E-Filed Document Jan 3 2018 10:51:06 2017-KA-01030-SCT Pages: 13 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI HENRY EARL HARVEY APPELLANT V. NO. 2017-KA-01030-SCT STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT W. Daniel Hinchcliff, MS Bar No. 2470 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi 39207-3510 Telephone: 601-576-4290 Fax: 601-576-4205 Email: dhinc@ospd.ms.gov Counsel for Henry Earl Harvey
IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI HENRY EARL HARVEY APPELLANT V. NO. 2017-KA-01030-SCT 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 justices of this court may evaluate possible disqualifications or recusal. 1. State of Mississippi 2. Henry Earl Harvey, Appellant 3. Honorable Joel Smith, District Attorney 4. Honorable Christopher Schmidt, Circuit Court Judge This the 3rd day of January 2018. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER BY: /s/ W. Daniel Hinchcliff W. Daniel Hinchcliff, Appellant Counsel i
TABLE OF CONTENTS I. CERTIFICATE OF INTERESTED PERSONS................................. i II. TABLE OF CONTENTS.................................................. ii III. TABLE OF AUTHORITIES............................................... iii IV. STATEMENT OF ASSIGNMENT........................................... 1 V. STATEMENT OF THE ISSUES............................................. 1 VI. STATEMENT OF THE CASE.............................................. 1 VII. FACTS................................................................. 1 VIII. SUMMARY OF THE ARGUMENT......................................... 6 IX. ARGUMENT............................................................ 6 X. STATEMENT OF COUNSEL.............................................. 6 XI. CONCLUSION.......................................................... 7 XII. CERTIFICATE OF SERVICE.............................................. 8 ii
TABLE OF AUTHORITIES STATE CASES Lindsey v. State, 939 So. 2d 743 (Miss. 2005)........................................ 6 iii
IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI HENRY EARL HARVEY APPELLANT V. NO. 2017-KA-01030-SCT STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ASSIGNMENT This cause is properly before this court. STATEMENT OF THE ISSUES None STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Harrison County, Mississippi, First Judicial District, and a judgement of guilty for the crime of first degree murder against Henry Earl Harvey following a jury trial commenced October 18, 2016, the honorable Christopher L. Schmidt, Circuit Judge, presiding. Appellant Henry Harvey was sentenced to life imprisonment and is currently incarcerated in an institution under the supervision of the Mississippi Department of Corrections. FACTS Jasmine Brown had some friends at her apartment, drinking and using drugs. Her guests were Shondra Gardner and Eddie Briggs. Dexter Washington came at some point, but not drinking or using drugs according to Jasmine. Henry Harvey, the appellant, also came to the Apartment asking for Shondra. Jasmine knew Henry, though they were not friends. None-the- 1
less, she let him in. (T. 51-57). Jasmine told the jury she had been convicted of a crimen falsi, uttering a forgery. (T. 66). Eddie Briggs was the father of Jasmine s children. In a conversation between those present, Eddie s name was mentioned (he apparently not present at that moment) and Henry Harvey said if he offed him, if he offed that nigga, he didn t want anybody to say anything. (T. 58). She said her relationship with Eddie had violent episodes. (T. 58-59). At some point Eddie had a private conversation with Shondra, and she told him that his girlfriend Jasmine was in there trying to fuck those niggas. (T. 61). A fight broke out between Eddie and Henry Harvey. Eddie said to Henry: That s my Baby s momma. I told you to stay out of our business. I didn t want to fight you. (T. 62). Jasmine left the scene by running out. She noticed a gun on the table as she ran. She decided to grab the gun and hide it on the side of the building. While she was outside, she heard a car alarm, she thought from the truck that belonged to Eddie Briggs mother. She heard two shots and walked back to her apartment. She then saw Eddie Briggs lying on the ground. She picked his head up. He had been shot in the eye. (T. 64-66). She initially did not tell the police about the gun. When shown a photo line-up, she picked out Henry Harvey and wrote, that Harvey had been fighting with Eddie Briggs. No one else had been fighting with Harvey. (T. 65-67). On cross examination, she denied she had cheated on Eddie, but agreed that Eddie had been hitting her when Henry Harvey came into the bedroom. (T. 70-72). Dexter Washington, arrived at the apartment after Jasmine, Shondra, and Henry Harvey. When he arrived, they had been consuming alcohol and drugs. Dexter was smoking spice. (T. 83-85). The others were drinking beer and doing cocaine. Dexter overheard Jasmine say that 2
