Lewis v. State

140 So. 3d 1290, 2014 WL 2853766, 2014 Miss. App. LEXIS 353
CourtCourt of Appeals of Mississippi
DecidedJune 24, 2014
DocketNo. 2013-KA-00337-COA
StatusPublished
Cited by1 cases

This text of 140 So. 3d 1290 (Lewis v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. State, 140 So. 3d 1290, 2014 WL 2853766, 2014 Miss. App. LEXIS 353 (Mich. Ct. App. 2014).

Opinion

BARNES, J.,

for the Court:

¶ 1. James Lewis was found guilty of murder and sentenced to life imprisonment. Lewis is represented on appeal by the Office of the State Public Defender, Indigent Appeals Division. His counsel filed a brief consistent with Lindsey v. State, 939 So.2d 743 (Miss.2005), having found no arguable issues for appeal. Lewis was given time to file a pro se brief to raise issues for this Court’s review, but he did not do so. This Court has examined the record and finds no arguable issues warranting review. Thus, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 11, 2011, a crowd gathered at a Winter Street home in Jackson, Mississippi, for a party. Eighteen-year-old Dennis McDougles was among the guests in the backyard. Some of the guests were swimming in an above-ground pool, and others were dancing near the pool. McDougles was dancing and “stunting”— meaning throwing money into the air— [1291]*1291during a song called “Make It Rain.” Shortly thereafter, at approximately 9:30 p.m., two men jumped the fence into the backyard. The men were armed with handguns, and their mouths were covered by bandannas. They were later identified as James Lewis and D’Marco Minor. The men approached McDougles, who was also armed. Words were exchanged, and McDougles ran. It appeared to witnesses that McDougles was trying to flee into the house through the back door. But before he got to the door, one of the men caught up with him and pushed him to the ground. The man held a black handgun to McDougles’s head and said: “B-, didn’t I tell you don’t move[?] I told you I’d kill you. Don’t move.” A struggle ensued, and gunshots followed. The shots were described as “steady,” and going “back and forth.” McDougles was shot multiple times and later died. The two men fled the scene. McDougles had $311, a wallet, cell phone, and keys in his pockets; nothing was taken from him during the struggle.

¶ 3. Police arrived quickly, as they were already in the neighborhood and had heard the gunshots. An ambulance arrived minutes later. While McDougles was being loaded into the ambulance, police noticed Minor walking in the area. Police deemed his behavior suspicious and detained him. Minor was wearing all white and had blood spots on his clothing.

¶ 4. As police were detaining Minor, a female ran out of a house around the corner on Peabody Street, yelling that her brother had been shot. Police were led to Lewis, who was lying on the floor in the living room, wounded. Blood was spattered on the steps leading into the house. Lewis and McDougles were both taken to the University of Mississippi Medical Center. McDougles died from blood loss shortly after arriving at the hospital. Lewis was treated and released. He did not pursue charges against anyone for his injuries. McDougles and Lewis were the only two gunshot victims in Jackson, Mississippi area hospitals that night.

¶ 5. Although the crime scene was dimly lit, several witnesses were able to identify Lewis and Minor in photographic lineups as the perpetrators. Two witnesses saw Minor at the party prior to the shooting. One of these witnesses had known Minor and Lewis her whole life. She was in the pool when the song “Make It Rain” was playing. She stated that while McDougles was tossing money into the air, Minor was “looking at [McDougles]”; “[Minor] was just standing there looking. He wasn’t where he was at, but he was looking at him.” She saw Minor leave the party shortly thereafter. When the men jumped the fence, she was able to recognize them because their bandannas were not on correctly. She testified that “the bandannas w[ere]n’t even on their face[s]. Like — it was like over their mouth[s], but you could see their nose[s] and their eyes.” And she testified Minor was wearing the same white and red shirt he had worn to the party that night. Other witnesses testified that one of the perpetrators was wearing a red shirt, and the other was wearing a black or gray shirt. Witnesses’ descriptions of the two men matched their physical traits. Witnesses described seeing a taller and shorter suspect — consistent with Lewis’s height of approximately six feet, two inches, and Minor’s height of approximately five feet, six inches.

¶ 6. Law enforcement found a handgun, spent shell casings, and a red bandanna at the scene of the crime. A black t-shirt and two additional handguns were found just south of the Peabody Street home, where Lewis was found. Ballistic testing revealed markings on the spent shell casings from the crime scene matched the three [1292]*1292guns. However, no forensic evidence— from either bodily fluids or fingerprints— was able to be collected from the guns or bandanna. Although a mixture of DNA was obtained from the inside of the black t-shirt, Lewis was excluded as a contributor to the mixture. DNA testing revealed Lewis’s blood on Minor’s clothing.

¶ 7. Lewis was indicted on charges of capital murder and being a felon in possession of a firearm. After a trial in Hinds County Circuit Court, he was found guilty of the lesser-included offense of murder and not guilty of being a felon in possession of a firearm. He was sentenced to life in the custody of the Mississippi Department of Corrections. After his post-trial motion for a judgment notwithstanding the verdict or new trial was denied, Lewis filed this appeal.

DISCUSSION

¶ 8. A five-step process is used in cases where an indigent criminal defendant’s appellate counsel finds no arguable issues to raise on appeal. Lindsey, 939 So.2d at 748 (¶ 18). The five steps are as follows:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(l)-(4), (7); see also [Smith v.] Robbins, 528 U.S. [259,] 280-81, 120 S.Ct. 746, [145 L.Ed.2d 756 (2000)] (stating that “counsel’s summary of the case’s procedural and factual history, with citations of the record, both ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant’s success on appeal.
(5) Once briefing is complete, the appellate court must consider the ease on its merits and render a decision.

Lindsey,

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Bluebook (online)
140 So. 3d 1290, 2014 WL 2853766, 2014 Miss. App. LEXIS 353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-state-missctapp-2014.