IN THE MISSISSIPPI COURT OF APPEALS
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2012-KA-00854 COA
DARRELL TILLIS APPELLANT
versus
STATE OF MISSISSIPPI APPELLEE
BRIEF OF APPELLANT
Appeal from the Circuit Court of Hinds County, Mississippi
Hon. Tomie Green, presiding
Jane E. Tucker (Ms Bar No. 1786)
235 Melbourne Road
Jackson, MS 39206
(601) 291-2047
janetucker39@
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.
Darrell Tillis
Appellant/Defendant
Greta Harris
Michael Henry
Trial counsel for Darrell Tillis
Jane E. Tucker
Appellate counsel for Jeremy Clark
Robert Smith
Nichon Shannon
Shundral Hobson
Lora Hunter
District Attorney and Assistant District Attorneys
Jim Hood
Appellate counsel for the State of Mississippi
State of Mississippi
Appellee
Tomie Green
Circuit Court Judge, Hinds County, Mississippi.
SO CERTIFIED, this the 23rd day of August, 2013.
_/s/ Jane E. Tucker_____________ Jane E. Tucker
TABLE OF CONTENTS
Certificate of Interested Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Statement of Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .viii
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Law and Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. The Court erred in allowing the prosecution to admit
the coroner’s report and letting the coroner testify in lieu
of the pathologist who performed the autopsy. . . . . . . . . . . . . . . . . . 8
A. This testimony violated Tillis’ right to confront
the witnesses against him. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
B. The coroner did not have the expertise to testify
regarding the manner of death. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
C. The prosecution’s argument regarding homicide
versus accident misled the jury in such a way as to deny
Tillis his defense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
D. Due process was violated when the prosecution was
allowed to introduce a report that it had not given to the defense in discovery ahead of trial. . . . . . . . . . . . . . . . . . . 22
2. The trial court erred in denying Tillis’ objection to the prosecution’s
argument that the defense did not call the coroner to testify. . . . . . . . . . . . . 23
3. Tillis’ right to due process and a fair trial were denied when the
state failed to preserve a videotape of the shooting. At the
very least, Tillis was entitled to a spoliation instruction. . . . . . . . . . . . . . . . 24
4. The trial court erred in denying the Defendant’s motion to require
the prosecution to provide an NCIC report on the victim. . . . . . . . . . . . . . . 27
5. The verdict of manslaughter is unsupported by the evidence.
In the alternative, it is against the overwhelming weight of the evidence. . . 30
6. Darrell Tillis was denied due process and a fair trial due to an
incomplete transcript. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7. The trial court erred in refusing to allow Tillis to physically
Demonstrate how the accidental shooting occurred. . . . . . . . . . . . . . . . . . . 41
8. The prosecution committed misconduct in allowing Det. Brown to
testify that witness Frederick Brown had been murdered when
the trial court ruled that the prosecution could not elicit this information. . . 42
9. Darrell Tillis’ conviction and sentence must be reversed
because of cumulative error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
TABLE OF AUTHORITIES
Cases:
Atilus v. United States, 425 F.2d 816 (5th Cir. 1970). . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Bang v. State, 60 Miss. 571 (1882) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Baraka v. Commonwealth, 194 S.W.3d 313 (Ky. 2006). . . . . . . . . . . . . . . . . . . . . . . . . 19
Barnette v. State, 481 So. 2d 788 (Miss. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Bond v. State, 249 Miss. 352, 162 So.2d 510 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) . . . . . . . . . . 29
Burke v. State, 576 So. 2d 1239 (Miss. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Box v. State, 437 So.2d 19 (Miss. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Brown v. State, 200 Miss. 881, 27 So. 2d 838 (1946) . . . . . . . . . . . . . . . . . . . . . 24
Bullcoming v. New Mexico, 131 S. Ct. 2705, 180 L. Ed. 2d 610 ( 2011) . . . . . . . . . 11-13
Burdette v. State, 110 So. 3d 296 (Miss. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13
Bush v. State, 895 So.2d 836 (Miss. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
California v. Trombetta, 467 U.S. 479,104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984). . . 25 Carr v. State, 208 So.2d 886 (Miss.1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31-32
Carter v. Fenner, 136 F.3d 1000 (5th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 Chambers v. Mississippi, 410 U.S. 284, 298, 93 S.Ct. 1038, 1047 (1973). . . . . . 29, 43
Charleston Nat'l Bank v. Hennessy, 404 F.2d 539 (5th Cir. 1968) . . . . . . . . . . . . . . 17
Clark v. Procunier, 755 F.2d 394 (5th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Corbin v. State, 2011 Miss. LEXIS 463 (Miss. Sept. 22, 2011) . . . . . . . . . . . . . . . . .10
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10-12
Cunningham v. Zant, 928 F.2d 1006 (11th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579,
113 S.Ct. 2786 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15-17
Davis v. State, 684 So.2d 643 (Miss. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Dilworth v. State, 909 So.2d 731 (Miss. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Doby v. State, 557 So. 2d 533 (Miss. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . .24, 38
Dudley v. State, 719 So.2d 180 (Miss. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Fla. Inst. for Neurologic Rehab., Inc. v. Marshall, 943 So. 2d 976
(Fla. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-30
Freeman v. State, 2013 Miss. LEXIS 312 (Miss. May 30, 2013) . . . . . . . . . . . . . . 26-27
Fulks v. State, 18 So. 3d 803 (Miss. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Garlotte v. State, 530 So.2d 693 (Miss.1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Godwin v. State, 73 Miss. 873, 19 So. 712 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Gibson v. State, 580 So.2d 739 (Miss.1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) . . . . . . 29
Goforth v. State, 70 So. 3d 174 (Miss. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Graves v. State, 45 So. 3d 283 (Miss. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Gray v. State, 926 So.2d 961 (Miss.App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Green v. State, 631 So.2d 167 (Miss. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Griffin v. State, 607 So.2d 1197 (Miss. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Heafner v. State, 196 Miss. 430, 17 So. 2d 806 (1944). . . . . . . . . . . . . . . . . . . . 24
Hammond v. State, 2013 Miss.App. LEXIS 29 (Miss. App 2013) . . . . . . . . . . . . . . . 35
Hardy v. United States, 375 U.S. 277, 280, 84 S. Ct. 424,
11 L.Ed.2d 331 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Heidel v. State, 587 So.2d 835 (Miss. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Hickson v. State, 472 So.2d 379 (Miss. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Jackson v. State, 79 Miss. 42, 30 So. 39 (1901) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) . . . . . . . . 31
Johnson v. State, 987 So.2d 420 (Miss. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167,
143 L.Ed.2d 238 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Lanier v. State, 533 So. 2d 473 (Miss. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
McCullough v. State, 750 So. 2d 1212 (Miss. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . 23
Madlock v. State, 440 So. 2d 315 (Miss. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
McCreary v. State, 582 So.2d 425 (Miss. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Medlock v. State, 430 S.E.2d 754 (Ga. Ct. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . 20
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) . . . . 10-13
Moore v. Ashland Chemical, 151 F.3d 269 (5th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 17
Mouton v. Tug “Ironworker,” 811 F.2d 946 (5th Cir. 1987) . . . . . . . . . . . . . . . . . . . 42
Murray v. State, 849 So. 2d 1281 (Miss. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Petersen v. Cordes, 2003 U.S. Dist. LEXIS 19930 (N.D. Ill. 2003) . . . . . . . . . . . . . .18
Pharr v. State, 465 So.2d 294 (Miss.1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34 Rouster v. State, 981 So. 2d 314 (Miss. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . 28
Shinall v. State, 199 So.2d 251 (Miss. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
State v. Scott, 522 S.E.2d 626 (W. Va. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Sterkaj v. Gonzales, 439 F.3d 273 (6th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Stringer v. State, 500 So.2d 928 (Miss. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Suan v. State, 511 So.2d 144 (Miss. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Thomas v. State, 129 Miss. 332, 92 So. 225 (1922). . . . . . . . . . . . . . . . . . . . . . . . . . 35
United States v. Andiarena, 823 F.2d 673 (1st Cir.1987) . . . . . . . . . . . . . . . . . . . . . . 40
United States v. Auten, 632 F.2d 478 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . 29
United States v. Bivins, 2011 U.S. Dist. LEXIS 68494 (N.D. Tex. 2011). . . . . . . . . 29
United States v. Garcia-Bonifascio, 443 F.2d 914 (5th Cir. 1971) . . . . . . . . . . . . . . . 40
United States v. Gray, 2010 U.S. Dist. LEXIS 91939 (N.D. Ohio 2010) . . . . . . . 20-21
United States v. Gregory, 472 F.2d 484 (5th Cir. 1973) . . . . . . . . . . . . . . . . . . . . . . . 40
United States v. Ignasiak, 67 F.3d 1217 (11th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . 12
United States v. McCusker, 936 F.2d 781 (5th Cir.1981) . . . . . . . . . . . . . . . . . . . 39, 40 United States v. Onick, 889 F.2d 1425 (5th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . 40
United States v. Rosa, 434 F.2d 964 (5th Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . 40
United States v. Sacerio, 952 F.2d 860 (5th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . 31
United States v. Selva, 559 F.2d 1303 (5th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . 39
United States v. Taylor, 607 F.2d 153 (5th Cir.) . . . . . . . . . . . . . . . . . . . . . . . . . . 39-40
United States v. Windfelder, 790 F.2d 576 (7th Cir. 1986). . . . . . . . . . . . . . . . . . . . 20
Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). . . . . . . . . . . . . . . . . . . . 32-33
Wilson v. State, 21 So. 3d 572 (Miss. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10-11
Msc.
