IN THE COURT OF APPEALS OF MISSISSIPPI APR OFFICE OF THE CLERK SUPREME COURT COURT OF APPEALS

Transcription

1 IN THE COURT OF APPEALS OF MISSISSIPPI TAVARES FLAGGS APPELLANT vs. STATE OF MISSISSIPPI APR OFFICE OF THE CLERK SUPREME COURT COURT OF APPEALS NO $-'01702-COA APPELLEE APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY BRIEF FOR APPELLANT By: Donald W. Boykin 515 Court Street Jackson, Mississippi mmel,ant Attorney

2 DONALD W. BOYKIN ATTORNEY FOR APPELLANT CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. The representations are made in order that the Justices of this Court may evaluate possible disqualifications or recusal. Honorable Bobby B. DeLaughter, Circuit Judge Philip Weinberg, Hinds County Assistant District Attorney Dewey Arthur, Hinds County Assistant District Attorney Donald W. Boykin 515 Court St. Jackson, MS William Labarre, Office of the Hinds County Public Defender; Shronda Leggett, Office of the Hinds County Public Defender; Derrick Wright; Tavares A. Flaggs.

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLEOFCONTENTS... ii TABLEOFCITATIONS... iii STATEMENTOFTHE CASE... 1 STATEMENTOF ISSUES... 5 SUMMARYOFARGUMENTS... 6 ISSUEONE... 8 ISSUE TWO ISSUE THREE ISSUE FOUR ISSUE FIVE CONCLUSION CERTIFICATEOFSERVICE... 16

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5 STATEMENT OF THE CASE Nature of the Case Appellant, Tavares Antoine Flaggs, was charged by indictment for the murder of Derrick Wright, in violation of Section (1), Mississippi Code of 1972 Annotated, as amended. The indictment alleges that Mr. Flaggs murdered Derrick Wright on April 25, 2005 in the First Judicial District of Hinds County, Mississippi. Mr. Flaggs trial began on July 24, 2006, was found guilty of murder, and sentenced to life in the custody of Mississippi Department of Corrections (C.P. 75). His Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for a New Trial, was denied (C.P ). It is from that conviction and denial of the aforesaid Motion that he appeals. Statement of Facts On April 25, 2005, the victim, Derrick Wright, was found dead in his apartment in Jackson. (T. 217). At the time of his death, Mr. Wright was age 39. (T. 190). Christopher Wright, age 41 at the time, was the victim's brother, and he, his wife, Linda, and a friend, James Archie, went to the victim's apartment, in the Park Town Apartments in Jackson. (T. 197, 208). Prior to finding the victim in his apartment, Christopher Wright and his mother had become concerned because they had not recently seen the victim. (T.197). Christopher Wright and James Archie went to the victim's apartment, where they found the door to the apartment locked. They went into the apartment through

6 a window, smelled a bad odor and found the victim on the floor. (T ). The victim had been stabbed and cut numerous times, and blood was on the floor and walls in the apartment. T They then called the Jackson Police Department. (T.213) When the police arrived, they secured the scene, and found a knife blade in the sink of the apartment. (T. 223). Blood stains were on the walls. (T ). Two other knives were found near the sink and collected as evidence. A screwdriver was found, but it was not collected as evidence. (T ). The victim's wallet was found, and it had four, twenty dollar bills in it. (T. 263). One of the knives recovered by the police had a fingerprint on it which was identified as that of Mr. Flaggs. (T.298). An autopsy was performed by Dr. Steven Hayne, forensic pathologist. (T. 314). Dr. Hayne testified that the victim had fifteen stab or cut wounds, and it was a stab wound to the victim's neck that was the cause of the victim's death. (T ). Mr. Flaggs did not testify at trial; however, the tape recording of his interrogation by Jackson police officers was introduced into evidence and played for the jury. (Ex. 42, T. 379). Present during the interrogation were Jackson police detectives, Amos Clinton and Perry Tate. The interrogation occurred on August 19, 2005, almost four months after the incident. Mr. Flaggs, whose date of birth is January 13, 1978, was twenty-seven years of age at the time. He and his mother had lived in the same apartments as Mr. Wright, had become a friend of his, and previous to the incident had used drugs 2

