Decisions – COA – Nov. 3, 2015

Theotus Barnett v. State requirements to be entitled  to expert pad for by state –  Barnett was found guilty of deliberate design murder of 52-year-old  Danny Tavares who was found dead at work at the Kosciusko used car lot his family owner in 2007.   The scene was very bloody but there was a small  amount of blood that did not belong to Tavares.  It matched Barnett who was arrested on an unrelated charge four years later in Tennessee.  After Barnett was told his blood was found at the scene, he admitted to having “gotten into it” with Tavares. On appeal, Barnett argues that he should have been allowed to hire his own pathologist to counter that of the state’s witness Dr. Steve Hayne.  The COA finds that it was not error to deny him his own expert because when his attorney asked for one, all that was argued was that an independent expert might disagree with Hayne.

The trial judge did not abuse his discretion by denying Barnett’s motion for public funds to retain an independent forensic pathologist. First, the trial judge’s ruling was not an abuse of discretion because Barnett offered no concrete reason why such assistance was necessary to an adequate defense—indeed, Barnett arguably waived the claim by failing to develop the issue and articulate the claim clearly in the trial court. Second, the trial judge’s ruling was not an abuse of discretion because Dr. Hayne’s testimony was not essential to the State’s case, the State presented ample additional evidence of deliberate design, Barnett was able to present his theory of manslaughter through cross-examination, and Barnett was offered meaningful pretrial access to Dr. Hayne. Accordingly, we find no error and affirm Barnett’s conviction and sentence.

Shirley Adams v. Graceland Care Center of Oxfordeffect of failure to disclose lawsuit in bankruptcy – After Shirley Adams’ mother died while living at Graceland Care Center, she filed suit in 2008, against the nursing home for wrongful death.  Some four years previously, Adams had filed a chapter 13 bankruptcy and had been making payments all along.   She completed her bankruptcy plan without amending her bankruptcy case to disclose the wrongful death lawsuit as an asset.  During the plaintiff’s deposition, the defendants learned of the bankruptcy and filed to dismiss the wrongful death case on this ground.  Adams moved to reopen her bankruptcy case.  After a hearing the trustee decided she would abandon any settlement given that the unsecured claims amounted to $4,719.53.  Thereafter the trial court in the wrongful death case granted the motions to dismiss.  On appeal, Adams argues that her failure to disclose was inadvertent. The COA reverses and remands.

There is no dispute that Adams had a continuing duty to disclose her cause of action. Giving Adams the benefit of the doubt concerning the existence of a disputed material fact, we find that the evidence and testimony before us does not demonstrate that Adams’s failure to disclose, standing alone, amounted to a willfully false representation. Although the 11 Mississippi Supreme Court eliminated the adverse-party requirement for judicial estoppel, it did not disturb the requirement of a willfully false representation. See Clark, 131 So. 3d at 561-62 (¶21). In viewing the facts in the light most favorable to Adams, we find that no motive for concealment has been shown. The efforts by Adams to amend her schedules to list the cause of action are inconsistent with anymotive for concealment. We cannot say that the evidence, when viewed in the light most favorably to Adams, shows that Adams intended to conceal her claim from the bankruptcy court in order to reap a windfall by preventing her creditors from recovering any proceeds from a potential judgment.

Natyyo Gray v. State various including use of  SDTs at criminal trial –  Gray was found guilty and sentenced to life for the capital murder of a thirteen-month-old in 2011. The child was in Gray’s sole care for almost three  hours when he called 911 because the toddler was in cardiac arrest.  She died from internal bleeding due to blunt force trauma. At the time this happened. Gray was an officer with the Jackson Police Department. Gray claimed the injuries occurred because he had been pushing one her stomach to relieve constipation. On appeal he argues that his attorneys were ineffective for failing to interview all of the state’s witnesses prior to trial.  The COA finds that this ineffectiveness claim is not developed sufficiently to decide on direct appeal.  He next argues that the court erred in quashing a subpoena duces tecum he served on the child’s mother.  The court quashed it because the rules allow for a SDT in criminal cases to require only that the items be brought to trial. The court finds that this was not error for the SDT required that the items be brought to  Gray’s attorney’s office.  He argues that the prosecution violated Brady by not disclosing that the mother had life insurance on the child.  The court finds that there was no error inasmuch as the  jury heard this evidence as well as the fact that the mother submitted a claim the day after the child died. Gray also challenged the use of statements he made during a paternity lawsuit regarding the child.  He was alleged to have said that Zoe was an ugly bastard.  Gray claims the statements were not properly authenticated.  The COA finds this issue waived because it was raised for the first time on appeal. Gray raises several issues having to do with the State’s pathologist. In the end, the COA affirms. 

