Decisions – Miss.S.Ct. – Feb. 5, 2015

Marvin Kirk v. Stateaggravated domestic assault – Marvin Kirk was convicted of aggravated domestic violence and sentenced to 20 years as an habitual for having twice strangled his wife.  On appeal he argues that it was error to allow a police officer to testify that red marks around his wife’s neck looked like strangulation. First the Court notes that Kirk did not object. If there was error for trial counsel to fail to object, that would have to be considered in post conviction. Kirk next argues sufficiency and weight of the evidence.  The Court rejects those issues. Kirk  argues that the court erred in not allowing letters and texts from the wife. One of the letters demonstrated that the wife was in rehab five months after the altercation. The texts were about what a wonderful father and husband Kirk was. The trial court and the Court of Appeals finds them to be hearsay. Finally he argues that the court should have allowed him to introduce evidence of a drug follicle test. “Considering that evidence already had been adduced that Casey Kirk had a problem with crystal methamphetamine use, we find no merit in Marvin Kirk’s argument that the trial court abused its discretion in ruling evidence of a hair-follicle drug test inadmissible on relevancy grounds.”

Terry Hye v. State – Hye was convicted of capital  murder and sentenced to life without the possibility of parole. His sentence was later vacated and remanded by the COA because he was under 18.  Hye sought cert. on the issue of whether  the trial court violated his right to a fair trial by denying him an accessory-after-the-fact instruction and an accomplice
instruction.  The Court affirms the COA.

We agree with the Court of Appeals that the trial court properly denied Hye’s request for an accessory-after-fact instruction because there was no evidentiary basis for it. We also find, after much consideration on the matter, that a criminal defendant no longer has the unilateral right under Mississippi law to insist upon an instruction for lesser-related offenses
which are not necessarily included in the charged offense(s), i.e., so-called lesser non included-offense instructions. And we overrule Griffin v. State, 533 So. 2d 444 (Miss. 1988), and its progeny, to the extent they hold otherwise.

The Court grants cert. in three cases. 

Here are the synopses of  the opinions in those cases in the COA. 

Michael Taylor v. State – Taylor was found guilty of one count of possession of stolen property, a skid steer. The pros. amended the indictment to change the date on which Taylor was alleged to have possessed the skid steer and to add a habitual enhancement. Taylor was found guilty and the court sentenced Taylor as an habitual to ten years without parole. Puckett Machinery leased a skid steer to Chain Electric which was using it on a job site in Hattiesburg. The equipment disappeared sometime around April 18, 2011. In June, Puckett Rental received a call from a man named Alex Walker who needed his skid steer serviced at a job site on Robinson Springs road. When a Puckett employee put the serial number of the skid steer into the computer, the computer flagged the serial number as belonging to stolen equipment. The computer also identified the owner of the skid steer as Puckett Rents, a subsidiary of Puckett Machinery. Madison police interviewed Alex Walker and he told them he had purchased the equipment from a white man with a jack o’lantern tattoo on his arm. The transaction, Walker said, took place near the What-A-Burger on County line Road. Law enforcement asked Walker to assist them in finding the man who had sold him the skid steer. When Walker was shown a picture of Michael Taylor, who is black, he identified him as the man who sold him the skid steer in exchange for a jeep, another car and $10,000. Walker said that he lied about it being a white man because he was scared. Taylor testified that he had known Walker for about two years and had done some work for him on approximately three jobs. On the first job, Walker did not start out with a skid steer but brought one to the job site around the third day.

On appeal Taylor argues that it was error under MRE 404(b) for the jury to hear law enforcement testify several times that Michael Taylor and his brother were the focus of a “large investigation” spanning several counties. He argues that the DA improperly vouched for Walker’s testimony. It was a discovery error for the state to produce the cell phone containing a photo of the skid steer only mid trial and that the evidence was either insufficient or the verdict was against the overwhelming weight of the evidence. The Court affirms but there is a dissent by J. Irving joined by Lee and Ishee and, in part, James, in which Irving finds that the case should be reversed because Taylor did not receive a fair trial or effective assistance of counsel.

Cleveland MHC v. the City of Richland – zoning case. The City of Richland passed an ordinance stating that if a mobile home was removed from the Cleveland Mobile Home Park, it could not be replaced by another mobile home on the site.  Cleveland MHC filed a bill of exceptions.  The mobile home park had existed since the 50s.  At some point, the property was annexed by the City of Richland.  When the property was annexed, it was zoned light industrial.  The mobile home park, then, was a non-conforming use since residences are not allowed on industrial-zoned property.    Sect. 405 of the City ordinances states that non-conformities are allowed to continue until they are removed.  This, however, was not enforced against CMHC.  WHen the Appellant brought the property in 2008, it was told that it could continue its practice of replacing mobile homes that moved with new ones.  In April 2011, the City changed its policies and informed CMCH that it could no longer replace removed mobile homes.  CMCH appeared before the Board of Alderman to argue against enforcement of Sect. 405.  Instead the Board passed an ordinance specifically aimed at CMCH stating that once a mobile home was removed, it could not be replaced.  CMCH appealed and the Circuit Court upheld the ordinance.The Ct of Appeals reverses: “We conclude that the reasonable interpretation of the ordinance is to construe the nonconforming use to relate to the mobile-home park as a whole. As long as the park is operated as such, without expansion, it is a permitted use. The City’s resolution, on the other hand, seeks to transform the nonconforming use to a pad-by-pad use and to destroy it by attrition.”  The City’s resolution, then, “is arbitrary, capricious, and illegal.”

Timothy Carr v. State –  post conviction amendment to charge habitual –  Carr was convicted of manslaughter in 2005.   Carr filed an appeal and two PCR motions that were barred as successive writs.  He then filed a third petition.  The Court tried to find Carr’s record in order to evaluate his claim.   The court could not find them in the Miss.S.Ct.’s office.  The Court was able to obtain a copy of the clerk’s papers but there is no copy of the transcript.   And in 2008, the State moved to destroy the evidence.  Carr contends that after he was sentenced to manslaughter, the state moved to sentence him as an habitual.  The pages that Carr attaches attest to this.  They also show that Carr did not object.  In  Gowdy v. State, 56 So. 3d 540 (Miss. 2010), the  the court held that the State could not amend the indictment after Gowdy’s conviction.  But Gowdy’s case was decided three years after Carr’s.  The COA will not apply it in Carr.  Carr also claims that the court never granted the state’s request to introduce the priors into the record at sentencing. Teh court finds no error because Carr failed to object.

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