AG Lynn Fitch Answer To Hinds DA Jody Owens' Amicus Brief

E-Filed Document Aug 16 2023 11:40:56 2022-KA-00988-COA Pages: 12
__________________________________________________________________
IN THE COURT OF APPEALS OF MISSISSIPPI

No. 2022-CA-00988-COA
ANTHONY GERALD FOX

Appellant
v.
STATE OF MISSISSIPPI
Appellee
ATTORNEY GENERAL’S RESPONSE TO

HINDS COUNTY DISTRICT ATTORNEY’S
AMICUS CURIAE BRIEF
This Court should reverse Anthony Fox’s culpable-negligence-
manslaughter conviction and render judgment in his favor. As the State

has explained, the evidence at trial was insufficient to sustain his
conviction. Appellee’s Brief 12–19 (State Br.). The Hinds County District
Attorney has filed a brief contesting the State’s arguments. That brief
gets the law wrong, the record wrong, and this case wrong. Officer Fox
never should have been convicted. This Court should reverse and render.
1. To start, the District Attorney gets the law wrong. The
controlling case here is Brown v. State, 304 So. 3d 692 (Miss. Ct. App.
2020), which reversed a culpable-negligence-manslaughter conviction on
sufficiency-of-the-evidence grounds. As the State has explained, all facts
that were material in Brown are the same here. State Br. 13–18. Like
Brown, Officer Fox engaged in a “singular act” that led to a lower-level

struggle and only superficial visible injuries. Id. at 16–17. Like Brown’s
case, this case involved nothing like Jackson v. State, 441 So. 2d 1382
(Miss. 1983), and Hawkins v. State, 101 So. 3d 638 (Miss. 2012), which
rejected sufficiency-of-the-evidence challenges where each defendant
engaged in an extensive struggle involving multiple blows to the victim
resulting in severe blunt-force trauma. State Br. 15–17. Like Brown, Fox
could not reasonably have foreseen that death was likely to follow from
an everyday effort to subdue a resisting, non-compliant suspect using
traditional non-lethal means. Id. at 17. Under Brown, then, the evidence
is insufficient to show that Fox acted with “wanton disregard of, or utter
indifference to, the safety of human life.” Ibid. So Fox’s culpable-
negligence-manslaughter conviction should be reversed. Id. at 17–18.
The District Attorney says that the State “clearly misapprehends”
Brown and that Brown’s holding is “wholly inapplicable” to this case. DA
Br. 11, 13; see id. at 11–15. According to the District Attorney, Brown,
Jackson, and Hawkins “all pertain to the causal relationship between the
defendant’s actions and the cause of the victim’s death, where the medical
cause of death is a collateral result of the defendant’s actions.” Id. at 13.
Unlike in those cases, the District Attorney says, here “there is no
2
collateral comorbid condition that caused the death”—George Robinson
died only of “multiple blunt force trauma to the head.” Ibid.
The District Attorney’s account of Brown, Jackson, and Hawkins is

flawed. Those cases are about culpability—what the evidence showed
about the defendant’s blameworthiness. To the extent that those cases
involved causation, they do not help the District Attorney. The key issue
in each case was whether the evidence allowed a rational juror to
conclude that the defendant acted with the culpability needed to
convict—for example, whether the defendant was doing something so

grievous that he should have reasonably foreseen that his conduct was
likely to cause death. Those cases’ teaching on that key issue requires
reversal here.
Start with Jackson. It turned on culpability. The court there was
asked to determine whether there was enough evidence to convict the
defendant of murder while engaged in a robbery. The prosecution claimed
at trial that the defendant robbed and beat the victim, who then died
from a fatal heart attack resulting from the trauma and stress of the
beating. 441 So. 2d at 1383. The prosecution put on evidence that the
room where the attack occurred was splattered with blood in a way that
showed an extensive struggle, that two eyewitnesses saw the struggle,
that the defendant was pulling the victim’s billfold from his pocket, and
that the defendant then fled. Ibid. The defendant’s claim was not that
there was insufficient evidence on causation: he did not argue that the
3
physical struggle was too remote from the fatal heart attack. His claim
was that the evidence did not show that he was culpable. He claimed that
he came upon the victim, found him lying on the floor splattered in blood,
and leaned down to help—and the victim then grabbed him, a struggle
ensued, and the victim tried to rob him. Ibid. Recognizing that the jury
accepted the State’s view and did not accept the defendant’s view, the
court ruled that the evidence was sufficient to support the conviction.
Ibid. Jackson turned on culpability—whether there was enough evidence
that the defendant had acted so egregiously that he committed murder.

