E-Filed Document May :58: KA COA Pages: 19 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.

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1 E-Filed Document May :58: KA COA Pages: 19 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA QUENDARIUS BERJUAN ROBINSON APPELLANT V. STATE OF MISSISSIPPI APPELLEE BRIEF OF APPELLANT George T. Holmes, MSB No Indigent Appeals Division Office of State Public Defender P. O. Box 3510 Jackson MS Counsel for Appellant

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA QUENDARIUS BERJUAN ROBINSON APPELLANT V. STATE OF MISSISSIPPI APPELLEE 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 judges of this Court may evaluate possible disqualifications or recusal. 1. State of Mississippi 2. Quendarius Berjuan Robinson, a/k/a: Quendarius Robinson; Quendarius B. Robinson; Quendarius Brejuan Robinson. Respectfully submitted, QUENDARIUS BERJUAN ROBINSON By: /s/ George T. Holmes George T. Holmes, His Attorney

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS TABLE OF CONTENTS TABLE OF AUTHORITIES ii iii iv STATEMENT OF ISSUES 1 STATEMENT OF ASSIGNMENT 1 STATEMENT OF THE CASE 1 FACTS 1 SUMMARY OF THE ARGUMENT 9 ARGUMENT 9 ISSUE NO. 1 9 CONCLUSION 14 CERTIFICATE OF SERVICE 15 iii

4 TABLE OF AUTHORITIES CASES: Anderson v. State, 156 So. 645 (Miss. 1934) 14 Bishop v. State, 982 So. 2d 371 (Miss. 2008) 12 Goff v. State, 14 So. 3d 625 (Miss. 2009) 9, 10 Hall v. State, 539 So. 2d 1338 (Miss. 1989) 11, 13 In Interest of C.B., 574 So. 2d 1369 (Miss. 1990) 13 Lattimer v. State, 952 So. 2d 206 (Miss. App. 2006) 13 Osborne v. State, 942 So. 2d 193 (Miss. Ct. App. 2006) 10, 11 Parker v. State, 606 So. 2d 1132 (Miss. 1992) 9, 10 Quimby v. State, 604 So. 2d 741 (Miss. 1992) 11 Rubenstein v. State, 941 So. 2d 735 (Miss. 2006) 10 Young v. State, 451 So. 2d 208 (Miss. 1984) 14 STATUTES none OTHER AUTHORITIES Miss. Const. (1890), Art , 14 Miss. R. Evid. 803 (24) 9, 10, 11, 12, 13 Miss. R. Evid. 803 (25) 12 U. S. Const. Amend. VI 11, 14 iv

5 STATEMENT OF THE ISSUES ISSUE NO. 1: WHETHER IT WAS ERROR TO ALLOW HEARSAY EVIDENCE OF STATEMENTS MADE BY QUENDARIUS ROBINSON, JR., DURING HIS FORENSIC INTERVIEW? STATEMENT OF ASSIGNMENT This case is already assigned. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of the First Judicial District of Panola County where Quendarius Robinson (Robinson) was convicted of two counts of first degree murder and one count of being a felon in possession of a firearm. A jury trial was conducted October 31, 2016 through November 3, 2016 with the Honorable Smith Murphey, Circuit Judge, presiding. Robinson was sentenced to two life terms plus ten years and he is presently incarcerated with the Mississippi Department of Corrections. Robinson was represented at trial by the Honorable Azki Shah. FACTS In 2015, Cearea Jackson resided in Como with her mother Eloise Jackson and her grandmother Emma Jackson. [T ]. Cearea had two children -- Quendarius Robinson, Jr.,(Junior) age four and Qendez Robinson, approximately two months old. Id. Junior is the son of the appellant. [T. 180]. The appellant is not the father of Qendez. [T ]. Robinson and Cearea had an off and on relationship and he came to her house during the evening of November 27, [T ]. 1

