Decisions – COA- March 24, 2015 – part 2

Brisceson Haskins v. State – Haskins was found guilty of business burglary and sentenced to 7 years without parole as an habitual offender. On appeal, his attorneys filed a Lindsey brief (stating that there were no issues).  Haskins filed his own brief alleging the following issues: (1) whether he was entitled to a new court-appointed attorney; (2) whether he was entitled to a different trial judge; and (3) whether the State’s attorney “intimidated” him and made him “scared to 2 testify.”  The COA affirms.

John Bowen v. Patricia Bowenattorneys fees for filing contempt –    The Bowens were divorced in 2005.  In  2009 the chancery court found John in contempt for his failure to pay child support and his portion of the children’s medical-insurance premiums.  The chancery court also modified his child support obligation from $300 per month to $500 per month and  awarded Patricia $10,000 in attorney’s fees. John appealed. The COA affirmed on everything but the attorneys fees.   these findings, and on appeal, this Court affirmed on all issues except for the issue of attorney’s fees. The Court remanded the fee issue for the chancery court to conduct a McKee analysis to determine the reasonableness of the award. The chancellor awarded Patricia and her attorney  $7,350 in attorney’s fees and John again appeals.  This time the COA affirms the fee award. . “According to the chancery court, while this amount of attorney’s fees appeared high for an average contempt action, the $150-$200 per hour was a reasonable fee, and the bill would not have been as high if it were not for John’s repeated misconduct.”

Wendy Hall v. Greentree Servicing –  foreclosure – Hall challenges a foreclosure on her home.  She claims the property description was incorrect (the description omitted the word “line” from “centerline” in one place) and that W. Stewart Robison was not the current trustee; thus he did not have the authority to sell the property. “The Sunflower County Chancery Court held that the foreclosure sale should not be set aside since Robison was a proper trustee and that there was no significant error in the property description to warrant setting aside the sale. Hall raises the same issues on appeal, but finding no error, we affirm.”

Richard Moise v. State – Moise was convicted of aggravated assault for beating up a man with whom his estranged wife may have been hanging out.  He was sentenced to four years (20 but with 16 suspended). Apparently this was a circumstantial case because the victim did not testify but other people at the house testified that Moise came into the house, they heard a loud noise, and found the victim on teh couch covered in blood.  Moise argues that the trial court erred in not giving the following instruction (called the “two theory” instruction:

The Court instructs the Jury that if there be a fact or circumstance in this case susceptible of two interpretations, one favorable and the other unfavorable to [Moise], when the Jury has considered such fact or circumstance with all other 4 evidence, there is a reasonable doubt as to the correct interpretation, then you, the Jury, must resolve such doubt in favor of the accused, and place upon such fact or circumstance the interpretation most favorable to the accused.

The Court finds that this was not error because the  court gave the jury an instruction telling them that  “the evidence for the State must be so strong as to establish the guilt of the defendant not only beyond a reasonable doubt, but the evidence must be so strong as to exclude every other reasonable hypothesis other than that of guilt”.  The Court finds that there was sufficient evidence and that an argument by the prosecution (” And one of the things you see about a defense attorney and about the practice of law is that when somebody doesn’t have a defense, they just throw out anything”) was not error.

Cleveland School Dist. v. Lester Fisheraffirming non renewal of school principal’s contract – When Fisher’s contract as a principal at an elementary school was not renewed, he requested a hearing. The Board of Trustees upheld the decision but the chancellor reversed.  The COA finds that there was substantial evidence to support the Board’s decision and reverses the chancellor.  The Board’s reasons for the non renewal were that (1) the school  had the lowest “Quality of Distribution Index” (QDI)1 rating in the district; (2) there were consistent problems with student records; (3) the school’s  library was inadequate; (4) Fisher was not properly overseeing the “Reading to Read” program; and (5) the school  was not clean enough.

PERS v. Vickie Comardelle –  denial of disability benefits – Comardelle was employed as a teacher’s assistant when, in 2003, she slipped and twisted her right ankle on some steps  at work. The original diagnosis was a sprain but years of treatment followed. PERS denied benefits. The chancellor reversed.  And the COA finds that the PERS decision was supported by substantial evidence and reinstates the denial.

John Walker v. Mary Walker –  failure of chancellor to make specific findings to support divorce, alimony, etc. – The Walkers were married in 1998 and separated in 2011.  Mary filed for divorce on the grounds of cruel and inhumane treatment.  The court granted her the divorce and ordered him to pay permanent alimony as well as her housing, medical insurance and uncovered medical costs.  He appeals and the COA reverses holding that, for one thing, the chancellor erred in refusing to make any specific findings of fact and conclusions of law when John requested the same pursuant to  MRCP 52.   Moreover, the “record is convoluted and riddled with uncorroborated testimony” requiring the chancellor to make further findings as to whether Mary was entitled to a divorce on the grounds of cruel and inhumane treatment.  The findings regarding the marital assets and the amounts John was ordered to pay Mary as well as the attorneys fees suffered from the same  lack of analysis.

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