There was such evidence: the evidence showed that he had committed a
robbery, that he had thus provoked an “extensive struggle,” and that he
had inflicted “several blows” on the victim that led to his death. Ibid.
In Hawkins, the key holding was also on culpability. True, the
Court briefly addressed a causation argument. 101 So. 3d at 642–43. It
rejected the argument that the State’s medical expert needed to establish
the cause of death with “medical certainty.” Ibid. But the court then
assessed whether the evidence was sufficient to uphold a depraved-heart-
murder conviction. See id. at 643. That analysis included a causation
piece (it noted that the victim died of a heart attack that was the direct
result of an assault). But the court was assessing the defendant’s
culpability—whether the evidence supported the conclusion that he had
acted with the level of blame needed to convict for depraved-heart
murder. Noting the severe trauma to the victim, the many injuries, the
4
defendant’s confession, and more, the court ruled that the evidence was
sufficient “to establish the elements of depraved heart murder”—which
is to say, all elements, not just causation. Ibid.; see id. at 644 (“In the
present case, sufficient evidence was before the jury to establish that the
defendant physically assaulted the victim, that the defendant’s actions
were eminently dangerous and evinced a depraved heart, and that the
victim’s heart attack resulted from Hawkins’s physical assault on [the
victim].”) (internal quotation marks and alterations omitted).
Brown’s treatment of Jackson and Hawkins accords with these

points—and it, too, concerns culpability. Brown emphasizes the level of
culpability the evidence showed in Jackson and Hawkins, given the
number of blows, the severe trauma, and the signs of extensive struggles.
304 So. 3d at 696. Brown does likewise on the facts before it—focusing on
the culpability of the conduct involved—in explaining why Brown was
not culpably negligent. See id. at 696–97. Although Brown gets into
matters of multiple causes (e.g., id. at 696, 697), it does so to get to the
defendant’s culpability—to assess whether the defendant could
reasonably have foreseen what was likely to happen if he acted as he did.
See id. at 696–97. Brown teaches that tragic things sometimes happen
when the effects of a physical struggle unite with someone’s health
issues, but a defendant is not liable for culpable-negligence manslaughter
unless he could reasonably have foreseen that his conduct would likely
lead to death. See ibid. The conduct in Brown—and the conduct here—
5
are examples where the defendant could not reasonably have foreseen
that his conduct would lead to death. So that conduct does not rise to the
culpability needed to convict. Causation matters here only in shedding

light on what Fox could reasonably have foreseen—and thus whether the
actions he then took rose to the level of wanton disregard. And on the
facts here, Fox could not have reasonably foreseen that an everyday law-
enforcement struggle would lead to Robinson’s death.
In sum, the District Attorney disregards the on-point teachings of
Brown, Jackson, and Hawkins. At no point in those cases did the

reviewing court state the causation rule that the District Attorney reads
into them. And those cases—most clearly Brown—confirm that Officer
Fox lacked the culpability needed to support a culpable-negligence-
manslaughter conviction. Like Brown, Fox attempted to subdue someone
who was possibly engaged in illegal activity and then resisted arrest. Like
Brown’s actions, Fox’s actions did not rise to the level required for a
culpable-negligence-manslaughter conviction. Like Brown’s conviction,
Fox’s conviction should be reversed. State Br. 12–18.
2. The District Attorney also gets the record wrong. The State
addresses only some of the District Attorney’s more notable errors here.
First, in trying to distinguish this case from Brown, the District
Attorney doubles down on the claim that Officer Fox “slammed”
Robinson’s head into the “concre[t]e” and “stomp[ed]” him. DA Br. 14; see
6
id. at 3, 9, 10, 13–14. This claim is aimed at ratcheting up the case for
Fox’s culpability. But the claim defies the record.
As the State has explained, the testimony that Fox “slammed”

Robinson’s head into concrete is not credible. State Br. 18–19. The wound
to Robinson’s head was a superficial abrasion no bigger than the size of
a thumbnail. Id. at 18. Any rational juror would know that if Robinson’s
head were slammed into the ground, he would not have had that sort of
wound. Id. at 18–19. The record defeats the District Attorney’s claim that
Robinson was slammed headfirst into concrete.