6 Cearea and Emma had a 2007 Nissan Altima. [T. 183]. Robinson used this vehicle on occasion. [T ]. Robinson worked at a McDonald s restaurant in Sardis. [T. 183, 201]. Cearea s next-door neighbor was Sherry Boyce. [T. 182]. Sherry testified that Cearea had another suitor besides Robinson. [T. 215]. Sherry said she observed on one occasion when Robinson and the other man were present at Cearea s that Robinson was not pleased. Id. Sherry testified that during the evening of November 27, Junior ran over to her house. [T. 323]. She said Junior was hysterical, crying and shaking and appeared to be in a state of shock. Id. Sherry testified that Junior told her, Sherry, my dad done killed my momma. My daddy done shot my momma and shot my grandmomma. Id. She said that Junior also expressed concern about his little brother who was still at Cearea s house. Id. Sherry called 911 and did not go outside until police arrived. [T. 323, 325]. Sherry s live-in boyfriend Kentry Holmes was present when Junior came over that evening. [T. 331]. Kentry recalled for the jury that Junior arrived looking scared and said, My dad just killed my grandmomma and my momma. [T ]. Kentry locked the front door and turned off the lights. Id. When police arrived Kentry went outside and did not see Cearea s car which had been in the driveway earlier. [T. 335]. Jeremy Ramsey, a teenager and a family friend with Sherry Boyce, was at Sherry s with his friend Steven Taylor standing on Sherry s porch that evening. [T , 396]. 2

7 Jeremy and Steven testified that they saw Junior, whom Jeremy knows, come running up from next door. Id. Jeremy said Junior looked traumatized, and his voice was trembling when he stated, My dad just shot my mom and grandma. [T. 388]. Steven recalled that Junior was crying and upset like he just got a whooping and said, My dad just shot my momma and my grandmomma. [T. 396]. Jeremy and Steven both said just prior to that, they heard a sound like a screen door slamming. [T. 388, ]. Jeremy and Steven also testified that just after Junior arrived on Sherry s porch, they saw a man standing in the door at Cearea s house yelling for Junior to come back. [T , 396]. Jeremy and Steven went inside Sherry s house until police came. [T. 389]. Jeremy testified that before he went inside, he saw Cearea s Nissan parked outside of their house. [T. 390]. Jeremy said he saw the Nissan pulling off before the police got there. Id. Chase Harris, a teenage girl from Texas, was visiting family in the Como area during the Thanksgiving break staying with her first cousin Cearea and Emma, her grandmother. [T , 349]. Chase identified Robinson as Cearea s boyfriend. Id. Chase s friend Alexis Pettis of Como was with her the evening of November 27. [T , ]. Before 9:00 p.m., Chase and Alexis testified that they walked two houses down from Cearea s to visit their friend Antonio. [T , , ]. Antonio s house was close enough to see Cearea s house. Id. While visiting with Antonio outside, Chase and Alexis testified that they saw Junior leave Cearea s and run to 3

8 Sherry s house. Id. They both testified that they then saw Robinson come out, get in Cearea s Nissan, and leave. [T. 346, 350, 356, ]. Alexis recalled that Robinson was wearing a black hoodie. [T ]. Chase and Alexis, shortly thereafter, learned that something had happened and went back to Cearea s house and entered. [T. 347, 357, ]. The door was open. Id. They heard a baby crying as they proceeded through the house and discovered Emma s lifeless body just past the bathroom laying in the hall with blood on the floor. Id. They did not see Cearea because they immediately turned and exited. [T ]. Junior, age five at trial, testified that his dad shot is momma and grandmomma and that he ran next door to Sherry s and told them what happened and they called the police. [T , 268]. Over objections to hearsay, the state presented the testimony of Tina Roberson a certified forensic interviewer accepted as an expert in that field. [T ]. Ms. Roberson testified that she interviewed Junior on November 30th at the request of law enforcement and prepared a summary report. [T ; Exs. 5, 6]. A video recording of Junior s interview was played for the jury. [T. 293; Ex. 6]. There were defense objections to both the video and the report. [T. 289]. In the video, Junior is heard placing himself in different places during the shooting incident. [Ex. 6]. At times he seems to even say he was at Sherry s. Id. Junior initially said he was next door when the shots occurred. [T , ; Ex. 6]. Mr. 4

