BRIEF OF THE APPELLANT

Transcription

1 E-Filed Document Jul :00: KA COA Pages: 11 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JOE M. GILLESPIE 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 Joe M. Gillespie

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JOE M. GILLESPIE 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. Joe M. Gillespie, Appellant 3. Honorable Mark Williamson, Trial Attorney for the Appellant 4. Honorable Forrest Allgood, District Attorney 5. Honorable Lee J. Howard, Circuit Court Judge th This the 30 day of July, Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER /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 ISSUE...1 ISSUE NO. 1 THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE VERDICT OF GUILTY...1 STATEMENT OF THE CASE...1 STATEMENT OF THE FACTS...1 SUMMARY OF THE ARGUMENT....3 ARGUMENT...4 ISSUE NO. 1 THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE VERDICT OF GUILTY...4 CONCLUSION...5 CERTIFICATE OF SERVICE....6 ii

4 TABLE OF AUTHORITIES FEDERAL CASES Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, (1979) MISSISSIPPI CASES Bush v. State, 895 So. 2d 836, 843 (Miss. 2005)...4 Crocker v. State, 272 So. 2d 664, 665 (Miss. 1973)...4 Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)....4 Garner v. State, 944 So. 2d (Miss. App ) iii

5 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JOE M. GILLESPIE APPELLANT V. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUE ISSUE NO. 1 THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE VERDICT OF GUILTY. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Oktibbeha County, Mississippi, and a judgment of conviction for the crime of Robbery. The trial judge subsequently sentenced Gillespie to fifteen (15) years in the custody of the Department of Corrections. C.P. 82. The conviction and sentence followed a jury trial on January 26th, 2015, Honorable Lee J. Howard, Circuit Judge, presiding. Mr. Gillespie is currently in the custody of the Mississippi Department of Corrections. STATEMENT OF THE FACTS At trial, the victim, Kristopher Darren Pritchard, testified that on evening in October of 2013, at approximately 11:00 p.m., he and a friend by the name of Nicholas Zander went to eat at Sonic in Starkville, Oktibbeha County, Mississippi, on Highway 12. T.R. 71. After going to Sonic, his friend, Nicholas Zander, told Mr. Pritchard that he wanted a pack of cigarettes. T.R. 71. It was at that 1

6 moment that Mr. Pritchard took his friend to a Chevron gas station in order to purchase cigarettes. T.R. 71. Mr. Pritchard testified that while he was stopped at the Chevron gas station, the Appellant approached him and asked him for a couple of dollars. T.R. 71. Mr. Pritchard then said, "yeah, sure, I'll give you a couple of dollars." T.R. 71. However, whenever Mr. Pritchard took out his wallet, he stated that the Appellant reached in through his window and grabbed it. T.R. 71. He also stated that they fought over the wallet for a few minutes. T.R. 71. Ultimately, though, Mr. Pritchard testified, that the Appellant was able to loosen the wallet from his grip and ran off in between the liquor store and the car wash. T.R. 71. The victim testified that he pursued the Appellant, but that he lost him in between the gas station and the car wash. T.R. 73. It was at that point that the victim called 911. T.R. 74. The victim identified the Appellant as the individual who stole his wallet that night during the trial and under oath. T.R. 74. The following day, Mr. Pritchard stated that he went to the Starkville Police Department and was shown a photo-lineup, within which a photograph of the Appellant was included. T.R He identified the Appellant as the individual that stole his wallet in the photo-lineup. T.R. 75. Nicholas Zander testified at trial that after eating at Sonic, Mr. Pritchard took him to a Chevron gas station to purchase cigarettes. T.R. 91. He testified that he noticed a man standing outside of a closed liquor store that was adjacent and connected to the Chevron gas station. T.R. 95. He testified that this man had on a striped shirt. T.R. 96. Upon exiting the gas station, he saw the victim get out of his car and begin to chase someone. T.R. 91. Upon seeing this, he pursued Mr. Prichard. T.R. 91. However, he did testify that he only saw the individual that his friend was chasing from the back and that he just recognized the striped shirt and clothing that resembled what the man had on earlier when they first pulled up to the store. T.R. 97. He also stated during cross examination 2

