Decisions – Miss.S.Ct. – Oct. 30, 2014

Frank Sanders Tipton v. State – definition of imprisonment –  Tipton was wrongfully convicted and filed for compensation pursuant to M.C.A. Sect. 11-44-7.  The state agreed to pay Tipton $41,000 for the time he served in prison but not an additional $100,000 for time he served on house arrest arguing that house arrest (aka ISP) does not equal imprisonment.  On March 20, 2014, the Miss.S.Ct. held that house arrest does not equal imprisonment for purposes of the compensation for the wrongfully convicted statute and affirmed the trial court’s order granting summary judgment for the state.   On petition for rehearing, the Court reverses finding that house arrest is imprisonment for purposes of compensation for wrongful conviction. (Both decisions  were en banc; Judge Dickinson flipped.  And, as TBA points out, Justice King had previously not participated but does so now joining the former dissenters).  The Clarion Ledger reports that this means an additional $100,000 for Mr. Tipton.

Jeremy Cage v. State –  cross examination/rape shield/duty to make a record   – Thirteen year old A.S. was outside feeding her dogs when her cousin Jeremy Cage  dragged her into an adjacent field and raped her. Afterwards she told her brother and the next day she told  one of her teachers.  DNA tests indicated that Cage could not be excluded as the contributor but 99% of the general population could be excluded.   On the second day of trial, A.S.’s mother came to court with attorney Imhotep Alkebu-lan and told the judge her daughter did not wish to cooperate.   The judge appointed a GAL to represent A.S.  The trial proceeded.  When A.S.’s mother testified  for the state, the defense attempted to cross examine her regarding the affidavit she filed seeking to have the charges dropped. The court sustained the state’s objection.  Cage presented an alibi defense.  He also called to the stand K.J. who planned to testify regarding A.S.’s prior sexual relationships.  The trial judge excluded this evidence under the rape shield law but allowed K.S. to testify that A.S. had told her two days prior to the rape that she might be pregnant.  And later A.S. said she lied about the rape because she did not want to tell her mom she might be pregnant.  K.J. stated that when A.S. made the first statement, K.J. told the school guidance counselor.  The state called the guidance counselor who testified that K.J. never told her this.

The jury found Cage guilty of statutory rape.    On appeal he argues that it was error to prohibit him from questioning A.S.’s mother about the affidavit.  The Court finds that the ruling was not error because the statements had no relevance to the determination of the issues in the case. Cage also argues that it was error to exclude K.J.’s testimony about A.S. sexual history. First of all, if Cage wanted this evidence in, he should have made a potion 15 days prior to trial pursuant to MRE 412(c)(1).    The trial court could have made an exception to the time requirements if the information was newly discovered but Cage never argued that this was the case.  Cage argues it was ineffective assistance for his attorney not to hire a DNA analyst.  The Court finds that this issue can  not be decided on the record here and holds that Cage can develop this in post conviction proceedings.  Finally, Cage argues that one of the jurors did not answer a question truthfully during voir dire.  In support, Cage offers an affidavit from his aunt.  The affidavit was not part of the trial record, though.  Instead it is attached to Cage’s brief.

Cage filed a motion with this Court seeking to amend the record to include Head’s affidavit. This Court dismissed Cage’s motion, instructing him to seek relief from the trial court, but it appears that Cage failed to take any further action.

We find that Cage has failed to meet his obligation to provide a complete record of this issue on appeal. Accordingly, this issue is not properly before the Court. The appellant has a duty to justify his assignments of error with all the information necessary to establish an understanding of the matters relied upon for reversal.

Donald Keith Smith v. State –   competence to plead guilty –  Smith was set to go to trial on two counts of kidnapping, one count of armed carjacking and one count of felony evading a police officer  in 2008.  He eventually entered a plea.  But before that, the trial court ordered that he undergo a mental evaluation.  The reasons are not in the record.   In 2009, Smith pleaded guilty.  He stated on the record that he was being treated for depression and “psychosis or something like that” and was being medicated.   In 2012, Smith filed a successor pro se motion for pcr on the grounds that he had not been given the competency hearing ordered by the court.  Attached were the affidavits of his parents stating that he had been institutionalized numerous times for drug addiction and bipolar disporder.   His father states that Smith’s attorney had called him and said it would cost $2000 for a mental evaluation but they did not have the money.   The trial court dismissed the pcr as successive.  Alternatively, it held that no competency hearing was required because the court never made a finding that reasonable ground existed as to Smith’s competency.  Smith appealed and the Court of Appeals affirmed.  The Miss.S.Ct. granted cert. and reverses and remands  for an evidentiary  hearing on the issue of why the court ordered a mental evaluation.” 

 “The dissent would eliminate the fundamental-rights exception to the successive-pleadings bar by labeling the bar ‘substantive’ rather than ‘procedural.”

No unlawful incarceration is constitutional. The motion for post-conviction relief  before us attacks Smith’s unlawful conviction and incarceration. Under [Ex parte] Pattison, [56 Miss. 161 (1878)], that procedural mechanism is not limited by common-law res judicata. And Smith challenges the trial court’s failure to determine competency, affecting his fundamental due-process rights. Under Bragg, claims of constitutional dimensions are likewise excepted from common-law res judicata.

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