MOTION FOR REHEARING

E-Filed Document Jul 19 2017 11:59:50 2015-KA-01900-COA Pages: 11 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-KA-01900-COA NICHOLAS DEMORST APPELLANT v. STATE OF MISSISSIPPI APPELLEE MOTION FOR REHEARING Prepared by: Phillip W. Broadhead, MS Bar #4560 Criminal Appeals Clinic The University of Mississippi School of Law 3071 Khayat Law Center Post Office Box 1848 University, MS 38677-1848 Telephone: 662.915.5560 Facsimile: 662.915.6933

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-KA-01900-COA NICHOLAS DEMORST APPELLANT v. STATE OF MISSISSIPPI APPELLEE MOTION FOR REHEARING Nicholas Demorst, the Appellant, hereinafter Mr. Demorst, pursuant to Rule 40, Mississippi Rules of Appellate Procedure, files this Motion for Rehearing of the decision handed down by this Court on June 20, 2017, wherein this honorable Court affirmed the conviction and sentence rendered in the Jackson County Circuit Court following a trial by jury. The Appellant submits the Court inadvertently overlooked or misapprehended relevant Federal and Mississippi Supreme Court cases material to the specific issues raised in this appeal. The Appellant also argues the Court misapprehended and incorrectly overlooked undisputed facts in the case and the law of relevant authorities in the Court s decision, along with the claims of error presented in the Brief of the Appellant relating to (1) the impermissibly suggestive identification procedures employed by police to get the two eyewitnesses to the murder to name the Appellant as the shooter, (2) the admittance of jailhouse voice recordings in violation of the Rules of Evidence, and (3) the ineffective assistance counsel as a direct result of the open and obvious failures of the Appellant s attorney contained on the face of the trial record. ARGUMENT 1. The Appellant would first turn the Court s attention to paragraph seven of the

written opinion rendered in the decision in this case, wherein the Court held,... the trial court committed plain error in failing to sua sponte suppress the in-court and out-of-court identifications... 1 This finding overlooks or misapprehends the argument made in the Brief of the Appellant regarding the impermissibly suggestive identification procedure used by police on eyewitnesses Knox and Cooper. The Appellant contended in his brief the outof-court procedures employed that produced an in-court identification that should have been excluded on proper motion and/or objection by defense counsel (which was not made) since the facts of the pretrial identification procedure were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. 2 The measure of relief sought in the issue argument was a plain error review by this Court as to whether this case should be reversed to prevent a manifest miscarriage of justice 3 because the error alleged was not procedurally preserved by defense counsel by a pretrial motion to suppress or proper, timely objections during trial and not that the trial court should have sua sponte excluded all of the identification testimony on its own motion. 4 The intention and objective of the argument falls squarely under the power granted to this Court pursuant to Mississippi Rule of Evidence (M.R.E.) 103(f) 5, which allows the reversal by the appellate court of a procedurally unpreserved claim of error: Subdivision (f), regarding plain error, is a restatement of that doctrine as it existed in pre-rule practice. It reflects a policy to administer the law fairly and justly. A party is protected by the plain error rule when (1) he has failed to perfect his appeal and (2) when a substantial right is affected. Miss.Sup.Ct.R. 6(b) and 11 permit a plain error rule: The Court may, at its own option, notice a plain error not assigned or distinctly specified. See also Boyd v. State, 204 1 Op. of the Court, 7. (Emphasis added) 2 Brief of the Appellant, p. 11, citing Simmons v. United States, 390 U.S. 377, 384 (1968) and York v. State, 413 So.2d 1372, 1383 (Miss. 1982). 3 See Op. of the Court, 7. 4 See p. 19, Brief of the Appellant. 5 See fn. 1, pp. 10-11, Brief of the Appellant.

