William Brady Foster v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-KA-00326-COA

WILLIAM BRADY FOSTER A/K/A BRADY APPELLANT
FOSTER

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 02/02/2016
TRIAL JUDGE: HON. FORREST A. JOHNSON JR.
COURT FROM WHICH APPEALED: FRANKLIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
DISTRICT ATTORNEY: RONNIE LEE HARPER
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF A
WEAPON BY A CONVICTED FELON AND
SENTENCED AS A HABITUAL OFFENDER
TO TEN YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITHOUT ELIGIBILITY
FOR REDUCTION, SUSPENSION, PAROLE,
OR PROBATION
DISPOSITION: AFFIRMED - 05/30/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.

WESTBROOKS, J., FOR THE COURT:

PROCEDURAL HISTORY

¶1. William Brady Foster was indicted in the Circuit Court of Franklin County on one

count of burglary of a dwelling and one count of being a felon in possession of a firearm.
After a jury trial, Foster was acquitted of burglary in Count I, but convicted of being a felon

in possession of a firearm in Count II. Foster was sentenced as a habitual offender to ten

years in the custody of the Mississippi Department of Corrections, without eligibility for

reduction, suspension, parole, or probation. Foster was also ordered to pay all court costs and

fees, including a $200 prosecution fee.

¶2. Foster filed a posttrial motion for a judgment notwithstanding the verdict (JNOV) or,

in the alternative, for a new trial. The trial court denied his motion, and Foster timely

appealed. After review of the record, we affirm.

FACTS

¶3. On September 17, 2015, Lance Moak noticed his air-conditioning unit had been

removed from his bedroom window, and the television set in his bedroom was missing.

Upon further inspection, Moak noticed the back door of his house ajar. His rifle and sawed-

off shotgun were missing. The cabinets where he kept his ammunition were ajar, and a

drawer in another room appeared to have been rummaged through. Moak noticed a

television missing from another room in his home. Moak called the Franklin County

Sheriff’s Department.

¶4. At that time, David Blackwell was an investigator with the Franklin County Sheriff’s

Department. As part of the investigation, Blackwell testified he went to the home of Josh

and Jake Smith based on a call he received from the Lincoln County jail regarding the

burglary of Moak’s home. Josh and Jake were in the custody of the Lincoln County jail

during that time and spoke with Blackwell regarding Foster and the burglary. Blackwell

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testified that he discovered Moak’s stolen property in an abandoned house next door to the

Smiths’ residence. At that time, Foster was staying with Josh, Jake, and their mother, Janet

Smith. Blackwell searched the trailer and observed a sawed-off shotgun hanging over the

top of the bed in a back room. Blackwell also learned that Foster, a convicted felon, stayed

in the back room with his girlfriend, Lakeisha Rollins, when he slept there.

¶5. Josh and Rollins testified that Foster had a shotgun in his possession when he picked

up Rollins one day in a white pickup truck that Foster had borrowed from his father.

However, Foster testified he never had a sawed-off shotgun, because he was not allowed to

have a gun. Foster also testified he knew of guns being in the Smiths’ residence while he

was there; however, he was not around the gun because of his prior felony convictions.

¶6. Following a jury trial, Foster was acquitted of burglary, but convicted of the crime of

being a felon in possession of a firearm. He was sentenced as a habitual offender to serve

a term of ten years in the custody of the Mississippi Department of Corrections, without

eligibility for reduction, suspension, parole, or probation. After the denial of Foster’s

posttrial motion for a JNOV or new trial, he timely appealed.

¶7. Foster’s counsel filed a brief pursuant to Lindsey v. State, 939 So. 2d 743 (Miss.

2005), asserting he diligently searched the procedural and factual history of this criminal

action and found no arguable issues for review. Foster’s counsel requested the Court grant

Foster thirty days of additional time to file a pro se brief, if Foster desired to do so. In July

2016, this Court entered an order giving Foster an additional forty days to file a pro se

supplemental brief. No such brief has been filed to date.

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¶8. The State agrees there are no appealable issues before this Court. Finding no error,

we affirm the judgment of the circuit court.

DISCUSSION

¶9. “In Lindsey, [the Mississippi Supreme Court] outlined a procedure that appellate

counsel must follow when they determine that there are no appealable issues in the record.”

Allred v. State, 130 So. 3d 504, 506 (¶6) (Miss. 2014) (citing Lindsey, 939 So. 2d at 748

(¶18)). The court stated as follows:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of
Appellate Procedure 28(a)(1)-(4), (7); 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 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 case on its
merits and render a decision.

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Allred, 130 So. 3d at 506-07 (¶6) (internal citations omitted) (quoting Lindsey, 939 So. 2d

at 748 (¶18)).

¶10. This Court finds that Foster’s attorney complied with all the requirements of Lindsey.

