BRIEF OF THE APPELLANT

E-Filed Document Dec 13 2016 16:02:20 2016-KA-01278-COA Pages: 19 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JAMES CURTIS CLARK APPELLANT V. NO. 2016-KA-01278-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT 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 James Curtis Clark

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JAMES CURTIS CLARK APPELLANT V. NO. 2016-KA-01278-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. James Curtis Clark, Appellant 3. Honorable Patricia Burchell, District Attorney 4. Honorable Robert Helfrich, Circuit Court Judge This the 13 th day of December, 2016. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel i

TABLE OF CONTENTS I. CERTIFICATE OF INTERESTED PERSONS................................ i II. TABLE OF CONTENTS................................................. ii III. TABLE OF AUTHORITIES.............................................. iii IV. STATEMENT OF THE ISSUES............................................ 1 V. STATEMENT OF ASSIGNMENT.......................................... 1 VI. STATEMENT OF THE CASE............................................. 1 VII. STATEMENT OF THE FACTS............................................ 2 VIII. SUMMARY OF THE ARGUMENT........................................ 5 IX. ARGUMENTS.......................................................... 6 ISSUE 1: CLARK RECEIVED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL....................................... 6 ISSUE NO. 2: THE VERDICTS ARE AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE............................................ 10 X. CONCLUSION........................................................ 13 XI. CERTIFICATE OF SERVICE............................................ 13 ii

TABLE OF AUTHORITIES FEDERAL CASES Strickland v. Washington, 446 U.S. 668, 686, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984)..... 6, 9 STATE CASES Abeyta v. State, 137 So. 3d 305 (Miss. 2014)........................................ 7 Batiste v. State, 121 So. 3d 808 (Miss.2013)........................................ 8 Bolton v. State, 87 So. 3d 1129 (Miss. 2013)....................................... 7 Bush v. State, 895 So. 2d 836 (Miss. 2005)........................................ 10 Carson v. State, Number 2013-KA-02011-SCT, 2016 WL 6822423 (Miss. Nov. 17, 2016)... 9 Davis v. State, 158 So. 3d 1190 (Miss. Ct. App. 2015)............................... 10 Flowers v. State, 51 So.3d 911 (Miss. 2010)........................................ 7 Harper v. State, 478 So. 2d 1017 (Miss.1985)....................................... 7 Hull v. State, 174 So. 3d 887 (Miss. Ct. App. 2015).................................. 8 Johnson v. State, 29 So. 3d 738 (Miss. 2009)........................................ 6 Leatherwood v. State, 473 So. 2d 964 (Miss. 1985)................................... 6 McQueen v. State, 423 So. 2d 800 (Miss. 1982).................................... 10 Mease v. State, 539 So. 2d 1324 (Miss. 1989)....................................... 7 Moore v. State, 52 So. 3d 339 (Miss. 2010)......................................... 8 Pauley v. State, 113 So.3d 557 (Miss.2013)......................................... 8 Ransom v. State, 919 So. 2d 887 (Miss. 2005)....................................... 6 Ruffin v. State, 444 So. 2d 839 (Miss. 1984)........................................ 7 iii

State v. Shaw, 880 So. 2d 296 (Miss. 2004)......................................... 7 Windham v. State, 602 So. 2d 798 (Miss. 1992)...................................... 8 iv

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JAMES CURTIS CLARK APPELLANT V. NO. 2016-KA-01278-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES Issue I: Issue II: Clark received constitutionally ineffective assistance of trial counsel. The verdicts are against the overwhelming weight of the evidence. STATEMENT OF ASSIGNMENT This case is properly assigned to the Mississippi Court of Appeals. STATEMENT OF THE CASE This appeal proceeds from the circuit court of Forrest County, Mississippi, and a judgment of conviction for one count of second degree murder and one count of aggravated assault, following a jury trial on July 20-21, 2016, the Honorable Robert B. Helfrich, Circuit Judge, presiding. (C.P. 71, R.E. 10). The trial court sentenced Clark to a term of forty (40) years for second degree murder, and twenty (20) years for aggravated assault, with five (5) years suspended, consecutive to the forty year sentence for murder, all in the custody of the Mississippi Department of Corrections. (C.P.71, R.E. 10). Clark filed a motion for new trial or judgment notwithstanding the verdict, which the trial court denied. (C.P. 80, R.E. 15). Clark is currently incarcerated and appeals to this honorable Court 1

