IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-01751-COA EARNEST BELL A/K/A ERNEST BELL A/K/A EARNEST BELL, JR. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/12/2016 TRIAL JUDGE: HON. JOSEPH H. LOPER JR. COURT FROM W HICH APPEALED: MONTGOMERY COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE DISTRICT ATTORNEY: DOUG EVANS NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED: 02/20/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Ernest Bell w as convicted of attem pted f elony m otor-vehicle thef

t. Bell h as a

ppealed, and his counsel has f

iled a brief

pursuant to L indsey v. State , 939 So. 2d 743 (Miss. 2005). His counsel states he has searched the record but was unable to f ind any arguable issues f

or appellate r eview. Bell w as given the o pportunity t o, but did not, f ile a pro se brief

. W e f ind no error and af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Otis Davis owned a red 1998 Pontiac G rand Prix, which he purchased f or $1,500. Onthe m orning of July 21, 2015, Otis locked and parked the vehicle on the side of Thom pson Road near h is j ob site. T hat af t ernoon, Oeisha Davis, Otis’s daughter, w as driving on Highway 8 2, crossing over onto Thom pson Road, when she saw a black vehicle parked near her f ather’s Grand Prix. As she approached, Oeisha saw a m a n em erge f r om the driver’s side of Otis’s car. W hen s he asked w hat he was doing, the m an responded, “Mike sent m e.” At that point, Oeisha’s m other, Mary T u r n e r , p u l led up t o the scene. W h en Mary arrived, Oeshia saw the passenger-side door of Otis’s car open and a “taller guy ” em erge f rom the Grand Prix. Both m en subsequently drove of f in the black vehicle. ¶3. Oeisha called the police. She gave a description and the l icense-plate num ber of the vehicle, as well as the direction the vehicle was headed. W hen Oeisha looked into the Grand Prix, she saw an object, later identif i ed as a ham m er, on the passenger-side f loor. She also noticed dam age to the steering colum n. ¶4. Mary lives on Thom pson Road. She w as headed towards H ighway 82 when she saw her daughter s topped on the side of the road near Otis’s car. W hen Mary approached the Grand Prix, she saw a m an exit the driver’s side of Otis’s vehicle and another m an exit the
passenger side. According to M a ry , the m an who exited the passenger side y elled, “let’s go,” and the two m en lef

t the scene in a black vehicle. Mary testif ied that the m an she saw exit the p assenger side of the G rand Prix was driving the black vehicle. She f urther testif

ied that the black vehicle had a Lef lore County

tag. ¶5. Mary testif

ied t h a t she saw “wrenches” inside the Grand Prix and noticed that the steering wheel w as b r oken. She was presented a p hoto l ine-up, and she identif i ed Bell as the

2m an she saw em erge f rom the passenger side o f Otis’s Grand Prix. Mary a l so identif ied a photograph of

the Grand Prix and said that it was the vehicle Bell exited. ¶6. Deputy Jim B urton wi t h t h e M o ntgom ery County Sherif f ’ s Of f ice w as inf

orm ed of

an autom obile break-in. Based on the description and license-plate num ber of the vehicle,
Burton located a nd stopped the vehicle t hat Bell w as driving. Burton then arrested Bell and

a m ale passenger. ¶7. At the sherif

f ’s of f ice, Bell was advised of his Miranda rights. Bell signed a waiver of those rights a nd gave a recorded statem ent. The recorded statem ent was adm itted into evidence and play ed f

or the jury

. In the statem e nt, Bell explained that he saw the Grand Prix

on the side of the road and parked his vehicle so that his passenger could get out a nd look at the car. Bell adm itted he was there when Oeisha and Mary arrived. However, Bell denied talking to them

and denied being in the Grand Prix or using a ham m er to dam age the car. ¶8. Otis testif

ied that he o ccasionally parked his car on the side of Thom pson Road when he went to work. Otis stated his car was not f or sale and did not have a “f or sale” s ign on it. Otis f urther st a t e d t h a t h e d id not call any one to com e get t he car a nd that no one had
perm ission to enter his locked v ehicle. Otis a l s o t e s t i f i e d that he d id not own the ham m er f ound in his car, he had never seen the ham m er bef ore, and he did not leave the h am m er in his car. Otis testif

ied that, although there was no sign of f orced entry , h is c a r was “tore up” on the inside. ¶9. Bell testif

ied at trial. B ell explained that he bought and r e p aired v ehicles, and he would then resell the vehicles f o r p r o f i t

