IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI PATRICK BERNARD GILES NO KA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

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1 E-Filed Document Aug :45: KA SCT Pages: 19 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI PATRICK BERNARD GILES APPELLANT VS. NO KA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LAURA H. TEDDER SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE ISSUES iii STATEMENT OF THE CASE STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENT ARGUMENT CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Federal Cases Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) , 12 State Cases Archer v. State, 986 So.2d 951 (Miss.2008) Branch v. State, 882 So.2d 36 (Miss. 2004) Cabello v. State, 524 So.2d 313 (Miss.1988) Chase v. State, 645 So.2d 829 (Miss.1994) Cole v. State, 666 So.2d 767 (Miss.1995) Hansen v. State, 649 So.2d 1256 (Miss.1994) Harris v. State, 861 So.2d 1003 (Miss.2003) Johnson v. State, 475 So.2d 1136 (Miss.1985) Jones v. State, 857 So.2d 740 (Miss.2003) Mohr v. State, 584 So.2d 426 (Miss.1991) Read v. State, 430 So.2d 832 (Miss.1983) Stack v. State, 860 So.2d 687 (Miss.2003) Stringer v. State, 454 So.2d 468 (Miss.1984) , 12 Wilcher v. State, 863 So.2d 776 (Miss.2003) State Statutes Mississippi Code Annotated (3) Mississippi Code Annotated (1)(b), Mississippi Code Annotated (3)(c), Mississippi Code Annotated (1)(d), State Court Rules M.R.A.P , 8 ii

4 STATEMENT OF THE ISSUES I. This issue is not based on facts fully apparent in the record and must be raised on postconviction review. Alternatively, Giles received constitutionally effective assistance of counsel, comporting with the requirements of Strickland. II. The prosecutor s arguments were consistent with the evidence admitted at trial. iii

5 STATEMENT OF THE CASE On July 20, 2013, a Leake County Grand Jury indicted Patrick Bernard Giles for one count of sexual intercourse with A.S., a child under the age of 14 when Gile swas eighteen (18) years of age or older and twenty-four (24) months or more older than A.S., and not the spouse of A.S., in violation of Mississippi Code Annotated (1)(b), 1972 (as amended) and Mississippi Code Annotated (3)(c), 1972, (as amended). C.P. 2 The Grand Jury indicted Giles on a second count of sexual battery, by engaging in sexual penetration siwht A.S., a child under the age of fourteen (14) years, when Giles was more than twenty-four (24) months older than the said A.S., by inserting his penis into the anal opening of A.S., in violation of Mississippi Code Annotated (1)(d), 1972 (as amended) and Mississippi Code Annotated (3) 1972, (as amended). C.P. 2. Giles was tried in the Leake County Circuit Court on September 10, 2013, and was convicted on both counts. C.P. 1; In Count II, for the crime of sexual battery, the trial court sentenced Giles serve twenty-five years in the custody of the Mississippi Department of Corrections. In Count I, for statutory rape, the trial court sentenced Giles to ten (10) years in the custody of the Mississippi Department of Corrections, said sentence to be served consecutively to the sentence in Count II, for a total of thirty-five years to serve. C.P. 43 1

6 STATEMENT OF THE FACTS A.S. testified that she was 14 at the time of trial and that her birthdate was July 4, Tr. 19. A.S. testified that during the summer she sometimes spent time with her Aunt Veronica, and her cousin, T.S., also age 14. A.S. testified that she spent a week with her aunt and cousin in early June of A.S. testified that she and Giles or Man Man first saw each other at her Aunt C s wedding, but didn t meet until a few months after that. A.S. testified that Giles started texting her because he had asked T.S. for A.S. s number on a Sunday in June of A.S. testified that in the texts she and Giles mostly talked about sex. A.S. said she saw Giles on that same Sunday when she was getting out of her father s car. A.S. testified that she saw Giles again a few days later. Tr. 21. A.S. testified that her aunt and cousin live on Red Dog Road across the street from the apartments where Giles lived. On Wednesday of the week A.S. stayed with her aunt, A.S. sent her a message that he wanted to see her. A.S. responded that there was no one there but herself, T.S. and a younger cousin, M.S., age 7. After a couple more texts, A.S. agreed to meet Giles. They agreed to meet behind A.S. s aunt s house at the barn, which was a wood building with hay in it. It was about noon. A.S. was wearing some shorts and a green shirt which were her pajamas. She was still in her pajamas because it was summer. When A.S. got to the barn, Giles was already there. He was wearing gym short and a brown shirt. Giles asked A.S. if she was scared and A.S. said No. Tr. 24. Giles and A.S. stood there fore a minute and then A.S. took off her shorts and underwear and Giles pulled down his short and boxers. Giles attempted to penetrate A.S. with his penis. A.S. testified that he tried to force it in. A.S. testified that Giles penis did go in her vagina, but not all the way. Tr