Similar points defeat the District Attorney’s reliance on the claim
that Fox “stomp[ed]” Robinson. DA Br. 9, 13–14. If that alleged stomping
was to the head, it would have produced a very different wound. Cf. State
Br. 18–19. So, if there was any kick at all, it was not to the head. And
such a blow to another part of Robinson’s body could not support
culpability for manslaughter where death resulted from a head injury: no
reasonable person would think that kicking someone’s body would
produce that result and there is no sound basis for thinking that it did
produce that result. Cf. ibid.; Tr. 171 (District Attorney’s Office
representing that there were “no other injuries to [Robinson’s] body [that]
caused his death” beyond the head injury). The only witness who claimed
to have seen an officer “stomp” Robinson was Bolton. Tr. 446–47. She did
not even identify Fox as the officer who allegedly hit him with his foot.
7
Tr. 446–47. Nor did she say where the alleged “stomp” landed. Tr. 446–
47. And her testimony was not credible anyway. State Br. 18–19.
Indeed, the record evidence on the matter defeats the District

Attorney’s claim of slamming or stomping. Dr. LeVaughn saw no type of
internal or external injury to Robinson’s chest, neck, or abdomen. Tr. 829.
He saw no sign that Robinson had been “beaten or kicked or body
slammed.” Tr. 845, 853. He agreed that a person on blood thinners would
be more likely to bleed than another person and that such a person would
have “more susceptibility to bruising upon an impact, even a minor

impact.” Tr. 844. But he saw no evidence of “chest injury,” “bruising to
the chest,” or “bruising to the shoulders or back.” Tr. 853.
Second, the District Attorney repeatedly claims that Robinson
sustained “at least three blunt injuries.” DA Br. 5, 14. In using that and
similar phrasing (e.g., “multiple blunt injuries,” id. at 5), the District
Attorney suggests that Fox inflicted multiple blows to Robinson’s head
and that the record shows that the amount of force was significant. The
record does not bear those suggestions out.
The evidence is clear that Robinson’s head hit the ground once,
resulting in three abrasions, only one of which was noticed by any witness
that night. Not until Dr. LeVaughn’s autopsy did anyone note three
separate abrasions: two above the right eye (on the forehead), and one on
the right side of the face next to the right eye. Tr. 816–17. Those
abrasions were “superficial injur[ies] to the skin surface ... caused by
8
contact with an object.” Tr. 817. Dr. LeVaughn’s testimony in toto
indicates one moment of impact that resulted in three superficial
abrasions. Even Arnold and Bolton’s testimony support only one impact
between Robinson’s head and the pavement. Tr. 387–88, 445–46. Neither
Arnold nor Bolton suggested that Fox repeatedly hit Robinson’s head
against the ground. And no witness who saw Robinson that night
testified to seeing more than one abrasion—not the officers, the EMT on
Jones Avenue, Johnson, or the EMTs at the hotel. The autopsy photos
show one larger abrasion on Robinson’s forehead, but the other two are
so small that they escaped notice of any eyewitness. Exs. S-7, D-2.
Third, the District Attorney attempts to divert attention from the
material, dispositive facts in this case. Under Brown, what matters here
is that Officer Fox engaged in a single act to secure Robinson in the face
of his possible wrongdoing and the danger he presented, that he did not
engage in an extensive struggle involving multiple severe blows to
Robinson, that he could not have reasonably foreseen that death was
likely to result from an everyday effort to subdue a resisting suspect
using traditional nonlethal means—and that he accordingly did not act
with the wanton disregard or utter indifference that defines culpable
negligence. State Br. 17–18.
Rather than accept the clear import of the material facts, the
District Attorney attempts not just to shift attention away from these
facts, but to shift focus to factual assertions that are unfounded. The
9
District Attorney hints at a police coverup that he never proved and that
has no basis in the verdict. E.g., DA Br. 9. The District Attorney claims
that Robinson was “partially paralyzed,” id. at 2—a claim that conflicts
with the only testimony on the subject. Tr. 420. And the District Attorney
fails to report facts that hurt his narrative. Though he notes, for example,
that Robinson’s autopsy-toxicology report showed only marijuana, DA Br.
3, he fails to note that a toxicology screen taken upon admission to
UMMC returned a positive result for cocaine use—a fact supporting the
officers’ claims that Robinson ate something that he was hiding while
resisting arrest. Tr. 822, 1345; Ex. D-4 at 14.
This effort to divert the Court’s attention from the material facts
that decide this case—and to do so based on unfounded factual claims—
confirms that the verdict here is insupportable and should be reversed.
3. The State has explained that, even independent of Brown, Fox’s
conviction cannot stand because it rests on the insupportable claim that
Fox threw or “body slammed” Robinson. State Br. 18–19. Rather than
confront that point, the District Attorney repeatedly embraces the view
that Fox “slammed” Robinson “into asphalt head first.” DA Br. 13; id. at
3, 9, 10, 13–14. The District Attorney does not try to square this repeated
assertion with the experience of any rational juror. It has no basis in the
record—and is so preposterous that it shows that the District Attorney’s
star witnesses were not credible. This unrebutted point provides an
independent basis to reverse and render. State Br. 18–19.
10
* * *
The record speaks to a struggle between officers and a resisting,
noncompliant suspect. That common law-enforcement engagement

