IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI STATE OF MISSISSIPPI/CITY OF RIDGELAND BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED

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1 E-Filed Document May :19: KM SCT Pages: 27 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TIMOTHY NORMAN VS. STATE OF MISSISSIPPI/CITY OF RIDGELAND APPELLANT CASE NO TS-1789 APPELLEE BRIEF OF APPELLANT ORAL ARGUMENT REQUESTED ATTORNEYS FOR APPELLANTS: CHUCK MCRAE (MSB# 2804) SETH C. LITTLE (MSB# ) 416 E. AMITE STREET JACKSON, MISSISSIPPI Office: Facsimile:

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TIMOTHY NORMAN VS. STATE OF MISSISSIPPI/CITY OF RIDGELAND APPELLANT CASE NO TS-1789 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 the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Timothy Norman, Appellant; 2. Seth C. Little, Counsel for the Appellant; 3. Chuck McRae, Counsel for the Appellant; 4. Boty McDonald, Counsel for Appellee; 5. Officer Daniel Soto 6. Hon. William S. Agin, County Court Judge; 7. Hon. Steve Ratcliff, County Court Judge; and 8. Hon. John Emfinger, Circuit Court Judge /s/ Seth C. Little Seth C. Little (MSB #102890) McRae Law Firm, PLLC 416 E. Amite Street Jackson, Mississippi Office: Fax: i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS.. i TABLE OF CONTENTS... ii TABLE OF CASES... iii TABLE OF AUTHORITIES... iv STATEMENT OF THE ISSUES... 1 STATEMENT REQUESTING ORAL ARGUMENT... 1 STATEMENT OF THE CASE/OPERATIVE FACTS.. 1 SUMMARY OF THE ARGUMENT. 2 STANDARD OF REVIEW 4 ARGUMENT.. 4 I. Whether the court erred when it denied Appellant s motion for new trial in light of the new evidence introduced concerning the false testimony of Officer Daniel Desoto...5 II. Whether the court erred when it failed to enter the Judgment of Dismissal signed by Counsel for Appellant and Counsel for the City of Ridgeland..15 III. Whether the court erred when it denied Appellant s Motion to Compel the source codes of the Intoxilyzer 8000 and whether it erroneously overruled the Appellant s objection at trial regarding Appellant s Constitutional rights of confrontation in obtaining the source codes for the Intoxilzyer CONCLUSION. 20 ii

4 TABLE OF AUTHORITIES CASES: Amiker v. Drugs for Less, Inc., 796 So. 2d 942 (Miss. 2000) Brady v. Maryland, 373 U.S. 87 (1968) 14 Bush v. State, 895 So. 2d 836 (Miss. 2005).. 11 Clack v. City of Ridgeland, 129 So. 3d 778 (Miss. Ct. App. 2014)... 3, 9 Deloach v. City of Starkville, 911 So. 2d 1014 (Miss. Ct. App. 2005) 12 Dennis v. State, 873 So. 2d 1045 (Miss. Ct. App. 2004) 6 Dilworth v. State, 909 So. 2d 731 (Miss. 2005). 11, 12 Foster v. State, 639 So. 2d 1263 (Miss. 1984) 6 Giglio v. U.S., 405 U.S. 150 (1972) 14, 15 Greene v. Grant, 641 So. 2d 1203 (Miss. 1994). 4 Herring v. State, 691 So. 2d 948 (Miss. 1997). 11 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)..19, 20 Moore v. State, 508 So. 2d 666 (Miss. 1987)..4, 6, 8 Ormond v. State, 599 So. 2d 951 (Miss. 1992) 2, 6, 10, 14 Renfro v. State, 118 So. 3d 650 (Miss. 2013) Rhoades v. State, 832 So. 2d 544 (Miss. Ct. App. 2002) 12, 13 Saucier v. City of Poplarville, 858 So. 2d 933 (Miss. Ct. App. 2003). 12 Smith v. State, 492 So. 2d. 260 (Miss. 1986). 2, 6 Southern Ry. Co. v. Elder, 80 So. 333 (Miss. 1919)...11, 12 Starkey v. State, 941 So. 2d 899 (Miss. Ct. App. 2006) White v. Yellow Freight Sys., Inc., 905 So. 2d 506 (Miss. 2004).. 4 Whitfield v. City of Ridgeland, 2013 WL , 9 Witherspoon v. State, 767 So. 2d 1065 (Miss. Ct. App. 2002)... 4, 6 iii

5 RULES: Miss. R. App. Proc. 34(b)... 1 Miss. Code Ann (1)(a).5, 12 Miss. Code Ann (1)(c).. 5 Miss. R. App. Proc. 3(a). 5 iv