for relief. STATEMENT OF THE FACTS Timothy Jordan (Jordan), Jarvis Holder (Holder), and James Clark (Clark) were indicted together in a three count indictment for conspiracy to commit murder, first degree murder, and aggravated assault related to the May 11, 2014, murder of Matthew Campbell and shooting of Patrick Snow. Jordan and Holder pled guilty and testified against Clark in exchange for lenient sentences. On May 11, 2014, Hattiesburg police officers responded to a shots fired call at the Foxfire Apartments in Hattiesburg. (Tr. 97). Officers at the scene saw blood outside the apartment. (Tr. 98, 106). They opened the apartment door and discovered Matthew Campbell with a gunshot wound to his forehead. (Tr. 98). Campbell was still alive when police arrived, but he later died from his injury. (Tr. 98, 107). Another police officer responded to the Forrest General Hospital, where Patrick Snow was being treated for a gunshot wound. (Tr. 112). Snow told police that two black men had come into his house. He described them being bald or having short haircuts; one man was heavy and the other small. (Tr. 113). Later, Snow was able to tell police that he knew one of the men who had been in his house as Jarvis Holder. (Tr. 220-21). According to Snow, Holder pushed through the door of his house, fired a shot from the 12-gauge shotgun he was carrying, and Clark demanded money. (Tr. 205). Snow threw money on the floor, but Clark shot him anyway. (Tr. 205). Campbell told Clark he did not have any money, and Clark then shot Campbell in the head. (Tr. 205). Snow went to a neighbor for help, and his neighbor took him to the hospital. (Tr. 221). Jordan testified that he, Holder, and Clark were driving around Hattiesburg that night when Holder mentioned that he needed some money. (Tr. 122). Jordan said the only person he knew who kept money was Snow, so Holder decided they should go rob Snow. (Tr. 122). They drove to 2

Snow s apartment, and Holder and Clark went up to Snow s door. (Tr. 123). Clark carried a 9 millimeter handgun; Holder carried a shotgun. (Tr. 121). Jordan stayed in the car. After they went up to the apartment, Jordan heard gunshots. (Tr. 123). Clark returned to Jordan s car first and said that he shot one man in the head and another in the chest. (Tr. 123). Once Holder came out of the apartment, the three left and drove to Jordan s house. (Tr. 123). Jordan volunteered to hide the guns while Clark and Holder changed clothes. At daylight, they all three drove to Collins, MS, and hid the guns in some woods near a relative s house. (Tr. 124). Lorraine Jordan (Lorraine), Jordan s mother, rode with them. (Tr. 123-24). After hiding the guns, they went back to Hattiesburg. (Tr. 124). A couple of days later, Jordan s sister, Lavivian Wilson, called to say she was going to Brookhaven. Jordan and Clark went with her, stopping in Collins to retrieve the guns, and then hiding the guns in the woods outside Brookhaven along the way. (Tr. 125). In Brookhaven, Lavivian, Clark, and Jordan learned that the police wanted them to turn themselves in for the shootings. (Tr. 126). Jordan turned himself in and eventually pled guilty to conspiracy to commit murder and received five years to serve in MDOC custody. (Tr. 126). Holder also testified against Clark. He pled guilty to second degree murder with a recommended forty (40) year sentence, with twenty (20) suspended. (Tr.177). Holder initially refused to testify against Clark and was treated as a hostile witness. (Tr. 178). He gave the same testimony that Jordan did. He admitted that he carried a shotgun and that he fired it into the apartment when they first entered. (Tr. 183). Holder testified that when they got into Snow s apartment, they demanded money. (Tr. 1830. Holder was pointing his shotgun at Snow when he heard Clark s gun fire. (Tr. 183). He looked over and saw Campbell falling down. Then, Clark turned and shot Snow. (Tr. 184). They left and drove to Jordan s mother s house. (Tr. 184). 3

