in the court of appeals of the state of mississippi alvin brown appellant vs. no. 2014-ka-00331-coa

34 Pages·2015·0.17 MB·English

E-Filed Document Oct 2 2015 00:06:14 2014-KA-00331-COA Pages: 34
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
ALVIN BROWN APPELLANT
VS. NO. 2014-KA-00331-COA
STATE OF MISSISSIPPI APPELLEE
BRIEF FOR THE APPELLEE
APPELLEE DOES NOT REQUEST ORAL ARGUMENT
JIM HOOD, ATTORNEY GENERAL
BY: LISA L. BLOUNT
SPECIAL ASSISTANT ATTORNEY GENERAL
MISSISSIPPI BAR NO. 3599
OFFICE OF THE ATTORNEY GENERAL
POST OFFICE BOX 220
JACKSON, MS 39205-0220
TELEPHONE: [phone]
TABLE OF CONTENTS
i
TABLE OF AUTHORITIES
ii
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
ALVIN BROWN APPELLANT
VS. NO. 2014-KA-00331-COA
STATE OF MISSISSIPPI APPELLEE
BRIEF FOR THE APPELLEE
STATEMENT OF THE CASE
This appeal proceeds from the Circuit Court of Hinds County, Mississippi, and a judgment
of conviction for manslaughter and four counts of aggravated assault entered against Alvin Brown,
following a jury trial on January 21, 2014, the Honorable William A. Gowan, Circuit Judge,
presiding. The trial court sentenced Brown to twenty (20) years for manslaughter and ten years each
on the aggravated assault convictions. The aggravated assault convictions were to be served
concurrent to each other, and consecutive to the manslaughter sentence. (C.P. 199-202).
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ISSUES
I. THE TRIAL COURT ERRED IN DENYING BROWN'S MOTION TO DISMISS
FOR VIOLATION OF HIS CONSTITUTIONAL AND STATUTORY RIGHTS TO
A SPEEDY TRIAL.
II. THE TRIAL COURT ERRED IN GRANTING INSTRUCTION S-10 REGARDING
IMPERFECT SELF-DEFENSE MANSLAUGHTER.
III. THE EVIDENCE IS INSUFFICIENT TO SUPPORT A CONVICTION FOR
MANSLAUGHTER OR FOR ANY OF THE FOUR COUNTS OF AGGRAVATED
ASSAULT. THUS THE TRIAL COURT ERRED IN DENYING BROWN'S MOTION
FOR DIRECTED VERDICT AND JNOV.
IV. THE JURY WAS NOT INSTRUCTED PROPERLY ON AGGRAVATED ASSAULT
AND THEREFORE FAILED TO FIND THAT BROWN CAUSED SERIOUS
BODILY INJURY TO THE FOUR AGGRAVATED ASSAULT VICTIMS.
THEREFORE, BROWN IS ONLY GUILTY OF FOUR COUNTS OF SIMPLE
ASSAULT.
V. THE OMISSION OF AN ESSENTIAL ELEMENT OF AGGRAVATED ASSAULT
FROM THE JURY INSTRUCTION ACTED AS AN IMPERMISSIBLE
CONSTRUCTIVE AMENDMENT TO THE INDICTMENT.
VI. THE TRIAL COURT ERRED BY ADMITTING A WEAPON AS EVIDENCE
PURSUANT TO M.R.E. 403 AND 901(A).
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STATEMENT OF FACTS
On the night of September 20, 2009, there was a shooting at the Birdland night club in
Jackson. Yatasha Johnson was shot and killed. Latonya Hopson King, Malcolm Smoot, Derrick
Walker and Anastasia Murdock were all shot and wounded. Alvin Brown was indicted for one count
of depraved heart murder and four counts of aggravated assault. The jury convicted Brown of
manslaughter and four counts of aggravated assault. At his trial, the jury heard the following
testimony.
