Decisions – Miss.Ct.App. – Feb. 10, 2015

Paul Ferrell v. State –  voluntariness of plea/incorrect information as to parole –   Ferrell pled guilty to possession of methamphetamine as a second controlled substances offense, possession of precursors in the presence of a minor, and interstate removal of a child under fourteen. He received concurrent sentences pursuant to a plea agreement, the longest of which was thirty years in the custody of the Mississippi Department of Corrections, with eighteen to serve followed by five on post-release supervision. Ferrell filed a timely motion for post-conviction relief making various challenges to his convictions, which the circuit court dismissed without an evidentiary hearing.  The Court affirms on all but one issue: ” whether Ferrell’s guilty plea was involuntary because he was affirmatively misinformed that he would be eligible for parole on the two enhanced counts. We reverse and remand for an evidentiary hearing limited to that single issue.”

Sheridan Davis v. State –  dying declarations/necessity defense – Davis and Marcaris Lowe went gambling at the Island View Casino in Gulfport.  Davis sold drugs to Lowe and they kept gambling.  AFter losing money, they left and went to a friend’s apartment.  According to Davis, he was asleep on the couch when he awoke because Lowe was going through his pockets. In the fight, Davis claimed Lowe pulled out a gun which Davis got from him and the shot Lowe in self defense.  The state disputed the self defense theory in part because Lowe was shot four times in the back.   Davis fled the apartment.  Twenty five days after the shooting, Lowe succumbed to a pulmonary embolism.  On appeal Davis argues that the evidence was insufficient to find that this was not self defense.  The Court of Appeals finds no error.  He also argues that it was error to allow Lowe’s statements that Davis was the shooter as dying declarations.

The trial court found these statements fell under the dying-declaration exception to the prohibition against hearsay. Lowe asked for medical attention, clearly related he could not feel his legs, had labored breathing, and lost a large quantity of blood. Under these circumstances, the trial court found Lowe suffered in extremis, realized the severity of the wounds, and had no hope of recovery. Additionally, Lowe died, rendering him unavailable to testify. All of this evidence supported the conclusion that the statements were dying declarations.

Davis also argues that he should not have been convicted on the possession of the firearm charge becayuse he only possessed the gun out of necessity to defend himself.

To successfully prove the defense of necessity, Davis must have shown his actions comported with the requirements of necessity. Though Davis alleges he shot Lowe in order to stop Lowe from shooting him, Davis did not meet the required elements of necessity regarding the shooting, and failed to explain why he kept the firearm when he fled the scene.  Like the self-defense claim, the question of whether actions were out of necessity remains a question for the jury to resolve. The jury found Davis’s actions did not constitute necessity, and found Davis guilty. Because the jury found Davis acted without necessity, and the verdict does not sanction an unconscionable injustice, the verdict on count III stands.

Nathan Robertson v. Kathryn Robinson and Bill Bailey – custody modification based on illness –  Nathan and Kathryn married in January 2004 and had a child that same year.   During her pregnancy with Bailey, Kathryn was diagnosed with
Hodgkin’s lymphoma. Shortly after Bailey’s birth,   Kathryn and Nathan separated and Kathryn lived with her parents. The divorce was granted in 2005.  “Knowing of Kathryn’s medical condition and that she received assistance caring for Bailey from her parents, Nathan agreed that Kathryn should have full custody of Bailey.”   Kathryn later got her own place.  The treatment she received gave her neuropathy in her hands and got help from her parents with Bailey.

In 2009, Nathan filed a petition to modify child custody based on Kathryn’s poor health.   After a hearing, the chancellor denied Nathan’s request for a modification of custody. The Mississippi Court of Appeals affirms.

Ronnell Phillips v. State –  comment on silence; gang member –  Phillips was convicted of conspiracy,  shooting into a dwelling, and murder.  He argues that the state erred in allowing an investigator to testify that he read Phillips his Miranda rights.  The defense objected on the grounds that it was clear the officer was about to testify that Phillips refused to make a statement which would be an improper comment on the right to be silent.  The court sustained the objection and rejected the motion for mistrial.  The Court of Appeals finds no error:   “In this instance, Ogden was silenced before making an improper comment; thus, we can find no abuse of discretion by the trial court in denying Phillips’s motion for a mistrial. We further note that any error would be harmless due to the overwhelming evidence of Phillips’s guilt.”

He next complains of the trial court’s failure to grant a mistrial where an accomplice witness told the jury that Phillips was a gang member. The trial court admonished the jury to not consider the testimony.  Therefore, this, too was not error.

Kayla Vaughn v. PERS –  Marjorie Kahn was a state employee. In 1999, she applied for disability retirement and  was given a choice of payment options. She chose the option whereby she would receive “[a] reduced retirement allowance”throughout her life in exchange for “the further guarantee of payment to the named beneficiary, beneficiaries, or to the estate, for a specified number of years certain.”   Marjorie named her daughter Heather Vaughn.  She died not too long after.   PERS began making monthly payments to Heather in the amount of $922.63, guaranteeing these monthly payments for twenty years, through October 2019.

Six months after Marjorie’s death, the Legislature amended the law so that Option 4-B directed PERS, in the event “the retired member or the last designated beneficiary both die before receiving all guaranteed payments due,” to pay “the
actuarial equivalent of the remaining payments . . . under [the newly created] Section
25-11-117.1(1)[.]”   In 2011, Heather died.

Traveling under revised Option 4-B, PERS calculated the actuarial equivalent of the more than eight years of remaining guaranteed payments to be $110,163. PERS then looked to section 25-11-117.1(1), which, according to PERS, directed it to pay the remaining money to Marjorie’s statutory successors. So 1(a) The surviving spouse of the member or retiree;
(b) The children of the member or retiree or their descendants, per stirpes; (c) The brothers and sisters of the member or retiree or their descendants, per stirpes; (d) The parents of the member or retiree; (e) The executor or administrator on behalf of the member or retiree’s estate; (f) The persons entitled by law to distribution of the member or retiree’s estate. PERS contacted Marjorie’s family to determine which of Marjorie’s surviving family members were entitled to this payment.

PERS also contacted Heather’s family, informing them that, based on subsection (2) of section 25-11-117.1, they were entitled to a prorated cost-of-living adjustment for the portion of the 2011-2012 fiscal year when Heather was still alive and received monthly payments. See Miss. Code Ann. § 25-11-117.1(2).

Heather’s half-sister, Kayla Vaughn, objected to PERS distributing the actuarial equivalent of the remaining payments to Marjorie’s statutory successors. Kayla argued that even though she is not related to Marjorie, PERS should give her the remainder of Marjorie’s retirement benefits. The Ct of Appeals affirms agreeing with PERS interpretation of the statute.

PCR’s 

Sam Bradford v. State  

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