Decisions – COA – Nov. 8, 2016

Felton Martin, Jr.  v. State of Mississippi restitution for wrongful conviction – Martin was convicted of  constructive possession of marijuana with intent to distribute.  On appeal, the  Mississippi Supreme Court reversed and rendered holding that the State failed to prove beyond a reasonable doubt that Martin constructively possessed the more than one-half pound of marijuana recovered at the scene by the police.  Martin had served five years and eleven days in prison and sought restitution pursuant to  Miss. Code Ann. § 11-44-7(1).  The trial court held that Martin failed to prove  his innocence by a preponderance of the evidence and that “Martin’s behavior [did] not comport with actual innocence.” Martin appealed.  The COA affirms.

Paul Haney v. Fabricated Pipe, Inc. and Liberty Insurance Corporation – workers comp – “Paul Haney was employed as a pipefitter for Fabricated Pipe Inc. when he injured his back after falling out of a tree, which he had climbed during a lull in a slow workday. He sought workers’ compensation benefits for the injury, but Fabricated Pipe denied that the injury occurred within the scope and in the course of his employment. The Mississippi Workers’ Compensation Commission agreed with Fabricated Pipe and ruled that the injury was not compensable.”  Haney argued that it was horseplay.  The COA affirms the denial of benefits.

Jeremiah Allen  v. State of Mississippi – evidence regarding confession –  Jeremiah Allen was convicted of assisting his brother in robbing a Wendy’s where Jeremiah worked.   When a video of the robbery was examined, Jeremiah was seen taling on a cell phone and lingering beside an unlocked door through which the robber entered.  Jeremiah moved to suppress the confession claiming it was induced by promises of leniency.  The three officers who questioned Jeremiah denied making promises but testified that Jeremiah wrote out a statement but refused to sign it unless promised a deal.   The COA holds that the trial court did not err in admitting the confession but reverses because  Jeremiah should have been allowed to elicit evidence about how the confession came about for the purpose of letting the jury decide whether the statement was truthful or not.  The Court notes that a second statement written by Jeremiah stated that it was being made without any promises. Furthermore,  an abstract from the municipal court indicated that Allen had been charged with armed robbery, but testimony at trial was that his charges were reduced by that court.

 Once a confession is admitted into evidence, a defendant is entitled to submit evidence and have the jury pass upon the factual issues of its truth and voluntariness and upon its weight and credibility. The defendant may offer proof to show that the confession is untrue and explain why he made the untrue statement.

 

Melvin Patrick Mason  v. State of Mississippi – tender years exception to hearsay – Mason was convicted  of four counts of touching a child for lustful purposes and sentenced to life  as an habitual offender.  The charges involved his two neices. On appeal he argues that the court erred in admitting hearsay statements of the neices under the tender years exception.  The COA affirms.

Cary Dowden v. State of Mississippi – sex abuse – Dowden was convicted of four counts of sexual battery of a child younger than 14. He was sentenced to four life terms.  Elaine Adams was 23 and addicted to drugs.  She gave custody of her six year old son Alex to her stepmother.  Dowden gave Elaine a place to stay and. the stepmother allowed Alex to visit Elaine there. After a few visits, Alex told his stepmother that Elaine and Dowden sexually abused him.  They were arrested. Elaine agreed to plead guilty and testify against Dowden which she did along with Alex.  Dowden did not testify. On appeal he argues that it was  error for teh court to  prohibit him from crossexamining Alex regarding alleged prior instances of inappropriate touching (by his same aged cousins). He also claims it was error to prohibit evidenc e that DOwden passed a drug test. He alleges that counsel was ineffective in not getting the assistance of an expert because Dowden suffers from Tourette’s.  The COA affirms.

Randy Lee Russell  v. State of Mississippi –  tender years exception applied to adult victim with mental disabilities –   Russell was convicted  of sexual battery of a mentally defective person and  sentenced to twenty-five years to be served day-for-day. He was charged with molesting 28-year-old K.G. who was born with polyps on her brain and cerebral palsy leaving her with the IQ of a six year old. .  K.G. lived with her aunt who dated Russell for a time. At some point, Vicki told K.G. she was going riding with Russell whereupon K.G. became enraged and told Vicki that Russell had had sex with her.  Vicki confronted Russell who admitted he had had sex with K.G. twice.  On appeal, Russell argues that it was error to apply the tender years exception to allow hearsay testimony regarding statements by an adult victim.  The COA finds no error and affirms. “The comment to Rule 803(25) states that ‘the exception should not be necessarily limited to a specific chronological age. In appropriate cases, the exception might apply when the declarant is chronologically older than fourteen years, but the declarant has a mental age less than fourteen years.’”

 

Ricky Eugene Johnson v. State of Mississippi – parole eligibility for controlled substances – In August 2013, Ricky Johnson pleaded guilty to sale of a controlled substance and was sentenced to twenty years with ten to serve. a year later he  filed a motion to correct his sentence, arguing that the MDOC improperly altered his parole eligibilityand denied him jail-time credits. The trial court denied the  motion. It later granted a motion for reconsideration finding that it should have denied relief based on Russell’s failure to seek relief through the MDOC’s Administrative Remedy Program.  It then stayed the case for 90 days for Russell to exhaust.  Instead, Johnson appealed.   The COA reverses on the issue of parole  ineligibility.  The amendments to section 47-7-3 made changes to parole eligibility and offenders are eligible after serving  one-fourth of the sentence imposed by the trial court.  The COA finds that as far as jail time credits, he had to have exhaused administrative remedies before seeing relief and therefore affirms as to this issue.

 

Pro se PCR appeals affirmed: 

Clanton D. Pickle, Jr. v. State of Mississippi

Laveal McGhee v. State of Mississippi

Michael Brian Balle  v. State of Mississippi

Casey Carter v. State of Mississippi

John Ray Kidd v. State of Mississippi

James Ratcliff  v. State of Mississippi

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