BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document May :41: KA COA Pages: 14 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI LONNIE JORDAN APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Benjamin A. Suber, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: Counsel for Lonnie Jordan

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI LONNIE JORDAN 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 the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualifications or recusal. 1. State of Mississippi 2. Lonnie Jordan, Appellant 3. Honorable Price Henley, Trial Attorney for the Appellant 3. Honorable Alexander C. Martin, District Attorney 4. Honorable Lamar Pickard, Circuit Court Judge th This the 17 day of May, Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER BY: /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS.... i TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES...1 ISSUE NO. 1 THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE... 1 STATEMENT OF ASSIGNMENT...1 STATEMENT OF THE CASE...1 STATEMENT OF THE FACTS...2 SUMMARY OF THE ARGUMENT....6 ARGUMENT...6 ISSUE NO. 1 THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE... 6 CONCLUSION...8 CERTIFICATE OF SERVICE....9 ii

4 TABLE OF AUTHORITIES MISSISSIPPI CASES Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 947 (Miss. 2000)(footnote omitted) Bush v. State, 895 So. 2d 836, 844 (Miss. 2005) Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)...6 McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982) iii

5 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI LONNIE JORDAN APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES ISSUE NO. 1 THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE. STATEMENT OF ASSIGNMENT This case is appropriately assigned to the Court of Appeals of the State of Mississippi and should retain the case. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Copiah County, Mississippi, and a judgment of conviction for the crimes of Count I: Taking Possession of nad Taking Away of an Automobile and Count II: Kidnapping, against the Appellant, Lonnie Jordan. The conviction and sentence followed a jury trial on November 4-5, 2015, Honorable Lamar Pickard, Circuit Judge, presiding. Lonnie Jordan is currently in the custody of the Mississippi Department of Corrections. The trial judge subsequently sentenced Jordan in Count I to ten (10) years and Count II to thirty (30) years in the custody of the Mississippi Department of Corrections and said sentences shall run consecutive to each other. C.P

6 STATEMENT OF THE FACTS Dominique Buckner testified that on February 5, 2015, someone drove off in her vehicle. Tr. 40, 43. Buckner stated that when she got off of work that day that she went and picked up her tomonth old from her husband s grandmother s house. Tr. 40. Buckner made a stop and then proceeded to go pick up her three year old in Hazlehurst from her child s godmother. Id. Once Buckner got to Hazlehurst, she called and let her child know that she was outside and he was waiting on the porch. Tr. 41. Buckner stated that it was cold outside and that her child did not want to walk to the vehicle, so Buckner parked in the driveway and walked to the porch to get her child. Tr. 41, 43. Buckner stated that she intentionally made sure the driver side door was left open to make sure that the door would not lock her two-month old child inside. Tr. 43. Buckner claimed that as she got to the top of the top of the porch that she heard her door slam on her car and that her car sped off down the road. Id. She stated that she instantly started screaming, my baby. Id. She was screaming for her baby and then called 911 and her husband. Tr. 44. Buckner stated that her husband, mother-in-law, and other members of her family came to assist in the search of the car and the child inside. Id. Buckner stated that they searched everywhere they could think of in Hazlehurst. Id. Buckner told the court that they search from around 8:30 p.m. when the alleged incident occurred to approximately 3:15 a.m. the next morning February 6, 2016, when the car and the child were located in Crystal Springs. Tr. 45. The child was located inside the car. Id. Buckner stated that she did not give anyone to take her vehicle. Tr. 50. Buckner admitted on cross-examination that she could not identify who took her car. Tr. 52. Buckner also identified her purse as the purse that was in her vehicle. Tr. 49. Buckner stated that only cash was removed from her purse, and that all of her other items were recovered. Tr