. Bell told the j ury that he “wasn’t try i ng to steal

3[ Otis’s] car.” Instead, he s t o p p e d t o s e e whether the vehicle was f or sale. H owever, Bell acknowledged that there was no “f or sale” sign on the Grand Prix. ¶10. Af ter the jury returned a guilty verdict, Bell was s entenced a s a habitual of f ender pursuant t o Mississippi Code Annotated section 9 9

- 1 9

- 8 1 ( R ev. 2014) to f ive y e ars in the custody of the Mississippi D epartm ent of Corrections. Bell s ubsequently f iled a m otion f

or

a j u d g me n t notwithstanding the verdict o r, alternatively , a new trial. The m otion was denied, and Bell tim ely

appealed. ANALYSIS ¶11. In Lindsey , the Mississippi Suprem e Court im plem ented the f

o llowing procedure f

or

cases where appellate counsel does not believe any arguable issues exist f or appellate review: (1) Counsel m

ust f ile and serve a brief in com pliance with Mississippi Rule of Appellate Procedure 28(a)(1)-[ (5), (8)]. (2) As a part of the brief f i l e d in com

pliance with Rule 2 8, counsel m ust certif y that there a re n o arguable issues supporting the client’s appeal, and he or she has reached this conclusion af ter scouring t h e r e cord thoroughly , specif i cally exam ining: (a) the reason f or the arrest an d t h e circum s t ances surrounding the arrest; (b) any possible vi o l a t ions of t he client’s r ight to cou n s e l ; (c) the e ntire trial transcript; ( d) all r ulings of the trial court; ( e) possible p r osecutorial mi s c onduct; (f ) all jury i nstructions; (g) all e xhibits, whether adm itted into evidence or not; and (h) possible m i sapplication o f the law in sentencing. (3) Counsel m

ust then send a copy of the a ppellate b r i e f t o the def

endant, inf orm the client that counsel could f ind n o arguable issues in the record, and advise the client of

his or her right to f

ile a pro se brief

. (4) Should the def

endant then raise any a rguable issues or should the appellate c o u r t discover any arguable issue in its review of the record, the cour t mu s t , if circums t a n c e s warrant, require appellate counsel to subm i t supplem ental brief ing on the issue, regardless of the probability o f the def endant’s success on appeal.

4(5) Once brief ing i s com

plete, the appellate court m ust consider t he c ase on the m erits and render a decision. Lindsey , 939 So. 2d at 748 (¶18) (internal citations om i tted). ¶12. Here, Bell’s counsel f iled a brie f i n c o m

p liance with Rule 28 and said that he had “diligently searched t he procedural and f a c tual history

. . . a n d scoured the record” but was unable to f

ind any arguable issues that he could present in good f aith f o r appellate review. Further, Bell’s counsel claim e d t hat he h a d “ s c rupulously ” reviewed the entire record and transcript and considered the f ollowing: (a) the weight and suf f iciency of the evidence, (b) speedy

- trial issues, (c) challenges of jurors f or cause, (d) a ll rulings o f the trial court, (e) possible i ssues of i nef

f e ctive assistance of c ounsel, (f ) all jury instructions, (g) the adm ission of all evidence and e xhibits, (h) t he indictm ent, and (i) s entencing. Although Bell’s counsel d id not specif

ically assert t hat he had exam ined the reason f or and the circum sta n c e s surrounding Bell’s arrest or p o ss i b l e p rosecutorial m i sconduct, he did say that he had reviewed the procedural a nd f ac t u a l h i s tory of t he case, as well as the indictm ent and transcript. Bell’s c ounsel specif ically c o n c l u d e d that, pursuant t o Lindsey , he f ound no arguable issues f

or appellate review. ¶13. Bell’s counsel sent a copy of the brief t o B e l l and inf orm ed Bell that although he f ound no arguable issues in t he record, Bell h ad the right to f ile a pro se brief

. T he record shows Bell was given f

orty day s, but did not f

ile a brief

. ¶14. W e have independently reviewed the record. W e f ind no a rguable issues that require supplem ental brief

i ng or f u rther review. W e theref ore af f irm the judgm ent. ¶15. AFFIRMED.

5LEE, C . J . , I R V I N G , P . J . , B A R

N E S , C A R L T O N , F A I R, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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