and concurrent to the life sentence in Count I. By Order dated February 3, 2016, made upon its own motion, this Court directed that the parties file supplemental briefs addressing (1) whether the identity of the victim of the armed robbery is an essential element that must be contained in an indictment for capital murder with the underlying crime of armed robbery, (2) whether the identity of the armed robbery victim is necessary for double jeopardy purposes, and (3) whether the issue was sufficiently preserved for appeal or is appropriate for plain error review. ARGUMENTS I. The identity of the victim of the robbery is an essential element that must be contained in an indictment for capital murder with the underlying crime of robbery. In his pro se supplemental brief before this Court, Carson argued that his indictment was insufficient because it failed to name the victim of the robbery in addition to the victim of the murder. The capital murder portion of the indictment against Carson, Count I, alleged that Carson: did, without authority of law and with or without any design to effect death, kill and murder Jose Gurrola Ortiz, a human being, which the said ROBERT CARSON, a/k/a BAY BAY was then and there engaged in the commission of the crime of a robbery, in violation [of] Miss. Code Ann. 97-3-19(2)(e) (1972, as amended)[.] 1

(C.P. 6, R.E. 6). In all criminal prosecutions, the accused shall enjoy the right... to be informed of the nature and cause of the accusation. U.S. Const. amend. VI; see also Miss. Const. art. 3, 26 (1890) ( In all criminal prosecutions the accused shall have the right... to demand the nature and cause of the accusation. ). The purpose of an indictment is to furnish the defendant with notice and a reasonable description of the charges against him so that he may prepare his defense. Goff v. State, 14 So. 3d 625, 665 (Miss. 2009). An indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense. Gilmer v. State, 955 So. 2d 829, 836-37 ( 24) (Miss. 2007) (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974)). In Milano v. State, 790 So. 2d 179, 186 ( 29) (Miss. 2001), this Court held that its prior holding in State v. Berryhill, 703 So. 2d 250 (Miss. 1997) did not apply in capital murder cases where the underlying felony is robbery. The indictment in Milano failed to give Milano notice of which of two robberies was the basis for the capital murder charge. Id. Berryhill requires indictments for capital murder, where the underlying felony is burglary, to assert with specificity the particular acts constituting the burglary. Milano, 790 So. 2d at ( 29) (quoting Berryhill, 703 So. 2d at 250). Relying on Turner v. State, 732 So. 2d 937, 947 (Miss. 1999), this Court found that because burglary requires as an essential element the intent to commit a separate crime, and robbery does not require such intent, that the holding in Berryhill does not apply in robbery cases. Id. (quoting Turner, 732 So. 2d at 947). More recently, however, this Court has held that the identity of the victim of a robbery is an 2

essential element of the crime of robbery that must be included in an indictment for capital murder where the underlying crime is robbery. In Rowland v. State, 98 So. 3d 1032 (Miss. 2012), which will be discussed more in Issue II, this Court held that the identity of the victim of the underlying felony is an element of the offense of capital murder that must be stated in the capital-murder indictment. Id. at 1039. Thus, Carson respectfully submits that the indictment against him was insufficient for failure to allege an essential element of capital murder and the indictment against him should be dismissed. II. The identity of the victim of the armed robbery is an essential fact that must be included in an indictment for capital murder with the underling crime of armed robbery to notify a defendant of sufficient facts to plead double jeopardy. As noted above, in addition to alleging the statutory elements of a crime, an indictment must contain sufficient facts to enable [a defendant] to plead double jeopardy in the event of a future prosecution for the same offense. Gilmer, 955 So. 2d at 836-37 (citation omitted). Should this Court, despite its holding in Rowland, not find that the identity of the robbery victim is an essential element of the offense of capital murder that must be alleged in the indictment for capital murder, Carson contends that it is an essential fact that must be alleged to allow him to plead double jeopardy later. Carson argued in his pro se supplemental brief that the State s failure to include the name of the victim of the armed robbery did not provide him with sufficient facts to enable him to plead double jeopardy in the event he were to later be charged with armed robbery. In Rowland, this Court analyzed whether an indictment that charged Rowland with two counts of capital murder was sufficient for double jeopardy purposes. Rowland s indictment alleged that he killed James Campbell while in the commission of the crime of armed robbery... of Pat Bolton and others and 3