9 Roberson re-framed her questions and Junior changed his response saying he was in the room where the shooting occurred. Id. After that he said he ran to Sherry s. Id. Other details varied as well. Junior stated that Emma was in bed at the time of the shooting. [T. 309]. Although the interview was conducted on November 30, three days after the incident, Junior child during the interview that it occurred last night. [T ]. Ms. Roberson stated that Junior never wavered from saying that Robinson shot both Cearea and Emma. [T. 300]. Ms. Roberson stated that she did not deviate from accepted forensic interview protocols which only allow for a child to be asked only once to go over details. [T ]. The video suggests otherwise, and when asked on cross-examination, she could not state the number of times she asked Junior whether Robinson shot the two women. [T. 306]. After the video recording was played for the jury, Ms. Roberson was asked by the prosecutor if young children commonly attempt to remove themselves from traumatic events or experiences. [T. 293, ]. Her response was affirmative and she gave examples of children even saying they were asleep during an event or explaining that what had happened to them had happened to their twin. [T. 299]. Brenda Simpson who lives in Batesville was also a witness for the state. Brenda knows Robinson who is a friend of her son. [T ]. Brenda testified that on November 27th around 10:20-10:30 p.m., Robinson came to her house and asked if he 5

10 could wash his hands. [T ]. Brenda directed him to the kitchen and Robinson asked if he could use her bleach, she said yes and gave him a towel. [T ]. Brenda asked Robinson if he was alright and he said he was and left. Id. Brenda said Robinson was wearing a black hoodie and red joggers. [T. 581]. On the evening of November 27, Como police responded to Cearea s house around 9:40 p. m. [T. 224, 235]. They found the bodies of Emma and Cearea and found the infant Qendez alive. [T. 227, 238]. They learned that Junior was in the house at the time of the shooting and Robinson was developed as a person of interest. [T. 227, 231]. Police also learned that Cearea s car was missing and they a put out a BOLO for the car and Robinson. [T. 228]. The Mississippi Bureau of Investigation was called in to handle the case and Como police assisted thereafter. [T. 226, , 240]. Cearea s body was in a bedroom. [T. 478, ; Ex. 20, 21]. She had a fatal gunshot wound to the right top portion of her head. [T , , 478, ; Ex. 9, 10, 20, 21]. At autopsy, a spent projectile was recovered from Cearea s tongue. [T , ; Exs. 11, 12]. Next to Cearea s body, investigators located and seized a spent 9mm shell casing. [T ; Ex. 21, 28]. Emma s body was found in the doorway of the bedroom where Cearea was. [T , ; , 500; Ex. 17, 18]. She had one fatal gunshot wound to her right cheek fired from relatively close range. [T , ; Ex. 8, 18]. Another spent 9mm shell casing was found near Emma s body in the hall. [T , , , 6

11 500; Ex. 16, 25, 26]. It was stipulated that the shell casings from the scene and the spent projectile recovered at Cearea s autopsy were all fired from the same weapon. [T ; Ex. 31]. Investigators could not find Robinson the night of November 27. [T. 229]. He was arrested three days later the same day Cearea s vehicle was found abandoned in a rural area west of Batesville behind a house. [T. 230, , 242, , , 529; Ex. 33, 34, 35]. The vehicle taken to the crime lab in Batesville to be searched and examined. [T. 233, 246, , 529; Ex. 36]. There was a McDonald s drink cup in the driver s console and a McDonald s visor on the back seat. [T ; Exs. 39, 40]. A rewards card belonging to Emma was found in the car along with the car tag receipt showing Cearea or Emma as the owner. [T. 540; Ex. 41]. The interior of the car was processed for gunshot residue. [T ; Ex. 42, 43, 44, 45]. A swabbing from the car s start/stop button was done when the analyst observed suspected blood. Id. From the trunk of the car, the analyst collected a black hoodie, a black jacket and a pair of athletic shoes. [T ; Exs. 47, 48, 50, 51, 52]. Investigators confirmed that Robinson was employed at McDonald s in Sardis and had worked November 27th and got off around noon. [T ]. When Robinson was arrested in Batesville, investigators obtained a DNA sample from him with a search warrant. [T , 622, ; Ex. 62, 63]. 7