6 STATEMENT OF THE ISSUE I. Whether the court erred when it denied Appellant s motion for new trial in light of the new evidence introduced concerning the false testimony of Officer Daniel Desoto. II. Whether the court erred when it failed to enter the judgment of dismissal signed by Counsel for Appellant and Counsel for the City of Ridgeland. III. Whether the court erred when it denied Appellant s Motion to Compel the source codes of the Intoxilyzer 8000 and whether it erroneously overruled the Appellant s objection at trial regarding Appellant s Constitutional rights of confrontation in obtaining the source codes for the Intoxilzyer STATEMENT REQUESTING ORAL ARGUMENT Pursuant to M.R.A.P. 34(b), the Appellant requests that oral arguments be heard in this matter. Due to their complex nature, the Court s consideration of the issues presented by this appeal may be assisted or advanced by the presence of the parties before the Court to comment upon the issues and respond to any inquiries. STATEMENT OF THE CASE/OPERATIVE FACTS On March 5, 2009, Appellant was pulled over by Ridgeland Police Department s Officer Daniel Soto for speeding. County R. 33; County Trial Trans. 22. According to Officer Soto s testimony, based on his observation that Norman exhibited signs that he may be under the influence of alcohol he decided to conduct a field sobriety test on Norman at the scene. County R. 33; County Trial Trans. 27. Consequently, Appellant was arrested for both speeding and DUI 1 st Offense and was later submitted to the Intoxilyzer 8000 at the City of Madison Police Department, because the Intoxilyzer at the Ridgeland Police Department was malfunctioning at that time. County R. 33; County Trial Trans

7 On June 29, 2009, Appellant was found guilty of DUI 1 st Offense and speeding in the Ridgeland Mississippi Court. County R. 18. Appellant, then, filed his Notice of Appeal with the County Court of Madison County, Mississippi on July 28, County R. 3. On October 20, 2009, the County Court of Madison County, Mississippi, after a trial de novo, also found Norman guilty of DUI 1 st and speeding. County R. 58. Norman filed a Motion for New Trial on several issues, including the failure of the City of Ridgeland to provide the source codes for the Intoxilyzer County R. 64. Norman also filed an Addendum to Motion for New Trial, after evidence was discovered that Officer Daniel Soto provided false testimony under oath in another DUI action was fired from the department as a result. County R. 71. On October 11, 2013, the County Court entered an Order denying Defendant s Motion for New Trial and Addendum. County R. 77. Appellant then appealed from the County Court s October 20, 2009 verdict as well as its October 11, 2013 Order denying Motion for New Trial to the Circuit Court of Madison County where a hearing was had on August 22, Circuit R. 3; Circuit Trial Trans The Circuit Court entered an Order on December 8, 2014, denying Appellant s appeal and affirming his conviction for both DUI 1 st offense and speeding. Circuit R. 33. SUMMARY OF THE ARGUMENT This Court has held that in light of new evidence discovered after trial, some cases may be subject to be retried at a new trial. See Ormond v. State, 599 So.2d 951 (Miss. 1992). For a the discovery of evidence to warrant a new trial the following qualifications must be met: (1) the newly discovered evidence will probably produce a different result or verdict at the new trial; (2) the proponent of the new evidence must show that the newly discovered evidence was indeed discovered after the initial trial; (3) additionally, the proponent must also prove not only that the newly discovered evidence was discovered after the initial trial but also that it could not have been 2

8 discovered before the trial through due diligence; (4) that the new evidence is material to the issue at hand, not merely cumulative or impeaching. Id. (quoting Smith v. State, 492 So. 2d 260, 263 (Miss. 1986)). In light of the new evidence discovered after Appellant s initial trial that undermines the credibility and veracity of the State s only witness, Officer Daniel Soto, Appellant respectfully requests this Court to either dismiss the charges against Appellant or grant a new trial. The evidence revealing the scandal surrounding Officer Soto s untruthfulness arose after the initial trial wherein the Appellant was found guilty based primarily on the testimony of Daniel Soto and his observations leading to the Appellant s arrest. Also, said evidence is indicative of error when the trial court denied the Appellant s Motion for a New Trial. Surely a scandal involving an officer who, due to his 316 arrests of DUI offenders in 2008, was dubbed 2008 Mothers Against Drunk Driving s (MADD) police officer of the year had an effect on the Appellee s belief that the Appellant was guilty, considering the previous agreement to dismiss the charges against the Appellant after it became known that Soto indeed perjured himself to obtain convictions for arrests. In fact, a majority of the evidence that the trial court relied upon in making its decisions was supplied and prepared by Daniel Soto or was testimony made by Daniel Soto who, as stated above, was subsequently fired from the police department for making perjurious statements in cases exactly like the one at bar. See Whitfield v. City of Ridgeland, 2013 WL 663; see also Clack v. City of Ridgeland, 139 So. 3d 778 (Miss. Ct. App. 2014) (finding the court s review of Officer Soto s testimony raises obvious concerns about his veracity and credibility. ). The court erred denying the Appellant s motion to compel the Intoxilyzer 8000 codes violating his 6 th Amendment rights to confrontation and therefore this Court should reverse or in the alternative grant a new trial. Furthermore, the court erred by failing to enter the Agreed Judgment of Dismissal that was signed by counsel for Appellant and Counsel for the City of 3