The Farish Street Festival and a JSU football game were on the weekend of September 20,
2009. Around 1:00 a.m. on September 20th, JPD Officer Magee responded to a call of shots being
fired at the Birdland nightclub on Farish Street (Tr. 238). The Birdland club was a two-story
building on Farish Street with an upstairs bar. Upon arriving at the scene, Officer Magee saw patrons
running from the nightclub. Malcolm Smoot was on the ground in front of the nightclub, bleeding
heavily with what appeared to be a gunshot wound to the stomach area. (Tr. 238). When Officer
Magee entered the second floor he saw blood everywhere. Alvin Brown (“Brown”) was unconscious
and face down on the floor in the bar area. T. 254. Yatasha Johnson (“Yatasha”) was a couple of feet
from Brown with a fatal gunshot wound to the back of her head. (Tr. 250). Latonya King Hopson
was found lying in the DJ’s booth with a gunshot in the buttocks. (Tr. 253, 256). The security guard
Derrick Walker and Anastasia Murdock were each shot in the thigh area. T. 234. knew Albert
Coleman but did not see him at the Birdland. (Tr. 256).
Officer Archie arrived at the scene with Officer Magee. (Tr. 263). He saw Brown on the
floor near the bar bleeding profusely. There was a piece of a stiletto heel sticking out of the back
of Brown’s head, like someone had kicked him. (Tr. 261-2).
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Latonya Hopson King (“Latonya”) testified that she and a friend were walking from the
restroom when she noticed a fight so she headed back to the restroom for safety. (Tr. 267, 282). As
she turned to go back, she was shot but didn’t realize it until was back in the restroom and couldn’t
get herself up. (Tr. 282). Latonya stayed in the restroom and waited for an ambulance. (Tr. 285).
Latonya never saw who was fighting and never saw the shooter or the gun. (Tr. 285).
Albert Demond Coleman (“Coleman”), nicknamed “Westside Al” or “Al Capone,” grew up
in Jackson but was living in Little Rock, Arkansas at the time. (Tr. 289). He came to Jackson on the
weekend of September 20th to celebrate his birthday and brought 12 to 14 people with him from
Little Rock. (Tr. 289). According to Coleman, he planned a birthday celebration at the Birdland and
got VIP parking passes.
Coleman denied having a gun that night because he was a convicted felon. Coleman had
been shot twice before. (Tr. 321). Coleman claimed he had to go through security checkpoints when
entering the Birdland and was searched for weapons. After he and his friends arrived at the Birdland,
they went to the upstairs bar, where Coleman stood shaking hands with people as they came to greet
him. A group of guys from his old neighborhood in west Jackson, including Alvin Brown, came
over to speak to him. According to Coleman, when he reached to shake Alvin Brown’s hand, Brown
screamed, "Westside, you know I don't fuck with you. . . I ain’t no little boy no more, you know."
(Tr. 292). Coleman didn’t know what was wrong with Brown. Coleman, who was a lot older than
Brown, knew him from his old neighborhood. Coleman’s best friend’s son and Alvin Brown were
running together. (Tr. 293.) Coleman claimed Brown kept going on and on about not being a
youngster anymore to the point that Coleman suggested to Brown that he go and leave him alone.
(Tr. 294).
Coleman was standing at the bar when Yatasha Johnson ("Yatasha") walked up and hugged
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his neck. They chatted for a few moments and then she went on her way. (Tr. 298). Brown returned
and got in Coleman’s face and started making all kinds of hand gestures. T. 299. Coleman testified
that Brown was threatening him, so when Coleman saw Brown turn his head and look off, Coleman
took the opportunity to punch him. (Tr. 295-97). Coleman heard a shot, looked down, and saw
Brown had the gun in his hand. (Tr. 299). Coleman stated that when he “slugged” Brown, Brown
“leaned over” and came up shooting.(Tr. 325). Coleman, didn’t touch the gun but grabbed Brown’s
wrist to keep him from shooting him.(Tr. 325-26). Coleman was eventually able to wrestle the gun
away from Brown and placed it on the bar. (Tr. 300). Brown was ready to run so Coleman said,
"Man, y'all need to catch him." (Tr. 302) The patrons still left in the bar started attacking Brown.
(Tr. 300, 302).
Coleman testified that seeing Yatasha Johnson lying on the floor of the club after she was
shot was “too much,” so he left the club. (Tr. 302). Coleman left alone, got in his car, got his things
from his hotel room, and drove home to Little Rock, Arkansas. He was out of Jackson by 2:00 a.m.
and at home by 6:00. (Tr. 303). Coleman talked to Jackson Police Department Detective Eric Smith
once he got home. (Tr. 303-04). Coleman claimed that he didn’t feel safe coming back to Jackson
to give a statement, so he gave a statement to a police officer in Little Rock regarding the incident.
(Tr. 304). Coleman had been shot three times on one occasion in 1995 and then once in the leg and
then twice while on the way to the Birdland in 2005. (Tr. 337-9). He drove off from the Birdland
on the night of the subject shooting before police arrived because he was afraid for his life. Id.
