Decisions – COA – May 19, 2015 – part 1

Kenny Walton v. State – ineffective assistance guilty plea – Walton was charged along with 3 others in the robbery and beating of a pizza delivery man in Cleveland Miss.   The victim’s phone had been stolen and when it was traced, Winters was found talking on the phone.  He eventually admitted to being present when Matthews, McKnight and McGee beat and robbed the victim.  Matthews and McKnight both pleaded guilty and agreed to testify against the other two co-defendants. The state filed discovery stating that Matthews and McKnight had been interviewed and their interviews provided later but that neither Michael McGee or Kenny Walton was involved. Instead, their accomplices had been Desmond Johnson and Nookie Alexander.   The notice had a certificate of service indicating that it had been mailed and faxed to RoSharwin Williams, Walton’s attorney.   A week later, Walton pleaded guilty.  If he testified against McGee, the state would recommend 15 years. At McGee’s trial, Walton testified that neither he nor McGee were involved.  Matthews and McKnight testified that they committed the crime with  two others. McGee was acquitted.    The state moved to revoke Walton’s bond since he failed to implicate McGee. .   A month later, in July of 2009,  Walton moved to revoke his plea.  At the hearing, Walton’s counsel stated that two days before McGee’s trial, he received notes that Walton was not involved in the crime. Judge Smith stated that he reviewed the transcript and was satisfied with the voluntariness of Walton’s plea and sentenced him to 51 years. In August Walton filed a motion to reconsider sentence again arguing the exculpatory evidence.  The State pointed out that Walton’s counsel was given this information prior to his plea.  Judge Smith denied relief stating that he lacked jurisdiction to revisit the sentence after the term of court ended and that the only relief Walton had was by way of a pcr.  Walton’s appeal was dismissed.

Walton, represented by new counsel,  filed a pcr on June 20, 2012.  A hearing was had in 2013 and Walton’s attorney who represented him during the plea testified that he had the information and discussed it with Walton.  The circuit court ended up  denying relief on the grounds that the petition was a successor. The COA reverses and remands finding that the pcr was not a successive petition.  The motion to reconsider was filed during term time and was never a pcr.  The state argues that Walton would not be entitled to relief anyway since he pleaded guilty.  The COA agrees that a guilty plea precludes a claim for a Brady violation.  However, in this case, the record might support a finding of ineffective assistance of counsel.    “We reverse and remand to the trial court to make findings of fact on whether Williams learned of Matthews’s and McKnight’s October 2008 statements, whether he reviewed these with Walton prior to entering his guilty plea, and the effect any nondisclosure had on Walton’s plea.”

Chesney v. State  – venue/suppression of evidence seized from computer  -law enforcement got a warrant to seize Stanley Chesney’s computer after a woman complained that Chesney had taken a picture off of her Facebook page and created a fake Facebook page and used it to slander her.  Somehow, the  page was traced to Chesney.  When Chesney’s computer was seized at a local computer repair store, it was alleged to have five images of child porn on it.  Chesney was indicted on five counts of child porn and sentenced to 30 years.  On appeal he argues several issues including  that the jury instructions failed to require the jury to find venue.  He also argues that he court should have suppressed the computer evidence.  The underlying facts and circumstances affidavit stated as follows:

On 8-23-11 Mrs. Stewart came to the PD to file a complaint on identity theft. Mrs. Stewart stated that someone had stole a picture off her facebook page and created another facebook page on her. This person has since been defrauded, slander, used her identity in such a way which became harmful to the job in which Mrs. Stewart held. I sent facebook a subpoena and recieved back information on a Amanda Warren. I have since received information from John Paul Dove from Meridian, MS. stating that it was in fact a Stan Chesney who was using the name of Sherri Stewart. Mr. Dove stated that it started back in 2010 with different users and then Sherri Stewart’s name with the same messages and pattern as before.

There was nothing in the affidavit that would substantiate the credibility of Dove and at the hearing on the motion to suppress, the officer  testified  that he had never previously obtained information from Dove in other criminal cases, and he testified: “I don’t even know this gentleman.”    The COA reverses and renders on two issues:

Chesney filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial. The circuit court denied his motion, and he now appeals. We find that Chesney’s first claim, regarding the failure to instruct the jury on the element of venue, warrants a reversal of the judgment and a remand for a new trial. ¶8. We further conclude that Chesney’s second claimof error – that the circuit court erred in denying his motion to suppress evidence “because probable cause did not exist for the issuance of the first search warrant” – is also meritorious. Chesney contends that all of the evidence implicating him in the instant crimes was obtained derivatively as a result of the first warrant. Thus, Chesney claims that the evidence is “fruit of the poisonous tree,” and “the appropriate remedy is to reverse and render his convictions and sentences.” We agree 4 with Chesney that the suppression of the “tainted” evidence would remove any legally sufficient basis to support his convictions. Therefore, we reverse and render the circuit court’s judgment.

Bellsouth Telecommunications v. Larry Harris workers comp/ compensation for injuries caused by medication for compensable injuries – Harris worked for Bellsouth.  In 1997, he inhaled materials under a building while installing cables.   BellSouth provided compensation benefits to Harris for the pulmonary  condition caused by the inhalation. In 2000, Harris filed a petition to controvert.  At the hearing, the parties stipulated that Harris was involved in a work-related incident, which ultimately resulted in a respiratory condition. The AJ found that Harris suffered no permanent disability and/or loss of wage-earning capacity from his respiratoryinhalation injury and was not entitled to additional temporary disability benefits.  On March 1, 2010, the Commission amended the AJ’s order and found that Harris was entitled to permanent partial disabilitybenefits. The Commission also ordered BellSouth and its carrier to continue to provide and pay for all reasonable and necessary medical services and treatment.   BellSouth did not appeal the decision.

During the course of Harris’s treatment for his compensable lung injury, he was amphotericin B and developed renal insufficiency.   Harris requested medical payments from BellSouth’ for the medication prescribed for Harris’s renal (kidney) insufficiency diagnosed by Dr. Martin. However, BellSouth’s carrier denied payment despite Harris’s insistence that his renal insufficiency was causally related to his lung injury.  The parties took the issue up with the WCC and the Commission found it compensable. The COA affirms.

Terrance Campbell v. State –  DUI –   Campbell was convicted of DUI and  sentenced  to five years.  On appeal he argues that the jury’s general verdict is reversible error because it did not specify whether the jury found him guilty of “common law” DUI and/or “per se” DUI.  The COA affirms.

(note: part 2 is being delayed courtesy of Comcast).

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