7 with him. Mr. Flaggs told police during the interrogation that he was walking near Mr. Wright's apartment when Mr. Wright asked him if he wanted to come to his apartment and smoke "dope." Mr. Flaggs said that he would and went to Mr. Wright's apartment. Mr. Flaggs said once he got in the apartment Mr. Wright asked him to go get forty dollars ($40.00) worth of cocaine, which Mr. Flaggs did. Mr. Wright said he had another $ worth of cocaine, and Mr. Flaggs said they smoked all of it. Mr. Flaggs said Mr. Wright started acting paranoid and otherwise strange, and that Mr. Wright was running throughout the apartment, looking out the window, and looking around the corner to where Mr. Flaggs was in the back of the apartment. Mr. Flaggs said Mr. Wright had a screwdriver, jumped at Mr. Flaggs, and acted as though he was going to attack him with the screwdriver. Mr. Flaggs said he took the screwdriver out of Mr. Wright's hand, and wrestled him to the floor near the bathroom. He said Mr. Wright went to the kitchen and grabbed a knife from the sink, and Mr. Flaggs grabbed one as well. He said Mr. Wright ran toward him with the knife. Mr. Flaggs said he then tried to stab Mr. Wright with a knife, but it was too flimsy. Mr. Flaggs said he threw the knife down. Mr. Wright grabbed a "butcher knife, I' but Mr. Flaggs grabbed it from him. Subsequently, Mr. Flaggs wrestled Mr. Wright to the floor and got the knife. Mr. Flaggs said he was fearful of Mr. Wright and that he "freaked out." Mr. Flaggs admitted stabbing and cutting Mr. Wright multiple times, but he could not recall all the places on Mr. Wright's body which were cut. 3

8 Mr. Flaggs said that he got scared and ran out of the apartment, but he said he took no property from either Mr. Wright or the apartment. In fact, he said Mr. Wright had told him to get out of Mr. Wright's wallet the $40.00 to buy drugs. Mr. Flaggs told police that he thought relatives of Mr. Wright had dropped him off at the apartment on the day of the incident. He thought the relatives had seen him talking to Mr. Wright.

9 STATEMENT OF ISSUES ISSUE ONE FLAGG ' M TION 0 ISSUE TWO THE TRIAL COURT SHOULD NOT HAVE GRANTED THE STATE'S CHALLENGE FOR CAUSE OF JUROR SUTTON. ISSUE THREE THE TRIAL COURT SHOULD HAVE GRANTED FLAGG'S CHALLENGE FOR CAUSE OF JUROR BYRD. ISSUE FOUR DR. STEVEN HAYNE WAS NOT OUALIFIED AS A BLOOD SPATTER EXPERT AND SHOULD NOT HAVE BEEN PERMITTED TO TESTIFY CONCERNING SUCH. ISSUE FIVE THE TRIAL COURT ERRED IN OVERRULING FLAGGS' OBJECTION TO THE INTRODUCTION INTO EVIDENCE OF THE SHOULDER SURGERY APPARATUS.

10 SUMMARY OF ARGUMENTS ISSUE ONE FLAGGS' MOTION OF CONTINUANCE SHOULD HAVE BEEN GRANTED. Flaggs' counsel had been told by the District Attorney's Office that a toxicology report had been requested concerning whether or not the victim had cocaine in him at the time of his death. The toxicology report was not complete at the time of the trial, Flaggs moved for a continuance, but it was denied. ISSUE TWO CAUSE OF JUROR SUTTON. The State's challenge for cause of Juror Sutton was sustained. While at one point during the voir dire, he stated that he could not 9tf~ll~w the precedings in this case," it was never shown that he could not be a fair and impartial juror. Thus, the challenge for cause should not have been sustained. ISSUE THREE THE TRIAL COURT SHOULD HAVE GRANTED FLAGGS' CHALLENGE FOR CAUSE OF JUROR BYRD. Flaggs' challenge for cause of Juror Byrd was denied. Mr. Bryd had worked for the Jackson Police Department for eleven years, and stated that he knew Dr. Steven Hayne, forensic pathologist in this case, olall" of the police officers, and particularly Amos Clinton and Perry Tate, two detectives involved in this case. Based upon his responses, it was likely that he could not be impartial, and thus, the challenge for cause should have been granted.