A Guide for Manner of Death Classification,
National Association of Medical Examiners, Feb. 2002 . . . . . . . . . . . . . . . . . . . . . 19
STATEMENT OF ISSUES
1. The Court erred in allowing the prosecution to admit the coroner’s report and letting the coroner testify in lieu of the pathologist who performed the autopsy.
A. This testimony violated Tillis’ right to confront
the witnesses against him.
B. The coroner did not have the expertise to testify
regarding the manner of death.
C. The prosecution’s argument regarding homicide versus
accident misled the jury in such a way as to deny
Tillis his defense.
.
D. Due process was violated when the prosecution was
allowed to introduce a report that it had not given to the defense in discovery ahead of trial.
2. The trial court erred in denying Tillis’ objection to the prosecution’s
argument that the defense did not call the coroner to testify.
3. Tillis’ right to due process and a fair trial were denied when the
state failed to preserve a videotape of the shooting.
At the very least, Tillis was entitled to a spoliation instruction.
4. The trial court erred in denying the Defendant’s motion to require
the prosecution to provide an NCIC report on the victim.
5. The verdict of manslaughter is unsupported by the evidence.
In the alternative, it is against the overwhelming weight of the evidence.
6. Darrell Tillis was denied due process and a fair trial due to an
incomplete transcript.
7. The trial court erred in refusing to allow Tillis to physically demonstrate how the accidental shooting occurred.
8. The prosecution committed misconduct in allowing Det. Brown to testify that witness Frederick Brown had been murdered when the trial court ruled that the prosecution could not elicit this information.
9. Darrell Tillis’ conviction and sentence must be reversed
because of cumulative error.
STATEMENT REGARDING ORAL ARGUMENT
Darrell Tillis does not request oral argument in this case.
STATEMENT OF THE CASE
Darrell Tillis was indicted by a Hinds County Grand Jury for the crime of murder in violation of M.C.A. § 97-3-19(1)(a) CP. 5. At the end of a trial commencing November 28, 2011, the jury found Tillis guilty of manslaughter. CP. 135; Ex. C-1; R.E. 11. The trial court sentenced Tillis to twenty years imprisonment. CP. 135; RE. 12.
After the transcript was prepared, trial counsel Greta Harris read through it and identified various omissions – mainly argument and rulings that had not been included in the record such as a ruling on whether Tillis would be forced to show his teeth to the jury (T. 434) and argument with regard to whether the coroner should be allowed to testify in lieu of the doctor who performed the autopsy on the victim. T. 484. Harris filed a motion to correct the record and a hearing was held wherein the trial court ruled that
the record will stand as it is printed. I don’t see any reason I would have just made that statement other than what is here. And unless you can show me something other than that to show that his transcript as written is in error, it has to remain. That’s not a correction.
You want this Court to insert into the transcript what you believe it said in your own knowledge during a time when you were trying the case. And you’re just saying that I think you said that and I want you to put it in there to make the record correct, but that’s just your allegations that that’s what I said.
But the transcript has to remain the same unless you can show me something that would indicate that the court reporter refused to transcribe what I actually said.
RE. 16; Supp. Transcript. 15-16.
Ms. Harris then filed a Motion with the Mississippi Supreme Court to Include Designated Materials Refused Inclusion by the Trial Court. The Court of Appeals ordered that the court reporter was to certify within 30 days a “true, full and correct transcript of the proceedings below” and that the reporter was to also file “any and all electronic records, notes and other means used to make the transcription of any proceedings held in the lower court.”
Ms. Harris has listened to the audio recording of the trial and there is no audio of the bench conferences. The transcript, however, reflects that such bench conferences did occur. They are noted in the transcript as “OFF-THE RECORD-BENCH-CONFERENCE[S]”. T. 236, 434, 484
STATEMENT OF THE FACTS
Introduction:
Darrell Tillis was charged with the murder of Michael Olowe-Ake. Olowe-Ake was killed by a single gunshot. There is no dispute but that the shooting occurred during a drug deal. Tillis’ defense was that the shooting was accidental: when Tillis objected to the marijuana, Olowe-Ake pulled out a gun, Tillis grabbed it to protect himself, and as Olowe-Ake fought to get the gun back and Tillis was restraining him, the gun went off twice. The first shot hit Olowe-Ake, the second hit one of the seats in Olowe-Ake’s vehicle. The jury was prevented from considering Tillis’ accident defense when the prosecution was allowed to call the coroner instead of the pathologist to testify as to cause of death and the prosecution thereafter interpreted the coroner’s testimony as having conclusively ruled out an accidental shooting. The pathologist’s determination that the shooting was a homicide did not, in any way, rule out an accidental shooting. But this is what the jury was erroneously told to believe, the result being that Tillis was effectively denied his defense.
The testimony at trial:
On a Sunday in April 2010, Darrell Tillis and Michael Olowo-Ake a/k/a Money[1] met up at a convenience store on North State Street in Jackson so that Tillis could purchase marijuana from Olowo-Ake. Olowo-Ake was a drug dealer who sold marijuana. T. 271. On April 11, 2010, Olowo-Ake was accompanied by his friend Nathaniel Singleton. T. 260. Singleton testified that at around 10:00 or 11:00 a.m., the two of them went to the Texaco and parked by the gasoline pumps. As Olowo-Ake pumped gasoline into his SUV, Tillis[2] drove up and parked on the other side of the pump. T. 240. Tillis got into the front passenger seat of Olowo-Ake’s SUV and rifled through a duffle bag to inspect the product. Tillis asked Olowo-Ake “is this all you got” and Olowo-Ake responded “Yes, this is all I got.” T. 241. Olowe-Ake then gave Singleton a five dollar bill and asked him to buy him a cigar. T. 241.
Singleton testified that when he returned to the truck, Tillis had Olowo-Ake on the back tire of the truck and was hitting him. [3] T. 241. Singleton stated that as he ran up to help his friend, and just as Singleton was going to hit Tillis, Tillis pulled out a gun, pointed it at Singleton and told Singleton “You better get back.” T. 241, 267, 273. Singleton testified that Olowo-Ake managed to get off the ground and Tillis grabbed him by the shirt , threw him into the truck and shot Olowo-Ake. T. 241. Singleton ran into the store to tell someone to call the police. When he came out he heard a second shot. This one did not strike anyone. Notwithstanding Singleton’s testimony at trial, according to a statement written by Anthony Olowe-Ake, Singleton told Anthony that Michael Olowe-Ake shot himself. T. 557; Ex. D-27.
As Tillis and Olowo-Ake were struggling with each other, they were observed by two men who had just parked in front of the store. These two, Gregory Lott and Jack Evern, were the only impartial witnesses to the shooting. Gregory Lott testified that as he was leaving the store, he saw two people tussling over a gun. T. 309. Lott hurried to leave the area. T. 314. And as he and Evern drove off, Lott could hear two gunshots. T. 311.
Jack Evern recalled the event in more detail. More importantly, he was the only witness who saw the beginning of the altercation and he testified that Olowe-Ake was the initial aggressor. Evern testified that as they drove up, he saw three men in the gas pump area. Tillis was in the truck “fumbling with something” in his lap. T. 324, 327. Evern testified that he heard Tillis say “I done took some shit” and Olowo-Ake (the one with the dreadlocks) walked over to Tillis and said “you ain’t took nothing” and then hit Tillis two or three times and then the two started fighting. T. 328. Evern stated that he then saw Tillis with a gun and saw Tillis shoot Olowo-Ake. T. 325.
Scottie Morton, a friend of both Singleton and Olowo-Ake’s, happened to drive up shortly after the shooting. Singleton, who did not know Tillis’ name, told Morton that the shooter was someone they had met at a friend’s house a few days before. Morton called Olowo-Ake’s brother Anthony Olowe-Ake. Anthony came to the scene and saw his brother sitting in the truck. His brother was holding on to his pocket where there were a couple of hundred dollars. T. 547. Blaming Singleton for his brother’s condition, Anthony attacked Singleton. T. 295, 549.
Tillis took the stand in his own defense. He testified that he met Scott Morton at the Pebble Creek Apartments. T. 595. Later, when Tillis asked Morton whether he knew someone who could sell him some marijuana, Morton introduced Tillis to Olowo-Ake and Tillis purchased some marijuana from Olowe-Ake. T. 597-598. During the transaction, Tillis and Olowe-Ake disagreed on the price. T. 598. Tillis thought the price was too high for the amount he was getting and the two negotiated a lower price. T. 598-599. After the transaction, Morton argued with Tillis about Tillis not paying the asking price. T. 599. Morton took the position that when Morton called one of his friends and asked him to sell marijuana to Tillis, Tillis should not have been asking for a lower price than that Morton had bargained for. T. 599.