9 Ridgeland and for the reasons listed above, this Court should reverse the trial court s decision or, in the alternative, grant a new trial. STANDARD OF REVIEW For the denial of a motion for a new trial the standard of review is abuse of discretion. White v. Yellow Freight Sys., Inc., 905 So.2d 506, 510 (Miss.2004) (citing Green v. Grant, 641 So.2d 1203, 1207 (Miss.1994)). In reviewing the evidence from the trial court, the evidence is viewed in the light most favorable to the nonmoving party and a reversal is appropriate only when after reviewing the entire record this Court decides that if the conviction is allowed to stand that it would be a miscarriage of justice. Id. at (citing Green, 641 So.2d at ). When the motion for a new trial is based upon the introduction of new evidence this Court has set out the following factors that must be met before the grant of a new trial in light of new evidence is appropriate: Newly discovered evidence warrants a new trial if the evidence will probably produce a different result or verdict; further, the proponent must show that the evidence has been discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative, or impeaching. Ormond, 599 So. 2d at 962 (quoting Smith, 492 So. 2d at 263). Furthermore, when considering whether new evidence requires the grant of a new trial it is also relevant for this Court to determine whether the evidence will have a probative effect. Witherspoon v. State, 767 So.2d 1065, 1067 (Miss. Ct. App. 2002)(citing Moore v. State, 508 So.2d 666, 668 (Miss. 1987)). ARGUMENT In its opinion issued on December 8, 2014 ( Opinion or Op ), the Circuit Court of Madison County, Mississippi affirmed the County Court s conviction of Defendant-Appellant s for driving under the influence, first offense, in violation of Miss. Code Ann (1)(a) and 4

10 (1)(c). Circuit R. 83. Pursuant to M.R.A.P. 3(a), Appellant files this appeal from the Circuit Court s ruling. In this case, the Circuit Court found that the trial court had committed no clear error or manifest wrong in its rulings or findings. Defendant-Appellant respectfully submits that the Court s finding was erroneous for the following reasons: (1) The Court erred in not granting the Appellant a reversal in the charges against him. (2) The Court erred in not granting the Appellant a new trial based on the new evidence that Daniel Soto has admitted to making perjurious statements in similar cases and in light of this new evidence the Appellant avers that he is entitled to a new trial in order to confront the veracity of the testimonial evidence provided by Daniel Soto. I. THE COURT ERRED WHEN IT DENIED APPELLANT A NEW TRIAL In the Circuit Court s December 8, 2014, Opinion and Order the court erred by denying Appellant s motion for a new trial. Circuit R.82. In it s opinion, the court stated only that the rulings and findings of the trial judge [were] supported by the evidence finding no error or manifest injustice. Circuit R. 83. The opinion did not support it s conclusions with any reasoning beyond a basic claim that in its opinion the facts viewed in a light favorable to the State would support reasonable jurors finding Appellant guilty beyond a reasonable doubt. Circuit R. 83. In light of the introduction of new evidence that Officer Daniel Soto has perjured himself in similar cases to the one at bar, Appellant contends that reasonable jurors, even if viewing the facts of the case in a light most favorable to the State, could indeed have reasonable doubt as to Appellant s guilt. When appealing a decision of a lower court judge, as long as the lower court judge applied the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in 5

11 error, or is contrary to the overwhelming weight of the evidence. Dennis v. State, 873 So.2d 1045, 1047 (Miss. Ct. App. 2004)(quoting Foster v. State, 639 So.2d 1263, 1281 (Miss. 1984)). The Appellant respectfully requests that he be granted a new trial as evidence putting Officer Soto s veracity into question came to light after the trial court had entered its judgment against Appellant. According to this Court in Ormond: Newly discovered evidence warrants a new trial if the evidence will probably produce a different result or verdict; further, the proponent must show that the evidence has been discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative, or impeaching. Ormond v. State, 599 So. 2d 951, 962 (Miss. 1992) (quoting Smith v. State, 492 So. 2d 260, 263 (Miss. 1986)). When considering whether new evidence requires the grant of a new trial it is also relevant for this Court to determine whether the evidence will have a probative effect. Witherspoon, 767 So.2d at 1067 (Miss. Ct. App. 2002)(citing Moore v. State, 508 So.2d 666, 668 (Miss. 1987)). Appellant, in reviewing the Circuit Court s brief opinion, cannot glean whether that court in finding that the new evidence was insufficient to grant a new trial had reached its opinion by applying the above stated standard that this Court held should be applied in the lower court s analysis of the new evidence. See Circuit Court Order. Viewing the aforementioned court opinion objectively, it appears that the circuit court erred not only by failing to apply the appropriate standard but they also failed to even mention the standard set forth by this Court in its analysis of whether to grant a new trial based on the introduction of the new evidence. The evidence of Daniel Soto s perjurious testimony given in other similar cases is sufficient to warrant a new trial for the Appellant. Given that: (1) the evidence of Officer Soto s false statements arose after Appellant s initial trial and conviction; (2) the evidence of such false 6

12 statements came to light before the hearing wherein the trial court denied both the Order of Dismissal and the Appellant s Motion for a New Trial; (3) and that such evidence could not have been discovered through due diligence, calls for the Appellant to receive a new, fair trial. Id. Furthermore, the evidence discovered is indeed material as it tends to prove the innocence of the Appellant and such evidence is by no means merely cumulative, or impeaching. Id. (Emphasis added). a. The evidence of Officer Soto s false statements arose after the initial trial. Appellant s initial trial was held on October 16, 2009 in the County Court of Madison, Mississippi in front of the Honorable William S. Agin. The hearing on the Motion for Judgment Notwithstanding the Verdict was heard on January 14, The State has admitted at trial that the Officer Soto perjury scandal broke in February of 2010, clearly after both the initial trial and the hearing on the motion for JNOV. b. The evidence of Officer Soto s questionable veracity is material as he is the only witness the State has brought forth to convict Appellant. The fact that Officer Soto s veracity has been called into question in a number of prior cases and has lead to the dismissal of numerous cases, what the State has admitted during trial amounts to, at the very least, 10 to 15 cases in which Officer Soto served as the arresting officer is beyond a doubt material to the issue at hand and if introduced at a new trial would certainly lead to a finding of innocence on the Appellant s part. The evidence admitted at the trial level consisted solely of Officer Daniel Soto s testimony, observations, and the results of tests that Soto had ministered himself. In fact, at trial, the State relied solely upon evidence that was, at all times, dependent upon Daniel Soto s testimony and observations. 7

13 The evidence brought by the State in support of its contention that Appellant was guilty of DUI 1 st was that (1) Officer Soto observed an odor of an alcoholic beverage emitting from within the vehicle; (2) Officer Soto observed the appellant s eyes to be bloodshot and dilated; (3) Officer Soto offered the appellant the preliminary breath test, which Officer Soto alleged to be positive for the presence of alcohol; (4) Officer Soto conducted the field sobriety test which he contends Appellant ultimately failed; (5) Officer Soto having concluded based on his training, experience and roadside investigation that the appellant was driving under the influence of alcohol arrested appellant for DUI; (6) finally, Officer Soto waited the requisite 20 minutes and then administered to Appellant the Intoxilyzer 8000 test and observed the results to register that Appellant s breath alcohol content to allegedly as.10. County R c. The new evidence would show that the State s sole witness and only source of evidence had a propensity to hide exculpatory evidence and perjure himself to get convictions in cases almost precisely similar to Appellant s. In Moore, this Court had to decide whether new testimonial evidence from a witness would probably change the results of a new trial. 508 So.2d at 668. The defendant in Moore was convicted of drug possession and the new evidence the defendant used to support his motion for a new trial was witness testimony that one of the witnesses at trial had committed perjury in court. Id. The Court stated that perjury testimony, alone, does not provide a sufficient basis for the grant of a new trial. Id. Furthermore, this Court stated that in order for the grant of a new trial the alleged perjury must be proved and that the proof of perjury introduced at a new trial would result in a different outcome than the previous trial. Id. at It has been admitted by the state at trial that Officer Soto s perjury and withholding of evidence has caused at least 10 to 15 cases to be dismissed. County Court Trans The State has also admitted that the Agreed Order of 8

14 Dismissal that was signed by McDonald is his capacity as the prosecutor for the City of Ridgeland is the exact type that he typically signed in cases where Officer Soto served as the arresting officer. County Court Trans The State, by signing the Agreed Order of Dismissal, despite their attempt to recant after the fact, has acknowledged that they would not be seeking conviction and was willing to drop all charges against Appellant because like the 10 to 15 cases that they already admitted to dismissing, this one as well was tainted by Officer Soto s blatant and rampant untruthfulness. County Court Trans Officer Soto was dismissed because of his falsification or willful misrepresentation of Police Department incident report. See Exhibit City of Ridgeland Letter of Soto s Dismissal. Officer Soto was found to have been untruthful in his testimony in two separate court opinions on DUI cases in which he was the arresting officer. See Whitfield, 2013 WL (S.D. Miss. 2013); See also Clack, 139 So.3d 775. Furthermore, as the above section exemplifies, all of the State s evidence was either gathered by, filtered through, or testified to by Officer Soto. There were no other witness accounts introduced in support of the State s case besides that of Officer Soto. We must trust Officer Soto s claims that he had probable cause to pull over Appellant because he clocked the Appellant on his radar doing 54 mph on Lake Harbor Drive where the speed limit is 40 mph. County R. 33; County Court Trans. 24. We must rely on Officer Soto s veracity that the Appellant smelled of alcohol when he approached the vehicle. County R. 33; County Court Trans. 25. It must be taken at Officer Soto s word that when he, alone, administered the breathalyzer test that the Appellant registered positive for alcohol on his breath, and that the Appellant failed the field sobriety test. County R. 33; County Court Trans. 25. After the revelation of the scandal surrounding Officer Soto, his word carries little weight in light of the number of cases that have been dismissed 9

