Decisions – COA – Feb. 23, 2016

 

Marshall Brian Chandler v. State of Mississippi post conviction procedure –  Chandler was convicted of kidnapping, aggravated assault, and conspiracy to commit aggravated assault in June 2012. Prior to his sentencing hearing, he reached an agreement with the State under which he agreed to waive his right to appeal and testify against one of his co-conspirators and in return the State agreed not to pursue an enhanced sentence under the habitual offender statute.   In December 2012, Chandler filed a pro se Motion for New Trial or for JNOV.   The circuit judge denied the motion as untimely. he then filed a  notice of appeal which was dismissed as the COA as untimely.  In September 2013, Chandler filed a PCR motion in the Madison County Circuit Court.  The Circuit Court  dismissing his PCR  as without merit. Chandler appeals,  The COA reverses the trial court’s determination on the merits and finds that the circuit court did not have jurisdiction to entertain Chandler’s PCR motion because Chandler failed to request or obtain leave from the Supreme Court before filing the motion.

Antwain D. Thomas v. State of Mississippi sale of cocaine – Thomas was convicted as an habitual and sentenced to 60 years for sale of cocaine.  In November 2010, a confidential informant told the  South Mississippi Narcotics Task Force that she had arranged to buy cocaine from Thomas the next day.  The sale was made.  A poor quality tape was made of the sale. At trial, the CI testified that when she arrived at Thomas’s girlfriend’s house, Thomas came outside, he gave her the crack, she gave him the money, and she left. She positively identified Thomas as the man who sold her cocaine.  On appeal,  he argues that the circuit court erred by admitting hearsay  (letting the officer testify that the CI told him that she had talked to Thomas and arranged to buy cocaine from him); by allowing a narcotics agent to testify about the events depicted in a video of the drug sale that was admitted into evidence; and by refusing a cautionary jury instruction regarding the testimony of a confidential informant. He also argues sufficiency of the evidence.  The COA affirms.

Transnational Ventures, Inc. and Transnational Associates, Inc. v. Derr Plantation, Inc.real estate commission on deal that fell through – Transnational Ventures and Transnational Associates filed suit claiming  they were entitled to a $500,000 commission on a real estate deal involving Derr Plantation that was never consummated.  The trial court directed a verdict against the Transnationals finding that (1) the alleged commission agreement was insufficiently specific as to the terms of an acceptable sale to require a commission in the absence of a sale; and  (2) Transnational was barred from recovering a commission because it acted as a real estate broker in this State without a license.  The COA affirms.

Charles Ray McCollum, Jr.  v. State of Mississippi  – right to counsel – McCollum was charged with the brutal beating and robbery of 89-year-old  Bill Russell.  McCullum was appointed a lawyer.  Five days before trial, the attorney moved to withdraw on the basis that  there had been a total breakdown in the attorney-client relationship. McCollum had filed a bar complaint against counsel and had written letters to two key defense witnesses in which he warned that counsel was a liar who could not be trusted. As a result, the witnesses refused to talk to counsel or return his phone calls.  Counsel also reported that he had met with McCollum several times but that McCollum was consistently deceptive and uncooperative. McCollum told the court  he was sorry that counsel had seen the letters; someone else had advised him to file a bar complaint and he was “not sure [he] did the right thing on that.” McCollum stated that he did not want to fire counsel and did not want counsel to withdraw. McCollum did not want to fire his attorney.   The circuit judge granted counsel’s motion to withdraw and ordered that McCollum proceed to trial and if he found an attorney in four days he could be represented by counsel.  McCollum represented himself at trial with armchair counsel available to consult. On appeal, the state confesses error.  The COA reverses.

 We sympathize with the attorney involved, and we agree with the trial judge that a defendant should not be able to use his right to counsel as a means to delay criminal proceedings against him. However, unless the defendant has been warned that his conduct may result in loss of the right to counsel or engages in egregious misconduct such as physical violence, there is no basis for finding an implied waiver or forfeiture of that right.

 

David W. Parvin  v. State of Mississippi –  Weathersby – Parvin was convicted of murdering his wife.  He claimed the shooting was an accident that occurred when he tripped over a rug and the gun he was holding went off.  On appeal he argues that the the state did not prove deliberate design.  He also argues that he should have been acquitted under the Weathersby rule.  The COA affirms.

Andy Edward Minor v. State of Mississippi denying prisoner’s appeal of denial of motion to compel discovery outside of litigation   Inmate Andy Minor filed a “Motion for the Issuance of a Subpoena Duces Tecum” in the Circuit Court of Jefferson County seeking to o compel the Mississippi Crime Laboratory to produce the results of any analysis of a spent cartridge found at the scene of the crimes of which he was previously convicted. The motion was unrelated to any pending motion for post-conviction relief.  The circuit court denied the motion and dismissed the case for lack of jurisdiction. The COA dismisses the appeal “because a prisoner has no right to institute an independent, original action for discovery unrelated to a pending PCR motion.”

Paula W. Crosby, et al  v. Kathryn Adele Mittelstaedt, Executrix of the Estate of Gloria Simon Mittelstaedt, Deceasedreopening time for appeal –  The Crosby and Mittelstaedts had a long-running dispute  regarding the Mittelstaedts’ need for an easement to access their property via the Crosbys’ adjoining land.   There was a settlement but the Crosbys were dissatisfied with a fence and more litigation ensued.  The Crosbys lost.  As the result of an apparent error or oversight in the clerk’s office, the Crosbys did not receive notice of this adverse ruling until after the time for appeal had run. When they received notice of the order, they promptly moved to reopen the time for appeal  but the circuit judge denied their motion. The COA affirms finding that the Mittelstaeds would suffer prejudice by the allowance of an out of time appeal given that they had been trying to sell the property since 2007.

Pro se PCR appeals affirmed:

Rosa Wallace v. State of Mississippi

Billie Salvador Braziel v. State of Mississippi

 

 

 

 

 

 

John Kendall Myrick, Jr. v. Dee Bunnell Myrick – irreconcilable divorce issues limited to the issues submitted by the parties – The Myricks were divorced after 32 years of marriage and three kids.   After a trial, the chancellor awarded Dee the marital residence, twelve acres of land, her entire 401(k) account, and various personal items. Ken was ordered to pay Dee  $600-per-month alimony without a termination date and  ordered Ken to maintain a life-insurance policy in the amount of $72,000 with Dee as the beneficiary. Ken appealed. The COA reverses the award of periodic alimony. Mississippi statutory law specifically lays out the procedure for a divorce on the ground of irreconcilable differences. Parties may consent to the divorce and submit to the trial court any unresolved issues.  Here, the parties did not consent to have the court decide periodic alimony.  Since the court originally ordered the money to be paid as lump sum alimony, and lump sum alimony is part of the property division, the case is remanded for a determination of whether the payment was intended to be part of the property division.

 

Michael V. Ward and Amy S. Ward v. Carolyn P. Harrell

    ; Madison Chancery Court; LC Case #: 2012-413; Ruling Date: 12/30/2014; Ruling Judge: Cynthia Brewer; Majority Opinion: Lee, C.J. Disposition: The judgment of the Chancery Court of Madison County is affirmed. All costs of this appeal are assessed to the appellants. Votes: Irving and Griffis, P.JJ., Ishee, Carlton, Fair and James, JJ., Concur. Barnes, J., Concurs in Part and in the Result. Wilson and Greenlee, JJ., Not Participating.

 

 

 

 

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