BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Mar :34: KA COA Pages: 9 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI BENJAMIN MCCADNEY APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT W. Daniel Hinchcliff, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: dhinc@ospd.ms.gov Counsel for Benjamin McCadney

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI BENJAMIN MCCADNEY APPELLANT V. NO KA 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. Benjamin McCadney, Appellant 3. Honorable Brenda F. Mitchell, District Attorney 4. Honorable Albert B. Smith, III, Circuit Court Judge This the 20th day of March Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER /s/ W. Daniel Hinchcliff W. Daniel Hinchcliff, Appellant Counsel i

3 TABLE CONTENTS I. CERTIFICATE OF INTERESTED PERSONS i II. TABLE OF CONTENTS ii III. TABLE OF AUTHORITIES iii IV. STATEMENT OF ASSIGNMENT V. STATEMENT OF THE ISSUES VI. STATEMENT OF THE CASE VII. FACTS VIII. SUMMARY OF THE ARGUMENT IX. ARGUMENT X. STATEMENT OF COUNSEL XI. CONCLUSION XII. CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES STATE CASES Lindsey v. State, 939 So. 2d 743 (Miss. 2005) iii

5 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI BENJAMIN MCCADNEY APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF ASSIGNMENT This cause is properly before this Court. STATEMENT OF THE ISSUES None STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Bolivar County, Mississippi, Second Judicial District, and a judgement of conviction for the crime of aggravated assault with firearm enhancement against Benjamin McCadney following a jury trial commenced June 6, 2016, the honorable Albert B. Smith, III, Circuit Judge, presiding. Appellant Benjamin McCadney was sentenced to a term of twenty (20) years for the crime of aggravated assault with an additional term of five (5) years to run consecutively for a total of twenty-five (25) years. He is presently incarcerated in an institution under the supervision of the Mississippi Department of Corrections. FACTS Moses Kizart, Jr. had been at Rainey s club the evening of April 27, 2014, drinking a few beers. He left around 12:30 am, and stopped to relieve himself behind the liquor store. As he finished and turned around, he was confronted with a masked man carrying a gun. The man shot 1

6 him in the stomach. Kizart charged him. The bandana-mask covering the assailant s face was pulled down. Kizart was able to recognize the attacker, but did not know his name. (T ). Though wounded, Kizart tried to run. He was pursued and shot again. He reached a house, and help was summoned. Several police officers responded. Kizart said he was shot by a man wearing a black top. Officer Michael Pointer saw a young man running nearby in a white t-shirt. He recognized him as Benjamin McCadney, but didn t stop him as he was looking for someone wearing black. McCadney went to a white station wagon and got in. The car was later stopped, but McCadney was not in it. Officers found a bandana and a black sweat shirt in the immediate area. Moses Kizat, Jr. was taken to the hospital in Memphis. Some time later, he was able to pick Benjamin McCadney out of a photo line-up. Benjamin McCadney testified. Officer Pointer did see him, but he was leaving work. He did not shoot Moses Kizart, Jr., a man he did not know. Although a motive had been suggested in the State s case, that Moses was to testify against McCadney s friend in a separate matter, McCadney denied such a motive. The jury returned a verdict of guilty, and upon being polled, it was unanimous. SUMMARY OF THE ARGUMENT None ARGUMENT None. STATEMENT OF COUNSEL 1. The undersigned counsel for the Appellant hereby represents to the Court 2

7 pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005), that he has diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the Court on behalf of Benjamin McCadney, in good faith for appellate review, and upon conclusion, found no errors which were ultimately prejudicial to Benjamin McCadney. 2. The entire record and transcript were scrupulously reviewed and matters considered in counsel s search for error included: (a) the weight and sufficiency of the evidence; (b) speedy trial issues; (c) challenges of jurors for cause; (d) all rulings of the trial court; (e) possible issues of ineffective counsel; (f) all jury instructions; (g) the admission of all exhibits; (h) the indictment; and (i) sentencing. 3. However, counsel is unable to argue, in good faith, any prejudicial error. 4. Counsel further confirms that he has, as of the date of filing this brief, mailed by first class mail, postage prepaid, a copy of this brief and correspondence informing Benjamin McCadney that counsel finds no arguable issues in the record and that he has a right to file a pro se brief. 5. Counsel for appellant requests that the Court grant Benjamin McCadney forty (40) days of additional time in which to file a pro se brief if he desires to do so. 6. Counsel stands ready to prepare supplemental memoranda of law on any issues requested by the court. 3

8 CONCLUSION An additional forty (40) days enlargement of time is requested for Benjamin McCadney to file any pro se brief he would wish to file. Respectfully submitted, By: /s/ W. Daniel Hinchcliff W. Daniel Hinchcliff, Appellant Counsel CERTIFICATE OF SERVICE I, W. Daniel Hinchcliff, Counsel for Benjamin McCadney, 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 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 Albert B. Smith, III Circuit Court Judge Post Office Drawer 478 Cleveland, MS Honorable Brenda F. Mitchell District Attorney, District 11 Post Office Box 848 Cleveland, MS Benjamin McCadney, MDOC # Carroll- Montgomery County Regional Correctional Facility 4

9 33714 Highway 35 Vaiden, MS This the 20th day of March /s/ W. Daniel Hinchcliff W. Daniel Hinchcliff, Appellant Counsel W. Daniel Hinchcliff, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: