BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Apr :21: KA SCT Pages: 10 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI GARRETT EUGENE RAY APPELLANT V. NO KA SCT STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT On Direct Appeal from the Circuit Court of Stone County, Mississippi Trial Court No. B Erin E. Briggs, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: eprid@ospd.ms.gov Counsel for Garrett Eugene Ray

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI GARRETT EUGENE RAY APPELLANT V. NO KA SCT 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. Garrett Eugene Ray, Appellant 3. Honorable Joel Smith, District Attorney 4. Honorable Lawrence Bourgeois, Jr., Circuit Court Judge This the 7 th day of April Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER BY: /s/ Erin E. Briggs Erin E. Briggs Counsel for Appellant i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS i TABLE OF CONTENTS ii TABLE OF AUTHORITIES iii STATEMENT OF THE ISSUE STATEMENT OF ASSIGNMENT STATEMENT OF THE CASE STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENT ARGUMENT STATEMENT OF COUNSEL CONCLUSION CERTIFICATE OF SERVICE ii

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

5 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI GARRETT EUGENE RAY APPELLANT V. NO KA SCT STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUE None STATEMENT OF ASSIGNMENT This case is appropriately assigned to the Mississippi Supreme Court. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Stone County, Mississippi, where a grand jury indicted Garrett Eugene Ray on one count of possession of a controlled substance with intent to distribute. (R.E. 6, C.P. 7). The indictment was later amended to charge Ray as a habitual offender, pursuant to Mississippi Code Ann. Section (R.E. 7, C.P. 12). Ray stood trial on the charges in January 2015, however this trial resulted in a mistrial. (R.E. 17, C.P. 102). Ray stood trial again on these charges on September 20, The Honorable Lawrence P. Bourgeois, Jr., Circuit Court Judge, presided over the second jury trial. Following the evidence, the jury rendered a guilty verdict. (R.E. 18, C.P. 222). The State petitioned the court to sentence Ray as a habitual offender, with an enhanced sentence, pursuant to Mississippi Code Annotated Section (R.E. 10, C.P. 43). The court granted this request 1

6 and sentenced Ray to serve a total of sixteen years as a habitual offender, without the benefit or parole or early release. (R.E. 15, C.P. 99; R.E. 19, C.P. 223). Aggrieved, Ray filed a motion for JNOV or, in the alternative, a motion for new trial, as well as a motion to reconsider the sentence. (R.E. 21, C.P. 232). The court denied these requests and Ray timely noticed this appeal. (R.E. 27, C.P. 255; R.E. 28, C.P. 256). He is currently incarcerated in the custody of the Mississippi Department of Corrections. STATEMENT OF THE FACTS Aaron Grob and Chris Ory were narcotics investigators with a Joint Task Force between Wiggins Police Department and Stone County Sheriff s Department. (Tr. 49, 92). The officers received information that criminal activity would occur at the Chevron gas station on Hwy 49 in McHenry, Mississippi. (Tr ). The officers learned that a black man would be driving a white SUV northbound on Hwy 49, coming from Harrison County or Gulfport into Stone County, Mississippi. (Tr. 51). The driver s destination was the Chevron gas station. (Tr. 51). The individual was supposed to park on the north side of the gas station in the O Neal s parking lot in order to sell cocaine to the buyer. (Tr. 51). The investigators were not given a name of the seller, however, they were equipped with the seller s cell phone number. (Tr. 51, 93). Investigators Grob and Ory drove to the McDaniel s County Store, which was directly across Hwy 49 from the Chevron. (Tr. 93). The officers set up surveillance of the Chevron gas station. (Id). About 30 mins to an hour later, the officers saw a white Toyota Sequoia traveling North on Hwy 49. (Tr. 53, 94-96). The SUV had a Harrison County license plate. (Tr. 53). They watched as a man pulled into the parking lot of the Chevron and parked in the area the officers had been 2