So. 2d 165 (Miss. 1967). If a party persuades the court of the substantial injustice that would occur if the rule were not invoked, the court may invoke the rule. See Edwards v. Sears, Roebuck & Co., 512 F.2d 276 (5th Cir. 1975). Advisory Committee Note (f), M.R.E. 103. (Emphasis added) It is without dispute from the record defense counsel failed to perfect the twin issues of (1) whether the pretrial identification procedures gave rise to a very substantial likelihood of irreparable misidentification that (2) barred the in-court identifications by Knox and Cooper. 6 The Appellant in his brief submitted a substantial right was affected by the undisputed fact in the record of police employing a single photo to prompt both of the eyewitnesses to identify the Appellant as the shooter. 7 (T. II. 228-30 and T. III. 379; Exh. S-11, RE. 34) In support of this claim of plain error, the Appellant relied upon the holding in York, which adopted the Federal standard that pretrial identifications which are suggestive, without necessity for conducting them in such manner, are proscribed. Id. at 1383. (Emphasis added) Additionally, in footnote four on page eight of the written opinion in this case, the Court found the Appellant s brief misquoted an ambiguous, compound question on crossexamination regarding the use by police of the Knox show-up photograph. 8 Upon examining page 16 of the Brief of the Appellant 9, the Appellant affirmatively states to the Court no attempt to mislead the Court was intended in recounting the testimony and/or arguing the point of the admission by the State s witness. But the Appellant contends the final finding by the Court in 6 York, 413 So.2d at 1383. 7 The Mississippi Supreme Court has consistently held that employing a show-up photograph in the identification process is impermissibly suggestive where there is no necessity for doing so. Id. (Emphasis added) 8 In the footnote, the Court made the finding of fact: They said is this him; you can t hardly miss that, can you? Knox responded simply yes, sir. 9 The sentence from page 16 of the Appellant s brief reads: In response to this limitation of his certainty about the second photo array, the investigator then showed him a single photograph of Mr. Demorst, without necessity or justification, and told Knox, [I]s this him; you can t hardly miss that, can you? (T. III. 379; Exh. S-11; RE. 34)

the footnote, The semicolon suggests some other meaning to the second part of the question from the one Demorst asserts[] overlooks the general rule found in The Writer s Handbook, published by the University of Wisconsin s creative writing department, Semicolons help you connect closely related ideas when a style mark stronger than a comma is needed. 10 In any case, the Appellant further contends the unknown reason why the official court reporter chose to connect this question on cross-examination with a semicolon should not be absolutely dispositive as to the meaning of the second clause of the question posed to Kenneth Knox. The Appellant argues both clauses in this single sentence on cross clearly confront the witness with what the police told him upon showing him the single photograph of the Appellant. The witness confirmed what the police told him upon showing him the single photograph of the Appellant by saying, Yes, sir. (T. III. 379) The Appellant next submits the findings of fact and conclusions of law contained in paragraph 16 of the Court s opinion in this case overlook and misapprehend the magnitude of influence of showing a witness who is only seventy or eighty percent sure of the identification a single photograph of a person police believe is the perpetrator of a murder. The Court acknowledged in the written opinion the danger of boost[ing] a witness s confidence in his identification, but held this action on the part of police did not give rise to a very substantial likelihood of irreparable misidentification. (Op. of the Court, p. 10) The Appellant submits the case cited in the opinion in support of this conclusion of law, Stewart v. State, 131 So. 3d 569, 573 (Miss. 2014), overlooks or misapprehends the entirely different underlying facts found in the case before the Court today. In the Stewart case, two witnesses to a robbery each were asked 10 https://writing.wisc.edu/handbook/semicolons.html. The content of the webpage further restates the rule that [a] semicolon is most commonly used to link (in a single sentence) two independent clauses that are closely related in thought. (Emphasis added)

