Decisions – COA – Dec. 15, 2015

Fred Howard v. The Mississippi Secretary of State Mississippi Athlete Agents Act – Fred Howard was fined  $15,000 by the Miss. Secretary of State for violating the Mississippi Athlete Agents Act for signing two athletes without first being registered as an athlete agent.  The COA affirms.

Justin Holmes v. State –  Attempted agg. assault – Holmes was convicted of heat-of-passion manslaughter and attempted aggravated assault. On appeal, he argues that the evidence was insufficient.   He also argues that the indictment was improperly amended from aggravated assault to attempted aggravated assault.  The statute, however, specifically includes attempted aggravated assault  and, thus, a defendant is deemed on notice that he could be convicted of the attempt. Finally, he argues that his trial counsel was ineffective but the argument is too vague for the court to figure out.

Franklin Collection Service v. MDES and Elizabeth Thomas – low productivity does not equal misconduct – Thomas was employed at Franklin as a bill collector but when this proved too much for her she was given the job of sorter.   As a sorter, she was supposed to call debtors and if she got one on the line, to transfer them.  She was also supposed to write 100 collection letters.  The company fired her for low productivity and she filed for unemployment.  MDES awarded her benefits and the COA affirms. “Beyond showing Thomas ‘may have socialized too much,’ Franklin had no evidence Thomas’s low productivity was accompanied by the type of willful or wanton acts or omissions necessary to meet the definition of ‘misconduct.'”

Charles McLaurin v. State – timeliness of appeal –  McLaurin pleaded guilty to  to two felony-shoplifting counts and got a four-year sentence. .Once he did so he began filing challenges to  handling of his incarceration. The COA dismisses his appeal because he failed to seek judicial review within thirty days of exhausting his administrative remedies.

James L. Johnson v. State –  Other bad acts evidence –  Johnson was convicted of  aggravated domestic violence.  He was accused of strangling  his ex-wife.  At trial the court allowed the state to introduce police reports related to Johnson’s prior bad acts (including two convictions)  and convictions for domestic violence involving four different women and spanning a thirteen-year time period.  The offense reports contained information that  Johnson engaged in other criminal conduct than just the four past bad acts.  the State proffered during the pretrial hearing.  The COA reverses because the “circuit court admitted the four offense reports without determining whether, under Rule 404(b) of the Mississippi Rules of Evidence, the State offered the additional offenses in the police reports for proper purposes.”  “Furthermore, the circuit court admitted the offense reports without scrutinizing whether, under Rule 403 of the Mississippi Rules of Evidence, the probative value of the additional allegations contained in the reports outweighed the prejudice to Johnson.”

Michael McDonald and Sharon Crutchfield v. Lemon-Mohler Insurance Agency failure to obtain insurance – The McDonalds purchased a property in Ocean Springs in 2005 from Anchor Realty.  Anchor had had wind coverage on the house it was building there which expired on September 9, 2005. “At some point prior to the closing, Mr. McDonald asked [Anchor Realty owner] Danny Jalanovich whether the property was insured, and Mr. Jalanovich replied that it was.”  Apparently Lemon Mohler sent a letter to Anchor in January 2005 that the wind coverage had expired but Anchor denied getting notice. The house was completely destroyed by Katrina.  The McDonalds sued the insurance agency claiming that they had a duty to inform them after the agency was specifically asked.  A jury found for the defendant.  The COA affirms.

Bradley McElroy v. City of Brandon – tort claims act – McElroy was killed when he entered highway 80 and his car was struck by a Brandon Police Car that was driving at a high rate of speed without using its siren. The trial court granted summary judgment for the City.  The COA affirms finding that because McElroy had both alcohol and marijuana in his system at the time of the accident and his ingestion of these drugs had a causal connection to the accident, he is barred from recovery because he was engaged in criminal activity at the time of the accident as contemplated by the Tort Claims Act.

Peggy McGrew v. Charles Elliott McGrew, deceased  – no divorce after death – Peggy and Charles were married in 1999.   At the divorce hearing on November 22, 2013, the chancellor orally granted Peggy a divorce based on Charles’s adultery and imprisonment.   At the time of the oral ruling, Charles had a life expectancy of less than a year due to various health issues.  The chancellor directed the attorneys to prepare a judgment consistent with his oral ruling. Before the judgment was reduced to writing, Peggy filed a motion for reconsideration. Charles died on June 10, 2014. Peggy moved to withdraw the divorce. Instead, the judge signed a judgment on July 18, 2014  nunc pro tunc to November 22, 2013, the day of the oral ruling. The COA reverses. “Because a divorce action that is not finalized while both spouses are living abates upon one spouse’s death, the chancellor had no authority to grant the divorce after Charles’s death.”