7 On redirect Buckner stated that her child was in the back seat of the vehicle and the vehicle was running. Tr Christopher Davis, a criminal investigator for the Hazlehurst Police Department, testified that he received a call pertaining to a female by the name of Dominique Buckner stating that someone had driven off in her vehicle and that her child was in the back seat. Tr. 57. Davis, along with other officers, went to the address where the alleged incident happened and the surrounding area to try and find the vehicle. Id. The Hazlehurst Police Department, Mississippi Highway Patrol, Copiah County Sheriff s Department, along with several off-duty officers were involved in locating the vehicle. Tr. 58. Davis stated that the information that they received indicated that the vehicle was a silver gray Impala with one headlight missing. Id. The vehicle was last direction of travel was going South on Monticello Street towards the Hazlehurst Middle School. Id. Davis stated that the officers canvassed the area, five to ten miles inside the city limits to outside the city limits. Id. They also contacted the surrounding counties to give them the description of the vehicle and if any of their local law enforcement officers made contact with the vehicle to stop it. Tr Davis stated that they further met with a member of the Mississippi Bureau of Investigation and an Amber Alert was issued. Tr. 59. Davis then told the court that during a strategy meeting that the name Lonnie Jordan came up because of personal knowledge that Jordan hangs out and walks around in the area at night time. Tr. 61. It was also discussed that Jordan was acquainted with LaQuanda Johnson and that she lived in Crystal Springs. Id. Davis was unable to locate Jordan on the night in question until the following morning. Tr Davis then stated that while looking for Jordan they decided to go to the home of Jefferson, the girl friend of Jordan, and make contact with her. Tr. 62. Coincidentally, on the way 3

8 to the home of Jefferson, Davis was contacted by the Crystal Springs Police Department stating that they had located the vehicle that was out in the Amber Alert. Id. Davis made contact with the vehicle on Thomas Road in Crystal Springs. Tr. 63. Another investigator went to the home of Jefferson to see if she had seen Jordan or knew of his whereabouts. Id. Jefferson stated that she had not seen Jefferson that night. Id. Davis stated that he took photographs of the car alongside of Thomas Road and the baby was still inside asleep. Id. The baby was checked out by the ambulance service and the car was towed to the Hazlehurst Police Department. Id. The Mississippi Bureau of Investigation processed the vehicle for fingerprints and DNA to try and find a suspect in the case. Tr. 70. DNA was found in the vehicle, however it belonged to Dominique Buckner. Id. No fingerprints were found. Id. The Sunday after the alleged incident, Davis received a call from the dispatcher from Copiah County that someone had brought in a purse that belonged to Buckner. Tr It was determined that Ray Johnson had turned the purse into the Copiah County Sheriff s Department. Tr Johnson lives at 5132 Thomas Road in Crystal Springs. Tr. 72. Johnson, along with his wife and his daughter Jefferson all live together at the address. Id. Johnson stated that he found the purse under his porch. Tr. 82, The following morning Davis stated that he made contact with Jefferson and she stated that she was not truthful with the investigator that had previously been to her house. Tr. 73. She had previously stated that Jordan was not at her house, but Jordan was in fact present at her house. Id. After speaking with Jefferson, Davis received a call from Buckner stating that Jordan was at her residence. Tr. 74. Davis dispatched officers to the residence. Jordan was brought into the Hazlehurst Police Department. Id. 4

9 Davis testified that the car was found on the same road that Jefferson lives on, Thomas Road. Tr. 75. The approximate distance from where the car was found to the residence of Jefferson was approximately 0.1 miles. Tr. 79. On cross-examination, Davis stated that it took him maybe thirty minutes to ninety minutes to develop Jordan as a person of interest. Tr. 86. Davis further stated that there was never any other person as a person of interest and no other suspects. Tr. 87. Davis continued to state that Jordan was initially identified because he had knowledge of Jordan being in the area at night time, and not based on any evidence. Tr Davis stated the Mississippi Bureau of Investigation checked the car for evidence. Tr. 89. Several swabs of forensic evidence were taken from the vehicle and sent to the crime lab. Tr These swabs were sent to the Mississippi Crime Lab to see if Jordan s DNA was in the car. Tr. 92. However, based in the results, Jordan s DNA was nowhere in the vehicle. Id. Davis further acknowledged that there was no forensic evidence linking Jordan to the crime. Tr. 96. Jefferson testified that on February 5, 2015, early morning of February 6, 2015, that she was living on Thomas Road in Crystal Springs. Tr Jefferson stated that Jordan came and knocked on her window. Id. Jefferson then let him in the house. Tr Jefferson stated that she had let Jordan in previously, but that this time she did not want to open it and she was scared. Id. Jefferson stated that thirty minutes after Jordan came into the house, the police arrived at the house. Id. Jefferson stated that her father, spoke with the police and then they asked for her. Tr Jefferson stated that Jordan told her to hide him. Id. Jefferson hid Jordan in her son s closet because she did not want her parents to know that Jordan was there. Tr The next morning Jefferson took Jordan back to Hazlehurst. Tr

