Decisions – Miss.S.Ct. – Nov. 17, 2016

Sean P. Edwards and Kathryn Loyacono v. Reanna S. Zyla – UCCJEA – Edwards and Zyla never married but had two children -an 11 year old daughter and an 8 year old son.  They lived in Arizona, and in 2010, an Arizona court entered an order establishing the parties’ custodial rights and visitation – joint legal and physical custody.  In June 2013,  they moved to Mississippi.    Once they arrived in Mississippi, Sean filed an action in the youth court alleging that Zyla had neglected the children and asking for emergency custody. Zyla filed a motion to dismiss based on lack of jurisdiction.  By August 2013, Zyla had moved back to Arizona; Sean and the children remained in Mississippi.  On August 26, 2013, Sean filed a request in the chancery court for the registration and modification of the Arizona custody determination. The following day, on August 27, 2013, the youth court entered an order that the family had abandoned their residence in Arizona  and had established a permanent residence in Vicksburg. Sean’s mother, Kathryn Loyacono, was given temporary custody of the children. The next month, Zyla filed a petition in the Arizona court to modify the Arizona custody agreement. The Mississippi youth court, in November 2013, gave Sean  custody until further order. In February  2014, the Arizona court  conferred with the youth court and determined that the Arizona court should have jurisdiction. The youth court entered an order relinquishing jurisdiction and closing the case. Sean  filed an emergency petition and the chancery court held a hearing and  ruled that it did not have jurisdiction.   Meanwhile, the Arizona court held a hearing and  awarded Zyla custody of the children. Sean appealed the Mississippi order finding that Mississippi did not have jurisdiction.  The Mississippi Supreme Court affirms.

We hold that an Arizona court is more appropriate to hear the instant case, so we affirm the chancery court’s judgment. With regard to the interlocutory appeal from the county court, we reverse the county court’s registration of the Arizona judgment due to the countycourt’s lack of jurisdiction to register and enforce out-of-state custody determinations and remand the case to the county court to dismiss it for lack of jurisdiction.

 

Chaddy Brooks  v. State of Mississippi – sufficiency of the evidence – Brooks was convicted of second-degree murder and sentenced to 40 years. She stabbed her boyfriend to death after finding text messages from another woman on his cell phone.  On appeal she challenges the sufficiency of the evidence.  She also alleges her attorney was ineffective for not renewing his motion for a directed verdict at the close of the defense’s case-in-chief.  Every now and then a case comes along where the evidence is insufficient.  This isn’t one of them and the Court affirms.

Robert Carson  v. State of Mississippi –  instruction on unreliability of accomplice testimony –  Carson was convicted of capital murder and sentenced to life without  parole. He was one of three men who robbed and killed Jose Ortiz, the manager of Margarita’s Mexican, as he was  returning home after the dinner shift.  On appeal he argues that his attorney was ineffective in not requesting an instruction on the unreliability of accomplice testimony. He also argues that the court should have given two instructions he requested on the presumption of innocence.  The Court finds that these instructions were covered in other instructions and affirms.

In Re: MEC’s Administrative Procedures – The Court makes some changes to the Administrative Procedures for Mississippi Electronic Courts.

The Court grants cert in four cases (the link attacked to the case name is the COA opinion):

Eric Pelletier v. State  – Pelletier was stopped for a defective tag light.  Law enforcement found some lisdexamfetamine and brass knuckles.  Pelletier tried to call his roommate at trial to testify the pills were the roommate’s prescription but because his trial attorney James Adam Powers failed to timely provide the roommates information in discovery, the trial court refused to allow him to testify. Furthermore his attorney had the “missing” pill bottle but failed to bring it to trial. And he failed to ask for instruction on this defense.  On appeal the COA affirmed by a 5 to 5 split (in an opinion that came down on a Thursday).

pelletier-cert  Pelletier argues that exclusion was improper here where it was based on his attorney being a disaster rather than a calculated choice to gain an advantage.

Jeycob England v. State –  confrontation – England was convicted of manslaughter after he ran over a man in the Target parking lot after that man had dared to wave at his girlfriend in the Electric Cowboy. He argues that his right to confront witnesses against him was violated because the person who testified about the autopsy report was not the person who conducted the autopsy. The COA finds no error. “Dr. LeVaughn, however, reviewed Dr. Shaker’s preliminary report, along with other records and photographs, in creating his own final report.”  England filed a pro se brief alleging he received an illegal sentence because the max for killing someone while operating a vehicle drunk is ten years.  England,  though, was tried for manslaughter. The COA affirms.  England’s pro se cert petition raises the confrontation issue.

england-cert-ptn

Cynthia Kuljis v. Winn-Dixie Montgomery, LLC bill of discovery –   Kuljis was shopping at  Winn Dixie when  she tripped over a piece of protruding rubber which was intended to hold down the carpet. Kuljis claims that she suffered permanent injuries as a result of the fall. She  filed a complaint for discovery in the chancery court requesting  incident reports, photographs, video surveillance, investigation reports, work orders, witness statements, etc.  Winn Dixie filed a motion to dismiss, which was granted by the chancery court.

kuljis-cert-ptn  Kuljis is asking the Miss.S.Ct. to rule that a complaint for discovery is still a viable  cause of action.

Dillon Williams v. State –  sentencing enhancement – Williams burglarized the home of a 91 year old woman and also assaulted her.  He also burglarized the house of the woman’s son.  Williams was charged with burglary (Count 1), burglary under circumstances likely to terrorize the victim (Count 2)  and aggravated assault (Count 3). He pleaded guilty to counts two and three.  He was sentenced to 25 for the burglary and 20  years for aggravated assault. The judge then found that both  charges carried the possibility of an enhancement of up to twice the sentence otherwise authorized, and he applied the enhancement to the aggravated assault sentence, increasing it to forty years’ imprisonment. The judge ordered the sentences to run consecutively for a total sentence of sixty-five years’ imprisonment. In his third pcr, Williams claims the sentence is illegal because Section 99- 19-355 requires a jury to impose that sentence (or the defendnat can waive a jury).  The COA finds the issue procedurally barred and without merit.

dillon-williams-cert-ptn  Williams argues:

When the State opted to indict Williams pursuant to Section 99-19-355 the State opted for the procedure specifically prescribed in that Section – that is “the sentencing proceeding shall be conducted before a jury impaneled for that purpose”, unless Williams waived a sentencing jury, and he did not. Since the statute explicitly provides that a jury shall be impaneled for sentencing purposes, the trial judge had no statutory authority to sentence Williams under the statute upon which the State chose to proceed. Consequently, any action by the trial judge in sentencing Williams, without explaining to Williams his right to a sentencing jury and seeking his waiver, is without jurisdiction, is illegal, and constitutes an illegal sentence.

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