Decisions – Miss.S.Ct. – Oct. 9, 2014

Howell v. Statedeath penalty case pcr – Marlon Howell was convicted of capital murder (underlying felony of robbery) and sentenced to death in the murder of Hugh Pernell, a newspaper carrier, who was shot and killed in his car  in New Albany while running his newspaper route.  In 2008, Howell filed a pcr petition and the Miss.S.Ct. granted a hearing as to the following:  (1) claims regarding Charles Rice’s recanted testimony; (2) issues related to Howell’s representation or lack thereof at the lineup; and (3) issues related to Terkecia Pannell’s alleged exculpatory statements. A hearing was held and Howell raised two more issues: the trial court’s  allowing Attorney General Jim Hood to participate in the evidentiary hearing (Hood was the district attorney who prosecuted Howell) and the failure of the trial court to consider new evidence of  an alibi which occurred when a woman from South Carolina, who used to live in Blue Mountain, Mississippi, read about Howell’s case  and came forward claiming she was with Howell on the night of the murder.  The trial court held that it lacked jurisdiction to hear the new evidence and denied the rest on the merits.    On appeal, the Mississippi Supreme Court affirms.

Zachary Polk v. Stateexpungement after pardon –  Polk was indicted on three counts of sale of MDMA, hydrocodone, and alprazolam.  In exchange ofr pleading guilty to one count, the DA remanded the other two to the file.   In January 2012, Polk received a “full, complete, and unconditional pardon” from Governor Haley Barbour.  He then  filed a petition for expungement in the Circuit Court of Oktibbeha County seeking to have all records expunged relating to his earlier arrest and indictment.   The trial court held that it did not have the authority to expunge Polk’s record as to any of the counts.  On appeal, the Miss.S.Ct reverses in part and affirms in part. “Having studied the matter before us, we find no convincing authority that a gubernatorial pardon automatically entitles the recipient to have his or her criminal record expunged.”

 There being no statutory basis for expungement of the record of the criminal conviction for which Polk was pardoned, the trial court correctly denied Polk’s petition to expunge the record(s) pertaining to his criminal conviction.  . As to Polk’s criminal records pertaining to Counts II and III, which were remanded to file based on Polk’s guilty plea, we find that those records are eligible for expungement pursuant to Mississippi Code Section 99-15-26(5).

Favre v. Jourdan Riover Estates – boundary dispute – Jourdan River Estates (JRE) was planning a 472 unit condo development on property north of I-10 in Hancock County. It has filed three lawsuits against persons (incl. Scott and Cindy Favre) it blames for its failure to develop the property. This particular lawsuit concerns the location of the boundaries of the adjoining properties as well as an easement in favor of JRE on the Favre property which Scott Favre gated. (A lot of the property was once Cinque Bambini property). Appellant Hancock County briefs the issue of which parts of Nicola Road are private and which are public. Another case in which JRE was seeking millions in damages against the adjacent property owners was dismissed and is at the Court on interlocutory appeal in Cause No. 2013-1139.  The court affirms the trial court’s decision.

Brandon Gales v. StateTerry stop – Gales was convicted of the armed robbery of a convenience store. Security camera vidoe showed that the robbers were  two black males who were wearing white t-shirts as masks.  One of them fired a shot into the celing.  He wore a black hoodie, light blue jeans, and brown casual shoes. The other robber  wore a black sweatshirt, gray pants, and black and gray shoes. A BOLO was issued.  The description was of a black male with a blue
shirt, black pants, and a white hoodie.  Officer Tabari Thomas spotted a young black male, later identified as Brandon Gales, running roughly five blocks from the robbery. “According to Officer Thomas, Gales was running but attempted to make it seem like he was walking upon noticing the police presence. Officer Thomas stopped Gales and asked him why he was out of breath. Gales responded that he had just left a gambling house.”  Thomas then conducted a Terry pat-down of Gales and discovered money that Gales said he had won gambling. “Officer Thomas asked dispatch for another description of the suspects. Dispatch responded, describing an individual with a black hoodie, light jeans, and brown casual shoes.
Gales was not wearing a black hoodie, but instead a gray, long-sleeved shirt; however, he was wearing light jeans and brown casual shoes. Officer Thomas noted that Gales seemed suspicious, as he was out of breath and wearing light clothes for a December night.” Because Gales partially matched the description of one of the robbers, Officer Thomas detained Gales for further investigation and soon after drove him to the crime scene. At the store, the storeowner identified the money (there was a red stamp on one bill). The next morning, officers found a black hoodie and a Smith & Wesson handgun in an alley near  where Gales was detained. The crime lab determined that the bullet fired at the Hyatt
Food Mart had been fired from the discovered pistol.

Prior to trial, Gales argued that the Terry stop was unconstitutional  and moved to suppress the fruits thereof. The trial court denied the motion.  The Miss.S.Ct., en banc, afirms with Kitchens and King dissetnting.

Borden v. Bordencustody/misconduct by one parent–  In a  divorce/custody dispute, the chancellor awarded custody of the two sons to Shannon, the father. The Court of Appeals affirmed and the Miss. S.Ct. granted cert. and reverses and remands “[f]inding that the chancellor gave undue weight to Mary Jane’s misconduct under three separate Albright factors, and that the chancellor erred in rejecting the guardian ad litem’s recommendation without providing reasons.”   Shannon was denied a divorce on  the grounds of adultery but he placed into  a seventy-five page transcript of Facebook chats between Mary Jane and and an old high school classmate.  The chats were, at times, quite explicit.  Mary Jane testified that these occurred during a period where she and Shannon were experiencing difficulties in their marriage. Mary Jane also testified that  her children were not home during her inappropriate contact with other men.

Danielle Hingle v. Statelab tests/confrontation – “Danielle Hingle was convicted of sale of morphine, a controlled substance, and sentenced to fifteen years in the custody of the Mississippi Department of Corrections. On appeal, Hingle argues that admission of the testimony of a crime laboratory analyst who reviewed and signed the lab report but did not test the pills violated her Sixth Amendment right of confrontation. She also argues that the trial court erred by admitting the pills due to flaws in the chain of custody. We hold that the trial court did not err by allowing the reviewing analyst to testify or by allowing the pills to be admitted.”  The Miss.S.Ct. affirms.

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