7 A.S. testified that they were on the ground in the front of the barn. After Giles put his penis in A.S. s vagina, they had sex for about 5 minutes. Then Giles told A.S., Get up and bend over so I can try it from the behind. A.S. did this and Giles put his penis in her anus. This lasted about two or three minutes. Then Giles tried to put his penis back in A.S. s vagina, but it did not go in. A.S. and Giles got up and Giles said, Gotta go. A.S. testified that Giles was wearing a condom. A.S. went back to her aunt s house and told T.S. what had happened. A.S. did not tell her grandmother or her aunt or her parents or any other adults for some time because she was afraid she would get in trouble. A.S. testified that she was 12, about to be 13. Tr. 26. A.S. testified that Giles was about 19. A.S. and Giles texted for a few weeks afterwards. In February of 2013, A.S. s mother found out what had happened. The sheriff s office was contacted. A.S. made a courtroom identification of Giles and the person with whom she had anal and vaginal sex on the first Wednesday of June, Tr T.S., age 14 at the time of trial, testified that A.S. is her cousin. Her mom is A.S. s Aunt Veronica. A.S. came to spend a week with T.S. in June of T.S. testified that she lives on Red Dog Road behind Town Creek Apartments. T.S. testified that Giles was her neighbor and that he lived in the Town Creek Apartments. Giles was also friends with her father and came to their house sometimes. During the summer of 2012, T.S. talked to Giles about A.S. She told him that A.S. like him. Giles asked for A.S. s number and T.S. gave it to him. T.S. told Giles that A.S. was 12 years old. Tr. 37. When A.S. came to stay the week with T.S., A.S. s phone had been turned off. A.S. used T.S. s phone to talk to Giles. Tr. 38. T.S. did not know if A.S. continued to talk with Giles after that week. Tr. 38. T.S. testified that there was a barn behind her house. She testified that she no longer had the phone that A.S. used to text with Giles. Tr. 3

8 39. Investigator Kevin Cross, employed by the City of Carthage Police Department, testified that he investigated the case against Giles. The case came to the Carthage Police Department because A.S. s grandmother filed a report and the report was forwarded to Investigator Cross. Tr. 41. Investigator Cross arranged for a forensic interview of A.S. at Wesley House in Meridian. Tr. 41. Investigator Cross testified that T.S. and her family lived on Red Dog Road across from some apartments where Mr. Giles lived. There was a barn or shed behind the house where T.S. lived. Investigator Cross testified that he interviewed Giles at the Leake County Jail. Investigator Chance Henderson was also present. Giles was in custody and was advised of his Miranda rights. Tr. 62. Investigator Cross testified that he read the Miranda rights form to Giles, who read along with him. Tr. 63. Investigator Cross testified that Giles acknowledged that he understood his rights. Tr. 64. Investigator Cross also read the Miranda Waiver to Giles. Giles acknowledged that he understood the waiver. Giles signed the waiver voluntarily and did not ask for a lawyer. Tr. 65. Giles then wrote out a statement in his own handwriting. Tr. 65. Giles had a 10 th or 11 th grade education and was able to read and write. Tr. 66. Giles statement was, as follows: Tr. 67. We was at Dixon at a horse ride. She asked for my phone number. I didn t know how old she was. I didn t ask then. She called and text me and asked me to come over, so I went to D.J. s house. He was not there, so we went to the barn and we was kiss and had sex. In addition to the written statement, Investigator Cross interviewed Giles orally. Giles 4