with killing Paul Hughes while in the commission of the crime of armed robbery... of O.B. Singleton and others[.] Rowland, 98 So. 3d at 1033. Rowland was also charged with the armed robbery of Pat Bolton and O.B. Singleton. Id. at 1033-34. Rowland argued in post-conviction relief proceedings that the armed robbery convictions violated his right against double jeopardy. Id. at 1037. This Court reversed Rowland s two armed robbery convictions because he was placed in double jeopardy when he was convicted of both the armed robberies and capital murder charges. Id. at 1039. Id. at 1038. This Court addressed this question: Whether Rowland could have been convicted on an indictment charging capital murder based on the armed robbery of... others depends on whether the identity of the victim of an underlying armed robbery is an element of capital murder that must be stated in the capital-murder count and whether a capital-murder indictment based on armed robbery of others could have given Rowland a fair and adequate notice of the crimes of which he was charged and sufficient facts to enable him to plead double jeopardy. Relying on Burks v. State, 770 So. 2d 960, 963 (Miss. 2000), this Court noted that the crime victim s name must be stated in the indictment where that is an element of the offense, and a failure to state it, or a material variance between statement and proof is fatal, but an immaterial variance is not. Rowland, 98 So. 3d at 1038 (quoting Burks, 770 So. 2d at 963). Finally, this Court held that the identity of the armed robbery victim is a fact that must be included in a capital murder indictment when the underlying crime is robbery to notify the defendant of sufficient facts to later plead double jeopardy: A capital-murder indictment that fails to identify the victim of the underlying crime does not contain sufficient facts to fairly inform the defendant of the charge against which he must defend and to enable him to plead double jeopardy in the event that 4

he is separately punished or later prosecuted for the underlying felony; in other words, the identity of the victim of the underlying felony is an element of the offense of capital murder that must be stated in the capital-murder indictment. Id. at 1039 (emphasis added). See also Carter v. State, 965 So. 2d 705, 709 (Miss. Ct. App. 2007) (the identity of the victim is an essential element of robbery). Recently, in Batiste v. State, 121 So.3d 808 (Miss. 2013), this Court reiterated that except in cases where burglary is the underlying crime, capital murder indictments require no other detail than identifying the underlying felony that elevates the killing to capital murder along with the section and subsection of the statute under which the defendant is being charged. Batiste, 121 So. 3d at 836 ( 43) (citing Goff, 14 So. 3d at 665) (capital murder indictment is not insufficient for failure to allege an aggravating factor). However, the issue raised in Batiste did not relate to the identity of the robbery victim. Rather, Batiste argued that the State s failure to describe in the indictment what items were taken from the victim rendered the indictment insufficient by omitting an essential element and subjected Batiste to double jeopardy in a later proceeding where the State may choose to prosecute Batiste for larceny of the items. Id. Like Carson, Batiste was indicted for capital murder with the underlying felony of robbery, in violation of Mississippi Code Annotated section 97-3-19(2)(e), which states: (2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:... (e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies[.] 97-3-19(2)(e) (emphasis added). The capital murder statute applies not only when a robbery (as the underlying offense) has 5

been completed, but also when the robbery has merely been attempted. Id. Thus, Batiste could have been guilty of capital murder whether he actually stole items from the victim or not. Carson contends that the holding in Batiste is not applicable to the facts of his case because it does not address the same question. However, to the extent that this Court s holding in Batiste conflicts with its earlier holding in Rowland, Carson would argue that this Court s holding in Batiste should be reconsidered. The indictment against Carson was insufficient because it failed to allege an essential element of the capital murder the identity of the victim of the robbery. The identity of the victim of the robbery is also an essential fact that should have been alleged in the indictment to give Carson notice of the charges against him and allow him to argue double jeopardy against any future prosecution. Because the indictment lacked that element/fact, it was not a sufficient indictment and should be dismissed. III. Objections to indictments may be raised for the first time on appeal. This Court s final question for supplemental briefing asks whether the sufficiency of the capital murder indictment was preserved by the defendant, and if not, whether the issue is appropriate for plain error review. Carson contends that the failure to challenge the sufficiency of the indictment at the trial court level does not bar this Court from considering the issue. In Milano, this Court noted that [o]bjections to indictments that fail to charge an essential element of the crime to be charged may not be waived, and may be raised for the first time on appeal. Milano, 790 So. 2d at 186 ( 28) (citing Berryhill, 703 So. 2d at 254) ( [C]hallenges to the substantive sufficiency of an indictment are not waivable. Thus, they may be first raised at anytime, including on appeal. ). CONCLUSION 6

Based on the arguments presented above, in addition to the arguments presented to the Court in the initial briefing of this case, Carson submits that the capital murder indictment in this case failed to allege an essential element necessary to put him on notice of the charges against him and to allow him to later defend against double jeopardy. Therefore, Carson respectfully requests this Court reverse his conviction and sentence for capital murder and dismiss the capital murder indictment against him. Respectfully submitted, ROBERT CARSON, APPELLANT /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel 7

CERTIFICATE OF SERVICE I, Mollie M. McMillin, Counsel for Robert Carson, do hereby certify that on this day I electronically filed the forgoing SUPPLEMENTAL 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: Honorable John H. Emfinger Circuit Court Judge Post Office Box 1689 Brandon, MS 39043 Honorable Michael Guest District Attorney, District 20 Post Office Box 68 Brandon, MS 39043 Robert Carson, MDOC #182081 South Mississippi Correctional Facility Post Office Box 1419 Leakesville, MS 39451 This the 8th day of March 2016. /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel 8

Mollie M. McMillin, MS Bar No. 102708 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: mmcmi@ospd.ms.gov 9