15 because of his perjurious statements and the subterfuge he undertook to suppress exculpatory evidence. County Court Trans. 157 If this Court takes into account the fact that the sole source of the State s evidence originated with an officer of the law who has no regard for the truth and has been the source of what the state has admitted to be at least 10 to 15 dismissals of criminal charges and cases, it becomes clear that the evidence of Officer Soto s untruthfulness would, certainly, taint the State s evidence with doubt and disbelief, so much so as to place a reasonable jury, at the very least, in reasonable doubt of the Appellant s guilt. Also, the fact that the State agreed to dismiss Appellant s case just 3 days after Officer Soto was fired from the Ridgeland Police Department shows that the State clearly had no confidence in the conviction against Appellant after Soto was revealed to be untruthful and therefore an unreliable witness. See Exhibit Agreed Order of Dismissal; See also Letter Dismissing Officer Soto. The State s argument at trial that the Agreed Order of Dismissal was signed out of mistake is unconvincing as clearly the heading announces the style and cause number of Appellant s case. County Court Trans This new evidence would most certainly be sufficient to satisfy the Ormond requirement that the new evidence will probably produce a different result or verdict. 599 So. 2d at 962. It was certainly enough to convince the State to dismiss numerous cases in which Officer Soto was the arresting officer and to sign the order of dismissal dismissing the case at hand. d. The evidence is not merely cumulative or impeaching as it casts a dark cloud of doubt over all of the State s evidence that was gathered, produced, or testified about by Officer Soto. This Court has stated that when a court is reviewing a denial of a new trial based upon an objection on the weight of evidence the reviewing court must sit as a thirteenth juror and must 10

16 weigh the evidence in a light most favorable to the verdict of the original trial. See Bush v. State, 895 So.2d 836, 844 (Miss. 2005)(citing Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (Miss. 2000)); See also Herring v. State, 691 So.2d 948, 957 (Miss. 1997)(holding that reviewing court should weigh evidence in light most favorable to the verdict). This Court has stated: We have overturned verdicts in cases in which we found the first jury s determination of guilt to be based on extremely weak or tenuous evidence, even where that evidence is sufficient to withstand a motion for a directed verdict. We also have granted new trials in cases where the evidence was so extremely doubtful that it was repulsive to the reasoning of the ordinary mind. Renfro v. State, 118 So.3d 560 (Miss. 2013)(quotations and citations omitted)(emphasis added). This Court in Dilworth found that conflicting evidence is not sufficient to rise to the level of extremely doubtful evidence since there was undisputed evidence other than the conflicting evidence that supported finding the defendant guilty in the form of uncontroverted eye-witness testimony. Dilworth v. State, 909 So.2d 731, 738 (Miss. 2005). Furthermore, this Court has stated: While we do not say that the testimony of the appellee is unbelievable or palpably false, yet we are persuaded that in many respects it is unreasonable and unconvincing to the ordinary mind. It is unsupported by any other material fact or circumstance in the case. Southern Ry. Co. v. Elder, 80 So. 333 (Miss. 1919). In the case at bar, the introduction of the new evidence concerning Officer s Soto s mendacity certainly makes all the evidence that relies on his veracity (i.e.- his testimony, test results, and observations) extremely doubtful especially in light of the fact that he is the sole source of the State s evidence. Unlike the case in Dilworth where the State had other evidence to support the defendant s conviction, besides the evidence provided by Soto, the State has introduced no other evidence to support Appellant s conviction. There is no other evidence to support his testimony or observations, and like this Court found in Elder, his testimony and the 11