7 that it was possible that it was just another man with a striped shirt on that Mr. Prichard was chasing and not the individual that he saw standing in front of the liquor store when they first pulled up. T.R. 97. He identified the man that he saw on that evening standing in front of the liquor store as the Appellant at trial and while under oath. T.R. 94. The victim's wallet or money was not recovered and no other physical evidence presented at trial. T.R Joe M. Gillespie was arrested on or about October of He was subsequently indicted by a grand jury on January 15, 2014, for Robbery pursuant to Mississippi Code Annotated Section C.P. 5. He plead not guilty to the charge of Robbery on February 4, C.P. 15. On January 27, 2015, the jury returned a verdict of guilty. T.R The trial judge subsequently sentenced Defendant Joe M. Gillespie to fifteen (15) years in the custody of the Mississippi Department of Corrections. C.P. 82. SUMMARY OF THE ARGUMENT The evidence presented by the State during their case in chief is insufficient to support a verdict of guilty as to the charge of robbery. The state did not present sufficient evidence to establish the Appellant was in fact the individual who robbed the victim. Therefore, the state failed to produce sufficient evidence with regard to an essential element of the crime. Therefore, this Court should reverse Gillespie's conviction and sentence and remand this case for a new trial. 3

8 ARGUMENT ISSUE NO. 1 THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE VERDICT OF GUILTY. In reviewing the sufficiency of the evidence, the relevant inquiry is whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Bush v. State, 895 So. 2d 836, 843 (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, (1979)). The verdict will not be disturbed where the evidence so reviewed is such that "reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense." Id. (citing Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)). However, the proper remedy is to reverse and render where the evidence "point[s] in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty[.]" Id. There are three elements of robbery: "(1) felonious intent; (2) force or putting in fear as a means of effectuating the intent; and (3) by that means, taking and carrying away the personal property of another from the person or in his presence." Crocker v. State, 272 So. 2d 664, 665 (Miss. 1973) See also Garner v. State, 944 So. 2d (Miss. App ) The State failed to prove beyond a reasonable doubt that the individual that allegedly stole the victim's wallet was Appellant Gillespie. The evidence that the State presented by way of testimony of the victim, Mr. Pritchard, was not thoroughly corroborated by his friend, Mr. Nicholas Zander, and witness to the events on the night of the incident. T.R. 97. Mr. Zander stated that he saw the Defendant outside of the liquor store next to the Chevron gas station when they first pulled up 4

9 and that he was wearing a striped shirt. T.R. 97. Mr. Zander admitted to only seeing the individual that Mr. Pritchard was chasing from a vantage point of behind the fleeing individual, and admitted on cross that the person whom he saw from behind could have just been another person wearing a striped shirt. T.R. 96. That testimony alone is insufficient to establish the identity of the assailant beyond a reasonable doubt and therefore the State failed to meet there burden of proof. CONCLUSION Joe M. Gillespie asks this court to reverse and remand his conviction for a new trial. Respectfully submitted, JOE M. GILLESPIE, APPELLANT /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant 5

10 CERTIFICATE OF SERVICE I, Benjamin A. Suber, Counsel for Joe M. Gillespie, 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 John R. Henry, Jr. 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 30 day of July, Benjamin A. Suber, MS Bar No INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi Telephone: Fax: Honorable Lee J. Howard Circuit Court Judge Post Office Box 1344 Starkville, MS Honorable Forrest Allgood District Attorney, District 16 Post Office Box 1044 Columbus, MS Joe M. Gillespie, MDOC # Walnut Grove Correctional Facility Post Office Box 389 Walnut Grove, MS /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant 6

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