IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI BRIEF OF APPELLANT. An Appeal From The Circuit Court

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1 E-Filed Document Jan :25: KM COA Pages: 17 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI DAVID CAMP PITTMAN vs. VS. APPELLANT CAUSE NO: 2013-KM COA STATE OF MISSISSIPPI APPELLEE BRIEF OF APPELLANT An Appeal From The Circuit Court of Oktibbeha County, Mississippi Prepared By: Rodney A. Ray (MSB 8876) Post Office Box 1018 Columbus, Mississippi Telephone: (662) Facsimile: (662) ATTORNEY FOR APPELLANT

2 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI DAVID CAMP PITTMAN APPELLANT vs. CAUSE NO: 2013-KM COA STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS Pursuant to Rule 28(a)(l) of the Mississippi Rules of Appellate Procedure, the undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. Their representations are made in order that the Justices of the Supreme Court and/or the Justices of the Court of Appeals may evaluate possible disqualification or recusal. I. David Camp Pittman - Appellant 2. State of Mississippi 3. Honorable Lee J. Howard- Circuit Judge 4. Honorable Caroline Moore - Prosecutor Isl Rodney A. Ray RODNEY A.RAY, ATTORNEY FOR APPELLANT (MSB 8876) 2

3 TABLE OF CONTENTS Page Certificate ofinterested Persons... 2 Table of Contents Table of Authorities... 4 Statement of the Issues Statement of the Case Summary of the Argument... 8 I. The Circuit Judge's Ruling Was Clearly Erroneous and Manifestly Wrong II. Derrick Nelson III. Sarah B. Mauigold Carpenter Argument... 8 Conclusion Certificate of Service

4 TABLE OF AUTHORITIES CASES Page Amerson v. State, 648 So.2d 58, 60 (Miss. 1994) Evans v. State, 919 So. 2d 231 (Miss. Ct. App. 2005)... 7 Ezell v. Williams, 724 So.2d 396 (Miss. 1998)... 8 McKee v. State, 878 So. 2d 232 (Miss. Ct. App. 2004) Mississippi State Dep't of Human Servs. v. Barnett, 633 So.2d 430, 434 (Miss. 1993). 9 Magee v. Magee, 661So.2d1117, 1122 (Miss.1995)... 9 Marascalco v. Marascalco, 445 So.2d 1380, 1382 (Miss.1984)... 9 Reed v. State, 749 So.2d 179 (Miss. 1999)... 8 UHS-Qualicare v. Gulf Coast Community Hosp., 525 So.2d 746, 754 (Miss.1987)... 9 STATUTES Miss. Code Ann Legend: R.E.= Record Excerpts of Appellant R. =Record (clerk's papers) T.T. =Trial Transcript 4

5 STATEMENT OF THE ISSUES THE RULING MADE BY THE CIRCUIT JUDGE, SITTING AS THE FINDER OF FACT, WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND CLEARLY ERRONEOUS 5

6 IN THE SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI DAVID CAMP PITTMAN APPELLANT vs. CAUSE NO: 2013-KM COA STATE OF MISSISSIPPI APPELLEE APPELLANT DAVID CAMP PITTMAN'S BRIEF IN SUPPORT OF HIS APPEAL OF HIS CONVICTION FROM THE CIRCUIT COURT OF OKTIBBEHA COUNTY, MISSISSIPPI INTRODUCTION This is an appeal from a trial in the Circuit Court of Oktibbeha County, Mississippi which was heard by the Honorable Lee J. Howard on April 15, That trial was an appeal which was perfected from the Municipal Court of Starkville, Mississippi, wherein the Honorable Rodney P. Faver found the Appellant, David Camp Pittman, guilty of driving under the influence subsequent to the Appellant's entry of a "no contest" plea. At the Circuit Court trial, de novo, after hearing all of the evidence presented by the State, the Appellant moved for a dismissal based on the failure of the State to prove its case. Judge Howard overruled that Motion, the trial proceeded and the Appellant was found guilty. He now appeals the same. 6

