Brent v. State

• Decision Date: 22 May 2018
• Docket Number: NO. 2016–KA–01351–COA,2016–KA–01351–COA
• Citation: 247 So.3d 367
• Parties: James Lee BRENT a/k/a James Lee Brent Jr. a/k/a James Brent a/k/a James L. Brent, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

247 So.3d 367

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

v.STATE of Mississippi, Appellee

NO. 2016–KA–01351–COA

Court of Appeals of Mississippi.

May 22, 2018

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON, Jackson

BEFORE LEE, C.J., FAIR AND GREENLEE, JJ.

GREENLEE, J., FOR THE COURT:

¶ 1. A jury sitting before the Madison County Circuit Court found James Lee Brent guilty of armed robbery, kidnapping, and possession of a firearm by a felon. For each conviction, the circuit court sentenced Brent as a violent habitual offender to life in the custody of the Mississippi Department of Corrections without eligibility for parole or early release. We agree with Brent's appointed appellate counsel that there was insufficient evidence to find Brent guilty of possession of a firearm by a felon. We also agree that the doctrine of retroactive misjoinder entitles Brent to a new trial on the armed robbery and kidnapping charges. Consequently, we reverse the circuit court's judgment, render a verdict of acquittal regarding the felon-in-possession-of-a-firearm charge, and remand the armed robbery and kidnapping charges to the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. During the early morning hours of November 12, 2015, Rayshaun Banks was on his third-shift lunch break from a manufacturing plant in Canton, Mississippi, when he stopped at a gas station. According to Banks, as he was adding air to one of his tires, a man later identified as Brent¹ pressed something to the back of his head and demanded his money. Banks said he did not have any money, so Brent ordered Banks to get in the car. With Brent in the passenger seat, Banks drove south on I–55 and took the next exit at Gluckstadt. Banks then drove to a bank ATM to withdraw money. Banks said he needed to get out of the car to remove his wallet, but it was actually a pretense to run to safety and contact authorities.

¶ 3. Brent drove away in Banks's car, but he was apprehended later that morning in Jackson. He gave a statement and denied that he robbed Banks. According to Brent, Banks had agreed to give him a ride. Brent admitted that while they were in Banks's car, he "put [his] finger behind [Banks's] ear up against [Banks's] head" and told Banks that he was "going to use this car tonight ...." But Brent also said that Banks knew he was unarmed because Banks saw his fingers after he moved them away from Banks's head. When asked why Banks said Brent had a gun, Brent opined that Banks was "probably mad."

¶ 4. As for why Banks drove to the ATM, Brent said that Banks was going to "get ... some money so [Banks could] get back to Canton." Despite the implication that Banks was going to let Brent have the car, Brent later admitted that he took it without Banks's permission. He added that he felt "bad about it, because [he knew] it wasn't [his] property."

¶ 5. Brent was indicted and charged with armed robbery, kidnapping, and possession of a firearm by a felon. At trial, the prosecution called Banks and three law-enforcement officers who were involved in either Banks's report of the events, Brent's arrest, or the subsequent investigation. Brent chose to testify. He essentially reiterated the version of his events from his statement and said that Banks had agreed to give him a ride, he never had a pistol, and Banks bolted from the car for no reason. Brent also claimed that he intended to return Banks's car by leaving it somewhere in Jackson. As discussed above, the jury found him guilty of all three charges. Following his unsuccessful post-trial motion for a judgment notwithstanding the verdict (JNOV) or a new trial, Brent appeals. Additional facts will be discussed below as necessary.

DISCUSSION

I. Possession of a Firearm by a Felon

¶ 6. Brent argues that there was insufficient evidence to find that he willfully possessed a firearm. He reasons that the trial court should have granted either his motion for a directed verdict or his motion for a JNOV regarding the felon-in-possession-of-a-firearm charge, which was designated as Count III in the indictment. In reviewing this issue, we view "the evidence in the light most favorable to the State." Johnson v. State , 224 So.3d 66, 68 (¶ 4) (Miss. 2016). We will uphold the trial judge's decision unless "the facts and inferences point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty." Id. (internal quotation mark omitted).

¶ 7. To prove the charge at issue, the prosecution had to present proof beyond a reasonable doubt that Brent had previously been convicted of a felony and he willfully possessed a firearm. See Body v. State , 147 So.3d 890, 892 (¶ 11) (Miss. Ct. App. 2014). After initial hesitation by Brent's trial counsel, the parties ultimately stipulated that Brent had a prior felony conviction. Thus, this issue hinges on whether there was sufficient evidence that Brent possessed a firearm.