Jordan s sister Lavivian testified against Clark. She testified that she initially heard about the shooting on Facebook and heard that her brother was involved. (Tr. 190). She went looking for him. (Tr. 190). Clark and Jordan rode with Lavivian to Brookhaven, and she said they whispered to each other a lot in the car. (Tr. 191). She said that they stopped in Collins and Jordan and Clark retrieved something from behind their cousin s house, which was later dumped in Brookhaven. (Tr. 191, 193). According to Lavivian, nobody would tell her what happened regarding the shooting. Then, Clark said, I f***ed up and admitted to shooting one of the men in the head. (Tr. 191). She said that Clark told her Jordan had nothing to do with the crime. (Tr. 192). According to Lavivian, Clark repeatedly stated that he had f***ed up. (Tr. 194). In exchange for her testimony against Clark, Lavivian was given a twenty (20) year suspended sentence and five (5) years on post-release supervision. (Tr. 202, C.P. 21). Detective Neal Rockhold testified that Snow described the two men who had robbed him as a skinny black male with a low haircut and a heavy black male who was either bald or had a low haircut. The larger man was wearing a red shirt. (Tr. 220). Snow told Rockhold that Clark held a gun pointed at Campbell while Holder pointed one at Snow. They demanded money, and Snow tossed out a few $100 bills. (Tr. 220). Clark shot Campbell and then Snow, and Snow played dead until they left. (Tr. 220). Once Holder was identified as a suspect, police picked him up at his girlfriend s house. (Tr. 221). After talking with Holder about the case, they developed other suspects, including Jordan and Clark. (Tr. 222). According to Rockhold, Jordan and Clark gave multiple statements. (Tr. 223). They did not collect fingerprints from the crime scene because they felt they had enough information from the statements. (Tr. 227). Snow was shown two separate six-pack photographic lineups. (Tr. 233). In the first, Holder s photo was not present; yet, Snow identified one of the men in the lineup as being involved 4

in the crime. (Tr. 233, 258). The second lineup had a picture of Holder, and Snow identified Holder as being involved. (Tr. 258). Because witnesses placed Clark at the scene, police did not show Snow a lineup with Clark s photograph. (Tr. 235). According to Rockhold, Clark s first three statements to police were fairly consistent with each other and consistent with the first statements given by Jordan, Lavivian, and Lorraine. (Tr. 245). All of those statements apparently involved Jordan, rather than Clark, going into Snow s apartment, followed by Holder. (Tr. 245). However, Snow testified that the men who came into his house were either bald or had short haircuts. Jordan had dreadlocks at the time. (Tr. 255). Carl Fullilove testified as an expert in firearm and tool mark identification. (Tr. 261-62). Fullilove testified that marks left on a projectile when it is fired are unique to that firearm and to that firearm only. (Tr. 266). Fullilove then testified that the two 9 millimeter projectiles recovered from Snow s apartment after the shooting were fired from the 9 millimeter gun recovered from the woods in Brookhaven. (Tr. 270). He also testified that the shotgun hull found at the scene was fired from the shotgun recovered with the handgun. (Tr. 270). Finally, Dr. Lisa Funte from the State Medical Examiner s Office performed the autopsy on Campbell and determined that he died from a gunshot wound to his head. (Tr. 280). SUMMARY OF THE ARGUMENTS Clark received constitutionally ineffective assistance of counsel. Defense trial counsel failed to request a culpable negligence manslaughter instruction on behalf of Clark, and that deficiency undermines confidence in the outcome of the trial. The jury indicated through a note to the trial court that it had a possible interest in finding Clark guilty of a lesser offense than murder. Both prongs of the Strickland analysis are satisfied in this case, and Clark respectfully requests this Court reverse his convictions. 5