Ebony Brown (“Ebony”) was a regular patron at the Birdland. On the night of the shooting,
she noticed Brown because he was not a regular patron of the club. (Tr. 363). Initially Ebony testified
that about 10 to 15 minutes before the shooting she saw Brown go out a back door of the club and
come back in 5 to 7 minutes later. (Tr. 363-4). On cross examination she testified she did not
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actually see him exit and enter the back door; she saw him walk toward a hallway area that leads to
the back door. There were people standing around that area, some of whom also had dreadlocks.
According to Ebony the back door leads down some steps to a barbed wire fenced-in patio where
patrons can go to get fresh air and hang out. (Tr. 366). Just before the shooting, she could see
“tussling,” but before the security guards could get to the fight to break it up the shooting started. (Tr.
369). Ebony hit the floor when the shooting began and then fled the club afterwards.(Tr. 373). Ebony
testified that there was tight security at the club, including metal detectors, pat downs, and handbag
searches. (Tr. 371). Ebony never saw the gun and never saw who fired the shots. (Tr. 381).
Anastasia Murdock was shot in both legs as she came out of the restroom. (Tr. 387). She
testified that she didn’t see where the shots came from and never saw a fight or scuffle. (Tr. 388-90).
Marques White (“Marques”), cousin to the Birdland owners, was tending bar with Tony
Moore on the night of the shooting. He had been a bartender at the Birdland for 11 or 12 years.
Marques knew Al Coleman but didn’t know who Brown. While tending bar that night, Marques
saw Brown and Al Coleman arguing. When he saw the conversation was becoming heated, he tried
to signal for Bobby Jenkins, the security guard, to come over. Marques saw the scuffle but didn't see
the gun. Marques testified on direct examination "[Coleman] was trying to prevent [Brown] from
hitting him or whatever he was trying to do to him.” (Tr. 420-21). Coleman's hand was on top of
Browns’s hand. On cross examination, Marques admitted to having known Coleman for about 20
years and knew him as “Westside Al” or “Al Capone.” (Tr. 425-6 ). According to Marques,
Coleman was a much taller and larger person than Brown and when he saw them struggling, he saw
Westside Al had Brown down in a low position. (Tr. 426). Marques admitted on cross examination
that he could not see whether Al Coleman had his hand on top of Brown or whether Brown’s hand
was on top. He also admitted that he could not see the gun or who pulled it. (Tr. 426).
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When Marques heard the first shot he hit the floor. After the shooting stopped and he got up,
Coleman tried to hand the gun to him for holding. Marques refused it and told Coleman to put it on
the counter, which he did. Then Coleman disappeared from the bar and he didn’t see him again.
Marques saw a large group of people “whooping” on Brown. Tony Moore grabbed the gun with a
towel and placed it behind the bar for safekeeping until the police arrived.
Shun White (“Shun”), whose father owned and operated the Birdland for forty years, was
working on that night. Shun had known Coleman for over twenty years, they grew up together. (Tr.
442). Coleman had been a regular patron, off an on. (Tr. 432). Shun had never seen Brown before
that night. Id. Shun didn’t see any of the scuffle or the gun. After the shooting stopped, Coleman
put a gun on the counter and said he had just taken it away from somebody. (Tr. 434, 438).
Shun testified that the back door was unlocked the night of the shooting. He couldn’t
remember if it was opened, but if it was it would have had a security guard posted at it. According
to Shun, a person could stand in the hall area by the back door, and not be seen by someone on the
dance floor. (Tr. 444-6). Shun knew it was Coleman’s birthday and knew he was coming to town
and bringing some people with him but he denied that Coleman was having a birthday party at the
Birdland. (Tr.446). Shun couldn’t remember anything about reserved parking places for Coleman.
(Tr. 446).
John Greer, the DJ, had worked at Birdland for over ten years. Greer knew Westside Al from
him coming to the club for a couple of years. (Tr. 481). At the time of the shooting, Greer had on
headphones and couldn’t hear anything but the music. Greer looked up and saw everybody on the
floor except for Brown and Westside Al who were struggling for a gun. (Tr. 476). A wounded girl
came in the booth and so he held on to her until the struggle was over. He didn’t see who pulled the
weapon. (Tr. 482). Greer testified previously that it looked like Brown had control of the gun during
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