Brent v. State

• Decision Date: 13 February 2020
• Docket Number: NO. 2019-KA-00095-SCT,2019-KA-00095-SCT
• Citation: 296 So.3d 42
• Parties: James Lee BRENT a/k/a James Lee Brent, Jr. a/k/a James Brent a/k/a James L. Brent v. STATE of Mississippi
• Court: Mississippi Supreme Court

296 So.3d 42

James Lee BRENT a/k/a James Lee Brent, Jr. a/k/a James Brent a/k/a James L. Brent

v.STATE of Mississippi

NO. 2019-KA-00095-SCT

Supreme Court of Mississippi.

February 13, 2020

Rehearing Denied June 4, 2020

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN E. BRIGGS, GEORGE T. HOLMES, Jackson, JAMES L. BRENT (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, Jackson

BEFORE KING, P.J., CHAMBERLIN AND ISHEE, JJ.

CHAMBERLIN, JUSTICE, FOR THE COURT:

¶1. Following James Lee Brent's retrial on December 4, 2018, a Madison County jury convicted him of armed robbery and kidnapping, and he was sentenced to serve two concurrent life sentences as a violent habitual offender under Mississippi Code Section 99-19-83 (Rev. 2015). Aggrieved, Brent appealed to this Court. Brent's appellate counsel filed a brief with this Court according to Lindsey v. State , 939 So. 2d 743 (Miss. 2005), certifying that no arguable issues exist in the record.

¶2. Brent filed a supplemental pro se brief raising four issues. First, Brent argues that the evidence was insufficient to support each of his convictions. Second, Brent claims that his retrial subjected him to double jeopardy. Next, Brent claims that a jury instruction effectively modified an essential element of armed robbery. Lastly, Brent claims that the State's evidence was insufficient to prove his status as a violent habitual offender under Section 99-19-83.

¶3. After review, we find that Brent presents no arguable issues. Furthermore, this Court finds no other arguable issues after carefully reviewing the record. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶4. Rayshaun Banks worked the third-shift¹ as a forklift operator at a factory in Canton, Mississippi. At approximately 3:00 a.m. on November 12, 2015, Banks took his lunch break and walked outside to his 2008 Chrysler Sebring sedan. Upon reaching his car, Banks noticed that his driver-side rear tire was low and decided to drive to the Shell gas station in Canton to add air to it.

¶5. After getting some quarters from inside the gas station, Banks bent down and began adding air to the tire. A man approached Banks from behind, undetected, and pressed something "[l]ike the barrel of a gun" against the back of Banks's head. The man, later identified as James Brent, demanded that Banks "give me your money" and threatened to shoot Banks. Banks did not see a gun, but he explained that it felt "[l]ike a barrel of a gun" was pressed against the back of his head. Banks told Brent that he did not have any money. Brent then ordered Banks into the driver seat and told Banks to drive Brent to Jackson. Banks complied with Brent's orders because Banks thought Brent had a gun. Banks explained that he feared for his life and believed that Brent was going to shoot him.

¶6. As the two were headed south on I–55 toward Jackson, Banks told Brent that he could get Brent some money out of the bank. Brent then told Banks to take the Gluckstadt exit and go to an ATM. Banks complied. After pulling up to an ATM, Banks explained to Brent that Banks needed to step out of the car to retrieve his wallet. When Banks stepped out of his car, he immediately ran to a nearby Sonic restaurant and told the Sonic employees to call the police. Banks then noticed a sheriff's deputy at the Exxon nearby and ran to the deputy for help. At the same time, Brent was spotted driving past the Exxon in Banks's car. Banks then was taken to the Canton Police Department and provided a statement about what happened.

¶7. Later that same morning, Investigator Terence Ware with the Canton Police Department contacted Banks and asked for Banks to come to the department and speak with him. While Banks was explaining to Investigator Ware what happened, Investigator Ware received a call from the Jackson Police Department stating that they had Brent and Banks's car in custody.

¶8. After Brent had signed an acknowledgment and waiver of his Miranda² rights, Investigator Ware interviewed Brent that afternoon. Brent admitted that he took Banks's car without permission, but he denied ever having a gun. Instead, Brent claimed that he had placed two fingers behind Banks's head to imitate a gun; Brent demonstrated this to Investigator Ware. When asked why Banks ran and left Brent sitting in the car at the ATM, Brent responded that he guessed Banks got frightened. Neither Canton police nor Jackson police ever recovered a gun.

¶9. On February 17, 2016, a Madison County grand jury returned a three-count indictment against Brent as a violent habitual offender under Mississippi Code Section 99-19-83 (Rev. 2015). Brent was charged with one count of armed robbery in violation of Section 97-3-79 (Rev. 2014), one count of kidnapping in violation of Section 97-3-53 (Rev. 2014) and one count of possession of a firearm by a convicted felon in violation of Section 97-37-5 (Rev. 2014).