7 STATEMENT OF THE CASE On September 7, 2012, David Camp Pittman, was arrested on suspicion of Driving Under the Influence (hereafter "DUI") in Oktibbeha County, Mississippi. Pittman subsequently refused the Intoxylizer 8000 test and was charged with DUI 1 st offense by the Starkville Police Department. Appellant entered a plea of "no contest" or "Nolo Contendre" and as a consequence, was found guilty. He appealed that conviction to the Circuit Court of Oktibbeha County, Mississippi. On the 15 th day of April, 2013, issues related to the DUI were tried before the Honorable Lee J. Howard, who sat as the finder offact. On April 15, 2013, Judge Howard found the Appellant "guilty" and this appeal emanates there from. This matter was heard by the Honorable Lee J. Howard on April 15, The State presented evidence in an attempt to prove that the Defendant was driving under the influence as proscribed by Miss. Code Ann The State of Mississippi relied solely on the testimony oftwo (2) witnesses: Derrick Nelson (hereinafter "Nelson"), at the time of Appellant's arrest, an officer with the Starkville Police Department and Sarah B. Manigold Carpenter, (hereinafter "Carpenter"), also an officer with the Starkville Police Department. The Appellant appeals his conviction based on a simple, yet time honored principle: the State of Mississippi failed to meet its burden of proof, the evidence was not sufficient for a conviction thus the Court's rilling was manifestly erroneous and clearly wrong. The State of Mississippi failed to prove its case to any level, much less the level long demanded by the Constitutions of the United States, the State of Mississippi and the case law emanating therefrom, that being beyond a reasonable doubt. "The right not to be convicted of an offense unless the State proves beyond a reasonable doubt each and every element of the offense is a fundamental right". Evans v. State, 919 So. 2d 231 (Miss. Ct. App. 2005). 7

8 SUMMARY OF THE ARGUMENT ARGUMENT I. THE CIRCUIT JUDGE'S RULING WAS MANIFESTLY ERRONEOUS AND CLEARLY WRONG. The Appellant is cognizant that rulings by Judges who are sitting as the finder off act will not be disturbed by an Appellate Court unless the Judge's ruling was erroneous and clearly wrong. Based on the lack of evidence presented against the Appellant at the trial of this case, it is the Appellant's position that the Judge's ruling was manifestly erroneous and clearly wrong, thus appropriate for appellate review and action. Further, the Appellant contends as this Court has stated, reasonable jurors, if deciding this case rather than a Judge, could not have found Appellant guilty beyond a reasonable doubt, viewing all facts in the light most favorable to the State. As this court has enunciated for years, "Our familiar standard of review requires that when a trial judge sits without a jury, this Court will not disturb his factual determinations where there is substantial evidence in the record to support those findings". Put another way, this Court ought and generally will affirm a trial court sitting without a jury on a question of fact unless, based upon substantial evidence, the court must be manifestly wrong. This Court must examine the entire record and accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's findings offact. Ezell v. Williams, 724 So.2d. 396 (Miss. 1998). This Court in Reed v. State, 749 So.2d 179 (Miss. 1999) went further: the Mississippi Supreme Court has stated that "for review of the findings of a trial judge sitting 8

