Decisions – Miss.S.Ct. – Oct. 16, 2014

Carl Cook v. Rankin Countyanonymous tip with no corroboration does not allow  Terry stop – Cook was convicted of a DUI first after  Officer Timothy Ware of the Pearl River Valley Water Supply District was told by dispatch to  “be on the lookout”  for a vehicle that was driving erratically and the driver of the vehicle possibly flashing a badge of some sort. As far as Ware knew, the  “tip” was from an anonymous caller and was uncorroborated. When Officer Ware spotted a  gray Chevrolet Avalanche (which fit the description) he proceeded behind the suspect car.  Officer Ware observed the Avalanche for a short period of time, though he did not observe the vehicle driving erratically at that time. Nor did he observe the driver flashing a badge or committing any crimes.  Another deputy,  Fred Lovett of the Rankin County Sheriff’s Office, ended up following behind Ware’s car. They eventually pulled the Avalanche over and  determined that Cook was driving under the influence (the opinion does not specify how) .

At trial, Cook moved to dismiss the arrest as it was based on an anonymous tip  that lacked sufficient indicia of reliability.  The judge overruled the motion.  Cook appealed to the circuit court and the Court of Appeals with the same result.  On cert., the Mississippi Supreme Court reverses and renders.

The lack of sufficient indicia of reliability in today’s case, coupled with the officers’ failure to corroborate the criminal activity reported, results in the stop violating Cook’s Fourth-Amendment right to be secure from unreasonable searches and seizures. As such, the trial court erred in denying Cook’s motion to dismiss. For this same reason, the Court of
Appeals erred in affirming the trial court.

(Congrats to Clarence Guthrie who is now a social security judge!).

Eric Foster v. Stateuse of life expectancy tables in sentencing –  Foster was convicted of armed robbery and sentenced to 40 years.  “On appeal to the Court of Appeals, Foster raised, for the first time, that his sentence was illegal. The Court of Appeals held that Foster’s claim was procedurally barred, based on his failure to raise the issue before the trial court. Notwithstanding the bar, the Court of Appeals found that his sentence did not amount to an illegal sentence. We granted Foster’s petition for certiorari and limit our review to the issue presented on appeal, verbatim et literatim, ‘Is Foster’s sentence illegal?'”  The Court finds that Foster failwd to preserve this issue and it doesn’t rise to the level of plain error.

We have addressed the use of life-expectancy tables numerous times and have  consistently held these tables can be used as aids in determining sentences, if presented to the trial court. As early as 1937, this Court held that mortality tables can be used as aids to assist the trier of fact. See Tucker v. Gurley, 179 Miss. 412, 176 So. 279, 279 (1937). We are not the trier of fact in today’s case. Recently, we held that life-expectancy charts are of “limited utility” in defining whether a sentence amounts to a life sentence.  Johnson v. State, 29 So. 3d 738, 745 (Miss. 2009). In Johnson, Justice Lamar wrote:

[A]ttempts to define precisely at what point a term of years becomes a life sentence . . . [are] of limited utility. Estimated life expectancy is just that – an estimate. The reality is that some persons live beyond their life expectancies while others do not. To hold that a defendant’s sentence must be a certain number of years or months less than his life expectancy would place unwarranted emphasis on a number that is itself only a rough approximation.
Johnson, 29 So. 3d at 744-45 (citing U.S. v. Martin, 115 F.3d 454, 455 (7th Cir. 1997)). Not a single justice disagreed. See also Lindsay v. State, 720 So. 2d 182, 186 (Miss. 1998), and Henderson v. State, 402 So. 2d 325 (Miss. 1980).
Where Foster’s argument fails is that none of the cases he cites stands for the proposition that a defendant may stand mute, present no evidence to the trial court, and then claim error on appeal that the trial court did not consider what he did not offer as evidence. Foster offers no excuse for the failure to present such evidence and argument to the trial
court to support a claim of error.

Tommy Hampton v. State –  Hampton was convicted of armed robbery and sentenced to 20 years as an habitual. Hampton raises the same issue as does Foster (that his sentence is in effect a life sentence given his age) and his case meets the same fate: affirmed.

Tom Freeland thinks Justice Coleman’s dissent could be a preview of his vote in McDaniel v. Cochran.

Thus Blogged Anderson’s take on the dissent is called How (not) to read a statute.

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