11 ISSUE FOUR DR. STEVEN HAYNE WAS NOT OUALIFIED AS A BLOOD SPATTER EXPERT AND Flaggs stipulated that Dr. Steven Hayne was qualified as a forensic pathologist. The State failed to qualify Dr. Hayne as a "blood spatter expert," and the Court should have granted Flaggs objection to Dr. Hayne testifying concerning blood splatter. ISSUE FIVE THE TRIAL COURT ERRED IN OVERRULING FLAGGS' OBJECTION TO THE INTRODUCTION INTO EVIDENCE OF THE SHOULDER SURGERY APPARATUS. The day Flaggs' trial began, his counsel learned from the State that it intended to introduce into evidence a shoulder surgery apparatus purportedly worn by the victim. The trial court found that Flaggs' counsel was informed of the apparatus as soon as the State learned of it, and therefore, there was no discovery violation. URCCC 9.04 (1) is not limited to situations where the State fails, intentionally or purposefully, to timely disclose discovery to the defendant, but applies even in situations as in the case sub judice where the State informs the defense as soon as it learns of newly discovered evidence. Flaggs' counsel was not given the opportunity to interview the witness, Christopher Wright, through whom the apparatus was introduced, nor was he given the opportunity to investigate the use of or need for the apparatus by the victim.

12 ARGUMENT OF ISSUES ISSUE ONE FLAGGS' MOTION OF CONTINUANCE SHOULD HAVE BEEN GRANTED. On the first day of the trial Flaggs' attorney asked the Court to continue the trial for two weeks (T. 15, 17). The basis for the continuance was that Flaggs needed a toxicology report relating to the examination of the victim's blood for cocaine. Flaggs told the Court that it was crucial to his case to have "corroborative evidence of his statement that they were using cocaine...i1 (T. 14). Flaggs' attorney told the trial court that Flaggs said that he and the victim both were using cocaine, and that the victim "became paranoid because of that and that that was the provocation or the initial aggression was made by Derrick Wright... " (T. 18). The State acknowledged that Flaggs had requested a toxicology report and that before that request was made the State had directed its investigator to submit the victim's blood sample for a toxicology analysis (T.15). Flaggs' attorney told the Court that about ten days prior to the trial he had asked the District Attorney's Office about the toxicology report, and the State agreed that was approximately when it was requested (T. 14). The State suggested that Flaggs was tardy in requesting the report (T. 19). Flaggs' attorney responded that he had no reason to believe the report had not been prepared, and that apparently once he requested the report from the State, that is when he learned that the toxicology analysis was in the process, but that the report had not been completed. There is nothing to indicate 8

13 that Flaggs was purposefully seeking a delay in his trial, for, as the court record shows, he never previously had requested a continuance. Flaggs had undergone a mental evaluation. The evaluation was completed on May 25, 2006, and Flaggs was found competent to stand trial (C.P. 20). Shortly thereafter, on June 25, 2006, Flaggs' trial was set for July 24, 2006 (C.P. 21). Flaggs' trial began on July 24, 2006, approximately one month after the entry of the Order of Trial Setting. In his argument before the Court for a continuance, Flaggs' attorney pointed out to the Court that as soon as Flaggs was found competent to stand trial, the State requested that the trial be "advanced on the docket.'l (T. 21). Considering that it was about ten days prior to Flaggs' trial beginning on July 24th that Flaggs' attorney requested from the State the toxicology report, it was thus only about two and one-half weeks after the Order was entered setting the trial that Flaggs requested the toxicology report. As statedpreviously, Flaggs attorney requested a continuance for only two weeks, only long enough for him to obtain the toxicology report. This Court has held that to warrant a reversal, the denial of a continuance must have resulted from manifest injustice, and for there to be manifest injustice, the defendant must have suffered unfair surprise or prejudice. Hudderson v. State, 941 So. 2d 221 (Miss. 2006). Clearly, a toxicology report concerning an analysis of the victim's blood could have been critical to Flaggs' defense. As stated previously, Flaggs' attorney told the Court that Flaggs 9