17 evidence that he provided through his observations and tests are unsupported by any other material fact or circumstances in [this] case. Id. Should this Court nevertheless find, that despite the fact that the new evidence provided by Appellant of Officer s Soto s untruthfulness, that the State s evidence is not necessarily false, it should find that given the uncontroverted fact of Officer Soto s proven habitual fabrication of evidence and submission of false testimony in cases with almost the exact same facts as the one at bar that this has made the evidence he provided unreasonable and unconvincing to the ordinary mind. Id It is true that the courts have stated that it gives an arresting officer s testimony of the circumstances surrounding a DUI arrest because they recognize that the majority of these arrests are conducted by a single officer whose statements and observations are the only evidence available to support a DUI conviction: We upheld a DUI conviction in Saucier based on an officer's testimony regarding the defendant's slurred speech and glazed eyes, the smell of alcohol and the results of field sobriety tests... Deloach v. City of Starkville, 911 So. 2d 1014, 1018 (Miss. Ct. App. 2005) (citing Saucier v. City of Poplarville, 858 So. 2d 933, 936 (Miss. Ct. App. 2003)). Similarly in Starkey and Rhoades: [T]he State's evidence consisted of testimony from Officer Mucciarone and Officer Barker. Both officers are trained in field sobriety procedures and certified to administer the tests that Starkey received. Officer Mucciarone testified that he observed Starkey unsteady on his feet, with red, watery eyes, a dazed stare, slurred speech and he sensed a strong odor of an intoxicating beverage coming from inside the vehicle. Officer Barker testified to the same indicators of intoxication. Starkey v. State, 941 So. 2d 899, 903 (Miss. Ct. App. 2006). We find that the State did show pursuant to Miss. Code Ann. Section (1)(a) (Rev.1996) that Rhoades was driving or operating a vehicle, 12

18 through Officer Lytle's testimony. The State also showed, through the testimony of Officers Lytle and Hernandez regarding their observations of Rhoades and the sobriety tests given, that Rhoades was under the influence of an intoxicating beverage while operating a vehicle. There is accordingly sufficient evidence to support the conviction. Rhoades v. State, 832 So. 2d 544, 547 (Miss. Ct. App. 2002). Based on these three cases, it is undeniable that this Court places extremely great weight on the testimony of the arresting officer. In fact, as shown above, the testimony of the arresting officer, standing alone and unsupported by any other evidence, is sufficient to support a conviction of driving under the influence. In applying the standard for reversal or new trial based on newly discovered evidence, the Appellant therefore avers that, in the situation before this Court instantly, if the conviction was obtained almost exclusively through the testimony of the sole arresting officer and the only eyewitness to the allegedly intoxicated Appellant was that officer and the newly discovered evidence along with the actions of the State in previously agreeing to dismiss the charges against the Appellant shows that the sole testimony which caused the conviction of the Appellant was almost certainly perjured, the only plausible action warranted should be, at the very least, the grant of a new trial with the newly discovered evidence able to be admitted. Clearly, the State has an interest in ridding the streets of DUI offenders for the safety of its citizens and this task is laid upon the shoulders of the policemen and women whose testimony is given an extreme amount of deference by the courts of this State. However, when officers like Soto who take advantage of this great duty entrusted to them by the state and the deference given by the courts, it is within the interest of justice that those cases tainted by the offending officer should be given a new chance at being heard in light of the new evidence of the officer s perjury. This would ensure that the great deference that is normally given to an arresting officer s 13

19 testimony and evidence is still upheld except in an exceptional case such as this when an officer has scandalized himself and his department by taking advantage of his position. The Appellant contends that the trial court abused its discretion in not applying the factors laid out in Ormond by this Court in its analysis as to whether to grant Appellant a new trial in light of the new evidence that proved Officer Soto was quick to lie and use his position as the sole arresting officer to manipulate the facts of the actual arrest, hide exculpatory evidence, and commit perjury to obtain a conviction. If this Court decides that the lower court did utilize the Ormond factors in deciding whether to grant the Appellant a new trial, the Appellant asserts that the lower court erred in its application of those factor and its ultimate conclusion that despite the new evidence the Appellant was still not warranted a new trial to prevent injustice this Court should, in the interest of justice, reverse the conviction or in the alternative grant a new trial. In Giglio v. U.S.,405 U.S. 150 (1972), the United States Supreme Court addressed Motions for New Trial based on newly discovered evidence. The Court in Giglio made clear that "deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice. " "The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Id. at 154. In Brady v. Maryland, 373 U.S. 87 (1968), the Supreme Court stated that "suppression of material evidence justifies a new trial irrespective of the good faith or bad faith of the prosecution." A new trial is required "if the false testimony could in any reasonable likelihood have affected the judgment of the jury." Giglio at 154. Similar to Giglio, the entire case of City of Ridgeland v. Norman depended on the testimony of Daniel Soto and its credibility, whether it pertained to the traffic stop itself or to 14

20 the subsequent testing for sobriety. In Giglio, the Supreme Court found that due process requirements dictate that a new trial is required if testimony is found to be false or if it is later found that the prosecution failed to disclose information important to the case, such as whether there was any agreement regarding future prosecution of a witness that agreed to cooperate as in Giglio. As such, the County Court had a duty, regardless of the reasons why the Court was in session, to further explore the evidence that Daniel Soto provided false testimony under oath, and allow the testimony of Chief Houston at a later date to provide further evidence of said false testimony. Such findings of false testimony call into question Soto's entire testimony in the County Court case. Although this evidence of false testimony was not discovered until after the initial January 2010 hearing on Defendant's Motion for New Trial, the County Court refused to consider this new evidence, and instead held that they were restricted to the Court's ruling from the bench on January 2010, although the evidence of Soto's false testimony was not available at that time. As a result, the Court erred and the Circuit Court should reverse this decision and grant a new trial on the basis of the finding of Soto's false testimony. II. THE COURT ERRED BY FAILING TO ENTER THE JUDGMENT OF DISMISSAL On August 22, 2013, counsel for the Defendant and Boty McDonald, City of Ridgeland Prosecutor, appeared before the Honorable Steve Ratcliff on a Motion for New Trial filed in October of County Court R. 64. The Madison County Court held a hearing on the Motion for New Trial in January of 2010, but an Order was never generated from the Court s ruling, and the purpose of the August 2013 hearing was to clear up any remaining issues in the case and to generate an Order to allow the Defendant to proceed further on appeal. County Court Trans