In the evening of April 9, 2010, Tillis called Olowe-Ake but Olowe-Ake did not have any marijuana that day. T. 599. It was not until the morning of the 10th that Olowe-Ake informed Tillis he had some marijuana. T. 606. They agreed to meet at the Texaco on State Street the next day. T. 607. When Tillis arrived, Olowe-Ake was parked beside a gas pump and was walking into the store to pay for some gas. T. 609. Tillis pulled up next to a pump and walked to Olowe-Ake’s SUV. T. 610. When Olowe-Ake came out, he pumped some gas while Tillis talked to Singleton. T. 611. Tillis then got into the passenger seat of Olowe-Ake’s SUV, examined the drugs and asked “is this all you got?” T. 611. Tillis testified that it was not the kind of marijuana he was looking for. T. 612. Tillis wanted “popcorn”[4] like the kind he had purchased from Olowe-Ake before. T. 612.. Popcorn is a little more expensive but this time Olowe-Ake had only regular marijuana. T. 612. Olowe-Ake was still at the gas pumps. Tillis got out of the vehicle and told Olowe-Ake that he did not want to purchase the marijuana. T. 613. Olowe-Ake got upset and reached for a firearm. As Olowe-Ake was pulling the gun out, Tillis snatched it from him. T. 613. Olowe-Ake kept reaching for the gun while Tillis was trying to hold him back. T. 613-614. As they struggled, Olowe-Ake edged back into his vehicle giving Tillis the impression he was seeking another gun. T. 616. Tillis still had one arm holding him back. T. 616. In the struggle over the gun, the gun went off and Olowe-Ake was shot. T. 616. As Tillis leaned over Olowe-Ake, the gun discharged again but this time the bullet lodged in the seat of Olowe-Ake’s vehicle. T. 618-619.
At the University of Mississippi Medical Center, Olowo-Ake was pronounced dead. T. 287-88; 544.
In January 2012, approximately a month after Tillis’ trial, Olowo-Ake’s family filed a lawsuit against the ambulance company and the owner of the gas station alleging that Olowo-Ake’s death was caused by the gas station’s failing to call 911 and the ambulance personnel’s failure to treat Olowo-Ake. Olowo-Ake v. Emergency Medical Services, Corp., United States District Court for the Southern District of Mississippi No. 3:12 cv 227. Tillis was not named as a defendant in that lawsuit.
SUMMARY OF THE ARGUMENT
The issue in this case was whether the shooting was intentional, an accident, or somewhere in between. The theory of the defense was that this was an accidental shooting. This defense was completely undermined when the state chose to call the coroner with regard to the manner of death instead of the pathologist. The coroner testified that the manner of death was homicide and not accidental. The prosecution wrongly interpreted this to mean that the pathologist ruled out an accidental shooting when this was not the case. Homicide as a manner of death does not rule out an accidental shooting. But because the “expert” was not really an expert, and because the prosecution failed to realize that there is a difference between the medical meaning of homicide and the legal meaning of homicide, the jury was left with the notion that the state’s expert had ruled out an accidental shooting when this was not the case.
The prosecution’s calling the coroner instead of the pathologist caused many errors to occur in addition to the confusion over the definition of homicide. The defense was unable to cross examine the person who actually made the determination of cause of death, i.e. the pathologist who performed the autopsy. There was a discovery violation because the defense was not notified until trial that the prosecution would be calling the coroner and relying on the coroner’s report rather than the autopsy. And, finally, the coroner lacked the expertise under M.R.E. 702 to opine as to the cause of death.
These errors were compounded by the prosecution’s arguing that it was the prosecution and not the defense who called the coroner to the stand thereby violating the rule that one cannot comment on the absence of a witness equally available to both parties.
The trial court erred in failing to require the prosecution to turn over the NCIC report on the victim. This was material required to be turned over pursuant to Brady v. Maryland. The verdict of manslaughter was not supported by the evidence. Alternatively, it was against the overwhelming weight of the evidence.
Finally, Tillis was denied due process and a fair trial when it turned out that the bench conferences were unrecorded and when Tillis tried to reconstruct what had occurred at said conference, he was not permitted to do so by the trial court. Taken individually or together, these errors require, at the very least, a new trial.
LAW AND ARGUMENT
1. The Court erred in allowing the prosecution to admit the coroner’s report and letting the coroner testify in lieu of the pathologist who performed the autopsy.
The prosecution called to the stand the Hinds County Coroner Sharon Grisham-Stewart to testify as to the cause of death. The defense objected to her testimony on various grounds including M.R.E. 702 (the coroner’s qualifications)[5], that the prosecution had failed to provide the defense with a copy of the coroner’s report[6], and the confrontation clause. Supp. Transcript Ex. D-1.[7] T. 577-578. (Note: the coroner’s report is Ex. S-23. However, it was not in the exhibit envelope when undersigned counsel opened it although it is listed as being there).
Grisham-Stewart proceeded to testify that the death was due to a single gunshot to the flank and both accidental death and suicide were ruled out. T. 491-492. In making this determination, she reviewed the autopsy report. T. 492. Furthermore, she testified that the determination of manner of death is made based on information “that is gathered from the scene of the investigation, from law enforcement’s narrative as well as findings of the autopsy.” T. 490.
Allowing the coroner to testify thusly and introducing her report violated Tillis’ rights for several reasons: 1) the coroner did not perform the autopsy and, thus, Tillis was unable to confront the person who did the actual determination of the manner of death , 2) the coroner lacked the expertise to determine on her own that the death was not due to accident, 3) the prosecution erroneously told the jury that the manner of death being homicide meant that the shooting was not an accident, and 4) since the name of the coroner nor the coroner’s report were provided to the defense until trial, the admission of the report and testimony violated the rules of discovery.
A. This testimony violated Tillis’ right to confront
the witnesses against him.
A criminal defendant has the right to confront the witnesses and evidence against him – a right accorded him under both the Mississippi and the United States Constitutions. Miss. Const. Art. 3, § 26 (“[i]n all criminal prosecutions the accused shall have a right . . . to be confronted by the witnesses against him.”); U.S. Const., Sixth Amendment. Lanier v. State, 533 So. 2d 473, 488 (Miss. 1988); Wilson v. State, 21 So. 3d 572, 586-87 (Miss. 2009). The Confrontation Clause requires that pretrial, testimonial statements made by a witness who is absent at trial are admissible only if the witness is unavailable and the accused had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 1370, 158 L. Ed. 2d 177 (2004); Goforth v. State, 70 So. 3d 174, 183 (Miss. 2011).
The right to confrontation specifically means, in the context of crime lab reports and/or autopsies, that if the prosecution wishes to introduce the results of a test or autopsy it must furnish the person who did the test or autopsy so that the defendant may cross-examine him about the test or autopsy. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2538, 174 L. Ed. 2d 314 (2009) (business record exception does not encompass documents generated by an entity that regularly “produc[es] . . . evidence for use at trial”); Corbin v. State, 2011 Miss. LEXIS 463 (Miss. Sept. 22, 2011); Barnette v. State, 481 So. 2d 788, 791 (Miss. 1985). “In Melendez-Diaz, the United States Supreme Court held that the trial court's admitting certificates of analysis sworn by analysts at a state laboratory without requiring in-court testimony by analysts violated the defendant's Sixth Amendment right to confront the witnesses against him.” Wilson v. State, 21 So. 3d 572, 588 (Miss. 2009). And “ whatever the status of coroner's reports at common law in England, they were not accorded any special status in American practice.” Melendez-Diaz, 557 U.S. at 322.
Recently, the United States Supreme Court reaffirmed its earlier ruling in Bullcoming v. New Mexico, 131 S. Ct. 2705, 180 L. Ed. 2d 610 ( 2011). In Bullcoming, the Court made clear that the Sixth Amendment requires that, when introducing testimonial forensic evidence, the prosecution must present testimony by a scientist who was actually involved in preparing that forensic evidence. Bullcoming, 131 S.Ct. at 2710, 2713. In so doing, the Court specifically rejected the use of so-called “surrogate testimony,” which in Bullcoming was that of a colleague from the same lab that prepared the disputed forensic report, but who had not specifically worked on the reports in question. Id. at 2710, 2712-13. Even though the colleague was able to testify as to the efficacy and reliability of the laboratory equipment, and also whether normal protocol was followed, the Court explained that the "comparative reliability of an analyst's testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar . . . [because] the obvious reliability of a testimonial statement does not dispense with the Confrontation Clause." Id. at 2714. Instead, only testimony by the actual scientist who prepared the forensic report could provide insight into "the particular test and testing process . . . employed," and also "expose any lapses or lies on the certifying analyst's part.” Id.
In this case, the court’s allowing the manner of death to be admitted via a “surrogate expert”, i.e. the coroner, who did not perform the actual autopsy, meant that Tillis was unable to demonstrate via cross-examination that the forensic pathologist who actually performed the autopsy was either fraudulent, incompetent, sloppy, hurried, or whatever the case may be. Or, on the other hand, that the injury from the single bullet was consistent with Tillis’ testimony as to how the shooting happened. Tillis has the right under both the state and federal constitutions to confront the expert who did the autopsy. That right was violated when the trial court allowed someone other than the forensic pathologist testify as to cause of death. As the coroner here admitted, the cause of death could only be determined after a review of the autopsy report among other things. T. 490. This method of introducing the conclusions of the forensic pathologist who performed the autopsy on Olowo-Ake violated Tillis’ right to confront the pathologist about her manner-of-death determination. See, e.g. United States v. Ignasiak, 67 F.3d 1217 (11th Cir. 2012) (“Applying the reasoning of Crawford, Melendez-Diaz, and Bullcoming, we conclude that the five autopsy reports admitted into evidence in conjunction with Dr. Minyard's testimony, where she did not personally observe or participate in those autopsies (and where no evidence was presented to show that the coroners who performed the autopsies were unavailable and the accused had a prior opportunity to cross examine them), violated the Confrontation Clause”).