Additionally, the jury s verdicts are against the overwhelming weight of the evidence. The convictions are based on accomplice testimony, and each accomplice received a lenient sentence in exchange for testifying against Clark. The surviving victim in this case knew all three men indicted in this case, but waited until the following day to tell investigators their names. Each of the witnesses gave conflicting statements about what happened, but according to the investigator, their initial stories were consistent with each other and did not implicate Clark. For these reasons, Clark requests this Court reverse his convictions and remand his case for a new trial. ARGUMENTS Issue I: Clark received constitutionally ineffective assistance of trial counsel. The Mississippi Supreme Court has recognized that the benchmark for judging any claim of ineffectiveness must be whether counsel s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Ransom v. State, 919 So. 2d 887, 889 (Miss. 2005) (citing Strickland v. Washington, 446 U.S. 668, 686, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984)). To prevail under Strickland, an appellant must show that (1) his counsel's performance was deficient, and that (2) the deficiency prejudiced him... Additionally, there is a strong but rebuttable presumption that his counsel's decisions were sound trial strategy. Johnson v. State, 29 So. 3d 738, 745 ( 20) (Miss. 2009) (citing Leatherwood v. State, 473 So. 2d 964, 968-69 (Miss. 1985)). In order to rebut the presumption that counsel s actions were part of trial strategy, the appellant must show that but for his counsel s errors, a different result would have occurred in the trial court. Id. Clark was indicted for first-degree deliberate design murder. (C.P. 7, R.E. 1). The State requested, and the trial court granted, a lesser-included offense instruction on seconddegree/depraved heart murder. (R.E. 6-7). This instruction allowed the jury to convict Clark of the 6

lesser crime of second degree murder if they, after acquitting him of first-degree murder, found that he killed Campbell while committing an act extremely dangerous to others and evincing a depraved heart, regardless of life, to wit: shooting Matthew D. Campbell in head with a gun, although without any premeditated design to effect death of any particular individual. (R.E. 6-7). Clark s trial counsel submitted Instruction D-11 on heat of passion manslaughter. (Tr. 290, C.P. 58). The trial court refused this instruction because there was no evidence presented at trial to support a heat of passion instruction. Clark s attorney did not submit a culpable negligence manslaughter instruction. Clark submits that the trial court would have been required to grant a culpable negligence jury instruction based on the evidence at trial and that counsel s failure to request the instruction was ineffective. An indictment for murder encompasses the lesser-included charge of manslaughter. Bolton v. State, 87 So. 3d 1129, 1133 ( 12) (Miss. 2013) (citing State v. Shaw, 880 So. 2d 296, 304 ( 26) (Miss. 2004)). But, the trial court should refuse to grant a manslaughter instruction if the evidence only supports a verdict of murder. Id. (citing Ruffin v. State, 444 So. 2d 839, 840 (Miss. 1984)). In Mease v. State, 539 So. 2d 1324 (Miss. 1989), the supreme court stated: [A] lesser included offense instruction should be granted unless the trial judge and ultimately this Court can say, taking the evidence in the light most favorable to the accused and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty of at least one essential element of the principal charge). Mease, 539 So. 2d at 1330 (quoting Harper v. State, 478 So. 2d 1017, 1021 (Miss.1985)). When reviewing challenges to jury instructions, this Court looks to the instructions given as a whole to determine whether the jury was properly instructed. Abeyta v. State, 137 So. 3d 305, 310 ( 9) (Miss. 2014) (quoting Flowers v. State, 51 So.3d 911 (Miss. 2010)). A party has the right to 7

