Decisions – COA – June 28, 2016 – part 1

Dwaliues Deon Carter v.  State of Mississippi – 404(b)In January 2011, the  bodies of Robert Lewis Carter  and his fianceé, Renita Lee Mark were found dead in their home from gunshot wounds.  Their  seven-month-old infant was found on the floor of the house, hungry, crying, and in need of a diaper change.  Robert’s brother was found guilty of  capital murder;  house burglary; etc. Robert confessed to burglarizing the house with  Travaris Christian but claimed that Travaris was the one who did the shooting. On appeal he argues, among other things,  that the court erred in allowing the jury to hear “bad act” evidence that Robert and Dwaliues had argued in the past. The COA affirms.

Nalonnie Moore Osborne v. Leslie Osborne cruel and inhumane treatment divorce – Leslie (“Les”) and Lonnie  were married in 1999 and  separated in January 2012.  Lonnie filed a complaint for divorce in 2012 on the ground of irreconcilable differences, and later amended the complaint to include the ground of habitual cruel and inhuman treatment. After a hearing, the chancellor found insufficiency evidence to support the granting of a  divorce on the grounds of cruel and inhumane treatment.

John Edward Young, Jr.  v. State of Mississippi sexual batteryYoung was convicted of sexual battery involving his uncle’s 11-year-old stepdaughter. On appeal, he argues that the trial judge erred by declining to excuse a prospective juror for cause, by allowing testimony that Young had stated that he had prior “felonies,” by precluding Young’s uncle from testifying regarding K.M.’s past behavior,  and by giving an erroneous jury instruction.  He also argues that his trial counsel was ineffective for failing to proffer the testimony of the uncle.  The COA affirms but finds that the ineffectiveness counsel would have to be addressed in a post conviction pleading.

The Mississippi Department of Wildlife, Fisheries and Parks v. Gaylon Bradshaw – termination from state employment –  Bradshaw was fired for  sending  harassing and sexually graphic text messages to a female only a short time after he had been reprimanded and suspended without pay for similar misconduct involving another female. Bradshaw appealed to  Mississippi Employee Appeals Board which upheld his dismissal. Bradshaw then appealed to circuit court.  The COA reverses the circuit court and upholds Bradshaw’s termination.

Patricia Weathersby v.  Mississippi Baptist Medical Center – workers comp. -Patricia Weathersby worked in clerical positions at Mississippi Baptist Medical Center.   In 2011, she injured her back at work, but she returned to her job, without restriction, and continued to earn the same wages and perform the same duties as prior to her injury despite having  undergone two surgeries and experienced continued pain and discomfort as a result of her injury. Weathersby sought  permanent partial disability benefits for her back injury.

However, in accordance with longstanding precedent, the Commission applied a rebuttable presumption that Weathersby had suffered no loss of wage-earning capacity—and, hence, no disability—because she returned to work at the same wages as prior to her injury. The Commission also found that Weathersby had not presented any evidence to rebut that presumption. Because the Commission’s decision is supported by substantial evidence and is not clearly erroneous, we affirm.

Lonnie Sims v. State of Mississippi armed robbery –  Sims was convicted of armed robbery despite his insistence that his encounter with the allegd victim was merely a drug deal gone wrong.  His appellate attorney filed a brief raising one issue – sufficiency of the evidence. Sims raises four.  The COA affirms.
Elle Adams  v. John Leon Rice –  visitation – Adams and Rice had a son in 2013.  Rice filed a paternity petition and was awarded visitation.  Adams argued against visitation claiming that Rice had raped her.  The COA affirms.

W. S. Stuckey Jr., Special Conservator of the Person of Lila B. Waid v. Herman A. Waid –  divorce – Lila and  Herman married in 2002. In  2009, the  Chancery Court determined Lila to be incompetent and her daughter  Patricia Abraham and Herman as co-conservators of Lila’s person. A local certified public accountant was appointed as conservator of Lila’s estate.  In 2012, Patricia suspected that Herman was having an affair. So, as a co-conservator, she filed a complaint for divorce against Herman on the ground of adultery.  The chancellor appointed W.S. Stuckey Jr. as a special conservator and he filed an amended complaint for divorce on the grounds of adultery, habitual cruel and inhuman treatment.   Lila did not appear in court, due to her “end stage” Alzheimer’s disease. Herman, eighty-four at the time of trial, has had Parkinson’s disease since they married. He testified  that Lila is so ill she has 24-hour caregivers.  Herman rekindled a relationship with J.K. but it is not romantic.  The chancellor denied the divorce and Lila appealed.  The COA affirms.

Broderick McCoy  v. State of Mississippi – revocation –  McCoy pled guilty to sexual battery in 2006. While on  on post-release supervision. In 2010, McCoy was caught on his way to a scrap yard with six manhole covers that had recently been stolen from a construction site. His suspended sentence was revoked.  In 2014 he filed a “Petition for Habeas Corpus” under the 2006 sexual battery cause number. The trial court entered an order finding that the 2014 petition was without merit and barred as a successive writ. The COA vacates the court’s order.

The Mississippi Uniform Post-Conviction Collateral Relief Act abolishes and replaces “the common law writs relating to post-conviction collateral relief.” Miss. Code Ann. § 99- 39-3(1) (Rev. 2015). It provides “an exclusive and uniform procedure for the collateral review of convictions and sentences.” Id.(emphasis added). A post-conviction relief motion under the Act “shall be filed as an original civil action.” Miss. Code Ann. § 99-39-7 (Rev. 2015).

While the circuit court could have ordered that McCoy’s petition be filed as an original civil action seeking post-conviction relief, it did not do so. Consequently, the circuit  court had no jurisdiction to enter an order adjudicating McCoy’s right to post-conviction relief.

 David E. Shanklin v. State of Mississippi revocation –  In 2010, Shanklin pleaded guilty to possession of 4.4 grams of cocaine with intent to distribute. The trial judge sentenced him to twenty years with all twenty years suspended, conditioned upon Shanklin’s successful completion of five years’ supervised probation and various fines. In 2012, his probation officer filed for revocation claiming that Shanklin had not paid the fees and had not reported.  The trial court found that Shanklin violated probation  and ordered him to serve the twenty years previously suspended.  Shanklin appealed and the COA affirms.


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