In Burdette v. State, 110 So. 3d 296 (Miss. 2013), the Mississippi Supreme Court found that it was error to allow the introduction of a crime lab report via the testimony of a law enforcement officer who had no connection to the crime lab. Burdette, 110 So.2d at 303. The Court, however, found that it could only reverse if the error amounted to a “manifest miscarriage of justice” inasmuch as no objection was made at trial. Burdette, 110 So.2d at 303. “While the report of the Mississippi Crime Laboratory was the only proof that the bullets collected at the scene were either fired by or consistent with having been fired by the gun in question, the parties at trial were in agreement that Burdette shot Smith at point-blank range with that weapon. The only disputed question was whether Burdette did so in necessary self-defense.” Burdette, 110 So.2d at 303. The confrontation clause error was therefore harmless.
The state will no doubt argue that any error here was harmless where there was no dispute but that Olowe-Ake died as the result of a single gunshot wound. However, in this case, Tillis maintained that the shooting was accidental and that it happened as both he and Olowe-Ake were in Olowe-Ake’s vehicle and Tillis was trying to fend off Olowe-Ake’s efforts to regain his gun. The pathologist who performed the autopsy might have been able to testify that the path of the bullet was consistent with Tillis’ testimony (indeed, this was what Dr. Gruszecki told defense counsel Greta Harris when she talked to Dr. Gruszecki after the trial). The coroner testified that, according to the autopsy report prepared by Dr. Gruszecki, that the wound was a close contact wound and that the bullet traveled forward and upward. T. 492. But all of this was based on the autopsy report prepared by Dr. Gruszecki. T. 492.
The state may also argue that the defense could have subpoenaed Dr. Gruszecki, but this argument was addressed in Melendez-Diaz. To the dissent’s observation that the defendant could subpoena the analysts, the majority in Melendez-Diaz replied that the subpoena power “is no substitute for the right of confrontation. [The subpoena power is] of no use to the defendant when the witness is unavailable or simply refuses to appear ... More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.” Melendez-Diaz, 129 S. Ct. at 2540.
Tillis’ defense was that the shooting was an accident that occurred while he was defending himself. The coroner, relying on the autopsy report, testified that this was a homicide. Since the person who performed the autopsy was not there, Tillis could not cross-examine her on that determination or make it clear via cross-examination that homicide as the manner of death does not rule out an accidental shooting . This is the essence of a confrontation violation and requires that Tillis’ conviction be reversed and he be given a new trial.
The confrontation clause error was only made more harmful when the prosecution, in closing, relied on the coroner’s testimony in arguing that the killing was a homicide and also argued that the defense barely cross-examined the coroner.
Second of all the coroner took the stand, and she said that this case was a homicide. And there is a coroner’s report where there are several options at the bottom. And one of those options is accident, and that wasn’t checked. What was checked was homicide.
And interestingly enough, the defense attorney didn’t really cross-examine her on whether or not the facts of this case lend itself to an accident. And, in her case in chief, she didn’t even call the coroner to ask her if the facts presented.
[redacted][8]
So the coroner took the stand, and she explained why this was a homicide based on the information gathered from the police, based on the examination of the body. She explained why this was a homicide.
But at no time was there elicited from that witness that could have explained how this was an accident so that she could have checked this accident box on here.
T. 734.
After the defense gave its closing argument, the prosecution continued in this vein.
Another reason we know it’s not self defense, and we know it’s not an accident, and we know it’s not suicide because all of those have been presented to you by defense counsel is because a coroner took the stand. And the coroner had several options. And she told you she’s examined over 300 bodies. And her options are natural causes, homicide, accident, suicide, unknown or pending.
If there was any doubt in her mind, she could have checked unknown. She could have checked pending, but she didn’t. A hundred percent with definitive proof she checked homicide because it’s not self defense, and it’s not an accident.
T. 757-758; RE. 13-14 (emphasis added).
Given this argument, the prosecution can hardly maintain that the prosecution’s failure to call the pathologist was harmless error. [9]
B. The coroner did not have the expertise to testify
regarding the manner of death.
M.R.E. 702 allows experts to testify if such testimony will assist the jury and the testimony meets the requirements of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).[10] M.R.E. 702 reads as follows:
If scientific, technical or other specific knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise if 1) the fact is based upon specific facts or data, 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts at issue.
M.R.E. 702. The coroner was not qualified to opine as to the manner of death in this case.
Under Daubert v. Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579, 113 S.Ct. 2786 (1993), expert testimony is admissible only if it is both reliable and relevant. Id., 509 U.S. at 597, 113 S.Ct. at 2799. This rule applies not only to testimony based on scientific knowledge, but also to testimony of engineers and other experts that is based on technical or specialized knowledge. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
We conclude that Daubert’s general holding – setting forth the trial judge’s general “gatekeeping” obligation – applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialized” knowledge.
Id.
To determine whether expert testimony is reliable, the trial court must make an assessment of whether the reasoning or methodology of the proposed scientific or specialized testimony is valid. Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796. Daubert established a “five-factor, non-exclusive, flexible test” for making this determination. Moore v. Ashland Chemical, 151 F.3d 269, 275 (5th Cir. 1998). The Daubert factors are as follows:
• Whether a “theory or technique . . . can be (and has been) tested”;
• Whether it has been subjected to peer review and publication;
• Whether, in respect to a particular technique, there is a high “known or potential rate of error” and whether there are “standards controlling the technique’s operation”;
• The existence and maintenance of standards and
controls in the methodology; and
• Whether the theory or technique enjoys “general acceptance” within a “relevant scientific community.”
Kumho Tire 526 U.S. at 149-50, 119 S.Ct. 1175, citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2796-97.
In Mississippi, it is not required that a coroner, which is an elected position, be a medical doctor.[11] Coroner Sharon Grisham-Stewart doers not have a medical degree but rather a Bachelor’s Degree in Mortuary Scince. T. 485. A coroner who is not also a medical doctor[12] is not qualified to give expert medical opinions as to the manner of death. Charleston Nat'l Bank v. Hennessy, 404 F.2d 539, 541-542 (5th Cir. 1968) (where coroner had no medical training, “[t]here was no substantial evidence of any kind showing him to be qualified as an expert on causes of death); Petersen v. Cordes, 2003 U.S. Dist. LEXIS 19930, 5-8 (N.D. Ill. 2003) (coroner who was not a physician and had no specialized medical training did not have sufficient knowledge, skill, experience, training or education to determine the cause of death of the decedent in this case. “The mere fact that he is a coroner is insufficient without more.”); Carter v. Fenner, 136 F.3d 1000, 1012 (5th Cir. 1998) (coroner was qualified to offer opinion on behavior of people under influence of alcohol, where coroner was expert in forensic pathology, had degree in medicine, and had extensive experience in dealing with persons under influence of alcohol).
While it sometimes may be the case that a coroner is qualified to testify that death was due to a single gunshot wound[13], a coroner who ventures beyond that to testify that the manner of death was a homicide is testifying outside her area of expertise.
C. The prosecution’s argument regarding homicide
versus accident misled the jury
Just as insanity has one definition in the field of law and another in medicine, so too does the definition of homicide. There are five manners of death: natural, homicide, suicidal, accidental, and undetermined. They do not necessarily correspond to the dictionary definitions or the legal definitions of these terms. For example, the lay person may think that the term “homicide” is the same as “murder”. But a pathologist who diagnoses the manner of death as homicide is not opining as to whether a criminal act has occurred. When using the term homicide, the pathologist means only that the death of one person was due to an act or omission of another[14] or “a killing of a human being through human agency.” Fla. Inst. for Neurologic Rehab., Inc. v. Marshall, 943 So. 2d 976, 980 (Fla. App. 2006).
Homicide occurs when death results from a volitional act committed by another person to cause fear, harm or death. Intent to cause death is a common element but not required for classification of homicide. . . . It is to be emphasized that the classification of Homicide for the purposes of death certification is a “neutral” term and neither indicates nor implies criminal intent, which remains a determination within the province of the legal processes.
Hanzlick, Hunsacker, and Davis, A Guide for Manner of Death Classification, National Association of Medical Examiners, Feb. 2002, p. 6 (emphases in original).
As one court has stated, “most jurisdictions that have addressed the issue hold that a qualified expert can express an opinion that the manner of a disputed death was homicide, i.e., that the death of one person was due to an act or omission of another, as opposed to natural causes or suicide, though not that the homicide was intentional, wanton, reckless, or accidental, which would constitute an opinion as to the guilt or innocence of the defendant.”[15] Baraka v. Commonwealth, 194 S.W.3d 313, 318 (Ky. 2006) (emphasis added). This is because it is “well established” that “a homicide may be accidental”. Fla. Inst. for Neurologic Rehab., Inc., 943 So. 2d at 980. “Indeed, a noncriminal homicide is noncriminal ordinarily because it is accidental. The human agency that precipitates the killing of a human being may be exercised by accident. ‘[B]y accident’ is a central element in the definition of excusable homicide.” Id. See also State v. Scott, 522 S.E.2d 626, 632 (W. Va. 1999) (upholding admission of medical examiner's opinion that manner of death was homicide, noting that because “homicide can be committed without criminal intent and without criminal consequences[,] . . . the term . . . is neutral [and] . . . pronounces no judgment on its moral or legal quality"). Thus, in Medlock v. State, 430 S.E.2d 754, 756 (Ga. Ct. App. 1993), the court held that it was proper for the medical examiner to express an opinion that the manner of death was “homicide,” but it would have been error if the witness had expressed an opinion as to whether the homicide was intentional or accidental.
In United States v. Gray, 2010 U.S. Dist. LEXIS 919395 (N.D. Ohio 2010),
the defendants moved to preclude the coroners from testifying that the manner of death was a “homicide” as that term encompasses a legal conclusion which would confuse the jury. The court denied the motion on the grounds that the government was not seeking to use that term for its legal proposition.
