OF JUDGMENT: 10/20/2016
COUNTY CIRCUIT COURT HON. VERNON R. COTTEN
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
DISTRICT ATTORNEY: MARK SHELDON DUNCAN
LEE, C.J., FAIR AND GREENLEE, JJ.
Eddie Davis was convicted of possession of methamphetamine
after he was caught with it clutched in his hand during a
traffic stop. At trial, Davis unsuccessfully contested the
legality of the traffic stop before essentially admitting to
the offense while testifying in his own defense. On appeal,
Davis is represented by the Office of the State Public
Defender, and his appointed appellate counsel has filed a
Lindsey brief stating that she cannot find any
arguable issues to support an appeal. See Lindsey v.
State, 939 So.2d 743, 748 (¶18) (Miss. 2006).
In Lindsey, the Mississippi Supreme Court set out
the procedure to be followed when a defendant's attorney
does not find any arguable issues to support an appeal.
Id. Appellate counsel must file a brief showing that
counsel has thoroughly reviewed the record and has found
nothing to support an appeal. Counsel must then send the
defendant a copy of the brief, informing the client that
counsel found no arguable issue for an appeal, and counsel
must advise the client of his right to file a pro se brief.
Id. If the defendant raises any arguable issue in
his pro se brief, or if the appellate court finds any
arguable issues upon its independent review of the record,
the appellate court must, if circumstances warrant, require
counsel to file supplemental briefing on the issue.
Davis's attorney filed a brief indicating that she
diligently searched the procedural and factual history of
this action and scoured the record, searching for any
arguable issues that could be presented in good faith, but
she found none. Davis's attorney asserts that she
examined: (1) the reason for Davis's arrest and the
circumstances surrounding the arrest; (2) any possible
violations of Davis's right to counsel; (3) the entire
trial transcript and contents of the record; (4) all rulings
of the trial court; (5) possible procedural misconduct; (6)
all jury instructions; (7) all exhibits, whether admitted
into evidence or not; (8) possible misapplication of the law
in sentencing; (9) the indictment and all the pleadings in
the record; (10) any possible
ineffective-assistance-of-counsel issues; and (11) whether
the verdict was supported by the overwhelming weight of the
evidence. Lindsey, 939 So.2d at 748 (¶18)
Davis's attorney complied with Lindsey's
requirements. She examined the record and found no arguable
appellate issues. The attorney sent a copy of the
Lindsey brief to Davis, stating that, while she
found no arguable issues, Davis had the right to file a pro
se supplemental brief. Davis did not submit a supplemental
brief - instead, he filed a letter addressed to his attorney,
stating that he did not know how to write a brief. The letter
contains what might be called a draft of a brief, but it is
little more than an unsworn narrative explaining Davis's
side of the story. The account is substantially consistent
with his testimony at trial, though it is more detailed.
Essentially, Davis contends that the officer who pulled him
over had a grudge against him and lied about the
circumstances of the stop.
This letter contains no structured legal argument and no
citations to authority. Mississippi Rule of Appellate
Procedure 28(a)(7) requires that assignments of error must be
supported by "the reasons for those contentions, with
citations to the authorities, statutes, and parts of the
record relied on." Arguments that do not comply with
this rule are procedurally barred. Cowart v. State,
178 So.3d 651, 666 (¶39) (Miss. 2015). And "[w]hile
pro se litigants are afforded some leniency, they must be
held to substantially the same standards of litigation
conduct as members of the bar." Sumrell v.
State, 972 So.2d 572, 574 (¶6) (Miss. 2008)
(citation omitted). Davis's brief fails to adequately
raise any issues for consideration on appeal.
Moreover, the record reflects that a suppression hearing was
held, during trial but out of the presence of the jury, in
which the officer testified as to the circumstances of the
stop. The officer did not deny knowing Davis, though he
testified that he only recognized Davis after the stop had
been initiated. He was also unequivocal in his testimony that
he had probable cause for the stop - Davis's license
plate lacked working illumination as required by Mississippi
Code Annotated section 63-7-13(3) (Rev. 2013). After Davis
was pulled over, he was found to be driving with a suspended
license and without proof of insurance. When the officer
asked Davis to step out of the vehicle, he observed that
Davis was attempting to conceal a plastic bag in his hand.
The officer took the bag and observed a crystalline substance
inside. The substance was subsequently tested by a laboratory
and found to be crystal methamphetamine.
Davis testified in his own defense, but he did not testify at
the suppression hearing. So, at the time of its decision, the
circuit court had before it only the officer's account.
The officer's account was internally consistent and not
facially improbable or unbelievable. It described a legal
traffic stop, a legal search, and a legal seizure of the