Decisions- COA – Oct. 13, 2015

Herbert Leon Brewer III v. State –  Timeliness of notice of appeal – Brewer III was found guilty of  violating the speed limit in Tate County.  He appealed to the circuit court and was again found guilty.  The circuit court’s order ruling Brewer violated the speed limit was entered on June 18, 2013. Brewer filed a “Motion Post Judgment to Reconsider Order”  on July 19, 2013. The circuit court treated Brewer’s motion as a motion for a new trial or a JNOV, and dismissed it as untimely on July 31, 2013.   Brewer appealed the July 31 order to the Mississippi Supreme Court on August 29, 2013.  The COA dismisses the appeal for lack of jurisdiction since the notice of appeal was not timely filed.

Dillard Harvey v. State –  murder – Harvey was on a date in Jackson when he spotted some young men breaking into his son’s car. Harvey managed to grab one of them and took him to the police station.  Early the next morning he heard sounds outside.  It was his date’s ex-boyfriend, Aaron Yates,  who was breaking into her car.   Harvey grabbed a gun and once he got on the porch he and Yates struggled over the gun.  The girlfriend, Felita Brown, went outside and saw Harvey stomping on Yates. She went back inside but heard Yates yell “Man, I promise to God if you let me go, I’ll never come back around here again.”  She heard a gunshot.  A neighbor saw Yates retreating with his hands up begging for his life when Harvey shot him.  Harvey was charged with murder and testified in his own defense telling the jury that the gun belonged to Yates and that he, not Yates, was the one begging to leave.  Harvey stated the gun went off as they were wrestling over it.  Harvey was found guilty of manslaughter and use of a firearm by a convicted felon and felon in possession.  He got 20 years, 10 and 10 to run consecutively.   The COA affirms all but the enhancement for use of a gun by a convicted felon thereby reducing his sentence to 30 years.  Harvey had argued that he was erroneously denied recross of the state’s expert pathologist, claims he was entitled to a necessity instruction, and argues it was error to make him repeat s demonstration that he did with defense counsel on direct.

Robert Stratton v. Judy Stratton Ussing –  malicious prosecution/intro. of settlement evidence –  Robert and Judy are siblings.  She sued him for breach of fiduciary duty with regard to some timber that was cut on their property. She also filed misdemeanor charges against him for embezzlement. He then  sued her for malicious prosecution.  A week after pleading not guilty to the embezzlement charge, Robert entered into a settlement with Judy whereby he would pay her $10,000 and she would release all claims against him.  Judy moved for summary judgment offering the release to show that the prosecution about which Robert complained did not end in his favor.  The trial court agreed.  On appeal, Robert argues that the introduction of this evidence was error.  The COA affirms. “The purpose of this settlement evidence was not to prove the validity or amount of any claim Judy had against Robert. Rather, it was to defend herself from the malicious-prosecution lawsuit Robert filed against her. Because Judy offered the release for ‘another purpose,’ the circuit court did not abuse its discretion by admitting it.”

Demarcus Timmons v. State –  voluntariness of plea –  Timmons pleaded guilty to the November 28, 2011, robbery (and other charges) of the  Sand Dollar Lifestyles at Renaissance in Ridgeland.   He now argues that his plea was involuntary.  The trial refused to set the plea aside and Timmons appeals.  As typical with these cases, Timmons assertions on post conviction are belied by the record of the plea hearing.  The COA affirms.

Earnest Varnado v. Statechain of custody/cruel and unusual drug sentence –  “Earnest Varnado appeals his conviction by a Pike County jury of one count of possession of more than forty dosage units of benzylpiperazine (BZP), a controlled substance, and one count of resisting arrest. Varnado’s arguments may be summarized as follows: (1) the State failed to establish a predicate for the admission of the controlled substance into evidence; (2) his sentence amounts to cruel and unusual punishment; (3) the circuit court erred in denying his motion for a mistrial; (4) the circuit court erred in denying his motion for a new trial; and (5) the cumulative effect of the errors requires a reversal of his conviction.”  The drugs were found on Varnado as police were arresting him pursuant to a warrant.   Varnado takes issue with the chain of custody and also claims the sentence of 30 years without parole as an habitual violates the eighth amendment. The COA affirms.

Bobby Leonard Gray v. State pro se out-of-time pcr – Some 16 years  after being found guilty of a drug offense and sentenced to 60 years, Gray filed a pcr motion in the trial court which dismissed it.  (That’s weird; it looks like he had an appeal which means he would have had to file in the Miss.S.Ct. first.  I’m missing something here). The court dismissed it and the COA affirms.

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