Decisions – COA – Aug. 11, 2015

Ronnie Boyd v. State –   health issues do not invalidate plea – Boyd was indicted  for one count of bribery, one count of attempting to tamper with physical evidence, and one count of possession of a controlled substance.  On the first day of trial, the state filed a motion to amend to charge Boyd as an habitual which the court granted the next day.  That same day, Boyd plead guilty to count one of bribery as a habitual offender and sentenced to ten years without parole.   Three years later, Boyd filed a pcr motion alleging that  his guilty plea was involuntary due to “serious health problems”  he was experiencing at that time (alleged aftereffects from a ten year old car wreck and heat stroke suffered six years previously) and that his attorney was ineffective because she failed to inquire about his health issues and failed to present evidence at the plea hearing concerning his health issues.  The trial court denies the petition and  the COA affirms.

Wanda Chipley v. Kenneth Chipley division of marital property/ court must make on the record findings under Ferguson  – The Chipleys were divorced in January of 2011 based on Kenneth’s habitual cruelty.   The judgment directed the attorneys “to provide to the [c]ourt within ten (10) days of this [o]rder their Ferguson analysis of the equitable distribution of property.” The case sat idle for over two years until the Mississippi Supreme Court ordered the chancellor to rule on the property division, which he did on February 15, 2013. Afterwards, Wanda filed a “motion for reconsideration or retrial” one day after the deadline (ten days) top be treated as a motion under Rule 59(e).  The court denied the motion but did not address Wanda’s request for attorneys fees.  The COA reverses.

Here, the order dividing assets was entered two years after the divorce was granted. And while the order does state the assets were being divided “based upon the Ferguson analysis,” there is no record evidence any factors were ever considered. Without these required findings and conclusions of law, we are unable to review the chancellor’s property division. Thus, we must reverse the chancellor’s judgment and remand the case for the chancellor8 to conduct a new trial on the property division only. On remand, the new chancellor shall conduct a new Ferguson analysis, including factual findings and conclusions of law.

Eric Brown v. State –   right to competency hearing – Eric  Brown pleaded guilty to murdering his girlfriend and unborn child and was sentenced to life and 20 years.   In 2014, he filed his fourth pcr motion alleging that the court should have held an on-the-record competency hearing before accepting his plea since the court had ordered he undergo a psychological exam as required by  Sanders v. State, 9 So. 3d 1132, 1136  (Miss. 2009).  The COA holds that  Sanders is not retroactive, that Brown  deemed competent by the psychologist who evaluated him and neither Brown nor his attorney  asserted Brown was incompetent to stand trial.

Shannon Rayner v. State –   cross-examination of Hayne on his troubled tenure as the state’s medical examiner – Shannon Rayner was indicted for the murder of his wife Sonya and arson.   The had been at their deer camp in February of 2011 when there was a fire.  Shannon escaped but his wife was found dead from blunt force trauma.  The mattres on which she was found was soaked on blood.  At trial, the jury acquitted Rayner of arson but found him guilty of deliberate-design murder He was acquitted or arson but convicted of murder and sentenced to life.   The defense hired as its expert pathologist Dr. Steven Hayne who testified that the cause of death was from a combination of alcohol and zoloft.  The fracture found in Sonya’s skull was from the heat of the fire. On appeal he challenges the sufficiency of the evidence.  The COA finds no error.  He also claims it was error the court to allow the prosecution to ask Dr. Hayne questoins about and argue to the jury that he is the most discredited doctor in Mississippi.  The COA finds that this was not error nor was it error for the Court to have first picked the foreman and then, once the defense objected, allow the jurors to pick a foreman who happened to be the same person the judge chose.

High Sierra Tax Properties v. Richard Daley –  proper notice of tax sale – High Sale and GJ Tax Sale Properties purchased two pieces of property owned by the  Robin Duckett and Roger Baugh  at a tax sale in Jackson County.   High Sierra filed lawsuits against Duckett (one for each property) which were later consolidated.  Robert and Jeremia  Daleys obtained a quitclaim from Duckett. answered the complaints and filed motions to substitute them for Duckett.  Both sides then filed for summary judgment which the court granted for the Daleys finding that the tax sale was void because proper notice of forfeiture had not been given the landowners.  They did not receive notice sixty days prior to the expiration of the redemption period and the newspaper notice named Duckett but not Baugh.