14 said the victim was on cocaine, that the victim was the initial aggressor, and that it was the cocaine that provoked the victim in attacking Flaggs. The tape recording of Flaggs' interrogation by the police verifies that Flaggs told the police Mr. Wright had used drugs immediately prior to his death. (Ex. 42, T. 379). Further, Flaggs told the police that Mr. Wright was acting paranoid and strange, having rushed at him with a screwdriver and knife prior to Mr. Flaggs stabbing and cutting him. ISSUE TWO THE TRIAL COURT SHOULD NOT HAVE GRANTED THE STATE'S CHALLENGE FOR CAUSE OF JUROR SUTTON. During individual voir dire, 3uror Willie D. Sutton, Jr. was asked by the State, "Do you think you would be able to follow the proceedings in this case?" Mr. Sutton responded, "No, Sir. " (T. 129). The question asked of Mr. Sutton was vague. At no time did the Court or the State explain to Mr. Sutton what was meant by 'tfollow the proceedings." I, the State was asking Mr. Sutton a question concerning criminal procedure, there is no case law requiring that a juror be knowledgeable about criminal procedure. If, the State's question was designed to test Mr. Sutton's intelligence, there is no case law stating that a juror must have a certain degree of intelligence. There are no educational requirements for a juror. In Smith v. State, 727 SO. 2d 1191 (Miss. 1998), the Court stated that a juror may be removed for cause when the trial court is of the opinion that the juror could not decide the case impartially, or for any personal reason which would make that 10

15 person's jury service oppressive. The standard of review for the trial court's granting or denial of a challenge for cause is abuse of discretion. Sewell v. State, 721 So. 2d 129 (Miss. 1998). Nothing suggests Juror Sutton could not have been impartial, and therefore, the State's challenge of him for cause was improperly granted. ISSUE THREE THE TRIAL COURT SHOULD HAVE GRANTED FLAGGS' CHALLENGE FOR CAUSE OF JUROR BYRD. During voir dire the venire persons were asked if they knew any of the potential witnesses. Juror Johnny E. Byrd stated that he knew Dr. Steven Hayne and Jackson police officers, Amos Clinton and Perry Tate. Mr. Byrd said that he was "the analyst for the police department, so I know all of the police officers" (T. 44, 45). Subsequently, Mr. Byrd stated that he had been employed by the Jackson Police Department for eleven years. During voir dire by the Court, the venire persons were asked if gruesome pictures would have any negative or unfavorable effect upon them. Mr. Byrd responded that in his job he "may have inadvertently may seen some of that." Mr. Byrd did not indicate the pictures would have such an effect on him; however, he did not say if any of the gruesome pictures he may have seen may have been pictures in the case sub judice (T. 83, 84). The fact that Mr. Byrd had been employed by the Jackson Police Department for eleven years, knew "allw of the police officers, and particularly, two of them who were to be witnesses in the trial, 1 I

16 Amos Clinton and Perry Tate, and knew the pathologist, Dr. Steven Hayne, is sufficient reason to serious call in question Mr. Byrd's ability to be a fair and impartial juror. While Mr. Byrd never specifically stated that he could not be fair and impartial, the standard is not whether the prospective juror definitely could not be impartial, but whether it would be likely that he could not be impartial. Berm v. State, 703 So. 2d 269 (Miss. 1997) ; Billiot v. - State, 454 So. 2d 445 (Miss. 1984), cert. denied, 469 U.S. 1233, 105, S. Ct. 1232, 84 L.Ed. 2nd 369 (1985). Coupled with the fact that Mr. Byrd may have seen some of the gruesome pictures of the case sub judice, his employment and knowledge of police officers involved in the case would have likely caused him to be partial toward the prosecution. ISSUE FOUR D SHOULD NOT HAVE BEEN PERMITTED TO TESTIFY CONCERNING SUCH. Dr. Steven Hayne performed the autopsy on the victim, and was called by the State to testify as a forensic pathologist. Mr. Flaggs' counsel stipulated to Dr. Hayne's qualifications as a forensic pathologist. (T. 314). Dr. Hayne testified that it was the duty of a forensic pathologist to determine the cause of death and the manner of death. He stated : In forensic pathology, the two main tasks are the determination of the cause of death and manner of death involving a human being. The cause of death is the medical reason that person died, whether it be from a heart attack or a gunshot wound, or literally thousands of different possibilities while the manner of death is the classification of the death, 12 u