12 The swab of suspected blood from the start/stop button of the car tested positive for suspected blood. [T ; Exs. 46, 64]. The swabbing was analyzed for DNA and was found to be consistent with Robinson s DNA. [T. 675, ; Ex. 65]. The jacket and hoodie from the trunk were examined for gunshot residue along with trace evidence from the car interior. [T. 702]. The black jacket had particles of suspected gunshot residue. [T ; Ex. 49, 69]. The black hoodie contained particles of suspected gunshot residue on the right sleeve and cuff area. [T ; Exs, 51, 70]. Suspected gunshot residue was also detected on the steering wheel of Cearea s car. [T ; Ex. 71]. There was a stipulation that Robinson was a convicted felon on November 27, [T , ]. 8

13 SUMMARY OF THE ARGUMENT Introduction of hearsay statements of Junior through Tina Roberson and her report and the playing of Junior s video recorded forensic interview was improper under M. R. E. 803(24) and was irreparably prejudicial to Roberson resulting in reversible error. ARGUMENT ISSUE NO. 1: WHETHER IT WAS ERROR TO ALLOW HEARSAY EVIDENCE OF STATEMENTS MADE BY QUENDARIUS ROBINSON, JR., DURING HIS FORENSIC INTERVIEW? The state sought and obtained permission to introduce the hearsay contents of Junior s forensic interview through the testimony of Tina Roberson, her report, and the playing of a video recording of the interview. [T , ; ; Ex. 6 ]. The trial court applied M. R. E. 803(24) commonly referred to as the catch-all hearsay exception to admit the evidence. 1 The admission requirements for evidence under 803(24) in Parker v. State, 606 So. 2d 1132, 1138 (Miss. 1992) (overruled on other grounds in Goff v. State, 14 So. 3d 625, 1 Rule 803: The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:... 24) Other Exceptions. A statement not specifically covered by this Rule if: (A) the statement has equivalent circumstantial guarantees of trustworthiness; (B) it is offered as evidence of a material fact; (C) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; (D) admitting it will best serve the purposes of these rules and the interests of justice; and (E) before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant s name and address, so that the party has a fair opportunity to meet it. 9

14 (Miss. 2009). See also, Rubenstein v. State, 941 So. 2d 735, ( 30) (Miss. 2006). There are five requirements trustworthiness, materiality, probative value, interests of justice, and notice. Parker, 606 So. 2d The trial court s decision is reviewed under the usual evidentiary abuse of discretion standard. Id. Applying the five part test, Junior s trustworthiness is lacking because he gave inconsistent accounts of what he allegedly observed and also indicated an incorrect time. Ms. Roberson appears to have deviated from established protocols as well. The materiality of the interview is questionable. Junior had already testified about what he allegedly observed, which makes repetition immaterial. The probative value of the hearsay, as will be discussed more below, is less probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. In other words, the interview evidence is less probative than Junior s actual testimony. The interests of justice are not served by the state being allowed to bolster its case with hearsay. As for notice, it was given. So, all five requirements of the catch-all exceptions were not met in this case and the hearsay testimony and video recording should not have been admitted. In Osborne v. State, 942 So. 2d 193, (Miss. Ct. App. 2006), the state presented hearsay that three year old Sam, the declarant, said he witnessed his brother being murdered by Osborne. As here, the trial court in Osborne ruled that the two witnesses testimony was admissible under Rule 803(24). 10

15 Osborne complained on appeal that it was error for two witnesses to give hearsay testimony regarding Sam s account of the homicide under Rule 803(24). Id. The Osborne court pointed out that the two witnesses testified that the then four-year-old Sam spontaneously revealed that he witnessed Charlie s death. Id. The judge found that Sam s statements were freely given without any prompting from anyone present. Id. There was no showing of such spontaneity in the present case regarding the controlled forensic interview three days after the incident. Moreover, here there were four other witnesses who testified that Junior, in an excited state, said that Robinson had killed his mother and grandmother. Also, in Osborne, Sam s allegations were always consistent. Here, as suggested, Junior s account was materially inconsistent. Ms. Roberson s testimony, her report and the video clearly meet the definition of hearsay to which no exception applies. Quimby v. State, 604 So. 2d 741, (Miss. 1992). Allowing a witness to merely repeat materially prejudicial allegations about what they were told by another to prove a fact constitutes reversible error. Id. The introduction of Junior s interview evidence violated the Sixth Amendment and Article 3 26 of the Mississippi Constitution of As stated in Hall v. State, 539 So. 2d 1338, 1348 (Miss. 1989), the hearsay rules are designed to secure to both prosecution and defense a fair trial, [and where]... substantial evidence of a material fact has been admitted in violation of our hearsay rules, 11