William Marbly v. Kevin Manuel and the City of Clarksdale –  sufficiency of MTCA notice – On March 5, 2013, William Marbly was injured in an automobile accident caused by a City of Clarksdale employee, Kevin Manuel. On August 29, 2013,  Marbly’s attorney mailed a  certified letter dated to the mayor  informing him of Marbly’s claim.    When he got no response, he filed suit on March 4, 2014.  The City moved to dismiss arguing that Marbly’s notice failed to provide substantial details of the accident.  The trial court dismissed and the COA reverses finding that Marbly provided information in all seven categories required by the statute.

Maxwell Lomax v. Tara Lomaxcruel and inhumane treatment – Maxwell and Tara  Lomax separated three months after they were married.  Tara filed for divorce based on habitual cruel and inhumane treatment and the court awarded the divorce on these grounds.  Maxwell takes issue with this as well as the court’s awarding Tara the engagement ring.  Maxwell insisted he never hit Tara after they were married, only before.  Tara submitted photos of injuries she received after they were married. The COA affirms.

James Fortenberry v. State –   alleged Brady violation – Fortenberry was found guilty of two counts of sexual battery and one count of rape. He was alleged to have accosted a Catherine Branch while she was at  Brandon City Park with her boyfriend Ellis Wilkerson.  Fortenberry held a gun to Catherine’s  neck and forced her to perform oral sex on him. A second assailant, Jeremy Holloway, then  pointed a gun at her  and forced her to perform oral sex on him. He then vaginally raped her and forced her to perform oral sex on him once again.  As it turns out, Holloway was Wilkerson’s roommate and Wilkerson knew of the plan.  Fortenberry,  Holloway and Wilkerson  were charged.  Fortenberry was sentenced to concurrent terms of thirty years on each count, with ten years suspended and five years of supervised probation. On appeal, Fortenberry  argues that it was error for the state to adduce testimony from Catherine that she did not immediately drive to the police station because Wilkerson told her that her attackers had told him they would kill them both if the rape were reported.  WIljkerson did not testify and could not be cross-examined. The COA finds no objection was made and any argument is waived. Fortenberry argues that the state erred in calling him a liar.  This was not error since the state was allowed to point out Fortenberry’s various inconsistent statements.  Fortenberry raises an objection to an aiding and abetting instruction which the Court finds is not incorrect.

Finally, Fortenberry cites to a Brady violation claiming the state failed to turn over a statement made by a Chris Moore that he had overheard Catherine stating that it didn’t happen.  At a hearing on this claim,. the officer who interviewed Moore and took notes on the interview denied hearing Moore make that statement and Moore did not give him a written statement. At the hearing Fortenberry presented an affidavit from Moore  swearing that hat he had given Officer Smith a written statement advising Officer Smith that he had heard Catherine and Wilkerson arguing in the hallway outside their apartment  “We note that in Chris’s affidavit he recalled that his wife, Lauren, was present, saw him write out the statement, and witnessed it. However, at the Brady hearing, Chris could not recall whether his wife witnessed the statement that he gave to Officer Smith, and when his wife was questioned, she could not recall witnessing or signing a “sheet of paper.” She also could not recall the content of the purported written statement.and that he specifically heard   Catherine tell Wilkerson that she was going to drop the charges because ‘this didn’t happen.'”

The circuit court ultimately held that the credibility of Officer Smith’s testimony outweighed Chris’s testimony. The circuit court pointed to the contemporaneous nature of Officer Smith’s notes versus Chris’s affidavit made more than two years after the events transpired to which, substantively, his wife could not attest. The circuit court found that the State did not possess a written statement by Chris. Furthermore, the circuit court found that Fortenberryhimself, by the utilization ofreasonable diligence, could have obtained whatever information Chris gave to Officer Smith because Chris and his wife were listed as potential witnesses in Officer Smith’s report. Finally, the circuit court held that even if Chris had testified during the trial about what he had allegedly overheard, there was no reasonable probability that the outcome of the trial would have been different.

Pro se PCRs affirmed:

Percy Hawthorne v. State

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