9 stated that D.J. was A.S. s uncle, and that the events happened at D.J. s home. Investigator Cross testified that Giles date of birth was October 30, 1992, and that he was 19 at the time of the rape and sexual battery of A.S. Tr. 68. A.S. was born on July 4, 1999, and was 12 years old at that time of the crime. Tr. 68. Investigator Chance Henderson testified that he assisted Investigator Cross with the investigation. Tr. 73. He testified that they interviewed Giles at the Leake County Jail. Tr. 74. Investigator Henderson testified that Investigator Cross read Giles his Miranda rights and the Miranda Waiver. Giles acknowledged that he understood both, did not ask for a lawyer, and gave a written statement in addition to the oral interview. Tr Investigator Henderson testified that Giles signed his statement and that he and Investigator Cross signed the statement as witnesses. Vanethia Hall testified on behalf of Giles. Hall testified that she also lived at the Red Dog Apartments. Hall testified that she was dating Giles and that on June 5, 2012, 7:18 a.m., she gave birth to a child at River Oaks Hospital and that Giles was the father. She testified that Giles was with her at the hospital on June 5 th and June 6 th of 2012 and that was with her continuously during that time. Tr. 94. Hall testified that she was 19 years old and that she and Giles had been in a relationship for 2 years. She testified that Giles was living with her during June of 2012, but that he now lives with his grandmother and provides financial support for her and the child. She and Giles lived in the apartment s across the street from D.J. s house, where A.S. was staying. Tr. 96. She testified that if he were convicted she would lose that support. Tr. 95. Hall testified that her mother, her aunt and her little cousin saw Giles at the hospital. Giles testified on his own behalf. He testified that he did not know A.S. and that he 5

10 understood what she was accusing him of doing a little bit. Tr. 99. Giles testified that on June 5 th and 6 th of 2012, he was at the hospital with Hall while she had the baby. He testified that he did not have any sexual contact with A.S. He testified that he never communicated with A.S. by text. He testified that A.S. texted and called him and that T.S. gave her his number. Tr He testified that A.S. and T.S. texted him from her phone and from T.S. s phone. Tr Giles testified that he did not go meet A.S. at T.S. s house and that he only went to T.S. s house when her father, D.J., called to asked him to come help with. Giles testified that he had never been married to A.S. Tr Giles testified that Investigators Cross and Henderson told him he could get out of jail if he signed a statement. Giles testified that apparently the officers told him what to put in his 3. statement. Tr Giles testified that they told him if he signed the statement, he could get out of jail that day. He testified that he wrote the statement. Tr. 10. He testified that the statement was in his handwriting pretty much. Giles testified that he and A.S. did not kiss or nothing. Tr On direct, Giles testified that there was no barn. On cross, he testified that the officers did not mention the barn to him while they were asking him questions. Giles testified that the statement he gave to Investigators Cross and Chance was not what he testified to at trial. Tr Giles testified that he did not have a bond before he made the statement. He testified that he went before Judge Pope in City Court. Judge Pope did not give him a bond that he knew of. Giles then testified that Judge Pope gave him a bond, but that it was too high for him to make. Tr He testified that he thought he was 17 at the time he was interrogated and that he had never been arrested or interrogated before. Tr In actuality, Giles was 20 when he made his statement. Tr He testified that Officers Cross and Henderson were lying when they testified that they did not promise him anything in exchange for his statement. Tr

11 SUMMARY OF THE ARGUMENT Giles makes numerous allegations that his attorney's performance was deficient. For example, he argues that his attorney: failed to request discovery in a timely manner, failed to adequately investigate the case, failed to properly reciprocate discovery and was therefore barred from examining a crucial witness, failed to call other witnesses who could have corroborated his alibi, failed to object or move to strike prejudicial but irrelevant evidence, failed to object to prosecutor s arguing facts not in the record, failure to renew motion for directed verdict and failure to file post-trial motions. These alleged deficiencies of Giles trial counsel are not based on facts fully apparent from the record, and are more appropriate for post-conviction review. M.R.A.P

12 ARGUMENT I. This issue is not based on facts fully apparent in the record and must be raised on post-conviction review. Alternatively, Giles received constitutionally effective assistance of counsel, comporting with the requirements of Strickland. Giles makes numerous allegations that his attorney's performance was deficient. For example, he argues that his attorney: failed to request discovery in a timely manner, failed to adequately investigate the case, failed to properly reciprocate discovery and was therefore barred from examining a crucial witness, failed to call other witnesses who could have corroborated his alibi, failed to object or move to strike prejudicial but irrelevant evidence, failed to object to prosecutor s arguing facts not in the record, failure to renew motion for directed verdict and failure to file post-trial motions. These alleged deficiencies of Giles trial counsel are not based on facts fully apparent from the record, and are more appropriate for post-conviction review. M.R.A.P. 22. The record does not contain adequate information to determine if Giles trial counsel, Michael Crosby, failed to conduct discovery in a timely manner or that he failed to investigate the case. The record does not reflect the date on which Crosby was hired prior to trial or the degree of cooperation Crosby received from Giles when he attempted to investigate. The record does not contain adequate information to evaluate Crosby s pretrial effectiveness. Giles complains that another witness was available to be called to corroborate his alibi and that Crosby was unable to call that witness. Giles girlfriend Vanethia Hall testified on his behalf that he was with her in the hospital on June 5 th and 6 th of 2012 and therefore could not have been with A.S. on the first Wednesday in June, 2012, which was June 6 th. Vanethia also testified that her aunt, Zanetha Collins, was present at the hospital while Giles was there. Crosby informed the trial court that Collins would testify substantially as Hall did. Crosby told the trial 8