9 without a jury, this Court will reverse only where the findings of the trial judge are manifestly erroneous and clearly wrong" citing Amerson v. State, 648 So.2d 58, 60 (Miss. 1994). As a general matter, in non-jury cases, the trial judge's findings offact will not be set aside on appeal unless they are "manifestly wrong," unsupported by substantial credible evidence, or are "clearly erroneous." Mississippi State Dep't of Human Servs. v. Barnett, 633 So.2d 430,434 (Miss. 1993). It is the Appellant's position that the lack of proof presented by way of evidence by the State of Mississippi regarding whether the Appellant was operating the vehicle and ifhe was impaired and the ruling by the lower Court that the Defendant was guilty, was precisely what the Barnett Court meant when defining "manifestly wrong." A finding offact is "manifestly wrong" ifthe error is unmistakable, clear, or indisputable. Magee v. Magee, 661 So.2d 1117,1122 (Miss.1995). Under the "substantial evidence rule," the trial judge's findings offact will not be disturbed if they are supported by substantial evidence in the record. Marascalco v. Marascalco, 445 So.2d 1380,1382 (Miss.1984). The congruence of these rules is found in the cases that apply a "clearly "erroneous" standard of review to findings offact UHS-Qualicare v. Gulf Coast Community Hosp., 525 So.2d 746, 754 (Miss. 1987). "A finding is 'clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." The Appellant appealed his conviction because he believes in the principle that one should not be convicted for any criminal offense including, but not limited to, Driving Under the Influence, First Offense, on the simple, yet time honored axiom that the State of Mississippi has the burden of proof to prove that a person is guilty of a crime. In the case at bar, the evidence presented does not rise to that level and the "evidence" presented was essentially speculation, innuendo, suspicions and conjecture on the part of two (2) witnesses regarding two (2) specific 9

10 elements. First, as this Court can derive from the transcript of the testimony of the witnesses, most particularly officers Nelson and Carpenter, no one witnessed, or saw, the Appellant operating a vehicle on the night in question. Second, the witnesses cannot testify to his failing any standard field sobriety tests, as he did not take any such tests. (T.T. p.12, lines 12-14). The bottom line is there was, and to this day remains, no objective or scientific proof offered by the State of Mississippi to meet its burden of proof. The officers arrested the Appellant based on "classic signs of intoxication" based strictly on their opinion. (TT p. 12, line 15). If such proof rises to the level mandated by law, machines and other tests will never have to be used; more particularly, if the officer simply surmises that the person is impaired and that reaches the standard of beyond a reasonable doubt, the--state of Mississippi has wasted much money on such equipment. This court is well aware that many individuals have had "classic signs of intoxication" only to be below the legal limit or not impaired when tests are given thereafter. There must be some proof other than the speculative standard offered in this case. Based thereon, more specifically based on the fact that the State did not meet its burden of proof, the Appellant's conviction should be reversed. As this Court is well aware, in the State of Mississippi, pursuant to Miss. Code Ann , et seq., for one to be convicted of DUI he must be shown to (1) drive or otherwise operate a vehicle (2) under the influence of any substance which has impaired such person's ability to operate a motor vehicle. Based on the fact that there is no proof that the Appellant was driving and because neither Officer Nelson nor Officer Carpenter saw him driving, there is no evidence that he was operating a vehicle and the first element was absolutely and unequivocally not met. As this court is well aware, the misdemeanor offense of either has to occur in the presence ofthe officer or a witness must testify to the same. In this case, there was 10

11 mention of witnesses, yet they were not called. The State elicited testimony that those witnesses said certain things and that testimony was objected to, but the Court overruled that objection. (T. T. p.5, line 28-p.6, line 9). The State of Mississippi had every right and the ability to subpoena those, or any, witnesses needed to prove its case but did not; further, the Appellant had every right, if what those witnesses putatively said was [to be] considered outside ofthe hearsay rule by the finder of fact, to cross examine them, which did not happen because they were not there. The first element of DU!, that being the operation of a vehicle and the subsequent element of under the influence were not proven, even considering the scant testimony in the light most favorable to the prosecution, and no reasonable juror could have found the Appellant guilty. "Burden of proof is always upon the State to prove each element ofthe crime charged beyond a reasonable doubt." McKee v. State, 878 So. 2d. 232 (Miss. Ct. App. 2004). The State of Mississippi failed woefully in this case, and as this Court stated in McKee, not only must the proof be to the level of, but beyond a reasonable doubt (emphasis added). To convict David Camp Pittman of Driving Under the Influence based on the testimony of Officer Derrick Nelson and Officer Sarah B. Manigold Carpenter is against the tenets of the laws ofthe State of Mississippi regarding sufficiency of proof. The State of Mississippi failed to meet its burden of proof and has failed to meet it in a manner whereby the finding of guilt by the lower court can be defined as nothing other than manifestly wrong. The Appellant is cognizant and cited cases previously that it is long been held by this Court that rulings by Judges who are sitting as the finder of fact will not be disturbed by an Appellate Court unless the Judge's ruling was manifestly erroneous and clearly wrong. Based on the evidence, or lack thereof, presented against the Appellant at the trial of this case, it is the 11

