Decisions – Ct. of App. – June 10, 2014 – part one

Busby v. State –  Busby was convicted in Harrison County on one count of auto burglary and one count of auto theft.  On appeal, his attorney argued that the evidence was insufficient.  Busby filed his own brief arguing 1) ineffective assistance of counsel; 2) prosecutorial misconduct; 3) confusion regarding two jury instructions and error in denying him a continuance so that he could get new counsel.  Oscar Sanzin’s truck was reported stolen.  A bolo went out and an officer spotted the truck with Busby driving it.  When he tried to stop the truck, Busby sped away.   When Busby was finally stopped, he was found to have a debit card belonging to Von Pittman.  

On appeal, his attorney argued that the evidence that he was in possession of the truck and debit card was insufficient to prove he stole them.   The Court analyzes the factors in Shields v. State, 702 So.2d 380, 382 (Miss. 1997) and finds the evidence sufficient. As far as prosecutorial misconduct, Busby argued that part of  the indictment that listed his prior convictions for habitual offender status.  However, Busby’s trial counsel did not object.  Busby offered no argument with regard to the two jury instructions and  there is nothing in the record concerning any request for a continuance.

Floyd v. State – Floyd was sentenced to serve 60 years as an habitual offender after being found guilty of possession with intent to distribute.  The Gulfport Police Department received an anonymous  call claiming Floyd was storing and selling cocaine out of his apartment.  Officers followed Floyd when he left the house and stopped him when they learned his license was suspended.    When officers approached the car, Floyd was seen with a white powder on his mouth and the seats.  There was also a clear plastic bag with a white residue.  Officers got a search warrant for the apartment and scales, cocaine, various documents with Floyd’s name on them.  FLoyd’s sister told officers the apartment was hers and she stayed there with her four children and Floyd.  At trial she testified that Floyd had moved out when he was stopped.

On appeal Floyd argues that the judge erred in denying an instruction  on constructive possession.  The Court notes that the jury was given the model instruction at the state’s request and that the model instruction was sufficient to inform the jury that it must find that Floyd was aware of the presence and character of the thing. Floyd also argued that the court erred in allowing the jury to hear that Floyd was convicted of transfer of a controlled substance previously.  The Court of APpeals found it was not an abuse of discretion to allow this evidence in order to show intent.  Moreover, the judge gave a limiting instruction.  The Court finds Floyd’s sufficiency and wight arguments to be meritless.   Finally, Floyd challenges the sufficiency of the evidence to prove that he was an habitual.     Here, the state had to prove that Floyd had been convicted of two prior charges separately arising out of separate incidents at separate times.  However, the state only showed that Floyd had pleaded  guilty on the same day  to three counts of transfer of a controlled substance and was sentenced to three concurrent terms.  THis was insufficient to show that the charges arose out of separate incidents.  Therefore, Floyd’s habitual status was reversed and vacated.  On remand the  state is not to have another chance to prove that Floyd was an habitual 

Price v. John Pereira as Chapter 7 Trusteeenrollment of foreign judgments –  this started as an enrollment of a judgment out of a NY bankruptcy proceeding. Price argued that the Bankruptcy Court’s judgment was not entitled to full faith and credit because of due process (procedural) errors in the bankruptcy proceeding.  The Miss. Ct. of Appeals affirms the trial court’s grant of summary judgment for the bankruptcy trustee  denying Price’s claims that the judgment was procured by fraud and misrepresentations.


In the Matter of the Estate of Amanda Cleveland v. Heritage Properties –    workers comp. – Amanda Cleveland managed an apartment complex. In 2000, she alleged that she was  injured when a filing cabinet fell on her.  She filed for disability benefits for a closed head injury and mental injury.  While her claim was pending she died from a drug overdose.  Her mother then amended the petition seeking death benefits. In 2006, the ALJ denied disability and death benefits.  The full commission affirmed as did the circuit court on appeal. 

The Ct.of Appeals affirms citing, among other things,  her extensive preexisting psychological issues.   Her father sexually abused her between the ages of 10 and 13, her boyfriend was murdered in 1993, and she suffered from drug and alcohol abuse.  When she was allegedly injured by the filing cabinet, she had been  alone in her office with her boyfriend Ron Allen who himself was supposedly injured at some point by a falling filing cabinet. Allen lefty the room.  Cleveland’s  assistant was in the next room.  She heard a  loud crash and scream, and opened the door to find Cleveland on the ground under the cabinet.  When the cabinet was lifted, the assistant saw no cuts or bruises on Cleveland but  Cleveland insisted that Allen be called.  Cleveland was then taken by ambulance to CMMC.   

John Jackson v. State – pro se pcr from guilty plea –  Jackson pleaded guilty to one count of possession of a controlled substance with intent to distribute with the charge enhanced because he possessed a firearm.   He was sentenced to 45 years to run concurrently with a separate charge.  In 2012, he filed a PCR motion alleging that his guilty plea was involuntary because his attorney failed to tell him that if he pleaded guilty he would be ineligible for parole. The trial court summarily denied the petition.  Johnson appeals and the Court reverses and remand holding that Johnson was entitled to a hearing in which to prove his claims.  Judge Carlton writes with regard to  ineffectiveness and guilty pleas and that misinformation with regard to parole eligibility may invalidate a plea.  If Johnson’s claims are correct, he was given erroneous advice which would mean his plea was neither knowing or voluntary.     

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