Christopher Hobson  v. State – felony evasionHobson was charged with felony evasion , among other things. after he was observed swerving all over the road and, when a cop initiated a stop, he fled. On appeal he argues that the felony evasion was unsupported by the evidence because the statute requires that one drive recklessly and while Hobson failed to stop at stop signs, he maintained control of his vehicle.  The COA finds that he was driving over the speed limit in a residential area and ran four stop signs.  He also argues that it was error to give an instruction that unexplained flight may show a conscious sense of guilt.    The COA affirms.

Tremayne Whittle v. Statesexual battery –  Whittle was found guilty of the sexual battery of the eleven-year-old daughter of his former girlfriend. On appeal he argues that it was error to allow hearsay testimony of what the girl told others about the abuse. He also argues sufficiency of the evidence.  The COA affirms.

George Affleck v. State – hearsay –  Affleck was convicted in Hinds County of capital murder of the 2011  killing of Diane Hearn and felon in possession. During the trial,  Detective Kuppler testified that  he had a conversation with George Affleck’s brother Kurt Affleck who told him that  George Affleck telephoned Kurt Affleck  and told Kurt that he ( had hurt his girlfriend Diane Hearn. George allegedly told Kurt that George had struck Hearn, she was bleeding and that it was “bad.”  Affleck argues that this was hearsay within hearsay.  Affleck admits that this was a statement against interest and the court admitted it as an excited utterance.  Affleck argues that this was double hearsay and violated his right to confrontation.  The COA affirms.

Bryn Ellis v. State – use of video depo. at criminal trial – Ellis was convicted of murdering Barry Odom in the parking lot outside his apartment.  He had been talking to Cheryl Ellis when he was shot.  Ellis told authorities that Ellis killed Odom out of jealousy over Ellis’ and Odom’s relationship.  Because the pathologist would be out of the country  for trial, the State moved to take a video deposition before trial to use at trial.  Ellis objected arguing that his attorney would not be prepared.  On appeal, Ellis argues that the pathologist was not truly unavailable.  The COA finds that the court did not abuse its discretion in finding the doctor unavailable and allowing the video.

Vicky Debrow v. Stephen Harless, M.D.wrongful death/med mal – Vicky Debrow filed a medical-malpractice claim  against Dr. Stephen Harless claiming that he negligently failed to timely diagnose her husband’s rectal cancer. The trial court granted the defendants’ motion for a directed verdict at the close of the plaintiff’s case on the grounds that  Debrow had failed to demonstrate Dr. Harless’s actions deviated from the standard of care.  “Debrow contends there was a fact question regarding whether Dr. Harless did advise Vollie on the need for a colonoscopy. However, Debrow admits that she did not attend all of Vollie’s appointments with Dr. Harless.”  The COA affirms.

Timothy Antonio McCormick v. State –  On January 16, 2006, McCormick was arrested for robbery in January 16, 2006.  He  failed to appear for trial on May 7, 2007. On that day, a judgment nisi was entered by the trial court against McCormick and his bonding company. This judgment was made final on September 11, 2007.  McCormick was arrested in Georgia in 2012. A trial was had in 2014 and McCormick was convicted. On appeal he argues he was denied a speedy trial. The COA is not sympathetic and affirms.

Lee Augustus McGriggs Sr. v. Mac Arthur McGriggsexhumation – Alfred McGriggs passed away in  January 2014 and he was buried on his family’s land in Claiborne County.  One of his twelve siblings, Lee Augustus McGriggs Sr., objected to Alfred’s body being buried  on the family land and filed a pro se petition to exhume the body claiming that the burial violated the state’s “cemetary laws.”  AFter a trial, the chancellor found that Alfred’s burial did not violate state law and  denied the petition. “Because the chancellor ruled correctly and the record discloses absolutely no reason for disturbing Alfred’s remains, we affirm.” 


Pro se PCRs affirmed

Thomas Jack Kennedy v. State

Bobby Thomas v. State

Robert E. Lewis, Jr. v. State

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