13 court that he just recently got the name. The trial court affirmed the prosecutions objection to Ms. Collins testimony and disallowed the testimony of Ms. Collins. Because the record is not complete as to why Crosby did not get the name until trial, or whether his client was forthcoming with information that would allow Crosby to investigate, it is impossible to tell, with the record at hand, whether Crosby was ineffective. It appears, though, that it would have been duplicative testimony since Collins would have given essentially the same testimony as Hall, so the jury heard the alibi testimony and Giles was not prejudiced by the disallowance of duplicative testimony. Giles complains that Crosby did not timely request discovery. However, the gist of Giles defense was that he had an alibi. The State s file would have had nothing in it to show Giles alleged alibi, since Giles admitted to having sex with A.S. at the same time and place A.S. had testified to. Further, there is nothing in the record to show whether Giles cooperated with his attorney, such as meeting with his attorney or providing information to his attorney prior to trial. Without additional testimony in the record, it is impossible to determine whether Crosby was ineffective or whether his client did not cooperate in providing relevant information. Giles complains that Crosby did not call other witnesses to corroborate his alibi. Crosby told the court that he had only recently found out about the witness, Zanetha Collins. This may have been due to his client s late announcement that he had an alleged alibi. Without further testimony, the record does not reflect what Crosby did in trying to investigate the case, communicate with his client and prepare a defense to the allegations. The record does not reflect whether Giles made himself available to his lawyer to discuss the case or whether he was cooperative with his lawyer. It does not reflect when Giles informed his lawyer that he had an alibi defense. The trial court correctly allowed the written statement by Giles to be entered into 9

14 evidence. The written statement by Giles was only part of his statement, which included a verbal interview with Investigators. The written statement, taken in the context of the full interview, was clearly written about A.S. and involved the same acts and locations that A.S. testified to. Further, regarding Giles assertion that Crosby failed to make certain motions and objections, trial attorneys are presumed to have strategic reasons for omitting objections and motions. There is nothing in the record to overcome that presumption. In Archer v. State, 986 So.2d 951, 955 (Miss.2008), the Mississippi Supreme Court explained why ineffective-assistance-of-counsel claims are seldom capable of review on direct appeal: Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings. This is because during direct appeals the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately. Wilcher v. State, 863 So.2d 776, 825 (Miss.2003). In such a case, the appropriate procedure is to deny relief, preserving the defendant's right to argue the issue through a petition for post-conviction relief. Read v. State, 430 So.2d 832, 837 (Miss.1983). The claims raised by Giles on this issue are not reviewable based on the record before the Court. He points to nothing in the record that supports his claim that his attorney failed adequately to prepare for trial. Nothing in the record indicates that there was evidence to support any particular defense, especially an alibi defense. Because these alleged deficiencies require proof that is not in the record on direct appeal, in accordance with Archer, 986 So.2d at 955, Giles ineffective-assistance-of-counsel claims do not warrant reversal at this stage. Giles alleges that Crosby failed to renew his Motion for Directed Verdict, however, Crosby submitted a peremptory instruction which was the same effect as the renewal of a directed verdict. As for the accusation that Crosby failed to file post trial 10

