BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Apr :00: KA COA Pages: 11 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI KUREN CORDELL KEYS APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Mollie M. McMillin, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: mmcmi@ospd.ms.gov Counsel for Kuren Cordell Keys

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI KUREN CORDELL KEYS 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. Kuren Cordell Keys, Appellant 3. Honorable Joel Smith, District Attorney 4. Honorable Christopher Schmidt, Circuit Court Judge This the 6 th day of April, Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel i

3 TABLE OF CONTENTS I. Certificate of Interested Persons i II. Table of Contents ii III. Table of Authorities iii IV. Statement of the Issues V. Statement of the Case VI. Statement of the Facts VII. Summary of the Arguments VIII. Argument IX. Statement of Counsel X. Conclusion 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 KUREN CORDELL KEYS APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES None. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Harrison County, Mississippi, and a judgment of conviction for two counts of sexual battery entered against Kuren Cordell Keys. (C.P. 79, R.E. 6). Following a jury trial, where Keys was represented by public defender Dana Christensen, the trial court sentenced Keys fifteen (15) years in Count I, consecutive to thirty (30) years in Count II, all in the custody of the Mississippi Department of Corrections. (C.P. 80, R.E. 7). The trial court denied Keys s motion for judgment notwithstanding the verdict or new trial. (C.P. 91, R.E. 10). Keys is presently incarcerated in the Mississippi Department of Corrections and appeals to this honorable court for relief. STATEMENT OF THE FACTS On Thanksgiving night in 2013, Ashlee Taylor went to Club Illusions, where she was training as a waitress. (Tr. 54). She went to the club around 11:00 p.m. or 12:00 a.m. (Tr. 54). She was supposed to ride home with a friend s boyfriend, who worked security at the club. But when the club 1

6 closed, he asked Taylor to find another ride home because he had been drinking. (Tr. 55). Taylor found her friend Deanthony Haralson, who agreed to take her home. (Tr. 56). She got into a car with Haralson and two other men she did not know Keys and Donnell Bolden. She described the car as a silver four-door Chevrolet. (Tr. 57). Once in the car, Keys told Haralson to drive. She realized that the car belonged to Keys, not to Deanthony. (Tr. 57). The group dropped off the third man first, then Deanthony drove the car to his apartment and got out of the car, leaving Keys and Taylor in the car together. (Tr. 59). Keys began driving with Taylor in the passenger seat; Keys began driving away from the direction of Taylor s home. (Tr. 60). Taylor asked Keys where they were going, and he responded that he had to hit a lick. (Tr. 61). They drove approximately ten or fifteen minutes until Keys pulled the car over. Taylor became angry because she really needed to get home. (Tr. 62). In her peripheral vision, Taylor noticed movement. She turned to see Keys stroking his penis. (Tr. 63). She tried to get out of the car, saying she would find her own way home, when Keys grabbed her and pulled her back into the car. (Tr. 63). Taylor testified that Keys threatened to shoot her. He told her to remove her underwear. Taylor testified that she explained to Keys that she had recently given birth and still had stitches that weren t healed. (Tr. 63). Taylor said that Keys then ordered her to perform oral sex on him. (Tr. 63). Taylor testified that after a few minutes of her performing oral sex on him, Keys pulled her out of the car and began raping her. (Tr ). While he was raping her, a police car drove by. Keys pushed Taylor to the ground behind the car so she could not be seen. (Tr. 66). Once the car has passed, Keys began to rape Taylor again. When she saw a second car about to pass by, Taylor broke away from Keys and ran into the path of the car for help. (Tr ). She told the driver of 2

7 the car that she had been raped, and the driver let her in the car. (Tr. 68). At the time of the assault, Taylor did not know Key s name. (Tr. 72). But in court, she identified Keys as the man who had assaulted her. (Tr. 72). Captain John Massengill of the Harrison County Sheriff s Office was on patrol the morning of the assault. (Tr. 84). He drove past Key s stopped car on the way to a fire station. (Tr. 84). He noticed the car and a man off the side of the road, but did not notice anything unusual and kept driving. (Tr. 87). He did not see Taylor. (Tr. 87). Shortly after he got to the fire station, Captain Massengill heard a call that there had been a rape and that the victim was headed to the fire station where he was. (Tr. 90). He put out a call with a description of the car he had seen on the side of the road. (Tr. 90). Massengill and another deputy went to the scene of the rape and recovered a pair of panties from the side of the road. (Tr. 126). Anita Corwin testified that she was driving down County Farm Road at about 6:15 in the morning when she saw Taylor running toward her car to get her to stop. (Tr. 136). Taylor was screaming that the man was trying to rape her. (Tr. 136). Taylor told Corwin that she saw a deputy pass but he did not see her. (Tr. 137). Corwin called 911 then turned around to head back toward the fire station where she had seen the deputy moments earlier. (Tr. 137). Taylor went to the hospital where she was examined by an emergency room nurse and evidence was collected. (Tr. 151). Vulvar swabs were taken from Taylor and sent for DNA testing. The vulvar swab taken from Taylor yielded a full Y-chromosome DNA profile, which was compared to the DNA sample collected from Keys. (Tr. 199). The DNA analyst concluded that Keys could not be excluded as the source of the DNA collected from Taylor s body, nor could any of his patrilineal male relatives. (Tr. 200). SUMMARY OF THE ARGUMENTS 3

8 None. ARGUMENT None. STATEMENT OF COUNSEL 1. Counsel for the Appellant hereby represents to the Court pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005), that counsel 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 Mr. Keys s behalf in good faith for appellate review, and upon conclusion, has found none. 2. The matters considered, reviewed and included in counsel s search were: (a) the reason for the arrest and the circumstances surrounding the arrest of Kuren Keys; (b) any possible violations of Keys s right to counsel; (c) the entire trial transcript and contents of the record; (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 misapplication of the law in sentencing; and (i) the indictment and all of the pleadings in the record; and (j) any possible ineffective assistance of counsel issues; and (k) whether the verdict was supported by the overwhelming weight of the evidence. 3. Counsel further confirms that she has, as of the date of filing this brief, mailed by first class mail, postage prepaid, a copy of this brief and correspondence informing Keys that counsel finds no arguable issues in the record and that he has a right to file a pro se brief. 4. Counsel for appellant requests that this Court grant Keys forty (40) days of additional time in which to file a pro se brief if he desires to do so. 5. Counsel stands ready to prepare supplemental memoranda of law on any issues 4

9 requested by the court. CONCLUSION There are no issues that counsel can in good faith present to the Court in this appeal. Respectfully submitted, KUREN CORDELL KEYS, APPELLANT /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel 5

10 CERTIFICATE OF SERVICE I, Mollie M. McMillin, Counsel for Kuren Cordell Keys, 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 Christopher Schmidt Circuit Court Judge P.O. Box 1461 Gulfport, MS Honorable Joel Smith District Attorney, District 2 Post Office Box 1180 Gulfport, MS Kuren Cordell Keys, MDOC # South Mississippi Correctional Facility Post Office Box 1419 Leakesville, MS This the 6 th day of April, /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel Mollie M. McMillin, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box

11 Jackson, Mississippi Telephone: Fax: