BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Dec :56: KA COA Pages: 12 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI BRYMON A. HAMP VS. APPELLANT 2014-KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT On Direct Appeal from the Circuit Court of Coahoma County, Mississippi Randolph S. Smith MSB #7579 R STEWART SMITH JR, PLLC 4233 Forest Park Drive Jackson, MS Attorney for the Appellant Brymon A. Hamp

2 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI BRYMON A. HAMP VS. STATE OF MISSISSIPPI APPELLANT 2014-KA COA 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 disqualification or recusal. 1. State of Mississippi 2. Brymon Hamp, Appellant 3. Honorable Brenda F. Mitchell, District Attorney 4. Honorable Charles E. Webster, Circuit Court Judge This the 15th day of December, Respectfully submitted, BY: /s/ Randolph S. Smith Randolph S. Smith Counsel for Appellant i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS i TABLE OF CONTENTS.ii TABLE OF AUTHORITIES.. iii STATEMENT OF THE ISSUES.1 STATEMENT OF THE CASE.1 STATEMENT OF THE FACTS..2 SUMMARY OF THE ARGUMENTS.4 ARGUMENTS.5 1. THE TRIAL COURT VIOLATED HAMP S FOURTH AMENDMENT RIGHTS BY DENYING HIS MOTION TO SUPPRESS ANY AND ALL EVIDENCE OBTAINED AS A RESULT OF SEARCH AND SEIZURE OF DEFENDANT ON OR ABOUT JULY 29, CONCLUSION 7 CERTIFICATE OF SERVICE.8 ii

4 TABLE OF AUTHORITIES FEDERAL CASES Florida v. J.L., 529 U.S. 266 (2000).5,6,7 STATE CASES Lawrence v. State, 124 So. 3d 91, (MIss. App. 2013).6 McClellan v. State, 34 So. 3d 548, (Miss. 2010). 6 iii

5 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI BRYMON A. HAMP VS. STATE OF MISSISSIPPI APPELLANT 2014-KA COA APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES I. The Trial Court Violated Hamp s Fourth Amendment Rights By Denying His Motion To Suppress Any And All Evidence Obtained As A Result Of Search And Seizure Of Defendant On Or About July 29, STATEMENT OF THE CASE This appeal is brought from the Circuit Court of Coahoma County, Mississippi. On a jury in that court convicted Brymon Shield Hamp ( Hamp ) of capital murder in violation of Miss. Code Ann (2)(e) (1972, as amended). [R.E. 21, 23, C.P ]. A grand jury had indicted Hamp, along for killing Gerald Simmons during the commission of a robbery. [R.E. 8,C.P. 8]. The trial was presided over by the Honorable Charles E. Webster. [T. 119]. Following the verdict of the jury, the court sentenced Hamp to serve a sentence of life without the possibility of parole in the custody of the Mississippi Department of Corrections. [R.E.25,C.P ]. Hamp filed a Motion for New Trial or J.N.O.V. [R.E. 31,C.P. 318]. The court denied his Motion, and Hamp timely filed a Notice of Appeal. [R.E. 33,38, C.P. 325]. 1

6 STATEMENT OF THE FACTS On July 29, 2010, Tracy Vance, Chief of Police in Friars Point, MS was told by a citizen that Mr. Gerald Simmons had fallen out in his store. [T , 221]. Mr. Simmons was the proprietor of Simmons Package Store, and when Chief Vance arrived at the store he found Mr. Simmons lying on the floor, bloody, and with multiple injuries. [T. 27, 222]. The cash register was open, and only contained coins. [T. 228]. Other officers joined Chief Vance at the store, and they soon began to suspect the Mr. Simmons had been the victim of a robbery. [ ]. Officers and investigators from the Coahoma County Sheriff s Department and the Mississippi Bureau of Investigations had responded and joined the efforts to gather information. Mr. Simmons had been taken to the Northwest Mississippi Regional Medical Center in Clarksdale. [T. 264]. Later that day, after a car chase and traffic stop, Hamp and Jerry Carr were arrested. [T. 248]. On August 6, 2010 Mr. Simmons passed away. [T.332]. The medical examiner ruled his death to have been caused by blunt force trauma to the head and he ruled his death to have been the result of homicide. [T. 337]. Prior to Hamp s trial a Pre-Trial Hearing ( Hearing ) was held on January 17, [T. 1]. At the hearing the Court heard testimony and argument related to Hamp s Supplemental Motion to Suppress Any And All Evidence Obtained As A Result Of Search And Seizure Of Defendant On Or About July 29, 2010 ( Motion to Suppress ). [R.E. 11, C.P ]. Chief Vance testified at the Hearing that minutes after he got to Simmons store, he received an anonymous phone call on his phone. [T. 27]. The caller gave the description of a type of vehicle and said Jerry Carr and another man had hit Mr. Simmons. [T ]. The caller, just 2

7 hung up, without identifying him or herself, and did not indicate the basis of her knowledge. [T. 33]. Based on the anonymous call, Chief Vance called Coahoma County dispatch and Investigator Neal Mitchell ( Mitchell ), of the Coahoma County Sheriff s Office. Officer Herbert Thomas ( Thomas ) of the Coahoma County Sheriff s Office was involved in the investigation also, and came to be at the hospital while Mitchell was interviewing Simmons. [T. 52]. Thomas also received an anonymous call from a call restricted number. [T. 53]. Thomas testified that this caller told him the names of three people, the type of vehicle, and that it was headed back toward Washington Court Apartments in Clarksdale. [T. 53]. Thomas called Oliver Mitchell with Coahoma Sheriff s Office to put out a BOLO on the basis of that information. [T.56}. Chief Vance also tried unsuccessfully to find a witness to any part of the incident at the store. [T. 228]. Mr. Simmons was not fully conscious and had been unable to give any definitive information to Chief Vance. [T. 27]. Mitchell attempted to interview Simmons at the hospital and said he was, in and out. [T. 36]. Mitchell didn t get definitive information from Simmons in spite of the fact that he admitted allowing Simmons son and others to try to influence Simmons, and to offer responses on behalf of Simmons. [T.42]. Some time later, in an area away from where the anonymous tipster had said the car was, a Coahoma Sheriffs Deputy DeWayne Harvey ( Harvey ) spotted a car matching the description, with two men inside, and attempted to stop the car. [T ]. At the time he saw the car it was traveling a normal rate of speed. [T. 76]. However, after he pulled in behind the car it sped up 3

8 and a pursuit ensued, and the car was eventually pulled over, and its occupants taken into custody. [T ]. The men turned out to be Mr. Hamp, who was driving, and Jerry Carr, the passenger. [T. 70]. During their work at the scene the officers found, and took custody of the items that are the subject of Hamp s Motion to Suppress, and at trial those items were admitted into evidence and considered by the jury. [T ] The Mississippi Crime Lab performed tests on the evidence that had been collected as a result of the traffic stop of the Chevy. Steven Little, the State s expert witness, specializing in serology, testified that he concluded that Hamps shoe and shorts, that had been collected as a result of the traffic stop, tested positive for the presence of blood. [T. 381, 384]. SUMMARY OF THE ARGUMENT The investigating officers looked for the black Chevy with two men inside, and initiated the traffic stop, based solely on information from the anonymous phone calls. The caller was not known to law enforcement. The calls were not traceable. The caller did not provide any factual information that would support the allegation made in the call. The investigation officers had been unable to discover any other information that would have identified Hamp and Carr. There were no eyewitnesses. Mr. Simmons was unable to provided any specific information. 4

9 Officer Harvey pulled in behind the Chevy and initiated the traffic stop, that led to thecollection of physical evidence from the automobile and the persons of Mr. Hamp and Mr. Carr based on an anonymous tip that had no indicia of credibility, and no information that could be confirmed by law enforcement to conclude that it was credible. None of the law enforcement officers involved in the investigation developed any evidence or made any observations that raised suspicions about Hamp. ARGUMENT I. The Trial Court Erred By Denying His Motion To Suppress Any And All Evidence Obtained As A Result Of Search And Seizure Of Defendant On Or About July 29, The case of Florida v. J.L., 529 U.S. 266 (2000) should control the analysis of whether the officers investigating this incident had information reliable enough to be the basis of a reasonable suspicion that would support the initiation of the traffic stop that netted the arrests of Hamp and Carr, and the acquisition of the physical evidence that Hamp sought to suppress. This case also dealt with a completely anonymous caller, who described a person and made an allegation about illegal activity. Id at 268. The police responded and initiated contact with the suspect exclusively because he matched the description in the anonymous tip. Id. The Supreme Court said that the accuracy of the description of the subject s appearance and location, while helpful in identifying a person, does not prove that the person giving the tip has knowledge of criminal activity. Id at 272. In our case both anonymous phone calls alleged criminal activity without indicating how the caller(s) knew such. The Supreme Court found that the lack of specific information leaves 5

10 law enforcement without the means to test the anonymous caller s knowledge or credibility. Id at 271. The Court said that an anonymous tip alone seldom shows the informant has knowledge or is believable. Id at 270. Both of the calls that led to Hamp s detention came from restricted phone numbers that the receiving officers could not identify. This indicates an active attempt on the part of the caller(s) to keep their identity from law enforcement. In the Order denying the Motion to Suppress, the trial court relies on Lawrence v. State, 124 So. 3d 91, 95 (MIss. App. 2013). However, in Lawrence the tip was not anonymous, but came from a known person, included specific factual information about the crime, and was consistent with other known information in the case. Id at 95. Likewise, in McClellan v. State, 34 So. 3d 548, 552 (Miss. 2010), the tip came from pharmacy employees, they specified the pseudo ephedrine purchase, and law enforcement officers went other places and got more information before the traffic stop was initiated. Id at Hamp asserts that the trial court erred in the Order denying the Motion to Suppress by finding that Officer Harvey conducted an independent investigation sufficient to corroborate the anonymous information. Harvey simply observed that there was a car meeting the description given in the tip, with the two men identified in the tip. This is the same information the police had in Florida v. J.L. Harvey began to initiate the traffic stop before he had any more information than the police in the Florida case. 6

11 As in Florida v J.L., the officer s authority to make his initial stop is in question. Hamp asks this Court to find, as the Supreme Court did, that a law enforcement officer is not justified in initiating a stop and frisk traffic stop based on an anonymous tip lacking indicia of reliability. Florida v. J.L., 529 U.S. at 274. CONCLUSION Coahoma County law enforcement officials relied exclusively on an anonymous phone tip to identify Hamp as a suspect and to conclude they had a reasonable suspicion that justified the initiation of a traffic stop. The tip itself did not have any indicia of reliability, and law enforcement did not have any substantive evidence independent of the tip that would support the general conclusory allegation in the tip. Therefore, the traffic stop was initiated without substantive evidence justifying a reasonable suspicion that Hamp was engaging in criminal activity, in violation of the standard established by Florida v. J.L., 529 U.S. 266 (2000). As a result, Brymon Hamp respectfully requests that his conviction be reversed, and this case be remanded to the trial court with an order that his Motion to Suppress be granted, and a new trial be given. 7

12 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing Brief of the Appellant with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Jim Hood, Attorney General John R. Henry, Jr., Assistant Attorney General Office of the Attorney General State of Mississippi Further, I hereby certify that I have mailed by United States Postal Service the Brief of the Appellant to the following non-mec participants: Brymon Hamp, Jr. MDOC # M.S.P. Camp 30-C, Bed #196 Parchman, MS This the 15th day of December, s/randolph S Smith Randolph Stewart Smith MS Bar #7579 R STEWART SMITH JR PLLC 4233 Forest Park Dr Jackson, MS