15 motions and to perfect an appeal, there is nothing in the record to reflect what Giles and Crosby s relationship after the trial. Giles may have terminated the attorney client relationship immediately, in which case, Crosby was only obligated to inform Giles of the relevant deadlines for post-trial motions and perfecting an appeal. However, should the Court determine to reach the merits of this case despite the incomplete record, the State asserts that Giles received effective assistance of counsel during all stages of his trial pursuant to Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), during all stages of his trial. The standard for evaluating an ineffective assistance of counsel claim is well settled: Where ineffective assistance of counsel is alleged, the benchmark [ ] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In addition, the defendant must show that the counsel's performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct In order to show prejudice under the Strickland standard, the [defendant] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. at A defendant must make both showings under Strickland, otherwise, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Jones v. State, 857 So.2d 740, 745 (Miss.2003) (quoting Stringer v. State, 454 So.2d 468, 477 (Miss.1984)). Harris v. State, 861 So.2d 1003, 1018 (Miss.2003). Trial counsel is presumed competent, and the burden of proving that counsel's performance was deficient and prejudicial falls upon the Appellant. Hansen v. State, 649 So.2d 1256, 1258 (Miss.1994). There is no constitutional right then to errorless counsel. Stack v. State, 860 So.2d 687, 696 (Miss.2003); Cabello v. State, 524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430 (Miss.1991) (right to effective counsel does not entitle defendant to have an attorney who makes no mistakes at trial; defendant just has right to have competent counsel). 11

16 When evaluating the overall performance of counsel, counsel must make strategic discretionary decisions including whether or not to file certain motions, call certain witnesses, ask certain questions, or make certain objections. Cole v. State, 666 So.2d 767, 777 (Miss.1995). In gauging counsel's performance, we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Stringer v. State, 454 So.2d 468, 477 (Miss.1984) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Peremptory instruction was given. C.P. 26. Branch v. State, 882 So.2d 36 (Miss. 2004) be affirmed. This issue is without merit and the jury s verdict and the rulings of the trial court should II. The prosecutor s arguments were consistent with the evidence admitted at trial. On appeal, Giles alleges that the prosecutor committed reversible error in closing argument by misquoting an instruction. Giles argues, [t]hat the lay jurors very likely understood the prosecutor s words at tantamount to a peremptory instruction of guilt. However, jury instructions were given and read to the jury by the court (Tr ) and the jury received a copy of the jury instructions to carry into deliberations. Tr. Further, jurors are presumed to follow the instructions of the court. It is presumed that jurors follow the instructions of the court. To presume otherwise would be to render the jury system inoperable. Chase v. State, 645 So.2d 829, 853 (Miss.1994) (quoting Johnson v. State, 475 So.2d 1136, 1142 (Miss.1985)).They were specifically instructed that they had heard the facts of the case and that the judge was giving them the law. Clearly, closing arguments were not a part of the Court s instruction of the law. Investigator Cross testified that after Giles was advised of his rights, had acknowledged that he had been advised of his rights and signed the waiver of rights, Investigator Cross and Officer Henderson talked with Giles about the complaint filed by A.S. s family. Henderson testified that they asked Giles if he knew A.S. Giles told the officers that he did know A.S. and 12

17 explained to the officers how he met A.S. After interviewing Giles, the officers gave Giles and opportunity to make a written statement. Giles then wrote a statement that he had sex with the victim and that he went to D.J. s house and had sex with the victim. Tr. 46. Investigator Henderson testified that after Giles had signed acknowledging that he had been advised of his rights and signed the waiver of rights, Giles gave a statement to Investigator Cross and Investigator Henderson. Tr. 57. Tr. 58. A. We questioned him in the matter if he knew the victim and - - Q. Okay, and after the questioning of the Defendant, he reduced his answers to a written statement. Is that correct? A. That s correct. Despite Giles failure to identify the victim in his brief written statement, both Investigator Henderson and Investigator Cross testified that Giles acknowledged in the interview that he knew A.S. and understood that A.S. was the subject of the inquiry. Clearly, Giles admission in the written waiver was referring to A.S. and was an admission that he had sex with her. Based on the testimony at trial, the prosecutor s statements in closing argument were consistent with supported by the testimony at trial. This issue is without merit and the jury s verdict and the rulings of the trial court should be affirmed. 13

18 CONCLUSION The assignments of error presented by the Appellant are without merit and the jury s verdict and the rulings of the trial court should be affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL STATE OF MISSISSIPPI BY: s/ Laura H. Tedder Laura H. Tedder, MSB # 9530 Special Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI TELEPHONE: (601)

19 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable Marcus D. Gordon Circuit Court Judge Post Office Box 220 Decatur, Mississippi Honorable Mark Duncan District Attorney Post Office Box 603 Philadelphia, Mississippi Christopher A. Collins, Esquire Attorney At Law Post Office Box 101 Union, Mississippi This the 25th day of August, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI TELEPHONE: (601) s/ Laura H. Tedder LAURA H. TEDDER SPECIAL ASSISTANT ATTORNEY GENERAL 15

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