Consistent with the grand jury testimony, this Court assumes the prosecution will outline the duties of the coroner, which include specifying the manner of death, explaining each of the five categories including the meaning assigned to them by the coroner and distinguishing the legal meaning. The Court understands the Defendants' position on the issue of potential confusion. However, in addition to a solid foundation which clearly delineates the available manners of death as considered by a coroner and as a part of his/her job, such a distinction regarding the term “homicide” in the coroner's verdict may also be addressed by a curative instruction during trial and addressed in the jury instructions. As the testimony regarding the coroner's verdict is within the duty/responsibility of the coroner, the experts may testify as to the manner of death under Rule 702.
Gray, 2010 U.S. Dist. LEXIS 919395 ** 13-14 (citations omitted).
In the instant case, not only did the prosecution fail to explain the difference between the legal definition and the medical definition of homicide (and the court failed to give an instruction on this important point), the prosecution, apparently not understanding that there is a difference, argued to the jury that the determination of the manner of death as homicide was a legal conclusion which ruled out the possibility that the shooting was accidental. The prosecution argued this even though when the
‘;pathologist determined the manner of death to be “homicide” and ruled out “accidental”, she was not opining that the shooting was not an accident. Because there was no medical expert to explain the difference, the jury was left with the impression that when the pathologist determined the manner of death to be homicide, and did not check the box for “accidental”, she was ruling out Tillis’ defense that the shooting was accidental when the pathologist meant no such thing. This was clearly harmful to Tillis’ defense. Indeed, it was tantamount to having the “expert” testify that this was not an accidental shooting.
This is an additional reason why this case must be reversed based on the prosecution’s reliance on the coroner to opine as to the manner of death rather than a pathologist. Between the coroner’s testimony and the prosecution’s erroneous closing argument, the jury was told that expert had concluded that the shooting could not have been an accident when the expert had concluded no such thing.
D. Due process was violated when the prosecution was
allowed to introduce a report that it had not given to the defense in discovery ahead of trial.
Defense counsel also objected to the coroner’s report being admitted because it was not given to the defense prior to trial. T. 577-578; Supp. T. 19.[16] The discovery given to the defense a week prior to trial consistently indicated that pathologist Amy Gruszecki, of the State Medical Examiner’s Office, was going to testify regarding the autopsy. Ex. D-29-A (p. 5); Ex. D-29-B (pp. 1 and 3). Neither the name of the coroner nor the coroner’s report were provided to the defense prior to trial. D-29-A. The trial court nevertheless allowed the coroner to testify and the prosecution to introduce the coroner’s report without giving the defense a continuance as required by U.R.C.C.P. 9.04. Defense counsel, having spoken to Dr. Gruszecki, anticipated the pathologist to testify that the path of the gunshot was consistent with how Tillis described the shooting took place.
The Mississippi Supreme Court has been very explicit on what should happen when there is a discovery violation of this magnitude. Pursuant to Box v. State, 437 So.2d 19 (Miss. 1983) (later codified in U.R.C.C.P. 9.04), a trial court presented by a discovery violation must first grant a continuance to allow the surprised party to review the evidence. If a continuance is insufficient, the trial court must grant a mistrial or exclude the evidence. “When a prosecutor reveals evidence on the eve of trial that should have been disclosed earlier, . . . the only effective remedy is a continuance.” Fulks v. State, 18 So. 3d 803, 805 (Miss. 2009). A defendant who claims surprise because of undisclosed evidence must request a continuance to review the evidence and determine whether it is prejudicial. McCullough v. State, 750 So. 2d 1212, 1217 (Miss. 1999).
In this case, the court, under Mississippi law, had the choice of 1) granting a mistrial, 2) granting a continuance of a length that would allow the defense to digest and determine how to incorporate this new development, or excluding the testimony. The court, though, did neither of these things. As arguments A through C make clear, this ended up being extremely harmful to the defense which, in essence, was denied its defense of an accidental shooting due to the combination of the discovery violation, the M.R.E. 702 error and the prosecution’s failure to recognize the difference between the medical definition of homicide and the legal definition.
2. The trial court erred in denying Tillis’ objection to the prosecution’s argument that the defense did not call the coroner to testify.
As set forth above, the prosecution argued that the defense “didn’t even call the coroner to ask her if the facts presented.” At this point, the defense rightly objected on the grounds the state was “shifting the burden. We don’t have an obligation to call any witnesses.” T. 734. The trial court denied the objection on the grounds that the jury had been instructed that what “you [lawyers] say is not law.” T. 734. Of course, if this were the case, no argument made in closing could be grounds for reversal and we know that this is not the case. See, e.g., Caldwell v. Mississippi, 472 U.S. 320, 328-29, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985) (prosecutor's comment that the jury's decision was reviewable by the Supreme Court, and not final, required reversal).
“The general principle is that ‘the failure of either party to examine a witness equally accessible to both is not a proper subject of comment before the jury by either of the parties.’” Brown v. State, 200 Miss. 881, 27 So. 2d 838, 840 (1946) citing Heafner v. State, 196 Miss. 430, 17 So. 2d 806, 808 (1944). See also Burke v. State, 576 So. 2d 1239, 1241 (Miss. 1991); Madlock v. State, 440 So. 2d 315, 317-18 (Miss. 1983); Doby v. State, 557 So. 2d 533, 538-39 (Miss. 1990).
In this case, the argument was not harmless given that the prosecution was relying heavily on the coroner’s testimony is claiming that the shooting could not have been an accident. This error, then, along with the other errors with regard to having the coroner testify in lieu of the pathologist, requires reversal of Tillis’ conviction.
3. Tillis’ right to due process and a fair trial were denied when the state failed to preserve a videotape of the shooting. At the very least, Tillis was entitled to a spoliation instruction.
As it turned out, the fitness studio next to the gas station where the shooting took place had a security camera which recorded the incident. A Jackson Police Department detective, Kimberly Brown, visited the studio to make a copy of the videotape. T. 47. The tape was never made available to the defense. According to the prosecution, Detective Brown’s attempt to copy the video failed because the language she tried to transfer it to was not compatible with the language on the fitness studio’s computer. T. 47. Det. Brown was able to view the tape at the fitness studio and she testified that it wasn’t all that clear but she could tell what was happening based on the statement she had taken from Singleton. T. 419-420. When Brown realized that the copy she had made was useless, the video at the fitness studio had already been reused.
At any rate, the defense was denied access to a videotape that may have buttressed Tillis’ version of the shooting. Furthermore, the state was allowed to have its witness testify that she had viewed the video and, although it wasn’t really clear, she could decipher it based on what she was told about the shooting by another state’s witness which could only have left an impression with the jury that the videotape supported the state’s case. There was no way for the defense to counter this impression since the defense was never given an opportunity to view the tape.
Prior to trial, the Court ruled that under these circumstances, the defense was entitled to an instruction that the prosecution’s failure to produce the videotape gave rise to an inference that the video would have been favorable to the defense. T. 52. Later, though, during the instruction conference, the trial court refused Tillis’ spoliation instructions, D-1 and D-2, on the grounds they were not a correct statement of the law and “it does not meet the standard that has been required by the Supreme Court in order to give it in a criminal case.” T. 665.
The state has a duty to preserve evidence “that might be expected to play a significant role in the suspect's defense.” California v. Trombetta, 467 U.S. 479, 488-89, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413 (1984). The Mississippi Supreme Court has developed a three-part test to determine whether the failure to preserve evidence violates a defendant’s right to due process: (1) the evidence in question must possess an exculpatory value that was apparent before the evidence was destroyed; (2) the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; and (3) the prosecution's destruction of the evidence must have been in bad faith. Murray v. State, 849 So. 2d 1281, 1285-1286 (Miss. 2003).
The prosecution maintained that the failure to preserve the videotape was accidental and if this were true (and Tillis has no evidence to dispute this), this Court would ordinarily find that there was no spoliation. However, in the recent case of Freeman v. State, 2013 Miss. LEXIS 312, 14-18 (Miss. May 30, 2013), the Mississippi Supreme Court held that the failure of the state to preserve a videotape that would have provided objective evidence of what occurred during a DUI stop violated due process even though the loss was not done in bad faith.
However, this case presents a unique factual scenario that is not adequately addressed by the typical application of the three-part test. In this case, the defendant and the county court deemed the evidence material to the defense, and, as a result, the county court ordered the State to preserve the evidence. Thus, the State was under an affirmative duty via a court order to preserve the video.
The video undisputedly shows the moments before the stop, as well as the entire traffic stop. Officer Patrick admitted that the video would clarify material disputed facts, i.e., whether Freeman admitted to drinking alcohol, whether he slurred his words, whether his coordination was impaired, how he was driving immediately prior to the stop, and the interaction between the two men. He further admitted that the video would show the PBT results. The video offered objective evidence of what occurred during the entire traffic stop, and was an imperative part of Freeman's defense, especially for its use to impeach Officer Patrick's testimony. Thus, the loss of the video while the State was under a court order to preserve the video clearly impaired Freeman's defense.
Freeman, 2013 Miss. LEXIS 312, 16-17. The state was not under a court order to preserve the videotape in this case but in all other respects, this case is the same as Freeman. The state had available to it a videotape of the incident which would have provided objective evidence as to how the shooting of Olowe-Ake occurred. The importance of the tape should have been obvious to the prosecution. “Further, the evidence was of the nature that it was relatively simple to copy and preserve.” Freeman, 2013 Miss. LEXIS 312, 17-18. The remedy in this case should be the same as in Freeman wherein the Court reversed and rendered a verdict of acquittal for the defendant. Freeman, 2013 Miss. LEXIS 312, 25. At the very least, the defense should have been given the spoliation instruction it requested.