10 Jefferson admitted that she lied to the police on February 5, 2015, when asked if she had seen Jordan. Tr She admitted on cross that she decided to change her story. Id. Jefferson did admit to the court that she did not see Jordan with a purse and did not see Jordan with a vehicle. Tr SUMMARY OF THE ARGUMENT At trial, the State failed to prove beyond a reasonable doubt that the Appellant did in fact commit the crimes Taking Possession of and Taking away of an Automobile and Kidnapping, respectfully. There was no physical evidence introduced to support the evidence. The evidence supporting the convictions was against the overwhelming weight of the evidence. Therefore, this Court should reverse Jordan s conviction and sentence and remand this case for a new trial. ARGUMENT ISSUE NO. 1 THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR A NEW TRIAL BECAUSE THE VERDICT WAS 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, we 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. Bush v. State, 895 So. 2d 836, 844 (Miss. 2005)(citing Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)). In reviewing such claims, the Court sits as a thirteenth juror. Bush v. State, 895 So. 2d 836, 844 (Miss. 2005)(citing Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 947 (Miss. 2000)(footnote omitted)). [T]he evidence should be weighed in the light most favorable to the verdict. Herring, 691 So. 2d at 957. 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 6

11 only proper verdict. Bush v. State, 895 So. 2d 836, 844 (Miss. 2005)(quoting McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982)). It means that as the thirteenth juror, the court simply disagrees with the jury's resolution of the conflicting testimony, and the proper remedy is to grant a new trial. Bush v. State, 895 So. 2d 836, 844 (Miss. 2005)(quoting McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982)(footnote omitted)). In the present case, Jordan is at a minimum entitled to a new trial as the verdict was clearly against the overwhelming weight of the evidence. The State failed to produce any physical evidence that the Appellant did in fact take the automobile and kidnap the child inside. The investigator admitted within thirty minutes of being notified of the incident that he named Jordan as a person of interest. Tr , 86. Furthermore, the Mississippi Bureau of Investigation processed fingerprints and DNA from the vehicle of Buckner and based on the results, Jordan s DNA was nowhere in the vehicle nor were any fingerprints. Tr. 92. Davis further admitted that there was no forensic evidence linking Jordan to the crime. Tr. 96. Johnson, who was very adamant that he did not like Jordan, provided evidence of purse to the Copiah County Sheriffs Department. Tr. 82, Johnson brought the purse to the sheriff s department. Johnson did not call and notify the authorities that he found the purse and allow them to verify where it was found; Johnson took it himself. There is no proof that the purse was found under the house where Johnson stated that he found it. No forensic evidence was linking Jordan to the crime, no one saw Jordan commit the crime, Johnson claimed to have a found a purse under his porch with no other evidence, and Davis already was convinced that Jordan was guilty of the crime before even looking at the situation. The testimony was insufficient to establish that Jordan did in fact commit the crimes beyond a reasonable doubt. The verdict of guilty was against the overwhelming weight of the evidence. 7

12 CONCLUSION The Appellant, Lonnie Jordan, respectfully asks this court to reverse his convictions for Taking Possession of and Taking away of an Automobile and Kidnapping and remand for a new trial. Respectfully submitted, LONNIE JORDAN, APPELLANT BY: /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant 8

13 CERTIFICATE OF SERVICE I, Benjamin A. Suber, Counsel for Lonnie Jordan, 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: th This the 17 day of May, Honorable Lamar Pickard Circuit Court Judge Post Office Box 310 Hazlehurst, MS Honorable Alexander C. Martin District Attorney, District 22 Post Office Drawer 767 Hazlehurst, MS Lonnie Jordan, MDOC #L7045 East Mississippi Correctional Facility Highway 80 East Meridian, Mississippi BY: /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant Benjamin A. Suber, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax:

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