¶ 8. Banks testified that he "felt like a gun was in the back of [his] head[,]" but he did not "know if it was a pipe or a stick or whatever." He added that whatever he felt against his head, it "didn't feel like a finger." When asked why he took the Gluckstadt exit, Banks answered: "Because [Brent] had a gun on me, and I wanted to do what he said." He later clarified that he did not see a firearm when he was in the car with Brent.

¶ 9. Arguing that there was sufficient evidence to convict Brent, the State quotes Sanders v. State , 162 So.3d 868, 870 (¶ 11) (Miss. Ct. App. 2015), for the principle that "the absence of physical evidence does not negate a conviction where there is testimonial evidence." In Sanders , the defendant was convicted of attempted armed robbery and possession of a firearm by a felon. Id. at 869 (¶ 1). He was recognized "[w]hile brandishing a gun" as he tried to rob a restaurant where he worked. Id. at (¶ 2). When authorities stopped him, they did not find "the handgun used in the ... attempted robbery." Id. at (¶ 4). Even so, three witnesses "testified about the attempted robbery." Id. at (¶ 5). One witness testified "that when she said Sanders's name, he lowered his gun ...." Id. at 870 (¶ 13) (emphasis added). As such, this Court found no merit to Sanders's claim that the guilty verdicts were contrary to the weight of the evidence. Id. at 871 (¶ 22). Brent's case is unlike Sanders because there were no witnesses who saw Brent with a firearm.

¶ 10. The State also relies on Johnson v. State , 132 So.3d 616 (Miss. Ct. App. 2013). The defendant in that case was convicted of possession of a firearm by a felon after at least three people saw him with one. Id. at 619–20 (¶¶ 4, 7). Johnson said that he shot someone in self-defense and he led authorities to the pistol that he used. Id. at 619 (¶ 5). While discussing the propriety of a sentencing enhancement for using or displaying a firearm during the commission of a felony, this Court said that "[i]t cannot be denied that one can possess a firearm without using or displaying it." Id. at 627 (¶ 38). This Court went on to hold that the circuit court erred by applying the sentence enhancement without allowing the jury "to determine if Johnson had used or displayed the firearm that he possessed in the commission of a felony." Id. But Johnson does not stand for the principle that a conviction for possession of a firearm by a felon will be upheld without evidence that the accused actually or constructively possessed a firearm.

¶ 11. Here, there was simply no evidence that Brent possessed a firearm. Banks unequivocally testified that he never saw Brent with one. In the light most favorable to the State, there was evidence that Banks thought Brent might have had a pistol. That is, the evidence was that Brent put something to Banks's head, and Banks complied with Brent's demands because he could not be sure that Brent did not have a pistol. Although such behavior could result in some form of criminal liability,² it is insufficient to prove beyond a reasonable doubt that Brent was guilty of Count III. Thus, we reverse the circuit court's judgment regarding that charge and render a judgment in Brent's favor.

II. Retroactive Misjoinder

¶ 12. In 2003, the circuit court entered a judgment of conviction after Brent pled guilty to two counts of armed robbery. Two years later, the circuit court entered another judgment of conviction after Brent pled guilty to two counts of perjury. Before jury selection, the prosecution announced that it was willing to stipulate to Brent's status as a felon. Alternatively, the prosecution planned to introduce one of the judgments of conviction; thus, the jury would learn that Brent had previously been convicted of two felonies.

¶ 13. Anticipating that the prosecution would not be able to present any evidence that Brent possessed a firearm, Brent's trial attorney moved to sever the charges. In other words, Brent's attorney asked the circuit court to try Brent solely for armed robbery and kidnapping at that time, and then try Brent for Count III at a later date. Brent's attorney reasoned that it would be overly prejudicial for the jury to learn that Brent had previously been convicted of a felony when it was unlikely that the prosecution would be able to prove that Brent possessed a firearm.

¶ 14. Like Brent's attorney, the prosecution expected Banks to testify that "he believed he felt a weapon on the back of his head. And he believed [Brent] had the weapon, but [Banks] never saw the weapon ...." However, the prosecution argued that it would be "a jury question" regarding whether Banks's testimony would be sufficient to find Brent guilty of Count III. After further discussion, Brent's attorney remained adamant that he would not stipulate to Brent's status as a prior felon. Counsel argued...