4. The trial court erred in denying the Defendant’s motion to require the prosecution to provide an NCIC report on the victim.
Prior to trial, the defense moved to require the prosecution to provide NCIC reports[17] on the witnesses including Nathaniel Singleton (C.P. 30), Gregory Lott (C.P. 23), Anthony Olowe-Ake (C.P. 37), Jack Evern (C.P. 28), and the victim Michael Olowo-Ake. C.P. 35. The trial court asked the defense how was it that the public defender’s office was unable to procure NCIC reports. Defense counsel informed the court that only law enforcement had access to NCIC reports. T. 20. The court then asked the defense why that had not subpoenaed that information from law enforcement. T. 21. The court then wanted to know why NCIC reports were needed when the defense could just ask the witnesses about their criminal records, if any. T. 21-22. When the defense pointed out that, if the witness lied, it would be unable to impeach the witness, the court responded that an NCIC is not always accurate. T. 23. The trial court then noted that it would have a chilling effect on prospective witnesses if innocent people were subject to having their NCIC reports pulled. T. 28-29. As it turned out, the prosecution not only admitted to having access to the NCIC reports but had those reports in its possession. T. 24-25, 32. The trial court offered to review some of the NCIC reports in camera. During a recess, the trial court reviewed the NCIC reports on Nathaniel Singleton, Anthony Olowo-Ake, and Jack Evern and then allowed the defense to have them. T. 71-72. However, she denied the defense access to the victim’s NCIC report. T. 31, 72.
Rule 404(a)(2) provides that evidence of the victim's character is inadmissible except where “[e]vidence of a pertinent trait of character of the victim of the crime [is] offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim [is] offered by the prosecution to rebut evidence that the victim was the first aggressor.” Evidence of the victim's character is generally allowed when the accused claims that the victim was the initial aggressor and that his actions were in the nature of self-defense or defense of others. M.R.E. 404 cmt.; Rouster v. State, 981 So. 2d 314, 318-19 (Miss. App. 2007); Graves v. State, 45 So. 3d 283, 289 (Miss. App. 2010).
In this case, Tillis testified that Olowo-Ake was the initial aggressor as did the only eyewitness who saw the beginning of the altercation. Evidence of Olowo-Ake’s character, then, was relevant and the defense should have been provided Olowo-Ake’s NCIC report to see if there were prior instances of aggression that would have supported Tillis’ defense that Olowe-Ake was the initial aggressor. See, e.g., Edwards v. State, 726 So. 2d 274, 277 (Miss. App. 1998) (under specific circumstances the character of a victim may be relevant. This usually occurs when the defendant claims that the victim was the initial aggressor); Hester v. State, 841 So.2d 158, 162 (Miss.App. 2002) (“Under [M.R.E. 405(b)] it has been held that specific incidents demonstrating a victim's propensity for violence are admissible when there is a claim of self-defense.”).
A criminal defendant has the constitutional right to present a defense. U.S. Const. Amend. 6; Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Due process affords the defendant the right of full confrontation and cross examination of the State's witnesses. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). One aspect of this right is that the government has a duty to provide the defense certain evidence actually or constructively in its possession or accessible to it. Calley v. Callaway, 519 F.2d 184, 223 (5th Cir. 1975). This includes all exculpatory evidence as well as evidence that would impeach the prosecution’s witnesses. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). NCIC reports of the prosecution’s witnesses as well as the victim falls within these categories. United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980) (a prosecutor's Brady obligations extend even to evidence unknown to him if it was available to him through such methods as running an FBI or NCIC check); United States v. Bivins, 2011 U.S. Dist. LEXIS 68494, 2-4 (N.D. Tex. 2011). It was error, then, for the trial court to refuse to order the prosecution to turn over the NCIC report concerning Olowe-Ake.
5. The verdict of manslaughter is unsupported by the evidence. In the alternative, it is against the overwhelming weight of the evidence.[18]
Tillis’ defense was that Olowo-Ake was accidentally shot while Tillis was justifiably defending himself. Tillis’ defense and testimony that he acted in self-defense was corroborated by witness Jack Evern. Evern witnessed almost the entire ordeal. According to Evern, after Olowo-Ake returned to the truck where Tillis was sitting in the front passenger seat, Tillis said something to Lolow-Ake and Olowo-Ake responded by hitting Tillis two or three times. T. 324-25, 328. After Olowo-Ake hit Tillis, Evern saw Tillis with a gun but did not see from whence it came. Id. Having been on the receiving end of three punches, it was entirely reasonable for Tillis to fear for his life and, regardless of where the gun came from, to quell Olowo-Ake’s attack. According to Evern, [19] Tillis acted lawfully.
The defense of self-defense gives a defendant the right to act upon reasonable appearance of imminent danger of great bodily harm or loss of life. Shinall v. State, 199 So.2d 251 (Miss. 1967); Bond v. State, 249 Miss. 352, 162 So.2d 510 (1964). The determination of a reasonable appearance of danger is judged from the defendant’s standpoint and if the defendant believes he is in imminent and immediate danger of being killed or injured, he is entitled to acquittal even though there was no actual danger. Jackson v. State, 79 Miss. 42, 30 So. 39 (1901); Bang v. State, 60 Miss. 571 (1882); Godwin v. State, 73 Miss. 873, 19 So. 712 (1986).
Generally, Tillis’ testimony was corroborated by Scottie Morton who described how Olowo-Ake and Tillis met. Moreover, the video evidence, although partial and fuzzy, does not contradict Tillis. Also revealing is the fact that Olowo-Ake was only hit by one of the two gunshots during the struggle. The second shot was, based on the evidence, a stray accidental discharge and not deliberate just as Tillis explained. The trial court should have sustained Tillis’ motion for judgment of acquittal notwithstanding the verdict or granted Tillis’ motion for new trial.
Sufficiency of the evidence:
Evidence is insufficient where the evidence “viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged, then a reasonable jury must necessarily entertain a reasonable doubt.” Clark v. Procunier, 755 F.2d 394, 396 (5th Cir. 1985); United States v. Sacerio, 952 F.2d 860, 865-66 (5th Cir. 1992) (a “plausible, rational, innocent explanation for almost every action, thus [lends] reasonable doubt to an inference of guilt”). If a reasonable jury would doubt whether the evidence proves an essential count, reversal is required. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Onick, 889 F.2d 1425 (5th Cir. 1989).
In Carr v. State, 208 So.2d 886 (Miss.1968), the Mississippi Supreme Court stated that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Carr, 208 So.2d at 889.
The Mississippi Supreme Court has stated on numerous occasions that when determining whether a verdict should be overturned that the “Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused it discretion in failing to grant a new trial.” Dudley v. State, 719 So.2d 180, 182 (Miss. 1998). Under this standard, the prosecution is given “the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Griffin v. State, 607 So.2d 1197, 1201 (Miss. 1992). When making this review, the Court will reverse only if the jury’s verdict is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Dilworth v. State, 909 So.2d 731, 737 (Miss. 2005). The evidence is weighed “in the light most favorable to the verdict.” Bush v. State, 895 So.2d 836, 844 (Miss. 2005).
Since Singleton was inside the store when the altercation between Tillis and Okowo-Ake began, the only persons who observed the entire altercation were Tillis and Jack Evern. Since Tillis’ and Evern’s testimonies were reasonable and consistent with the physical evidence, Tillis was entitled to a judgment notwithstanding the verdict based on the principle set forth by the Mississippi Supreme Court in Weathersby v. State, 165 Miss. 207, 209, 147 So. 481, 482 (1933).
[W]here the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.
Weathersby, 165 Miss. at 209, 147 So. at 482.
Whenever the “Weathersby rule applies and the defendant’s version affords an absolute legal defense, the defendant is entitled to a directed verdict of acquittal.´ Green v. State, 631 So.2d 167, 174 (Miss. 1994). If “the defendant’s story is materially contradicted, the Weathersby rule has no application and the matter of conviction versus acquittal becomes a question for the jury. “ Id. Neither Singleton nor Lott materially contradicted Tillis and Evern.
The Weathersby rule was applied by the Mississippi Supreme Court ion Johnson v. State, 987 So.2d 420 (Miss. 2008), wherein the defendant was the only eyewitness and described for the jury how he had to stab the victim in self defense. Johnson, 987 So.2d at 422. The Johnson court reversed the manslaughter conviction and rendered an acquittal for the defendant. Johnson, 987 So.2d at 424-26. The court noted that it was required to apply Weathersby because “Johnson’s eyewitness account of the stabbing [was] reasonable . . . and not ‘substantially contradicted in material particulars[.]’” Johnson, 987 So.2d at 424-26. The same principle applies here.
The court in Johnson was required to tAke Johnson’s account as true. Johnson, 987 So.2d at 424-26 It follows that the Court here is likewise required to accept Darrell Tillis’ and Jack Evern’s testimony as true since neither the reliable testimony nor physical evidence contradicted their testimony on any material point. The evidence in Johnson “was insufficient to submit to a jury for verdict and [the defendant] was ‘entitled to a directed verdict of acquittal.’” Johnson, 987 So.2d at 424-26. Likewise, Tillis is entitled to the same relief here. The trial court, not the jury, should “determine whether the defendant receives the benefit of the Weathersby rule.” Green, 631 So.2d 167, 175 (Miss. 1994).