Maggie Caldwell v. Thomas Atwoodcontempt for failure to pay child support – When Maggie and Thomas divorced, Maggie was granted custody of their daughter.  Thomas got liberal visitation and was to pay $350 a month. Seven years later, they filed a joint petition to modify their child-custody and child-support agreement which was granted. A year later, Thomas filed a complaint against Caldwell for contempt regarding visitation privileges and also sought a reduction in child-support.  Maggie  counter-complained for  contempt for failure to pay outstanding child support.  The chancellor granted Thomas more visitation and lowered his child-support payments.  As for child support owing, the chancellor  held that Thomas’ “ prior defaults. . . shall be purged by his successfully having paid fourteen percent of his monthly adjusted gross income . . . for twelve consecutive months hereafter.”  The COA holds that “:While the law allows for credit to be made for child-support payments through additional physical support by the noncustodial parent, it does not permit those payments to simply be “purged,” whether by an agreement or order”  and reverses the finding that Thomas did not owe back child support, the lowering of the child support and the refusal to award Maggie attorneys fees.

Robert Bufford v. State – right to confront witnesses – Robert Bufford was convicted in  of murdering Davie Miller after they were seen leaving a club on Northside Drive together.  He was also found guilty of felon in possession of a firearm.  A nearby cop heard the shots and found Miller on the ground.  Miller told her he had been arguing with a friend named Rod and that Rod shot him. Miller lived for five days before dying; in that time he identified the shooter to a detective, a paramedic and his wife.  On appeal, Bufford argues that the introduction of all the statements made by Miller to various people that Rod shot him violated the confrontation clause. The COA goes through each statement, finds most of them admissible and the ones that might not be are harmless. He also argues that it was error to refuse to allow the jury to hear there was marijuana found near the shooting. “Because the substance that Bufford claims was marijuana had not been tested and was found in someone else’s car, the evidence did not have a tendency to make the existence of any fact more or less probable.”  Finally, he argues that it was error to admit the autopsy report through a doctor who did not do the autopsy. “However, Dr. Barnhart, the medical examiner who did testify at trial, actively participated in the analysis, forming her own report based on Dr. Shaker’s case notes and photographs as well as her own education and experience. This Court agrees with the trial court’s determination that Dr. Barnhart was sufficiently involved with the analysis and overall process so as to avoid violating Bufford’s right to confrontation”.

Virginia Ross v. Dr. Matthew C. Wallack and/or Coastal Headache and Pain Management Center –   requests for admissions – Virginia Ross filed suit against Dr. Wallack claiming that it was his excessive prescription of medication to her son that caused her son’s death. Dr. Wallack served discovery including requests for admissions. Two years passed and Dr. Wallack moved for summary judgment based on the failure to respond to admissions.The trial granted the motion and Ms. Ross appealed. The COA affirms. “While Rule 36(b) allows admissions to be withdrawn in some instances, the proper procedural mechanism to accomplish that is to file a motion asking that the admissions be withdrawn. Because Virginia never filed a motion to amend or withdraw, the circuit court could not exercise its discretion to allow the admissions to be withdrawn.”

Tony Phillips v. StateBatson – Phillips was convicted of simple assault on  correctional officer.On appeal he argues that the instructions failed to tell the jury that it was the state’s burden to prove that the assault was not in necessary self defense.  The COA finds this issue barred because the Court granted the instruction Phillips wanted and Phillips did not object to the elements instruction offered by the state.  Phillips also argues that the State struck four African American jurors and that the court erred in not determining whether the reasons given by the state were pretextual.  The State’s reason for striking one juror was that she had had bad interactions with the DAs office. “The record reveals that Phillips did not refute that explanation and did not name non-African-American veniremembers who had “bad interactions” with the district attorney’s office but who were not challenged by the State.” The COA affirms.

Monroe Randle v. Staterevocation of parole – Monroe Randle was convicted of murder  and sentenced to life in 1980.  He was paroled in February  2010.  In July 2012,  his parole was revoked after he was arrested for simple assault by threat and possession of a firearm.  Randle filed a PCR  contesting the revocation of his parole arguing that he was never convicted of the charges.  The circuit court summarily dismissed it  on the ground that “[t]he State Parole Board is the sole authority on granting or revoking parole.”  The State argues that the court shouyld have dismissed the motion on its merits.  The COA reverses.

This Court has held that “before one released on parole may be returned to custody, the State must show that he has violated the terms and conditions of parole.” Elkins v. State, 116 So. 3d 185, 187 (¶8) (Miss. Ct. App. 2013) (quoting Moore v. Ruth, 556 So. 2d 1059, 1061 (Miss. 1990)). A parolee is entitled to “a written statement by the fact[-]finders as to the evidence relied on and reasons for revoking parole.” Id. While we do not require a conviction to substantiate revocation of parole, the “[m]ere arrest of a probationer is not a violation of probation.” Brown v. State, 864 So. 2d 1058, 1060 (¶9) (Miss. Ct. App. 2004) (citing Moore v. State, 587 So. 2d 1193, 1194 (Miss. 1991)).

In this case, the circuit court judge summarily dismissed Randle’s PCR motion without an evidentiary hearing, and there is no record before this Court providing the information the parole board relied upon in revoking Randle’s parole, nor did the circuit judge make any finding as to whether Randle received the appropriate due process at the revocation hearing. Therefore, we reverse and remand this case for an evidentiary hearing.

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