7 information about. (Tr. 53). After seeing this, the officers drove across the street to the Chevron gas station. (Tr. 53). Both of the men were in plain clothes, with their badges displayed on chains around their necks. (Tr. 57). They were in an unmarked car was well. (Tr. 100). As Grob pulled in the parking lot, Ory got out of the car and walked to a car that was parked adjacent to the white SUV. (Tr. 94). Grob drove around the back of the gas station and parked about twenty feet behind the rear of the SUV. (Tr ). Grob made a call to the cell phone number he had previously received. (Tr. 54). Both officers watched as the driver of the SUV answered his cell phone after Grob made that call. (Tr. 54, 95). Garrett Ray was the driver of the SUV. (Tr. 95). He was the only person inside the vehicle at the time. (Tr. 55). After seeing Ray answer the phone, the officers walked toward Ray s car. (Tr. 56, 95-96). Ory approached Ray from Ray s driver side, while Grob got out of his car and approached Ray from the passenger side. (Id.). Ray s attention was on Grob when the officers announced that they were law enforcement. (Tr. 97). Ray had his driver -side window down at the time. (Tr. 58). When the officers asked Ray to show them his hands, they watched as Ray threw a Newport Cigarettes pack out of the driver - side window. (Tr. 97). The pack hit Ory in the chest and landed in his hands. (Tr. 97). Ory secured the package and the officers escorted Ray out of his car. (Tr. 98). As they placed Ray in restraints, he informed the officers that they had the wrong person. (Tr. 98). He then followed that statement by telling them, You ve got me, sir. (Tr. 98). Ory later gave Grob the cigarette pack. (Tr. 98). Inside the cigarette pack, Grob saw several cigarettes lined against the back wall of the pack, as well as two plastic bags containing an off-white rock-like substance. (Tr. 61). The Mississippi Crime Lab later tested the substances and found that 3

8 both of the substances contained cocaine. (Tr. 111, 113). One of the substances weighed 0.3 grams, while the other substance weighed 1.1 grams. (Tr. 112, 113). Ray was taken to the narcotics task force office and interviewed. (Tr. 69). He provided an oral statement, but not a written one. (Tr. 72, 74). Ray informed the officers that he had recently began selling and manufacturing crack cocaine. (Tr. 72). On the day in question, he brought the drugs to McHenry for the purpose of selling one of the rocks, while he intended to either use the second rock for himself or sell it at a later time. (Tr. 73). At trial, the officers neither presented photographs or video of their gas station surveillance, nor did they present the cell phone that Ray used to answer Grob s phone call. (Tr. 78, 19-84). Grob explained that they did not believe it was necessary to provide that information since the officers were able to take a step-by-step approach and corroborate each of the details provided in the tip. (77). SUMMARY OF THE ARGUMENT None ARGUMENT None STATEMENT OF COUNSEL 1. I, counsel for the Appellant, hereby represent to the Court, pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005), that counsel 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 Mr. Ray s behalf, in good faith, for appellate review. Upon conclusion of this search, I have not found any arguable issues. 2. The matters considered, reviewed and included in counsel's search were: (a) the reason 4

9 for the arrest and circumstances surrounding the arrest of Garrett Ray; (b) any possible violation of Mr. Ray s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; (h) possible misrepresentation of the law in sentencing; (i) the indictment and all pleadings in the record; (j) any possible ineffective assistance of counsel issues; and any other possible reviewable issues. 3. Counsel confirms that she has, on this date of the filing of this brief, mailed by first class mail, postage prepaid, a copy of this brief and correspondence informing Mr. Ray that counsel finds no arguable issues in the record and that Mr. Ray has the right to file a pro se brief. 4. Counsel for Appellant requests that this Court grant Mr. Ray an additional 40 days of time in which to file his pro se brief, if he so desires. 5. Counsel stands ready to prepare supplemental memoranda of law on any issues requested by this Court. CONCLUSION There are no issues that counsel can, in good faith, present to this Court in the appeal on this matter. Respectfully submitted, GARRETT EUGENE RAY, APPELLANT By: /s/ Erin E. Briggs Erin E. Briggs Counsel for Appellant 5

10 CERTIFICATE OF SERVICE I, Erin E. Briggs, Counsel for Garrett Eugene Ray, 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 Lawrence Bourgeois, Jr. Circuit Court Judge Post Office Box 1461 Gulfport, MS Honorable Joel Smith District Attorney, District 2 Post Office Box 1180 Gulfport, MS Garrett Eugene Ray, MDOC #R5536 South Mississippi Correctional Institution Post Office Box 1419 Leakesville MS This, the 7 th day of April BY: /s/ Erin E. Briggs Erin E. Briggs Counsel for Appellant Erin E. Briggs, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: eprid@ospd.ms.gov 6