21 In the course of said hearing, Judge Ratcliff observed that the file contained an Agreed Order of Dismissal of the Appellant s case which was signed by Appellant s counsel and by Mr. McDonald, but for unknown reasons had not been executed by the judge. County Court Trans The Agreed Order was dated March 8, See Exhibit Agreed Order. Mr. McDonald acknowledged that due to Office Daniel Soto being the subject of federal litigation for providing false statements under oath on several DUI cases in which Soto was the arresting officer, that McDonald had agreed to dismissal in about 10 to 15 cases. County Court Trans 157. Mr. McDonald further acknowledged that the Agreed Order of Dismissal that he executed in the instant case occurred after February 2010 all this stuff broke regarding Daniel Soto involving his false testimony. County Court Trans Mr. McDonald acknowledged that in March 2010, he began dismissing cases in which Soto was involved and that the Agreed Order of Dismissal in the instant case must have been submitted with the others. County Court Trans McDonald further stated that all of the cases in which Soto was involved were being dismissed as a result of Soto s acknowledgement of giving false testimony. County Court Trans The Court entered into a lengthy discussion on the motives of Mr. McDonald in signing the Agreed Order and submitting it to the Court and whether McDonald meant to submit the Order. County Court Trans McDonald did not have a definite answer, and stated he could only speculate as to why the Agreed Order was signed and entered. County Court Trans In response, Judge Ratcliff stated that he would take judicial notice of the file and noted that a Motion for Dismissal had not been filed in the Norman matter and one had not been heard. County Court Trans Counsel for the Appellant argued that the evidence of Soto s false testimony occurred after the Motion for New Trial and the last hearing before the Court, and that McDonald in response had agreed to dismiss all cases in which Soto participated. County Court 16

22 Trans Appellant s counsel proffered the Agreed Judgment and the fact that it was signed by Mr. McDonald and by Appellant s counsel. County Court Trans While the Court noted the fact that an Agreed Judgment of Dismissal was submitted by McDonald that was signed by McDonald and counsel for Appellant, the Court ruled that because the hearing in question was in regard to a Motion for New Trial, and the County Court had previously ruled from the bench denying Appellant s Motion for New Trial, that the Court could take no action other than memorializing the Court s ruling from the bench into an appealable order. County Court Trans The Court erred in not submitting the Agreed Judgment of Dismissal, which was agreed to and signed by counsel for both parties and submitted by counsel for the State of Mississippi/City of Ridgeland to the Court. While counsel for the City of Ridgeland could not recall the specifics in submitting the Agreed Judgment, counsel for the City of Ridgeland did admit that in March of 2010 he did begin dismissing several DUI cases in which Officer Daniel Soto was the arresting officer. County Court Trans As an officer of the Court, counsel for the City of Ridgeland is bound by Rule 11 of the Mississippi Rules of Civil Procedure that by signing a document, he is providing to the Court a certificate that the attorney has read the pleading and that said pleading is supported with good factual grounds. By signing this pleading and submitting it to the Court, counsel for the City of Ridgeland affirmed that the Agreed Judgment was his intention, that it was supported by sufficient grounds, and that he had read the pleading. Counsel for the City of Ridgeland did not deny that the signature on the document was his, and even admitted that he executed several of these agreed judgments of dismissal on cases in which Daniel Soto was the arresting officer. County Court Trans

23 Counsel for the City of Ridgeland did not affirmatively state that the document was entered by mistake, and stated that any explanation on how the document was signed and submitted was "speculation." County Court Trans Regardless of any speculation, counsel for the City of Ridgeland bound by the document that he signed and submitted to the Court, and the Court erred in not accepting the document as the intent of the parties. The Court refused to sign and submit the document on the grounds that the hearing that brought the parties before the Court dealt with Defendant's Motion for New Trial, which had already been adjudicated from the bench by Judge Agin previously. County Court Trans However, the developments involving Soto and his false testimony occurred after the initial hearing on the Motion for New Trial, which would explain why the Agreed Judgment of Dismissal was submitted to the Court after the initial hearing on the Motion for New Trial. Although the parties were before the Court on a Motion for New Trial, the Defendant is unaware of any case law that would prevent a Court of taking notice of an Agreed Judgment disposing of the case and recognizing that as the will of the parties. The Court had the opportunity to dispose of the case in accordance with the will of both parties, and their failure to do so was in error. The Circuit Court should reverse the decision of the County Court, and direct the County Court to sign and submit the Agreed Judgment of Dismissal, recognizing it as the intent of the parties. III. THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT'S MOTION TO COMPEL THE SOURCE CODES OF THE INTOXILYZER 8000 AND ERRONEOUSLY OVERRULED THE DEFENDANT'S OBJECTION AT TRIAL REGARDING DEFENDANT'S CONSTITUTIONAL RIGHTS OF CONFRONTATION IN OBTAINING THE SOURCE CODES FOR THE INTOXILYZER The trial court erred by denying the defendant's motion to compel the discovery of the 18

24 lntoxilyzer's 8000 source code. Pursuant to the case of Melendez Diaz v. Massachusetts, the Constitution's Sixth Amendment right to confront witnesses includes the right to confront the technician that is responsible for certain testing procedures or who has knowledge as to how certain results are reached and calculated in tests. Melendez-Diaz referred to chemical testing for certain drugs, and ruled that a Defendant has a right to confront the technician responsible for conducting the test to insure the reliability of the test for the presence of certain drugs. 557 U.S. 305 (2009). The Court found that these test result documents were testimonial in nature, and as a result the Defendant had the right to confront the "maker" of the document, so to speak. Id. Similar to the test results in Melendez Diaz, the results of an Intoxilyzer 8000 test are testimonial statements, and therefore the Defendant is entitled to cross-examine the computer's analyst as to the procedure by which the results were reached. This cannot be accomplished without the source code of the computer. Otherwise, the defendant stands convicted on the basis of criteria that have not been made available to him or the court to scrutinize. In other words, Norman has been convicted by a machine. The testimony provided in the County Court trial de novo established that there has been no testimony by anyone provided by the City of Ridgeland regarding how the Intoxilizyer 8000 machine computer works, how it detects certain hydrocarbons as alcohol, and whether such detection is 100% foolproof, or whether certain hydrocarbons could call into question to reliability of the test. The City of Ridgeland, and Officer Soto, admitted that they are not qualified to make such determinations. County Court Trans ; The testimony of Maury Phillips with the state crime lab also reflected that the source codes are the only way in which one can 19

25 determine how a particular Intoxilyzer machine measures hydrocarbons and the reliability of the machine and its individual tests. County Court Trans The Defendant also provided the testimony of expert Thomas Alfonso regarding the source codes and the fact that such codes are the only way in which one can determine the reliability of a particular machine and whether such results provided by the machine were in fact accurate. County Court Trans Despite the foregoing, the Court denied the Defendants' attempts to prevent the introduction of the Intoxilyzer 8000 results, as well as the testimony of Officer Soto, on the grounds that the Court believed that Melendez Diaz had not been extended so far as to require the source codes of the Intoxilyzer as satisfying Defendants' right to confront witnesses, and that Soto's certification with the machine sufficed. County Court Trans. 1-95, County Court Trans In failing to prevent the introduction of evidence without allowing the Defendant sufficient opportunity to confront said evidence and by convicting the Defendant without allowing him the 6th Amendment right to confront the reliability of the Intoxilyzer 8000, the Court erred and the 6th Amendment and Due Process Rights of the Defendant were violated. CONCLUSION The Appellant respectfully requests this Court reverse the decision of the trial court and grant the Appellant s dismissal, as said dismissal was filed with the Court and was agreed to by the Appellee. In the alternative, if this Court does not grant the Appellant s dismissal, the Appellant requests this Court reverse the decision of the trial court and grant the Appellant a new trial based on the new evidence Daniel Soto s perjury which will almost certainly entitle the Appellant to a different verdict. THIS the 15 th day of May,

26 Respectfully Submitted, Timothy Norman, Appellant BY:_/s/ Seth C. Little Seth C. Little, MSB # CHUCK McRAE, MSB #2804 SETH LITTLE, MSB # McRAE LAW FIRM, PLLC 416 EAST AMITE STREET JACKSON, MISSISSIPPI Office: Facsimile:

27 CERTIFICATE OF SERVICE I, Seth C. Little, do hereby certify that I have filed a true and correct copy of the above and foregoing with the Court s electronic filing system which automatically sends notification to the following: THIS the 15th day of May, John R. Henry, Jr., Esq. (jhenr@ago.state.ms.us) Honorable John Emfinger Post Office Box 1885 Brandon, Mississippi (via United States mail) /s/ Seth C. Little Seth C. Little, MSB # Chuck R. McRae (MSB# 2804) Seth C. Little (MSB #102890) McRae Law Firm, PLLC 416 E. Amite Street Jackson, Mississippi Office: Fax: chuck@mcraelaw.net seth@mcraelaw.net 22