Decisions – Miss.Ct. App. – Oct. 7, 2014 – part 1

White v. State –  agg. assault instr. – White was convicted of agg. assault and simple assault of a person over 65 and sentenced to 20 years and 5 years consecutively and without parole as an habitual. On appeal he argues the court erred in giving instruction S-1 which he claimed had excessive and irrelevant language in that it included elements for the lesser offense of simple assault.  The court finds the issue procedurally barred because it was not objected to at trial,  Nor did it rise to the level of plain error.

1984 Chevy Camaro and $265 v. Lawrence Co. Sheriff’s Office –  forfeiture – Jones was arrested in 2002 for possession 6.2 grans of cocaine.  The sheriff notified Jones it intended to confiscate Jones’ Camaro and $265.  For ten years thereafter, Jones filed motions contesting the forfeiture. The original trial of the forfeiture was delayed while Jones served six years on the cocaine charge. Eventually, the court notified Jones that the case had been set for May by order but because notice of that setting had not been mailed to Jones, it was being reset for December 2012. The court further informed Jones that he had a right to retain counsel, but that the court had no obligation to transport him to his civil proceeding. When the case was called on . On December 10, 2012, when the case was called,  Jones was not present. and the Court found for the county without the county having to put on any evidence.  Jones appealed and the Miss. Court of Appeals reverses.

“The judge erred in classifying Jones as the plaintiff in this action and therefore improperly dismissed Jones’s petition with prejudice for failure to prosecute. The County provided Jones its notice of intent to pursue an administrative forfeiture unless Jones objected within thirty days. Jones filed his objection within that time. Therefore, the County has been “put to its proof” and must show by a preponderance of the evidence that Jones’s property should be forfeited, assuming that the consideration of the Barker factors does not require dismissal of the County’s claim for the vehicle and the money. See Miss. Code. Ann. § 41-29-179(2) (Rev. 2013). And, if the court does hold a forfeiture hearing, it should employ the four-element proportionality test adopted by the Mississippi Supreme Court in One (1) Charter Arms, Bulldog 44 Special v. State ex rel. Moore, 721 So. 2d 620, 624-625  (Miss. 1998):

(1) The nexus between the offense and the property and the extent of the
property’s role in the offense;
(2) The role and culpability of the owner;
(3) The possibility of separating the offending property from the remainder;
(4) Whether, after a review of all relevant facts, the forfeiture divests the
owner of property which has a value that is grossly disproportionate to
the crime or grossly disproportionate to the culpability of the owner.

Sirdarious Sheriff v. State –  flight instruction –  Sheriff was convicted of possession of stolen property. On appeal he argues that it was  error for the trial court to instruct the jury that his evasion from police could be considered as evidence of guilt.  The court affirms.

Horton v. King –  appeal prison admin. proceedings – In 1989 Bobby Horton was convicted of agg. assault and grand larceny.  He was sentenced to 20 years and five years to run consecutively and without parole as an habitual.  While in custody, in 2008, he was convicted of having contraband and sentenced to four years to run consecutively to his other sentences.  Horton had several grivances about his sentence which he pursued administratively.  He claimed he was denied eligibility for parole and that his mandatory sentence was extended beyond the maximum allowed by law.  He exhausted his administrative remedies on May 22, 2013.  On July 8, 2013, he filed a petition for habeas corpus in the circuit court of Greene County (where the South Miss. Correctional Facility is located).  The circuit court dismissed the petition and Horton appealed.  The Court of Appeals affirms finding that Horton had thirty days to file his appeal with the circuit court pursuant to MCA Sect. 47-5-807.  Furthermore, the only way to pursue claims related to parole and illegal sentence was via a pcr petition.

Corey Lathan v. State –  armed robbery – improper comments in closing – Lathan was found guilty of armed robbery and burglary of a dwelling and sentenced to thirty years on the first, fifteen on the second (with 5 suspended) to run consecutively.   Karen Winter heard a knock on her apartment  door.  The person knocking claimed to be her upstairs neighbor.  When she opened the door, he forced his way into the apartment and pointed a gun at Winter.   Several other men also came in and proceeded to denude her apartment of valuables. When the robbers left, Winter called police.   An officer just happened to notice  car parked at a nearby complex.  The interior light was on and he could see the car’s occupants looking at him.  When the officer passed by, the car sped away.  The officer made a traffic stop.   There were guns in the car as well as Winter’s laptop.  Three of the men testified against Lathan.  Lathan claimed he was at home with his mother and sister when the robbery took place.

On appeal Lathan  claims that the prosecution made improper comments during closing when he talked about Lathan’s  failure to call his sister, Vanity, as a witness.  First of all, this is procedurally barred because he failed to object.  Generally it is error to comment on the other party’s failure to call a witness. “However, when a defendant fails to call
a witness more available to him and in a closer relationship to him, the prosecution is allowed to comment on the defendant’s failure to call the witness.”

Lathan next argues that the prosecution erred when it argued that Winter  could have been killed that night when the gun was put right in her face.  Lathan argues that it was error for the prosecution commented on a crime he was not charged with.  The Court finds that this argument fell within the wide latitude afforded lawyers in closing argument.  Lathan also raises ineffective assistance of trial counsel because trial counsel failed to  object to the state’s erroneous closing arguments.  The Court rejects this issue because it did not find the comments prejudicial.

Finally he argues that the trial court should have given  the jury the accomplice instruction that he wanted.  The jury was given an accomplice instruction but it told the jury that it should view accomplice testimony with caution if the uncorroborated testimony was unreasonable, self-contradictory or substantially impeached.  Lathan wanted this language omitted.  First of all, there was corroborating evidence so the trial court gave the instruction only out of an abundance of caution.  Furthermore, the language in the instruction mirrors that in the concurrence of Williams v. State, 32 So. 3d at 494.

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