Decisions – COA- June 23, 2015

William Henderson v. Statetiming of proof of priors for habitual – Henderson was convicted of the statutory rape of his 13-year-old cousin and sentenced to 30 years without parole as an habitual.  He first argues that the court erred in admitting a letter that he was alleged to have written in jail and given to a cellmate to deliver.  Henderson argues that there was no proof that he wrote the letter.  “In the letter, Henderson asked the friend to testify in his defense and corroborate his account that he had left the friend’s residence with a girlfriend. It closed by asking the friend not to say anything about a gun.”  The COA finds that the trial court did not abuse its discretion in admitting the letter. He next argues that he should get a new trial because there was a sleepy juror but the COA notes he failed to object at trial. He claims that it was error to admit a taped interview by police of the victim but the COA holds that it was admissible as a prior consistent statement once Henderson claimed her allegations were fabricated. Finally, he argues that it was error to sentence him as an habitual.  While the evidence in support was admitted when the indictment was amended, it was not readmitted during the sentencing phase. “During the sentencing hearing, the prosecutor asked the trial court to take judicial notice of the exhibits previously admitted. Not only did this not garner an objection from Henderson, but his attorney conceded that Henderson was a habitual offender; she stated that ‘the convictions speak for themselves.’”

Marc and Donna Fairchild v. John and Gwen Bilbo specific performance of lease purchase agreement – The Bilbos entered into a lease-purchase agreement the Fairchilds for their property. The agreement gave the Bilbos the option to purchase the property on or before July 1, 2017. The property was covered by two hazard insurance policies. After a tornado destroyed the property, the Bilbos sought specific performance of their option to purchase. The Fairchilds refused. The chancellor found that the Bilbos were entitled to specific performance as well as the insurance proceeds from both policies. The COA affirms.

Clemmie Walker v. James Maytime for filing JNOV – May filed three separate suits alleging that Walker’s dogs had killed and injured his cattle.  May was eventually awarded $10,500 and $4000 in attorneys fees by the circuit court. Thirteen days later, Walker requested additional time to file post trial motions.  The court gave Walker an additional 30 days.  Walker eventually filed a motion for JNOV or new trial which the court denied.  Walker then filed a notice of appeal.  The COA first finds it does not have jurisdiction because the motion for jnov was not filed with ten days of the entry of judgment.  However, the Court addresses the merits and finds that there was ample evidence to support the trial court’s award.

Houston Lee Jones v. State hearsay/Weathersby – 18-year-old Jones had been supported by his stepgrandfather Leo Landrum for years.  The day after Leo told people that he could no longer support Jones, Jones shot and killed him.  Jones at first denied the shooting.  He later claimed it happened after Jones confronted Landrum about Landrum’s alleged sexual abuse of Jones.   Jones was convicted of deliberate design murder and sentenced to life.  His first issue is with the deliberate design instruction but the COA finds this waived for failure to object at trial.  As for the introduction of statements made by Landrum to people that he planned to cut Jones off financially, these were admissible as  statements which indicate a plan to do something in the future to prove that it actually happened.  The COA finds the Court did not err in prohibiting Jones from admitting Jones’ third statement to police that went into the allegations of sexual abuse.  Jones testified and the court prohibited the third statement on the grounds that parties are not allowed to admit their own statements that are favorable to them.  Jones argues that he was entitled to a directed verdict under Weathersby.  The COA notes that Jones admitted he shot and killed Landrum and thus the only options were murder and manslaughter.  Finally, the COA does not buy Jones’ argument that his conviction was against the weight and sufficiency of the evidence.

Joseph Schrotz v. State ineffective assistance – Schrotz was driving on I-10  when law enforcement’s  license plate reader indicated that the car he was driving was stolen.   Schrotz refused to stop and a high speed chase ensued.   The driver eventually stopped and fled into the woods.  The next day,  a resident reported an intruder.  Schrotz was arrested and it was noted that his appearance was similar to the runaway driver from the day before.  Schrotz was indicted for receiving stolen property, failure to stop, posession of stolen firearms and burglary of a dwelling.  Prior to trial, his attorney argued that the evidence of the stolen property and the guns should be suppressed because it was irrelevant to the charge of being pursued and was more prejudicial than probative.  The trial court agreed.  Before trial, Schrotz had new attorneys who entered into several stipulations.  On appeal, Schrotz argues they were ineffective because the stipulations put him behind the wheel of the fleeing car effectively admitting guilt on that charge.  The State argues that the concession was part of a trial strategy to have the jury find Schrotz guilty of a lesser offense – that he tried to evade law enforcement but was not guilty of burglary because he was in the house only to hide from the manhunt.  The COA affirms holding that while it is normally ineffective to admit guilt, it was not so here.   “Given the circumstances, we find that it was a reasonable trial strategy to admit guilt to misdemeanor failure to stop a motor vehicle in an attempt to avoid conviction on the burglary-of-a-dwelling charge. Thus, we cannot find Schrotz’s counsel ineffective.”

Toulman Boatwright v. Grace Boatwright –  recusal over turkey hunt  – The Boatwrights were divorced in 2004 but have managed to spend the next decade in court.  The couple had three kids.  Grace was given custody and Toulman was ordered to pay $320 per month in child support. In 2007, Grace filed a motion for contempt.  Toulam was ordered to pay sanctions, attorneys fees, GAl expenses, etc.   Afterwards, Toulman’s attorney filed a motion to recuse because Judge Roberts had gone turkey hunting with one of Grace’s attorneys, Kent Smith.   Roberts recused himself.   Judge Alderson took over the case and denied Toulman’s motion for a new trial.  On appeal, the COA reversed and remanded finding that Alderson had not reviewed the record but merely deflected the issue for the COA to decide.  On remand, Judge Lancaster took over and denied the motion for new trial.   On appeal again. Toulman argues that 1) Judge Lancaster erred in denying his motion for new trial since Roberts should have recused himself initially; 2)  Lancatster improperly imposed sanctions for Toulman’s initial motion to recuse and 3) Judge Roberts’ ruling should be reversed for bias.  The COA affirms.

However, we note here, as Judge Roberts did by his sua sponte recusal, accepting an invitation to a turkey hunt with one of the lawyers in this matter while the case was ongoing caused the appearance of Judge Roberts’s impartiality to come into question. The mere fact that a judge has social contact with lawyers is not the issue and is not the basis for a recusal. However, accepting such a unilateral invitation while in the process of sitting in a contested matter is problematic and should be avoided. Judges are human. Judge Roberts accepted an invitation he should have declined. The issue was brought to his attention, and he properly recused himself. The better practice would have been to refuse that invitation. But Judge Roberts corrected his own 10 mistake by recusing. himself, thus removing any appearance of impropriety or lack of impartiality

Christopher Deans v. Kathy McColumns –  partnership dissolution – the COA affirms the division of assets even though the chancellor dismissed Deans’ counterclaims for breach of fiduciary duty.

Pro Se PCRs affirmed.

Christopher Benoman v. State 

Stanley Montgomery v. State

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