Under Weathersby, the court must consider whether Singleton’s testimony was credible. Weathersby, 165 Miss. at 209, 147 So. at 482. And an examination of his testimony show s that he was neither reliable nor credible. For example, Singleton testified that Tillis took money from Olowa-Ake’s pocket however Olowa-Oke’s brother Anthony Olowa-Ake testified that his brother had $200.00 in his pocket after the shooting. T. 250-52, 547.
Olowo-Ake’s girlfriend Josephine White, testifying for the State, described Singleton as “shady.” T. 344. Singleton was a con artist and degenerate gambler. T. 292, 298, 344. And factually, Singleton did not see the beginning of the fight. Singleton was not an impartial witness inasmuch as he was Olowo-Ake’s long-time friend. All in all, Singleton was not a credible witness and his testimony does not prevent the application of Weathersby. Even if the Court does not apply Weathersby, under a strict sufficiency of the evidence analysis, no reasonable juror could find Singleton’s testimony credit-worthy and base a verdict on Singleton’s testimony to find Tillis guilty beyond a reasonable doubt.
Weight of the evidence:
A challenge to the weight of the evidence requires the State to have a greater quantum of evidence than does a challenge to the sufficiency of the evidence. Pharr v. State, 465 So.2d 294, 302 (Miss.1984). The jury’s verdict should be overturned when “from the whole circumstances, the testimony is contradictory and unreasonable, and so highly improbable that the truth of it becomes so extremely doubtful that it is repulsive to the reasoning of the ordinary mind.” Thomas v. State, 129 Miss. 332, 92 So. 225, 226 (1922).
When reviewing the sufficiency of evidence in a case, the Court must determine “whether, after 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.” Gray v. State, 926 So.2d 961, 968 (Miss.App. 2006).
When a defendant claims self defense justifiable homicide, the state has the burden to prove that a defendant has not acted in self defense. Hammond v. State, 2013 Miss.App. LEXIS 29 ¶ 15 (Miss. App 2013) citing Heidel v. State, 587 So.2d 835, 843 (Miss. 1991). Here, the State’s evidence did not prove beyond a reasonable doubt that Tillis did not act in necessary self defense. No reliable evidence exists that Olowo-Ake’s death was the result of anything other than an accidental shooting occurring during acts of legal self defense.
The Hammond Court observed that self defense is defined “as a killing committed ‘in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or do some great personal injury, and there shall be imminent danger of such design being accomplished’ or ‘in resisting any attempt unlawfully to kill [the defendant] or to commit any felony upon him . . . “ Hammond, 2013 Miss.App. LEXIS 29 ¶ 16 citing M.C.A. § 97-3-15(e)-(f). The overwhelming evidence in this case leads to the reasonable conclusion that Darrell Tillis acted in justifiable self defense in taking the pistol away from Michael Olowo-Ake. Arguably, even if Tillis came to the transaction armed and even if he shot Olowo-Ake intentionally, which is not conceded, he was justified in using the weapon to stop the aggressive Olowo-Ake who, without provocation, attacked Tillis. Since the jury’s verdict of manslaughter was against the weight of the evidence, the trial court should have granted Tillis a new trial.
6. Darrell Tillis was denied due process and a fair trial due to an incomplete transcript.
The prosecution called to the stand the Hinds County Coroner Sharon Grisham-Stewart, to testify as to the cause of death. The defense objected to her testimony on various grounds including M.R.E. 702 (the coroner’s qualifications)[20], that the prosecution had failed to provide the defense with a copy of the coroner’s report[21], and the confrontation clause. RE. 15; Supp. Transcript Ex. D-1.[22] However, unknown to trial counsel, the bench conference was not recorded. When Tillis attempted later to recreate the bench conferences via the method prescribed by M.R.A.P. 10(b)(5) so that the record, for example, would reflect that an objection had been lodged to the coroner’s testimony – an objection not found in the transcript before the coroner testified[23] – the trial court refused to entertain the idea that the official transcript could have left certain matters out even though the transcript clearly reflected that an off-the-record bench conference had occurred.[24] Supp. T. 14. Defense counsel told the trial court that just before the coroner was allowed to testify she objected on various grounds and the court ruled that the coroner was qualified to testify on the cause of death because she was an elected official. T. 14. In a colloquy that could have come straight from Alice in Wonderland, the trial court accused defense counsel of trying to inject into the record statements that were never made.
The Court: And where did I say that in the record at?
Ms. Harris: Your Honor, on page 372 somewhere between lines 4-18.
The Court: Why are you claiming I said that if it’s not here in the transcript? How am I supposed to just put something that you say you believe you remember me saying?
Ms. Harris: No, your Honor. That’s what my recollection is. It’s not something I believe. I know that that occurred.
The Court: And I said, but you know you heard it. And I can’t say what I said, and you can’t tell me where I said that?
Ms. Harris: It’s somewhere between lines 4 through 18 on page 372.
The Court: The record will stand as it is printed. I don’t see any reason I would have just made that statement other than what is here. And unless you can show me something other than that to show that this transcript as written is in error, it has to remain. That’s not a correction.
You want this Court to insert into the transcript what you believe it said in your own knowledge during a time when you were trying the case. And you’re just saying that I think you said that, and I want you trio put it in there to make the record correct, but that’s just your allegations that that’s what I said.
But the transcript has to remain the same unless you can show me something that would indicate that the court reporter refused to transcribe what I actually said.
Supp. T. 15-16; RE. 16-17.
The due process clauses of the United States and Mississippi Constitutions require that a defendant have available a complete transcript of all proceedings. Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir. 2006). To that end, the Mississippi Supreme Court has repeatedly held that the court reporter must “preserve every word spoken during the course of the trial process and have that available for transcription in the event of an appeal and a good faith designation by counsel (emphasis added).” Gibson v. State, 580 So.2d 739 (Miss. 1991).
The Mississippi Supreme Court has specifically applied this requirement to bench conferences:
We have admonished trial courts to ensure that every word is transcribed stating, "[W]e direct without equivocation that court reporters should never fail to preserve for record at-the-bench or chambers conferences following objections. . . . The trial judge is responsible to enforce this directive." Suan v. State, 511 So.2d 144, 147 (Miss. 1987). The law obligates the court reporter to take notes of all proceedings at trial so that they will be available in the event of an appeal. Doby v. State, 557 So.2d 533, 536 n. 2 (Miss.1990).
Davis v. State, 684 So.2d 643, 650-651 (Miss. 1996).
Again in McCreary v. State, 582 So.2d 425, 426-427 (Miss. 1991), the Court stated:
We take this opportunity to reiterate that the ends of justice are more efficiently served when a full record of each stage of the criminal process is preserved and available for review, although we caution to add that it is not always necessary to include everything as part of the record, so long as each and every stage of the criminal process is preserved and available (emphasis added). See Gibson v. State, 580 So.2d 739 (Miss.1991); Garlotte v. State, 530 So.2d 693, 694 (Miss.1988).
See also S.G. v. D.C., 13 So. 3d 269, 274 n. 2 (Miss. 2009) (noting the “importance of recording all proceedings before the court”).
The federal court reporter’s act similarly requires that the court reporter preserve every word spoken at the trial. United States v. Selva, 559 F.2d 1303, 1305 (5th Cir. 1977). The Fifth Circuit has interpreted the act’s requirement to include readings of taped depositions and exhibits as well as the oral charge to the jury. United States v. McCusker, 936 F.2d 781, 785 (5th Cir.1981) (tapes played to jury); United States v. Taylor, 607 F.2d 153 (5th Cir.), reh'g denied, 614 F.2d 294 (5th Cir.1980).
A major reason for the requirement that court reporters record everything that happens at trial was explained by the United States Supreme Court in Hardy v. United States, 375 U.S. 277, 280, 84 S. Ct. 424, 11 L.Ed.2d 331, 334 (1964). There the Court emphasized the particular importance of a complete transcript where new counsel represents a defendant on appeal because new counsel “may not be able to discharge his duty to seek out plain errors not brought to the attention of the court unless he can read the entire transcript. Otherwise, the right to assign plain error may become illusory (emphasis added).” Hardy v. United States, 375 U.S. at 280. Moreover, new appellate counsel may be unable to assign as error or present effectively matters which were objected to, and the objections overruled, except to the extent the transcript informs him of them and supports his presentation of them. See, Atilus v. United States, 425 F.2d 816 (5th Cir. 1970) (reversing where no transcript available to new counsel). Accord, United States v. Rosa, 434 F.2d 964 (5th Cir. 1970); United States v. Garcia-Bonifascio, 443 F.2d 914 (5th Cir. 1971) (no transcript of closing arguments); United States v. Selva, 559 F.2d 1303, 1305 (5th Cir. 1977); United States v. Gregory, 472 F.2d 484, 486 (5th Cir. 1973); See United States v. Andiarena, 823 F.2d 673, 676 (1st Cir.1987); United States v. Taylor, supra (failure to record tapes played to jury); United States v. McCusker, supra (tapes played to jury).
New appellate counsel, therefore, not only has a duty to raise issues raised by trial counsel, but has an affirmative duty as stated by the United States Supreme Court to look for errors not called to the attention of or noticed by the trial court in order to render constitutionally effective assistance of counsel. See, Amend. VI, U.S. Constitution and corresponding section of Mississippi Constitution.
The failure to record material parts of the record can constitute reversible constitutional error. For example, in Cunningham v. Zant, 928 F.2d 1006, 1011-1012 (11th Cir. 1991), the Eleventh Circuit reversed a state court case because of the possibility that the state court jury had followed the incorrectly read oral instructions rather than the written instructions which were correct and also presented to the jury.
