Decisions – COA – Nov. 10, 2015 – part two

Lennie W. Dingler and Lesie C.L. Dingler v. Martha Patricia Ferguson –   lease as part of marital property –  Kevin Ferguson was purchasing a  convenience store from the Dinglers for $150,000.  His wife  Martha Patricia Ferguson had been operating the store and living in the back of the property.  Pattie and Kevin filed for divorce.  Pattie included the Dinglers as defendants in her divorce alleging that they  conspired  with Kevin to interfere with her rights to marital property. The chancellor found that Kevin did not  voluntarily relinquish his rights under the lease.  The COA affirms.  “During the pendency of Pattie’s lawsuit, all Kevin’s obligations under the lease / purchase agreement were fulfilled—including paying the full purchase price, plus interest. Because the agreement required the Dinglers to convey the property to Kevin upon receipt of the purchase price, we affirm the final divorce judgment, which ordered the Dinglers to convey the property to Kevin, and for him to then convey the property to Pattie as part of the equitable distribution of their marital property.”

John Casey v. State404(b) – Casey was convicted of aggravated assault in the brutal beating of his girlfriend Lauren Brocato.  Lauren showed up at her parents’ house with broken ribs, a collapsed lung and a fractured eye socket. At some point during the beating, he was alleged to have locked Lauren inside a dog crate for twenty minutes.   Casey was charged with agg. assault, kidnapping and sexual battery.  A jury acquitted him of kidnapping and sexual assault but locked on the agg. assault charge.   During the second trial, the state adduced the evidence of Casey locking Lauren in the dog crate.  Casey argues that this was error given the acquittal on the kidnapping charge. The COA holds that the court did not abuse its discretion in admitting the evidence. “Under Rule 404(b) “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” M.R.E. 404(b). But there is a well-recognized exception to this rule, which Casey acknowledges. Evidence of other bad acts is admissible ‘when the charged offense and . . . bad act are so interrelated or form part of a series of occurrences.’ Edwards v. State, 124 So. 3d 105, 113 (¶35) (Miss. Ct. App. 2013).”   He also argues sufficiency of the evidence.  The COA affirms.

Larry Walker v. State –  speedy trial, etc. – Walker was accused of forcing a  minor into her car at gunpoint,  driving her  car to a secluded field and attempting to rape her. When he failed to complete the act of rape, Walker forced her to perform oral sex on him, then released her.  He was  indicted  for carjacking, kidnapping, robbery, two counts of sexual battery, and attempted forcible sexual intercourse.   The trial concluded with an acquittal for one count of sexual battery and the robbery count and a  mistrial on the remaining counts.  At his second trial, the jury found Walker guilty of carjacking, kidnapping, and attempted forcible sexual intercourse but acquitted of the remaining sexual-battery charge. Walker appealed and the COA reversed and remanded.  Walker v. State, 937 So. 2d 955, 958 (Miss. App. 2006).  At his third trial, the jury found him guilty of  carjacking and kidnapping, but found him not guilty of attempted forcible sexual intercourse. The circuit court sentenced Walker, as a habitual offender  to two life sentences without parole.  On appeal Walker argues that the indictment was defective in the sexual battery charge.  The COA finds this meritless since he was acquitted on this charge. Walker claims that the evidence of the habitual was lacking.  “Specifically, Walker argues the “pen-packs” introduced at the sentencing hearing by the State did not include a sworn affidavit, and the circuit court did not make a finding as to Walker’s habitual-offender status.”  The Court finds this procedurally barred because it was not raised at trial.  The COA also notes the pen packs were certified.  Finally, he argues his speedy trial right was violated.  The COA finds good cause for the delays and affirms.

Henry Parker Jr. v. State confrontation clause/ state crime lab analyst – Parker was stopped for driving carelessly on I-10.  He consented to a search of his rental car and the officer found nine cattle-feed bags of what appeared to be marijuana.  He was convicted of possession with intent and sentenced to twenty years with ten suspended. On appeal he argues the court erred in allowing an analyst to testify that the substance was marijuana when the analyst did not perform the testing.  There was no objection at the time of the testimony so the COA reviews the issue under a plain error analysis.  Here the analyst was the supervisor of the analyst who performed the tests. Since he was “actively involved in the production of the report and had intimate knowledge of the analyses even though [he] did not perform the tests firsthand”, it was not error for him to testify.

Travon Brown v. State – Brown was convicted of deliberate design murder of Cornelius Harris and Felicia Ruffin. On appeal he argues that he should have been granted an instruction on the initial aggressor, The COA finds no error because the evidence did not support it and the issue was covered elsewhere. He also argues that he should have gotten an instruction on his theory that the shooting was an accident.  The COA finds that he got instructions on his theory of the defense. HE argues that he should have gotten a Weathersby instruction.  The COA finds that ‘Under Weathersby, ‘the reasonable, uncontradicted story of the defendant or his witnesses must be accepted as true.’” Id. However, Weathersby does not apply when “the defendant’s account is merely contradictory or if the defendant’s conduct and statements following the killing are inconsistent with his version of the events as recounted at trial.'”   Brown contends the trial judge erred in not allowing him to introduce toxicology tests performed on the victims.  The COA agrees with the trial court that the victims’ ingestion of drugs several hours before they were killed had no relevance. Finally he argues sufficiency of the evidence.  The CIA affirms.

Lois Hudspeth v. State –  resentencing to lwop after Miller v. Alabama –  In 2004, Hudspeth pleaded guilty to murder and was sentenced to life without parole. He was sixteen when the murder was committed.  After Miller v. Alabama, 132 S. Ct. 2455 (2012), the Court vacated the lwop sentence and remanded for a new sentencing hearing. The trial court resentenced him to lwop.  “The Supreme Court suggested the factors to consider when determining whether a juvenile should be sentenced to life or life without parole, including ‘chronological age and its hallmark features,’ ‘family and home environment,’ ‘circumstances of the homicide offense,’ and ‘the possibility of rehabilitation.’ Miller, 132 S. Ct. at 2468.”  The trial court considered these factors and did not abuse its discretion. The COA affirms.

Derrick Course v. Statephoto lineup – Course was convicted of the armed robbery of a JSU student in the student’s dorm room.  Two unknown men came into the student’s dorm room and robbed him.  The student told police  that both men had dread locks and one was tall with a dark complexion while the other was short with a lighter complexion.  Course and   Reginald Jackson were arrested the next day  and the student shown their photographs.  He identified Course but not Jackson.  Course argues that the showing of two photographs instead of a photo lineup was suggestive.  “We have previously stated that identifications based on a single photograph are suggestive.”    However, given that the student identified Course three times, had plenty of time to see him in the well lit dorm room and the fact that only one day passed between the robbery and the id support the reliability of the identification.

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