have the jury instructed on all material issues presented by the evidence; generally, an instruction should be granted if it correctly states the law, is supported by the evidence, and is not repetitious. Id. (citing Pauley v. State, 113 So.3d 557, 564 (Miss.2013)). Where there is an evidentiary foundation in the record, a party is entitled to have the jury instructed on a lesser-included offense. Id. (citing Batiste v. State, 121 So. 3d 808, 844 (Miss.2013)). While evidence is lacking in the record to support trial counsel s proffered heat of passion manslaughter instruction, there is evidence to support a manslaughter instruction under the theory of culpable negligence. In Windham v. State, 602 So. 2d 798 (Miss. 1992), the Mississippi Supreme Court explained the difference between culpable negligence manslaughter and depraved-heart murder: [d]epraved-heart murder and culpable-negligence manslaughter are distinguishable simply by degree of mental state of culpability. In short, depraved-heart murder involves a higher degree of recklessness from which malice or deliberate design may be implied. Windham, 602 So. 2d at 801 (citations omitted). Further, [w]hether a homicide is classified as a murder or manslaughter is ordinarily an inquiry to be made by the jury. Hull v. State, 174 So. 3d 887, 898 (Miss. Ct. App. 2015) (citing Moore v. State, 52 So. 3d 339, 347 ( 32) (Miss. 2010)). Because the trial court granted the second-degree depraved heart murder instruction, it follows that an instruction on culpable negligence would have been appropriate. Failure to request the instruction constituted deficient performance on the part of Clark s trial counsel. The jury in this case sent a note during deliberations regarding finding Clark guilty of a lesser crime than the two options they had already been given in the instructions. The note from the jury asked: If the defendant, James Clark, is found not guilty does he walk free, or can he be charged with an offense of lesser value in relation to this crime? (Tr. 320). The jury s note indicates that they wanted to consider Clark s guilt of a lesser crime than first or second degree 8

murder. It is possible that the jury would have convicted Clark of the lesser offense of culpable negligence manslaughter had they been instructed that it was an available option. Recently, the supreme court held that failure to request an accomplice-testimony instruction when the defense would have been entitled to it constituted constitutionally deficient performance, because there was no strategic explanation for not requesting an instruction that could have discredited an accomplice s testimony. Carson v. State, No. 2013-KA-02011-SCT, 2016 WL 6822423, at *4 (Miss. Nov. 17, 2016). The supreme court did not find that Carson s trial counsel was constitutionally ineffective, however, because they could not conclude that a reasonable probability exists that the result would have been different with an accomplice-testimony instruction. Id. at ( 21). In that case, another witness testified that Carson had admitted his role in the robbery underlying the capital murder in that case, in addition to accomplice testimony. Under Strickland, to establish constitutionally ineffective assistance, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052)). Here, there is a reasonable probability one sufficient to undermine confidence in the outcome that the jury would have convicted Clark of manslaughter had they been given the option in the instructions. Therefore, Clark submits that he received constitutionally ineffective assistance of counsel by his trial counsel s failure to request a culpable negligence manslaughter instruction. Clark respectfully requests this Court reverse his manslaughter conviction and remand his case for a new trial. 9

Issue II: The verdicts are against the overwhelming weight of the evidence. When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, [the appellate court] will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Davis v. State, 158 So. 3d 1190, 1195 ( 19) (Miss. Ct. App. 2015) (quoting Bush v. State, 895 So. 2d 836, 844 ( 18) (Miss. 2005)). This Court should grant a new trial only in exceptional cases in which the evidence preponderates heavily against the verdict. Id. In considering the case, the evidence should be weighed in the light most favorable to the verdict. Id. Further: A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982). Rather, as the thirteenth juror, the court simply disagrees with the jury's resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial. Bush, 895 So. 2d at 844. The trial court erred in denying Clark s motion for new trial. The evidence against Clark comes from unreliable sources who were all, with the exception of Snow, given very lenient sentences for their own roles in the crime. Jordan testified that he initially lied to the police because he did not know what was going to happen. (Tr. 130-31). But in his initial statement to police, Jordan implicated himself and Holder rather than Clark. (Tr. 133). Jordan gave three different statements before settling on the version of events implicating Clark. (Tr. 135). In his first version, Clark told police that he had gone to Snow s apartment for a bag of spice. (Tr. 135). Jordan said that there was a disagreement about the amount of spice Snow gave him, and Snow called him to bring it back. (Tr. 136). He said that Snow grabbed $70 out of Jordan s wallet and that Snow had jumped up and tried to grab his neck. (Tr. 136). As he was trying to get away from Snow, he opened 10