when Eddie got there he would beat her up because that s all he does. (T. 85). Henry Harvey then advised that he would do something about the beating, that he would put an end to it. (T. 86). Dexter and Henry Harvey left the apartment to purchase some drugs, then returned. Shortly thereafter he saw Henry Harvey go into a room with Shondra. Jasmine entered the room at some point after. (T. 87). Dexter had a pistol and he put it down on the table in the kitchen. Jasmine came up to the doorway and was talking to Dexter when a hand came over and slapped her. Then she was placed in a headlock and dragged away, apparently by Eddie Briggs. (T. 90). There was hollering when suddenly Henry Harvey kicked the door in and Henry and Eddie began to fight. Henry shouted [g]et off my cousin. Eddie responded. This ain t for you. This is between me and my girl. I don t want to fight you. Just chill out man. (T. 90). Dexter broke up the fight but it stared again. (T. 91). Meanwhile a fight broke out between Shondra and Jasmine. As they tussled, Dexter once again separated Eddie Briggs and Henry Harvey. He held Harvey back and told Briggs to go home. Dexter also broke up the fight between Shondra and Jasmine. As instructed, Briggs took his keys and left, walking fast. Dexter looked and did not see his gun. He also noted that Jasmine and Henry Harvey were gone. (T. 92). Dexter heard shots. He looked out the window and saw Eddie laid out. He heard threats. And then he saw Henry going toward the body. He then heard another shot. Dexter was going to run from the scene and went downstairs. Before he went down, Henry Harvey came into the kitchen. Dexter asked Henry why he shot Eddie, and Harvey replied: Shhh. Then: I ain t do nothing. (T.94-95). Dexter went down the stairs and saw Harvey dragging Eddie s body. Henry came back in with the gun. (T. 97). Dexter ran to his family s house. (T. 95). 3
After the police investigated and talked to Dexter, he was shown a photo line-up. He picked Henry Harvey and wrote on the line-up: This is Henry Harvey, the man who took my gun and shot the man... (T. 97). Dexter is presently incarcerated, but denies any deal was made for his statement or testimony. (T. 76-79). Patrolman Ronald Jeffrey Radix of the Gulfport Police responded to a shooting at Emerald Pines Apartments. He arrived and found a woman holding the head of a man laying in a pool of blood. He could see a blood trail where the body had been drug. He found car keys next to the pool of blood, and two.40 caliber casings. He also saw what he described as an impact point from a handgun round into the dirt. He also found a third casing of a different caliber. (T. 109-117). Police officer Randall Voellmann also saw a man laying in blood with a woman holding his head. (T. 122). He observed brain matter hanging from the man s head. Jasmine brown was holding the wound, crying for someone to save the man. He got a synopsis of the events from Jasmine. Henry Harvey, Shondra Gardner, Jasmine and Dexter Washington were at the apartment when Eddie Briggs arrived. After Shondra told Eddie that his girlfriend Jasmine had been having sex with Harvey and Washington, a fight broke out between Harvey and Eddie Briggs. It spilled outside and resulted in Eddie Briggs being shot. (T. 123-126). Yet another Gulfport officer, Wesley Majure, also came to the scene, coming from the opposite direction. He spotted a black male in a black hoody sweatshirt walking in the immediate area. Majure tried to talk with the man, who then ran away across a field and through a fence. A police dog aided in apprehending the man in a field. (T. 132-139). The man was Henry Harvey. 4
Majure found a gun without a magazine ten feet from where Harvey was apprehended. (T. 144, 146). Crime scene investigator Jessica Zedziorek took photos and collected an additional shell casing. (T. 152-157). The casing was a 9mm, full of dirt, and appeared older. (T. 162-163). She also found another.40 cal. She identified two holes in the ground near the blood pool and was able to recover one projectile from the holes. Samples were taken for blood testing. (T. 164-166). The final.40 casing was recovered by Christopher Werner on a secondary walk through between the apartment buildings the next day. (T. 179-182). Gulfport detective Alvin Kingston found the magazine from the.40 caliber pistol. He obtained security video from the apartments which showed the body being drug around front by Henry Harvey. (T 206-208). There was no obvious bruising or marks to either jasmine brown, or to Henry Harvey. Shondra Gardner, however, had marks on her face and a bruised lip. The keys found belonged to Eddie Brigg s mother. Forensic firearm testing matched