12 argument ofthis Appellant that the Judge's ruling was manifestly erroneous and clearly wrong, thus appropriate for appellate review and action. When reviewing the facts of this case through the lens ofthose basic tenets, the erroneous decision of the lower Court should be apparent. The State of Mississippi relied on two (2) witnesses, neither of which presented substantial enough evidence alone, or in concert with the other, that rose to the level needed for a conviction. More troubling, as will be discussed below, their credibility regarding what they thought they observed, or knew, based on their encounter with the Appellant was called into question and proven to be not accurate. Thus the Court's reliance on the same and the subsequent ruling based therein was clearly wrong and manifestly erroneous. II. OFFICER DERRICK NELSON Officer Nelson was the first witness for the State of Mississippi and his testimony began by recounting that he was on patrol and came upon a vehicle stopped, on a curb and halfway in the street. (TT p. 4, lines 10-14). When he approached the vehicle he had his initial encounter with the Appellant. The officer testified that the vehicle was not moving and he never saw the vehicle move. (TT p. 8, lines 17-28). After visiting with the Appellant, he called a DUI officer, that being Officer Carpenter. When asked who could prove the Defendant operated the vehicle he testified that there were people on the porch who saw the Appellant driving. Neither Nelson nor Carpenter procured their names, interviewed them or brought them to be interrogated regarding what is an essential part of a DUI investigation, that being the operation of the vehicle. The prosecutor asked the obligatory question, that being whether he had an opinion as to whether or not the Appellant was under the influence, to which Nelson robotically replied "he was 12

13 impaired." He made that statement based on not one objective or scientific test. That is the extent of the investigation undertaken by Nelson. III. OFFICER SARAH B. MANIGOLD CARPENTER The testimony of Carpenter is telling, indicative and symbolic of this entire case; more specifically, regarding the two (2) crucial issues in this case. Officer Carpenter, on several occasions, testified that she never saw the Appellant operate the vehicle, becoming the second of two officers and the second of the only two (2) witnesses never to see the vehicle move one inch. (T.T. p.22, lines 28-29). According to Carpenter's testimony, when she arrived on the scene, the Appellant was sitting on the tailgate of a Ford F-lSO truck, obviously not operating the vehicle. After confronting him she testified that she was certain that the Appellant had possession of "unbumt marijuana" (TT p.12, lines7-11) which the Appellant denied. Based on her training and experience she did not believe him and had him searched. (T.T. p. 12, line 11). Carpenter's testimony along those lines is indicative of why elements must be proven rather than speculated about and then ultimately relied upon by the finder of fact. The "classic signs of intoxication" were observed, testified to and relied upon by the court, in the same manner and by the same officer who was just as adamant that there was marijuana present based on the "really, really strong odor." (T.T. p. 12, line 9), That trained observation turned out to be false and she admitted the same during cross examination. (T. T. p. 22, lines 13-29). She further admitted, when asked over and over again about the Appellant operating a vehicle, that she did not see him do the same. When pressed about signing an affidavit 13