16 it follows as the night the day that the defendant has been denied a fair trial. In Bishop v. State, 982 So. 2d 371, ( 21-23) (Miss. 2008), the trial court ruled that a four year old declarant s statements to a counselor were admissible under the tender years exception of Rule 803(25). One matter Bishop court emphasized was that the child s statements about sexual abuse were consistent. Id. Relevant to the present facts, in Bishop the court reviewed whether suggestive techniques were used in the forensic interview and whether the allegations of abuse there were the result of leading [or] suggestive questioning techniques. Id. The Bishop court found that the 4-year old declarant gave extensive narratives to the therapist and that the child s accusations were elicited without suggestive techniques and that the child s allegations were all consistent. Id. The Bishop court concluded that the [the declarant s] statements bore substantial indicia of reliability [and were] supported by substantial evidence. Id. The record in the present case does not support the same conclusion. Comparing Bishop to the present facts, Ms. Roberson deviated from established protocols and asked Junior to go over the details several times in an effort to correct his inconsistencies. Therefore, both the technique used by the interviewer and the inconsistence answers from Junior establish that introduction of Junior s hearsay statements both through Ms. Roberson and the playing of the video did not meet the trustworthy requirements of Rule 803(24). 12

17 The opinion in Lattimer v. State, 952 So. 2d 206, 221 ( 39) (Miss. App. 2006), stands for the proposition that, for the content of a forensic interview to be admissible as a hearsay exception, the interview must be shown to have been conducted with, and was the product of, reliable principles and methods. Here the trial judge did not find that the admission of the recorded interview was more probative than any other evidence. There was no showing of need for such hearsay evidence, or that the evidence was more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. Rule 803(24)(C) does not allow the introduction of hearsay unless it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. According to In Interest of C.B., 574 So. 2d 1369, 1373 (Miss. 1990), when a declarant child testifies, the catch-all exception of 803(24) is not applicable. Id. The child s testimony itself, not the hearsay, would be more probative on point for which it is offered than any other evidence which the proponent could procure. Id. (Citing Hall v. State, supra, 539 So. 2d 1338). It follows, therefore, that the trial court erred in allowing the introduction of the hearsay contents of Junior s forensic interview through the testimony of Ms. Roberson, her report and the video recording of the interview. Robinson was prejudiced because the state was allowed to improperly bolster its case with testimony which was not subject to 13

18 cross-examination. Anderson v. State, 156 So. 645, (Miss. 1934); Young v. State, 451 So. 2d 208, 212 (Miss. 1984); Amend. VI, U. S. Const.; Art. 3 26, Miss. Const. CONCLUSION For the forgoing reasons, Robinson respectfully suggests that his convictions resulted from an unfair trial and asks to have his convictions herein reversed with remand for a new trial on all counts. Respectfully submitted, QUENDARIUS BERJUAN ROBINSON By: /s/ George T. Holmes George T. Holmes, His Attorney 14

19 CERTIFICATE I, George T. Holmes, do hereby certify that I have this the 24th day of May, 2017, electronically filed the foregoing Brief with the Clerk of the Court using the MEC system which issued electronic notification of such filing to Hon. Jason L. Davis, Assistant Mississippi Attorney General; and, counsel also this day mailed a hard copy to the following persons not notified by the MEC system by U. S. Mail, first class postage prepaid: Hon. Smith Murphey, Circuit Judge, 202 French s Alley, Senatobia MS 38668, and Hon. John W. Champion, Dist. Atty., 365 Losher St., Ste. 210, Hernando MS /s/ George T. Holmes George T. Holmes George T. Holmes, MSB No Indigent Appeals Division Office of State Public Defender P. O. Box 3510 Jackson MS gholm@ospd.ms.gov Counsel for Appellant 15