¶10. Following Brent's initial trial, a Madison County jury convicted Brent on all three counts, and the circuit court sentenced Brent to life in the custody of the Mississippi Department of Corrections as a violent habitual offender. Brent appealed, and the case was assigned to the Court of Appeals. Brent v. State , 247 So. 3d 367 (Miss. Ct. App. 2018). The Court of Appeals determined that "[t]here was insufficient evidence to find that Brent possessed a firearm" for purposes of Section 97-37-5. Id. at 373. Therefore, the Court of Appeals reversed and rendered Brent's felon-in-possession-of-a-firearm conviction. Id. The Court of Appeals "also conclude[d] that the doctrine of retroactive misjoinder necessitate[d] that Brent receive a new trial on the armed robbery and kidnapping charges ...." Id. As a result, the Court of Appeals reversed and remanded Brent's armed-robbery and kidnapping convictions for a new trial. Id.

¶11. This appeal follows Brent's December 4, 2018 retrial in the Madison County Circuit Court. A second Madison County jury found Brent guilt of armed robbery and kidnapping. On December 17, 2018, the circuit court sentenced Brent as a violent habitual offender to life in the custody of the Mississippi Department of Corrections without the possibility of parole for each of Brent's convictions. Following the denial of his motion for a new trial, Brent appealed to this Court.

¶12. Brent's appellate counsel filed a Lindsey brief with this Court, certifying that there are no arguable issues supporting Brent's appeal. See Lindsey , 939 So. 2d at 748 (delineating the "procedure to govern cases where appellate counsel represents an indigent criminal defendant and does not believe his or her client's case presents any arguable issues on appeal [.]").³ We find that Brent's appellate counsel has complied with all the Lindsey requirements. Counsel certifies that she "diligently searched the procedural and factual history of this criminal action and scoured the record," finding no arguable issues for appeal. Additionally, counsel confirms that she provided Brent with a copy of the brief, informed Brent that she found no arguable issues and informed Brent that he had the right to file a pro se brief. Brent filed a pro se brief raising four issues. The State concurs with appellate counsel's conclusion that there are no arguable issues in the record. For the same reason, the State contends that Brent's pro se arguments are devoid of merit.

ANALYSIS

¶13. Brent asserts four arguments in his pro se brief: (1) the State's evidence was insufficient to prove all the essential elements of armed robbery and kidnapping; (2) his retrial for armed robbery and kidnapping subjected him to double jeopardy; (3) jury instruction S–4 constructively amended the indictment; and (4) the State failed to prove his status as a violent habitual offender.

I. Whether the evidence was sufficient to support Brent's convictions.

¶14. Brent makes two distinct arguments regarding the sufficiency of the evidence. Brent first argues that the State's evidence supporting his armed-robbery conviction was insufficient to prove beyond a reasonable doubt that he exhibited a deadly weapon. Next, Brent argues that the State's evidence supporting his kidnapping conviction was insufficient to prove beyond a reasonable doubt that he forcibly seized Banks.

¶15. On appeal, issues regarding the sufficiency of the evidence are reviewed de novo. Green v. State , 269 So. 3d 75, 79 (Miss. 2018) (citing Brooks v. State , 203 So. 3d 1134, 1137 (Miss. 2016) ). When assessing the sufficiency of the evidence, this Court "must view the evidence in the light most favorable to the State and ask whether any rational juror could have found that the State had proven, beyond a reasonable doubt, each element of the crime charged." Graham v. State , 185 So. 3d 992, 1003 (Miss. 2016) (citing Bush v. State , 895 So. 2d 836, 843 (Miss. 2005), abrogated on other grounds by Little v. State , 233 So. 3d 288, 289 (Miss. 2017) ). "Under this inquiry, all evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that can be drawn from the evidence." Green , 269 So. 3d at 79 (internal quotation marks omitted) (quoting Galloway v. State , 122 So. 3d 614, 665 (Miss. 2013) ). This Court "should reverse only where, with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty." Id. (internal quotation marks omitted) (quoting Boyd v. State , 977 So. 2d 329, 337 (Miss. 2008) ).

A. Armed Robbery

¶16. Brent contends that the State failed to prove beyond a reasonable doubt that he used or exhibited a deadly weapon. Conversely, the State argues that Banks's testimony is sufficient to support the jury's guilty verdict under this Court's holding in Dambrell v. State , 903 So. 2d 681 (Miss. 2005). We agree with the State.

The elements of armed robbery are: (1) a felonious taking or attempt to

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