Decisions – COA – Sept. 8, 2015

Robert Anderson v. Christina Anderson –   equitable division of marital assets – In 2012, Christina and Neil Anderson divorced after a marriage that produced three children.  Neil initially agreed to pay to pay temporary child support in the amount of $1400 a month alimony of  $900. Neil later moved to modify those amounts but the chancellor denied his motion. Neil also challenges the  equitable division of marital property.  Neil points to some matters the chancellor did not consider and the court finds that Neil should have raised these in a motion for reconsideration if he wanted to preserve the issue for appeal.  As for Neil’s other issues, the COA does not find any reason to disturb the chancellor’s rulings.

Oscar Lee Bailey v. State –  taking away a motor vehicle – Bailey was a mechanic.  Gladys Ketcthings brought her Taurus to him to repair what she thought was leaking transmission fluid.  Bailey then disappeared with the car and was only found a year later when Bailey was pulled over for an expired tag.  He was convicted of taking away a motor vehicle and sentenced to six years. On appeal, his attorney filed a Lindsey brief attesting that he could find no issues for appeal.   The COA agrees and affirms.

Christopher Grady v. State –  ineffectiveness for failure to challenge search – Christopher Grady was convicted of possession of a controlled substance and sentenced to thirty years with five suspended.   Grady was stopped for having a nonfunctioning headlight.  The officer testified that he initially arrested Grady for driving with a suspended license but after he removed Grady and the passenger from the vehicle, he performed a search incident to arrest and opened a suitcase in the back seat which was found to contain  23 pounds, of marijuana. On appeal, he argues one issue: that his counsel’s failure to move to suppress the marijuana found during an illegal search and seizure constituted ineffective assistance of counsel.   The COA dismisses the claim without prejudice to raise in a post conviction petition.

Jeremy Snyder v. State –  felony DUI–   Snyder was convicted of felony DUI – driving under the influence after having had two prior DUI convictions.   Before trial, he stipulated to the two priors which meant the state did not need to introduce them.  The trial court  instructed the jury  that the stipulation only proved his two prior convictions and could not be considered proof he committed a third DUI.  On appeal, Snyder argues that the State should not have been allowed to make any reference to the priors.  The COA finds no error.  “We find this particularly true since the State’s reason for mentioning the two prior DUIs was not to prove Snyder also committed a third DUI. Instead, the State brought up Snyder’s two past experiences with DUI tests to show his motive and intent for refusing these tests the third time around.”  Now was it error to not give a spoilation instruction because the state could not produce the dashboard video since to obtain a spoilation instruction, the defendant must show that the  potentially exculpatory evidence was destroyed in bad faith.

Charles Keubler v. State –  flight evidence, etc. –  Keubler was convicted of murdering a friend.  Keubler insisted it was an accident.  The friend was trying to commit suicide and the gun when off when he tried to wrestle the gun away from her. On appeal, he argues that the court erred in refusing to admit evidence that the victim was doing drugs that day which would influence her to be suicidal, that the trial court erred in allowing evidence of flight when there was an explanation for it and then refused to allow him to explain it to the jury, that the court should have granted a continuance when the state surprised the defense with a new gunshot reside test on the third day of trial. The COA finds that it was error to allow the evidence of flight but that it was harmless.

We find the evidence was sufficient to establish error with the trial court’s ruling on the admission of the flight evidence. Further, the time frame from the commission of the crime to the alleged flight was lengthy – over one year – causing the alleged flight information to be more prejudicial than probative under Rule 403. In Ervin, our supreme court questioned whether evidence of flight was even remotely probative of guilt when the flight occurred only three weeks after arrest. Ervin, 136 So. 3d at 1060

Here, we have no reason to link Kuebler’s flight to consciousness of guilt for the crime that occurred more than one year previously.

Michael Knight v. Statevalidity of confession –  Michael Knight and his wife had  prescriptions for Oxycodone and Methadone.  When he was found to be missing hundreds of pills from prescriptions that had been filled recently he had more than a thousand dollars in cash on his person. Knight confessed that he had been selling his pills.  He was convicted of two counts of  possession of a controlled substance with intent to distribute and sentenced to life without parole as an habitual.  On appeal he argues that his confession should have been suppressed because he was high at the time he gave it.  The COA affirms.

Knight claimed that he had liquified and injected five Oxycodone pills shortly before he was taken into custody. However, each of the three police officers present when Knight gave the statement, including one who had known Knight previously, testified that he did not 3 appear to be intoxicated when he gave the statement. Approximately twenty minutes of the interview was recorded and reviewed by the court, which allowed the judge to make an independent evaluation of Knight’s mental state. Under these circumstances we cannot say the trial judge erred in finding that Knight’s confession was not induced by extreme intoxication.

Dwayne Norris v. Jacqueline Norris – equitable distribution – Dwayne and Jacqueline had been married for four years when they  separated in May 2012. Jacqueline filed for divorce on the ground of habitual cruel and inhuman treatment. Dwayne was served and filed a response pro se but did not appear for the trial.  The chancellor granted Jacqueline a divorce on the grounds of habitual cruel and inhuman treatment and  awarded Jacqueline “$5,000 . . . as equitable distribution of the parties’ debt.” The COA reverses.  At trial, Jacqueline’s attorney asked for  $5,000 “to repay the expenses that she’s incurred for the household, utilities, food[,] and so forth . . . [t]hat he refused to help pay. Because numerous times she’d ask for money for the house, for the utilities and – here’s $30. Here’s $20.”  The COA finds the award error because Jacqueline did not introduce any documentary evidence to support her claim or  a financial statement, as required by Rule 8.05. “Had she filed a Rule 8.05 statement, there may have been evidence sufficient to support the chancellor’s finding. However, we simply cannot find the evidence that would support the chancellor’s award of ‘$5,000 . . . as equitable distribution of the parties’ debt’ in the record.”

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