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Moore v. State

Court of Appeals of Mississippi

April 10, 2018

GEROME MOORE A/K/A GEROME MONTREAL MOORE, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

          DATE OF JUDGMENT: 06/21/2016

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. JEFF WEILL SR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN

          DISTRICT ATTORNEY: ROBERT SHULER SMITH

          BEFORE IRVING, P.J., BARNES AND WILSON, JJ.

          BARNES, J.

         ¶1. Gerome Moore was confined at the Hinds County Detention Center in Jackson, Mississippi, following his arrest for capital murder and carjacking. On May 3, 2015, Officer Willie Brown of the Jackson Police Department was driving from the jail when he spotted "three juveniles"-later identified as Moore and fellow inmates, Antwain Dukes and William Smith-running from the detention center. Brown radioed for assistance and began following the men in his vehicle. Officer Frederick Reginald was in the area and heard the call. He spotted one male, who had already been detained, and was informed the group had split up. Soon thereafter, Officer Reginald and another officer pulled over near the city barn and encountered a second inmate, Moore, lying in a nearby grassy area. Moore was apprehended and returned to custody.

         ¶2. In the meantime, Captain Charles Felton of the Jackson Fire Department went to the detention center, responding to a report of a fire. He determined the fire was a result of arson inside Smith's cell. Clothes and exposed wires had been used to start a fire, and petroleum jelly was applied around the cell window, which aided the fire from the burning clothes to melt the adhesive around the window. A lighter was also discovered on the ground level of the building in close proximity to where the inmates were seen.

         ¶3. Moore was indicted on October 28, 2015, for one count of felony escape and one count of malicious mischief. A jury trial was held in Hinds County Circuit Court, First Judicial District, on May 17, 2016. To keep the jury from hearing that Moore was in custody for capital murder and carjacking, the parties stipulated to the fact that Moore "was lawfully in the custody of the Hinds County Detention Center, being held on a felony charge." This stipulation was read to the jury after opening statements. Although acquitted of the charge for malicious mischief, Moore was convicted of felony escape and sentenced to a term of five years in the custody of the Mississippi Department of Corrections.

         ¶4. No post-trial motion for a judgment notwithstanding the verdict (JNOV) or for a new trial was filed. But on August 28, 2016, Moore's trial counsel filed a motion for leave to file an out-of-time appeal, which the circuit court granted, and Moore filed his notice of appeal on September 14, 2016.

         DISCUSSION

         ¶5. Moore is represented on appeal by the Indigent Appeals Division of the Office of the State Public Defender, and appellate counsel has filed a Lindsey brief stating he cannot find any arguable issues to support an appeal. In Lindsey v. State, 939 So.2d 743 (Miss. 2006), the Mississippi Supreme Court outlined the following procedure for when appellate counsel determines there are no appealable issues in the record:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1)-[(5), (8)]; see also [Smith v.] Robbins, 528 U.S. [259, 280-81 (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 ...

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