17 whether it be suicide, homicide, accident, natural, in some cases pending until additional information can be gathered, and in some cases, also, undetermined when one cannot come to a final conclusion when all the evidence is thought to be present for evaluation. (T. 315). The State failed to qualify Dr. Hayne as a blood spatter expert. This Court has held that a forensic pathologist may testify concerning the causes of a victim's injury and the nature of the trauma produced by the injury. Further, the Court has held that a forensic pathologist may give an opinion as to the cause of death and the manner of death. Williams v. State, 937 So. 2d 35 (Miss. Miss. 2006); Bell v. State, 725 So. 2d 836 (Miss. 1998); McGowen v. State, 859 So. 2d 320 (Miss. 2003); and Holland v. State, 705 So. 2d 307 (Miss. 1997). This Court also said that a forensic pathologist may testify concerning a victim's wounds, suffering and the means of infliction of injury. The information sought from Dr. Hayne did not fall within the bounds of his expertise, and Mr. Flaggs' objection should have been sustained. ISSUE FIVE THE TRIAL COURT ERRED IN OVERRULING FLAGGS' OBJECTION TO THE INTRODUCTION INTO EVIDENCE OF THE SHOULDER SURGERY APPARATUS. Prior to the beginning of testimony, Mr. Flaggsl counsel objected to the introduction of a post-shoulder surgery apparatus purportedly having been worn by the victim. His attorney told the Court that it was only the day before the trial that he learned from the State of the apparatus. That fact was corroborated by the State. (T. 178). The Court found that the apparatus had probative value that the victim had, in fact, had shoulder surgery. In 13

18 overruling Flaggs' objection, the trial court stated that it found there had been no discovery violation that would trigger the "Box procedure," obviously in reference to URCCC In arguing against the introduction of the apparatus into evidence, Flaggs' attorney told the Court: I have no way that I can refute this evidence at this point at this late hour as well. I don't know whether this was some type of prescribed apparatus by a doctor, what that doctor would say or did say about his abilities or whether he should wear this or for how long or even when the surgery occurred. I don't have any way to do anything with that. (T.180) In overruling Flaggs' objection to the introduction of the apparatus into evidence, the Court found that the apparatus would be probative in corroborating whether the victim had received medical treatment involving his shoulder. (T ). Apparently, the trial court was of the opinion that only a discovery violation would trigger URCCC 9.04 (I). The relevant portion of URCCC 9.04 (I) reads in part as follows: If, during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense, as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows: 1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and 2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time 14

19 abused its discretion, because it totally failed to comply with URCCC 9.04 (I). Particularly, defense counsel was not given an opportunity to interview Christopher Wright about the apparatus, through whom the apparatus was introduced, nor given the opportunity to investigate the victim's alleged use of or need for the apparatus. Obviously, the purpose of the apparatus was to show that the victim was somehow incapable or limited in being the aggressor against Mr. Flaggs. CONCLUSION The trial court erred and Mr. Flaggs should be granted a new trial. Respectively submitted, TAVARES FLAGGS CERTIFICATE OF SERVICE - ATTORNEY FOR APPELLANT I, Donald W. Boykin, hereby certify that I have this day mailed, postage prepaid, or hand delivered a true and correct copy of the above and foregoing Brief for Appellant to: 1. Honorable Bobby B. DeLaughter Circuit Judge; 2. Honorable Jim Hood Attorney General; and 3. Philip Weinberg Assistant District Attorney This the 17th day of April, 2007.