to review a photo lineup. Both identified Stewart without hesitation 11, and the challenge made by Stewart on appeal was in the six-pack array shown to the witnesses, only his photograph displayed a person with tattoos on his face. The central facts the Mississippi Supreme Court found to be dispositive of the issue of irreparable misidentification in that case was that: Stewart failed to establish that he was conspicuously singled out from the other suspects in the photo lineups. While he was the only one with facial tattoos, the officer responsible for preparing the photo lineups testified that he was unaware Stewart had facial tattoos. Moreover, the trial court found the facial tattoos in the photo were nearly unrecognizable, which is supported by the photo lineup included in this record. Stewart, 131 So. 3d at 16 (emphasis added). The Appellant contends the single photo of the Appellant conspicuously singled him out and, at the same time, impermissibly reinforced the uncertain, qualified identification made by Knox in the second photo array. The Appellant further avers the show-up was without necessity for conducting [it] in such manner 12 in both Knox and Cooper s identification procedures conducted by police. The Court further found on page 11 of its written opinion that [w]hile Cooper [the other eyewitness in this case] never testified whether he was or was not shown other photographs at the same time, we could not find plain error here even assuming Cooper s identification of Demorst stemmed from a single photograph show up. The Appellant submits this conclusion overlooks or misapprehends the condemnation by the Mississippi Supreme Court of unnecessary single photograph show-ups in the case of York v. State, 413 So. 2d 1372 (Miss. 1982). In that case, the Mississippi Supreme Court held, All of our State cases in which eyewitness identification was a disputed issue therefore come under the ambit of these United States Supreme Court decisions. The rules announced therein must govern our decisions. Id. 11 Stewart, 131 So. 3d at 4. (Emphasis added) 12 Knox. at 1383.

at 1383. In discussing this Federal case law, our supreme court held as significant the United States Supreme Court holding: This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized. 13 However, the Appellant recognizes the accused faces a very heavy burden to establish the police procedures gave rise to a very substantial likelihood of irreparable misidentification. 14 It is the likelihood of misidentification which violates a defendant's right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process. Id. at 1381 (citing Neil v. Biggers, 409 U.S. 188 (1972)) (citations omitted) (emphasis added). The Appellant maintains when the pretrial police identification procedures are evaluated in light of the totality of surrounding circumstances" 15, the something more required to give rise to a very substantial likelihood of irreparable misidentification is met in the show-up procedures given to both Knox and Cooper. After conducting a plain error review as aforesaid, the Appellant hereby moves this Court this case reversed and remanded to the lower court with proper instructions for a new trial. 2. The Appellant next would turn the Court s attention to the challenge raised in the Brief of the Appellant in the admission into evidence of five sets of jailhouse telephone recordings, which totaled 71 typewritten pages, as a single cumulative exhibit. In Paragraph 20 of the opinion, this honoraable Court held the Brief of the Appellant asks the Court to find plain error 13 York, at 1378 (citing Stovall v. Denno, 388 U.S. 293 (1967)). (Emphasis added) 14 York, at 1384. 15 Id. at 1378 (citing Simmons v. United States, 390 U.S. 377 (1968).

on appeal in the admission into evidence of five audio recordings (and accompanying transcripts) of these five sets of recordings, and in Paragraph 23, held the recordings were clearly relevant. Again, the Court misapprehended that the Appellant contends that the trial court should have refused to admit the recordings into evidence, sua sponte, because they were irrelevant, and that the failure to do so was plain error. The Appellant avers these findings of fact overlook or misapprehend the main thrust of the plain error review argument, which was primarily based upon the failure by the prosecution to fulfill a promise made by the prosecution to the trial court to satisfy, pursuant to M.R.E. 104(b), a condition precedent to the admission into evidence of the five sets of voice recordings. The Appellant further asserts the Court overlooked this evidentiary claim in the brief, and the written opinion of the Court did not address the failure of the trial court to follow the rule of conditional relevance to all of the content of all five sets of voice recordings. On page 423 of the trial transcript, defense counsel argued to the trial court that the five recordings were not relevant, and in response the prosecutor said they would have a witness to make it relative [sic]. The trial judge then stated, Okay, you re going to tie they re not just dumping them in there. The Appellant contended in his brief that the prosecution promised to connect up the conditional relevancy of all five sets of the jailhouse recordings under M.R.E. 104(b) when he stated, Absolutely. Defense counsel again objected to the admission of the recordings on grounds that they were not relevant, and the Appellant contended the content of all of the recordings were prematurely admitted into evidence at that time as a cumulative exhibit. (T. III. 423-24, RE. 39-40) Later in the trial, the Appellant contends the trial judge further misapplied the rule of conditional relevance by finding the recordings were admissible 16 simply 16 In ruling on the admissibility of the recordings, the trial judge stated, a lot of these conversations don t have a whole lot to do with a whole lot, but they ve been introduced. They are in evidence [and]