three.40 caliber casings to the gun recovered. Of two projectiles submitted, one was a match and the other could not be excluded due to damage. (T 185-197). By stipulation, it was admitted that there was no DNA evidence from the hoody sweatshirt. Of three swabs of the pistol, one was a match for Harvey. (T. 217-218). Mark LeVaughn did not conduct the autopsy of Eddie Briggs and could not say if he even saw the autopsy being performed. His opinion was based on the report of Dr. Erin Barnhart. (T. 242-243). He viewed the entire file. Dr. Barnhart s findings were death was caused by multiple gunshot wounds, one at close range, entering the eye and exiting the back of the head. This injury was consistent with someone standing over the victim to shoot. (T. 238-241). 5
Upon these proofs the State rested. A motion for directed verdict was denied. (T. 250). After being advised on his rights, Harvey chose not to testify. (T. 253). Shondra Gardner testified in the case for the defense. She denied telling Eddie Briggs that Jasmine had cheated on him. She saw Henry Harvey with the gun, and did not see Dexter with it. She later contradicted that statement saying that she when she saw Harvey with the gun that Dexter grabbed it from him. She saw Dexter run outside with the gun. (T. 258). After Henry Harvey ran down the stairs, she heard gun shots. Rebuttal by Alvin Kingston elicited that Shondra had never told him she saw Dexter with the gun. (T. 268-269). The State thereupon finally rested. SUMMARY OF THE ARGUMENT None ARGUMENT None STATEMENT OF COUNSEL 1. I, W. Daniel Hinchcliff, counsel for the Appellant, hereby represent to the Court, pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005), that counsel diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the Court on Henry Earl Harvey s behalf in good faith for appellate review, and upon conclusion, have found none. 2. The matters considered, reviewed and included in counsel s search were: (a) the reason for the arrest and circumstances surrounding the arrest of Henry Earl Harvey; (b) any possible violation of Henry Earl Harvey s right to counsel; ( c) the entire trial transcript; (d) all 6
rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions including the right to an instruction on Defendant s theory of the case; (g) all exhibits, whether admitted into evidence or not; (h) possible misapplication of the law in sentencing; (i) the indictment and all the pleadings in the record; (j) any possible ineffective assistance of counsel issues; (k) any speedy trial issues; (l) any 14 th Amendment Due Process issues; and (m) evidence of other bad acts, (n) hearsay testimony, including expert testimony using another s report ans autopsy notes; (o) use of depositions at trial; (p) and any other possible reviewable issues. 3. Counsel confirms that he has, on the date of the filing of this brief, mailed by first class mail, postage prepaid, a copy of this brief and correspondence informing Henry Earl Harvey that counsel finds no arguable issues in the record and that Appellant has the right to file a pro se brief. 4. Counsel for Appellant request that this Court grant Henry Earl Harvey an additional forty (40) days of time in which to file a pro se brief, if he desires to do so. 5. Counsel stands ready to prepare supplemental memoranda of law on any issues requested by this court. CONCLUSION There are no issues that counsel can in good faith present to this Court in the appeal on this matter. An additional forty (40) days enlargement of time is requested for Henry Earl Harvey to file a pro se brief, should he desire to do so. Respectfully submitted, HENRY EARL HARVEY, APPELLANT By: /s/ W. Daniel Hinchcliff W. Daniel Hinchcliff, His Attorney 7
CERTIFICATE OF SERVICE I, W. Daniel Hinchcliff, Counsel for Henry Earl Harvey, do hereby certify that on this day I electronically filed the forgoing BRIEF OF THE APPELLANT with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Jason L. Davis Attorney General Office Post Office Box 220 Jackson, MS 39205-0220 Further, I have this day caused to be mailed electronically or via United States Postal Service, First Class postage prepaid, a true and correct copy of the above to the following non- MEC participants: This the 3rd day of January 2018. Honorable Christopher Schmidt Circuit Court Judge P.O. Box 1461 Gulfport, MS 39502 Honorable Joel Smith District Attorney, District 2 Post Office Box 1180 Gulfport, MS 39502 Henry Earl Harvey, MDOC #174178 Mississippi State Penitentiary Post Office Box 1057 Parchman, MS 38738 /s/ W. Daniel Hinchcliff W. Daniel Hinchcliff, Appellant Counsel W. Daniel Hinchcliff, MS Bar No. 2470 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER 8
Post Office Box 3510 Jackson, Mississippi 39207-3510 Telephone: 601-576-4290 Fax: 601-576-4205 Email: dhinc@ospd.ms.gov 9