cannot support a culpable-negligence finding. The evidence is insufficient
as a matter of law to sustain Fox’s conviction. The District Attorney’s
contrary view lacks merit. The conviction should be reversed and
judgment rendered in Fox’s favor.
LYNN FITCH
Attorney General of Mississippi
CASEY B. FARMER
Special Assistant Attorney General
Mississippi Bar No. 104435
P.O. Box 220
Jackson, Mississippi 39205-0220
Telephone: (601) 359-2866
Email: [email protected]
Counsel for Appellee
11
CERTIFICATE OF SERVICE
I, Casey B. Farmer, certify that I have electronically filed this

document with the Clerk of the Court using the MEC system, which sent
notification to all counsel of record, and mailed, via U.S. Mail, postage pre-
paid to the following:

Honorable Adrienne Wooten
Circuit Judge
P.O. Box 327
Jackson, MS 39205
Honorable Jody Owens

District Attorney
P.O. Box 22747
Jackson, MS 39225-2747
Merrida (Buddy) Coxwell, Esq.

Charles R. (Chuck) Mullins, Esq.
Courtney Denise Sanders, Esq.
P. O. Box 1337
Eugene Carlos Tanner III

P.O. Box 3709
THIS, the 16th day of August, 2023.
LYNN FITCH
Attorney General of Mississippi
/s/ Casey B. Farmer

CASEY B. FARMER
Special Assistant Attorney General
Counsel for Appellee
12

AG Lynn Fitch Answer To Hinds DA Jody Owens' Amicus Brief

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E-Filed Document Aug 16 2023 11:40:56 2022-KA-00988-COA Pages: 12

IN THE COURT OF APPEALS OF MISSISSIPPI

ANTHONY GERALD FOX

ATTORNEY GENERAL’S RESPONSE TO

This Court should reverse Anthony Fox’s culpable-negligence-

manslaughter conviction and render judgment in his favor. As the State

Brown, Officer Fox engaged in a “singular act” that led to a lower-level

The District Attorney’s account of Brown, Jackson, and Hawkins is

convict—for example, whether the defendant was doing something so

that the defendant had acted so egregiously that he committed murder.

Brown’s treatment of Jackson and Hawkins accords with these

culpability needed to convict. Causation matters here only in shedding

Brown, Jackson, and Hawkins. At no point in those cases did the

As the State has explained, the testimony that Fox “slammed”

Robinson was slammed headfirst into concrete.

Indeed, the record evidence on the matter defeats the District

have “more susceptibility to bruising upon an impact, even a minor

noncompliant suspect. That common law-enforcement engagement

I, Casey B. Farmer, certify that I have electronically filed this

paid to the following:

Honorable Jody Owens

Merrida (Buddy) Coxwell, Esq.

Eugene Carlos Tanner III

THIS, the 16th day of August, 2023.

/s/ Casey B. Farmer

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