14 regarding his operation of the vehicle when in fact she did not see it, she said others told her. (T.T. p. 21, line 21). The State of Mississippi had every opportunity to subpoena those "others" and, for whatever reason, chose not to. Officer Carpenter candidly admitted that she could not testify based on either her witnessing the same or any other independent evidence that Camp Pittman operated the vehicle. (T.T. p. 23, line 15). In concert with Nelson's failure to be able to do so, the first element of the charge of which the Appellant was convicted was not met. Her certainty about the presence of marijuana, which turned out to be untrue, undermines her credibility regarding other observations she made and which were relied upon by the Court to reach its ultimate decision. CONCLUSION In order for one accused of driving under the influence in Mississippi to be found guilty of that crime, certain elements, as in all criminal prosecutions, must each be proved beyond a reasonable doubt. First, the accused must be operating a vehicle on a road. In this case, there is no evidence that the Appellant was operating a vehicle, absolutely zero. Considering for the sake of argument that there were witnesses "sitting on the porch" the prosecution was under a duty to produce them and bring them to court, if what they purported to lend as far as proof was to be considered to prove the first element of this offense. Further, the officers who handled this case not only did not see the Appellant operating the vehicle, but have absolutely zero evidence on which a reasonable juror could, beyond a reasonable doubt, find the Appellant guilty. If the judicial system is to rely on their observations and experience to obtain a conviction, then the fact that those same talents led to a false finding regarding the possession of marijuana must be factored in to cogently determine the value of the same. 14

15 Based on the testimony of witnesses Nelson and Manigold, and more specifically the lack of any substantial or credible evidence of the operation of a vehicle or impairment, the State of Mississippi wholly failed to prove beyond a reasonable doubt that Appellant Pittman was guilty. Because the United States Constitution and the Mississippi Constitution afford protections to one accused of such a crime, the Appellant must have been proved guilty via the high standard of beyond a reasonable doubt. Moreover, each element must be proved beyond a reasonable doubt and that burden of proof does not diminish because a Judge is hearing the evidence or because an officer figures or suspicions someone is intoxicated. That high burden of proof does not exist accidentally and is in place to protect Defendants from convictions based on speculation and conjecture by well meaning, but overzealous law enforcement officers. One need only look no further than the suspicions regarding unburnt marijuana Officer Carpenter adamantly, yet incorrectly opined and testified about. It exists to insure that one accused of a crime not be unduly and unjustly convicted when the requisite evidence is not there. In this case, the evidence is not there thus the finding by the lower court is manifestly erroneous and clearly wrong. Based strictly thereon, namely the constitutional guarantees and rights this Appellant has at all judicial levels, the Appellant requests this Court to reverse the decision of the Circuit Court and find him not guilty, thereby rectifying what was clearly a mistake. Respectfully submitted RODNEY.RA FOR APPELLAN 15

16 CERTIFICATE OF SERVICE I, the undersigned, Rodney A. Ray, do hereby certify that have this day mailed, postage prepaid, by United States mail, a true and correct copy of the above and foregoing instrument to the following: Honorable Caroline Moore 107 E Lampkin Street Starkville, MS Lee J. Howard Circuit Court Judge P. 0. Box 1679 Starkville, Mississippi SO CERTIFIED this the 3rd day of January, Respectfully submitted Isl Rodney A. Ray RODNEY A.RAY, ATTORNEY FOR APPELLANT (MSB 8876) 16

17 CERTIFICATE OF SERVICE I, the undersigned, Rodney A. Ray, do hereby certify that have this day electronically filed the foregoing brief in the matter David Camp Pittman (Appellant) v. State of Mississippi (Appellee), case number 2013-KM COA for filing with the Clerk of the Supreme Court/Court of Appeals using the MEC system. I have filed the Appellant's Record Excerpts as an attachment to this brief using the MEC system. Honorable Caroline Moore 107 E Lampkin Street Starkville, MS Lee J. Howard Circuit Court Judge P. O. Box 1679 Starkville, Mississippi SO CERTIFIED this the 3rd day of January, Respectfully submitted Isl Rodney A. Ray RODNEY A.RAY, ATTORNEY FOR APPELLANT (MSB 8876) 17