Counsel’s brief states he “diligently searched the procedural and factual history of this

criminal action and scoured the record searching for any arguable issues which could be

presented to the Court on Foster’s behalf in good faith for appellate review.” Counsel asserts

he reviewed: (a) the reason for the arrest and the circumstances surrounding Foster’s arrest;

(b) any possible violations of Foster’s right to counsel; (c) the entire trial transcript and

content of the record; (d) all rulings of the trial court; (e) possible prosecutorial misconduct;

(f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; (h) possible

misapplication of the law in sentencing, including the constitutionality of Foster’s sentence;

(i) the indictment and all of the pleadings in the record; (j) any possible ineffective-

assistance-of-counsel issues; (k) any potential discovery violations; and (l) the sufficiency

of Foster’s sentence as a habitual offender. Counsel also states he mailed Foster a copy of

the brief, a copy of the trial transcript, and correspondence informing Foster that counsel

found no arguable issues in the record. Counsel also informed Foster that he had a right to

file a pro se brief, and requested that this Court grant Foster thirty days of additional time to

file a pro se brief, if he desired to do so. The Court did not receive a pro se brief from Foster.

¶11. After reviewing the record, this Court finds that there is sufficient evidence to support

Foster’s conviction. Foster was convicted of possession of a weapon by a convicted felon.

The indictment also contained an enhancement for habitual-offender status.

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¶12. Mississippi Code Annotated section 97-37-5 (1) (Rev. 2014) states:

It shall be unlawful for any person who has been convicted of a felony under
the laws of this state, any other state, or of the United States to possess any
firearm or any bowie knife, dirk knife, butcher knife, switchblade knife,
metallic knuckles, blackjack, or any muffler or silencer for any firearm unless
such person has received a pardon for such felony, has received a relief from
disability pursuant to Section 925(c) of Title 18 of the United States Code, or
has received a certificate of rehabilitation pursuant to subsection (3) of this
section.

¶13. Further, Mississippi Code Annotated section 99-19-81 (Rev. 2015) states:

Every person convicted in this state of a felony who shall have been convicted
twice previously of any felony or federal crime upon charges separately
brought and arising out of separate incidents at different times and who shall
have been sentenced to separate terms of one (1) year or more in any state
and/or federal penal institution, whether in this state or elsewhere, shall be
sentenced to the maximum term of imprisonment prescribed for such felony,
and such sentence shall not be reduced or suspended nor shall such person be
eligible for parole or probation.

¶14. The State had to show that Foster was in possession of a firearm, and that he had prior

felony convictions.1 At trial, the State presented testimony from multiple witnesses who saw

Foster in possession of a firearm. Rollins, Foster’s girlfriend at that time, testified Foster was

in possession of a gun while picking her up in a white pickup truck. She also testified she

saw Foster in possession of a sawed-off shotgun. Genette Racliff, a witness at trial, testified

she called Foster’s father to report she saw Foster pull what looked like a gun from the back

of his truck. However, she did not know for certain. Jake and Josh testified that Foster and

Rollins lived with them and their mother during a period of time, and that they saw a shotgun

in the room where Rollins and Foster stayed. Josh also testified he saw a rifle at his home,

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Since Foster was acquitted of burglary, this Court only analyzes the testimony
relating to the charge of felon in possession of a firearm.

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although neither brother could testify as to who brought the guns into their residence. Janet

testified she witnessed Foster bring a shotgun into her home. Blackwell testified he saw a

sawed-off shotgun hanging over the top of the bed in a bedroom in the Smiths’ home while

investigating the burglary. He further testified that he learned that Foster and Rollins utilized

that particular bedroom when they stayed there. Finally, Foster admitted that he stayed in a

home with guns, although he denied he was in actual possession of those guns.

¶15. After Foster was convicted of possession of a weapon by a convicted felon, the court

held a separate habitual-status hearing before sentencing. Certified copies of his guilty plea

and sentencing order were submitted showing Foster was found guilty of accessory after the

fact to burglary of a storehouse by the Circuit Court of Franklin County in February 2011.

Also, certified copies of his guilty plea and sentencing order were submitted showing Foster

was found guilty of burglary of a storehouse by the Circuit Court of Franklin County in

February 2013. Without objection from Foster’s counsel, the circuit court found Foster to

be a habitual offender pursuant to section 99-19-81.

¶16. After review of the record, this Court finds the conviction should be affirmed. The

State submitted sufficient evidence to convict Foster under section 97-37-5, and to sentence

him under section 99-19-81. Further, we find that Foster’s counsel complied with the

Supreme Court’s holding in Lindsey in submitting his brief.

¶17. THE JUDGMENT OF THE FRANKLIN COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF A WEAPON BY A CONVICTED FELON AND
SENTENCE AS A HABITUAL OFFENDER OF TEN YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY
FOR REDUCTION, SUSPENSION, PAROLE, OR PROBATION, IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO FRANKLIN COUNTY.

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LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
WILSON AND GREENLEE, JJ., CONCUR.

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