because they [were already] in evidence. (T. IV. 490-91, RE. 37-38) The Appellant submits this Court overlooked the challenge to the relevancy of the recordings and misapprehended the irrelevance of the vast majority of the cumulative exhibit by holding the recordings were clearly relevant. The five sets of voice recordings (Exh. S-42, S-43, S-44, S-45, and S-46) were transcribed into 71 pages of telephone conversations between Mr. Demorst and his girlfriend, Brittney Bridges. (See Exh. 42A, 43A, 44A, 45A, and 46A) The Appellant maintains since the trial judge preliminarily found a lot of these conversations were not relevant, and the vast majority of these conversations are clearly not probative of anything and are both profane and obscene. Only one sentence on page 727 was redacted by the trial court, and the rest of the transcripts were simply given to the jury to consider during their deliberations. The Appellant contends since a lot of these conversations don t have a whole lot to do with a whole lot, by definition 17 they were irrelevant and should not have been admitted into evidence by the trial court until the State presented the witness, as promised, to connect up the relevancy of all the content of each one of the individual recordings pursuant to M.R.E. 104(b). Although not procedurally preserved by specific objection by defense counsel directly addressed to M.R.E. 104(b), the Appellant submits this assignment of error should be the subject of a plain error analysis by this Court pursuant to M.R.E. 103(f) to determine if a substantial right was affected by the admission of the largely irrelevant evidence contained in most of the recordings. After conducting a plain error review as aforesaid, the Appellant hereby moves this Court this case reversed and remanded to the lower court with proper instructions for a new trial. 3. Finally, the Appellant recognizes and understands the limitations of review placed on [t]he jury is entitled to hear them. (T. IV. 490-91, RE. 37-38) (Emphasis added) 17 See M.R.E. 401.

claims of ineffective assistance of counsel (IAC) on direct appeal, but the Appellant submits the failures of defense counsel listed and discussed in the Brief of the Appellant are clear on the face of the record. However, the Appellant raised the issue of IAC on direct appeal out of an abundance of caution because of the procedural bars put in place on post-conviction relief actions by Miss. Code Ann. 99-39-21(1) (Supp. 2016) 18 and Mississippi Rule of Appellate Procedure 22(b). 19 CONCLUSION Therefore, the Appellant respectfully submits that the propositions recited herein and heretofore briefed warrant the grant by this honorable Court of this Motion for Rehearing and the withdrawal of the opinion rendered by this Court dated June 20, 2017. The Appellant also respectfully requests and hereby moves this Court that a new opinion be substituted reversing and remanding this case to the lower court with proper instructions for a new trial. Respectfully submitted, NICHOLAS DEMORST, Appellant by: /s/ Phillip W. Broadhead Phillip W. Broadhead, MSB #4560 Criminal Appeals Clinic The University of Mississippi School of Law Post Office Box 1848 18 Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver. (Emphasis added) 19 Post-conviction issues raised on direct appeal. Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings. (Emphasis added) See also, Sheffield v. State, 881 So. 2d 249 ( 11-15) (Miss. Ct. App. 2003).

University, MS 38677-1848 Telephone: 662.915.5560 Facsimile: 662.915.6933 Email: pwb@olemiss.edu CERTIFICATE OF SERVICE I, Phillip W. Broadhead, attorney for the Appellant herein, also hereby certify that on this day, I electronically filed the foregoing Motion for Rehearing with the Clerk of the Court using the MEC system, which automatically sent notification of such filing to the following: Jim Hood, Esq. ATTORNEY GENERAL OF THE STATE OF MISSISSIPPI Post Office Box 220 Jackson, Mississippi 39205 This the 19th day of July, 2017. /s/ Phillip W. Broadhead Phillip W. Broadhead, MSB #4560 Certifying Attorney