In this case, the Mississippi Supreme Court has set forth a procedure to be used when the record is missing in part: M.R.A.P. 10(b)(5). When defense counsel tried to invoke this procedure, the trial court refused to allow it and thereby denied the defendant his right to a complete transcript. There are several remedies. This Court could presume that at each bench conference, the defense made the necessary objections to whatever comes after the bench conference; the Court could remand the case with instructions to allow the defense the opportunity to recreate what happened at the bench conferences; or remand for a new trial.
7. The trial court erred in refusing to allow Tillis to physically demonstrate how the accidental shooting occurred.
During Tillis’ testimony, the defense asked if Tillis could leave the witness stand to demonstrate with the assistance of co-counsel exactly how the accidental shooting occurred. T. 615. The trial court refused admonishing the defendant to try and explain it. T. 615. This was error. Mississippi law holds that demonstrative evidence may be admitted at the trial court's discretion, if such evidence was reasonably necessary and material. Murriel v. State, 515 So.2d 952, 956 (Miss. 1987). Indeed, such evidence is often used by the prosecution. See, e.g. Parvin v. State, 113 So. 3d 1243, 1250 (Miss. 2013) (not error to allow the prosecution to show the jury a computer recreation of shooting the defendant claimed to be accidental).
In this case, the theory of the defense was that the shooting was an accident that occurred while Tillis was trying to keep Olowe-Ake from regaining the gun he had pulled on Tillis. Given that the prosecution was allowed to call Olowe-Ake’s friend, Nathaniel Singleton, to testify about the altercation notwithstanding that Singleton had not seen who initiated the altercation, Tillis, at the very least, should have been able to demonstrate to the jury how it came about that Olowe-Ake was shot accidentally .
8. The prosecution committed misconduct in allowing Det. Brown to testify that witness Frederick Brown had been murdered when the trial court ruled that the prosecution could not elicit this information.
Detective Kimberly Brown described to the jury the different steps in her investigation including the fact that there was one witness, a man named Frederick Bland, that she wanted to interview. T. 429. The prosecution asked what it was that prevented her from interviewing Bland. T. 429. At this point the defense objected to any testimony regarding Frederick Bland inasmuch as he was alleged to have been murdered some time after the shooting of Olowe-Ake. T. 430. The trial court ruled that the prosecution would not be allowed to have Detective Brown testify that Bland was murdered, only that she was unable to interview him because he was deceased. T. 431. Notwithstanding this ruling, the prosecution proceeded to ask Det. Brown what was it that prevented her from interviewing Frederick Bland. Det. Brown replied “He was murdered on the 18th of April.” T. 433. This, of course, was a direct violation of the court’s order.
A new trial may be ordered where a party violates the court’s ruling prohibiting certain testimony and the ruling is specific and the violation clear. See, e.g., Mouton v. Tug “Ironworker,” 811 F.2d 946, 948 (5th Cir. 1987) (holding no abuse of discretion to deny mistrial for direct violation of motion in limine where prompt instruction to disregard given). In this case, the trial court’s order was clear: the witness could only say that Bland was deceased. The violation was also clear. Det. Brown testified that Bland had been murdered despite the court’s ruling that she may not do so. This flagrant violation of the court’s order requires a new trial.
9. Tillis’ conviction and sentence must be reversed because of cumulative error.
Many of the issues raised above require reversal regardless of whether they were compounded by additional errors. However, assuming this Court does not find any individual error sufficiently egregious so as to require reversal, the cumulation of error in this case is cause for reversal. These rulings combined with the egregious examples of prosecutorial misconduct deprived Darrell Tillis of his right to due process and a fair trial.
The Mississippi Supreme Court has recognized that several errors not individually sufficient to warrant a new trial may, when taken together, require reversal. Stringer v. State, 500 So.2d 928, 946 (Miss. 1986); Hickson v. State, 472 So.2d 379, 385-86 (Miss. 1985). In this case, the court made several errors in its rulings that, cumulatively, had the effect of denying Darrell Tillis a fair trial. Chambers v. Mississippi, 410 U.S. 284, 298, 93 S.Ct. 1038, 1047 (1973) (reversing based on various evidentiary errors resulting in a denial of due process). Combined with the egregious prosecutorial misconduct, these errors together denied Darrell Tillis his right to due process and a fair trial.
Conclusion
For the above and foregoing reasons, this Court should reverse Tillis’ conviction and sentence and render or, alternatively, remand for a new trial.
Respectfully submitted,
DARRELL TILLIS
By: /s/ Jane E. Tucker____________
Jane E. Tucker (MS Bar No. 1786)
235 Melbourne Rd.
Jackson, MS 39206
(601) 291-2047
janetucker39@
CERTIFICATE OF SERVICE
I, Jane E. Tucker, hereby certify that I have this day mailed by first-class mail, postage prepaid, a true and correct copy of the foregoing Brief of Appellant to the following:
District Attorney Robert Smith
P.O. Box 22747
Jackson, MS 39225-2747
Hon. Tomie Green
P.O. Box 327
Jackson, MS 39205-0327
And by filing electronically, the clerk has delivered a copy via e-mail to:
Jim Hood
Mississippi Attorney General
P.O. Box 220
Jackson, MS 39205
This, the 23rd day of August, 2013.
____/s/ Jane E. Tucker______
Jane E. Tucker
-----------------------
[1] See the discovery, Ex. D-29-A.
[2] At that time, Singleton did not know Tillis by name but had seen him at a friend’s house a few days previously. T. 258. Singleton did not know whether Tillis and the deceased knew each other before April 11, 2010. T. 259.
[3] Tillis denied hitting Olowe-Ake and testified that he was just trying to keep Olowe-Ake from getting back his gun. The coroner’s testimony appears to corroborate that of Tillis. The coroner was asked whether Olowe-Ake had any bruises and she replied that the only injury other than the gunshot wound was a slight abrasion to the right eye. T. 493.
[4] One definition of “popcorn marijuana is an Indica-Dominant hybrid with popcorn sized nuggets.
[5] Supplemental Transcript p. 19.
[6] Supplemental Transcript p. 19.
[7] Exhibit D-1 is an e-mail from Greta Harris to the court reporter in which she notes that she (Harris) objected to the coroner testifying based on her lack of qualifications. Harris also notes that at some point she cited Crawford in making a confrontation clause objection. Presumably that was an objection to the coroner reporting.
[8] Here the defense objected. That objection is addressed in Issue 2.
[9] After the trial, defense counsel talked to one of the jurors who told her that given the conflicting testimony about how the shooting happened, he decided the coroner was the only unbiased witness.
[10] Mississippi adopted Daubert in Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31 (Miss. 2003).
[11]In fact, the only requirements are that the he or she, “as a minimum, possess a high school graduation diploma or its equivalent, be twenty-one (21) years of age or older, and be a qualified elector of the county in which elected.” M.C.A. § 19-21-103.
[12] In fact, it is sometimes necessary that the expert be not just a medical doctor but also a pathologist. See, e.g, Weaver v. McKnight, 40 A.3d 786, 795 (Conn. App. 2012) (finding that obstetrician/gynecologist not qualified to give an opinion as to the cause of death of fetus where a pathologist could not).
[13] See Harvey v. Com., 318 S.W.2d 868 (Ky. 1958), in which the court held that a deputy coroner was not qualified to describe the organs within the body of a homicide victim; however, the circumstances of the death from gunshot wound were such that no expert testimony was required.
[14] Baraka v. Commonwealth, 194 S.W.3d 313, 318-319 (Ky. 2006).
[15]Indeed, F.R.E. 704(b) specifically precludes an expert in a criminal case from testifying regarding the mental state of the defendant since “[s]uch ultimate issues are for the trier of fact alone.” F.R.E. 704(b). “Although this provision was added to Rule 704 to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity. . . Congress intended this provision to extend ‘beyond the insanity defense to any ultimate mental state of the defendant that is relevant to the legal conclusion sought to be proven . . . e.g., premeditation in a homicide case, or lack of predisposition in entrapment.’” United States v. Windfelder, 790 F.2d 576, 580 (7th Cir. 1986).
[16] The defense made the discovery it was given an exhibit. It is D-29-A and D-29-B in the exhibit envelope.
[17] NCIC, which stands for “National Crime Information Center”, is “a computerized index of criminal justice information (i.e. - criminal record history information, fugitives, stolen properties, missing persons).” National Crime Information Center CNCIC) - FBI Information Systems, . “The purpose for maintaining the NCIC system is to provide a computerized database for ready access by a criminal justice agency making an inquiry and for prompt disclosure of information in the system from other criminal justice agencies about crimes and criminals.” Id.
[18] This argument is taken almost verbatim from the brief filed by George Holmes, Office of Indigent Appeals.
[19] M.C.A. § 97-3-15 (1) The killing of a human being by the act, procurement or omission of another shall be justifiable in the following cases: . . . (f) When committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.
[20] Supplemental Transcript p. 19.
[21] Supplemental Transcript p. 19.
[22] Exhibit D-1 is an e-mail from Greta Harris to the court reporter in which she notes that she (Harris) objected to the coroner testifying based on her lack of qualifications. Harris also notes that at some point she cited Crawford in making a confrontation clause objection. Presumably that was an objection to the coroner reporting. R.E. 15.
[23] The record merely indicates that an off-the- record bench conference was held just before the coroner’s testimony. T. 486.
[24] Which makes sense only if the court makes it a practice to have periodic moments of silence throughout the trial.
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