the door and screamed for help. (Tr. 136). He told police that Holder, his uncle, ran upstairs with a pistol, and then Snow let him go. (Tr. 137). He did not mention Clark during this statement. (Tr. 137). It was not until he gave the second version of his statement to police that he mentioned Clark going into the apartment and then coming down and telling Jordan that he had shot the men. (Tr. 137). Jordan testified that he also told his mother the first version of the story, which implicated himself rather than Clark. (Tr. 140-41). Jordan admitted that he knew he could have received a life sentence for murder. Under his deal with the State, in exchange for testifying against Clark, Jordan received a twenty year sentence for conspiracy, with all but five suspended. (Tr. 140). Lavivian testified that Clark confessed while they were in the car going to Brookhaven. (Tr. 191). But Lavivian had given a similar first-account of the crime that her brother Jordan gave. She told police that Jordan had come to her crying that Snow had tried to take his money. (Tr. 196). Snow sold spice; Holder took Jordan to Snow s apartment. (Tr. 196). Jordan went into Snow s apartment and Snow threatened him and grabbed his neck. (Tr. 196). Jordan started backing up and screaming for Holder to help him. (Tr. 197). Lavivian testified that she had heard that Snow was looking to kill Jordan and that she had told Jordan this information. (Tr. 195, 199). Lavivian s pled guilty to her involvement in the crime and received a suspended sentence and five years of postrelease supervision. (Tr. 202). Patrick Snow s testimony is also unreliable. Snow initially gave police a physical description of the two men who came into his house to rob him. However, the next day, he called investigators to say that he knew who did it and gave Holder s name. He knew Holder and Clark by nicknames Holder as JJ and Clark as Boomer. (Tr. 205). However, when he first spoke with police officers, he did not offer that information to them, only general descriptions of black males with short haircuts. 11

According to Rockhold s testimony, every person who testified that Clark confessed to the shootings was facing their own charges in the case. Notably, Jordan and Holder, two of the most important witnesses for the State, were housed together, in the same cell, in the Forrest County Jail for months leading up to Clark s trial. (Tr. 142). Holder gave the same version of events at trial that Jordan gave, but only after being reminded by the district attorney that his deal, twenty years to serve on second-degree murder, was contingent on acceptable testimony against Clark. (Tr. 185) There is no physical evidence linking Clark to the crime. (Tr. 247). There are no fingerprints, either at the apartment or on the guns supposedly used in the crime, linking Clark to the shooting. According to Rockhold, Clark s statements to police were consistent with each other and with the initial statements given by Jordan, Lavivian, and Lorraine. (Tr. 245). All of those initial statements say that Jordan went up to Snow s apartment, followed by Holder. (Tr. 245). The conviction in this case is based on unreliable accomplice testimony. Each of the witnesses, with the exception of Snow, testified in exchange for very lenient sentences for their roles in the crime. There is no physical evidence linking Clark to the shooting and the initial statements from three accomplices implicate Jordan rather than Clark. Therefore, Clark submits that the verdict in this case is against the overwhelming weight of the evidence and requests this Court reverse his convictions and sentences and remand his case for a new trial. 12

CONCLUSION Clark submits that based on the propositions cited and briefed above, together with any plain error noticed by this Court which has not been specifically raised but may appear to the Court on a full review of the record, the judgment of the trial court and Clark s conviction and sentence should be reversed and remanded for a new trial Respectfully submitted, BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel CERTIFICATE OF SERVICE I, Mollie M. McMillin, Counsel for James Curtis Clark, 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: Honorable Robert Helfrich Circuit Court Judge Post Office Box 309 Hattiesburg, MS 39403-0309 13

Honorable Patricia Burchell District Attorney, District 12 Post Office Box 166 Hattiesburg, MS 39403 James Curtis Clark, MDOC #196431 South Mississippi Correctional Institution Post Office Box 1419 Leakesville MS 39451 This the 13th day of December 2016. BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel 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 14