Decisions – COA – Dec. 6, 2016

 

Arnold Bailey v. State of Mississippi –   evidence regarding the defendant’s theory of the case – Bailey  was convicted of grand larceny in connection with a bunch of stuff stolen from property belonging to a construction company.   Robert Nelson drove to his company’s property in Brandon and noticed the gate was open and the padlock cut.  A guy  named Arnold Bailey was in the back  using a forklift to carry a concrete hopper.  The forklift had been rented by Douglas Walters.   Nelson noticed that about 150 pieces of heavy-duty steel scaffolding, along with some other materials, were missing from his property.  Nelson found out that some of it had been sold by Walters as scrap to General Recycling in Flowood.  Walters and Bailey were indicted. At trial, Bailey claimed that he was hired by Walters to help clean up some porperty. On appeal, he claims the trial court erred in sustaining the state’s hearsay objection when Bailey trie dto tell the jury what Walters had told him to induce hiom to clean up the property.  The COA finds that Bailey’s failure to proffer the excluded testimony waives his right to argue it was error on appeal.  Bailey also claims he was denied an instruction setting forth his theory of the defense.  His attorney actually withdrew the instruction that best set out his defense that he was on the property in good faith.   The COA notes that the jury was given another instruction that would have required them to find that Bailey intentionally participated or associated himself with Walters to bring about the crime.

Danny P. Hicks, II v. Department of Human Services, State of Mississippi –  paternity – Danny Hicks had sex with Jakeida Carter one time before she gave birth to Janiyah in January 2007. In  October of that year, Hicks agreed to be named as Janiyah’s legal father on her birth certificate. A  year later, Hicks entered into a stipulated agreement with DHS in which he admitted paternity and agreed to pay $202 a month in child support. The agreement was approved by the Hinds County Chancery Court. In 2015, a DNA test revealed that Hicks was not the biological father. Hicks filed a Petition to Disestablish Paternity and Terminate Child Support and asked to be  reimbursed for the payments made before the DNA test ($1,800). The court denied relief and Hicks appealed.

In Jones v. Mallett, 125 So. 3d 650, 651 (¶¶5-7) (Miss. 2013), the chancery court similarly relied on section 93-9-10(3)(c) to deny the plaintiff’s petition to disestablish paternity. Our supreme court affirmed the chancellor because the plaintiff had signed a stipulated agreement of paternity that was approved by the chancery court over a decade prior to the father’s filing for disestablishment. Id. at (¶10). Thus, here we find the chancellor did not err by denying Hicks’s petition.

 

John R. Bell v. Lori M. Bell – attorneys fees –  John and Lori divored in 2010.  They had a daughter Kinsely who was 15.  Jack agreed to pay $1,700 per month as child support, not subject to reduction as long as Lori was making payments on approximately $130,000 in student loans for both parties.   At the time of the divorce, Jack was employed as a mechanical engineer at Greenwood Utility, reporting an adjusted gross monthly income of $3,077. Lori was an attorney who reported an adjusted gross monthly income of $2,515.66.  Jack was laid off and  began working at his mother’s general country store. WHen the store was sold, he moved to Alabama and  began paying only $625 per month in child support to Lori instead of $1,700.  In May 2012, Jack filed for a modification of the support.  The court reduced the child support from $1700 to $1000  which included $500 a month for  private school.   On appeal, Jack argues this was error to require him to continue to pay for private school but the COA finds no abuse of discretion given that Jack initially agreed to pay for private school. The COA does reverse and remand on attorneys fees.

Jack argues that the $1,000 award in attorney’s fees to Lori was improper because there was no finding of willful contempt. We agree. While an award of attorney’s fees is proper in a contempt case and “largely entrusted to the sound discretion of the chancellor,” the court “must first consider whether a party willfully violated the court’s order.” Price, 5 So. 3d at 1158 (¶19) (citations omitted). Here, there was no finding that Jack willfully violated the court’s order.

City of Meridian, Mississippi v. Adam Meadors – civil service – Meadors was a police officer for the City of Meridian.  While on duty one day, but at home on a lunch break,he posted on Facebook a cartoon of two chimps laughing.  Underneath he wrote  “Earlier today[,] the mayor and the chief of police had a meeting.”  The mayor and the chief of police in Meridian were both black.  The post was only up briefly but Meadors was fired despite insisting it was only a joke.  The circuit court reversed the firing.  The COA reverses the circuit court and reinstates Meador’s termination.

Charles Smith v. State of Mississippidefendant’s representing himself at trial – In 2012, Smith was indicted for the murder of Bennie Oaks.  Smith told the court he wanted to represent himself.  A mental evaluation of Smith was performed and the doctor expressed concerns about his effectiveness in representing himself. Smith agreed to represent himself along with assistance from appointed counsel.  Smith was convicted. On appeal he argues that the trial court erred by not informing him of his rights as a pro se litigant under Uniform Rule of Circuit and County Court 8.05. The COA finds no error.  Smith did not represent himself.  He did so with assistance – hybrid representation. The trial court was not require to warn him but the trial court did so anyway.

Craig Sallie v. State of Mississippi resentencing after appeal –  In 2012, Craig D. Sallie was convicted of aggravated assault and of being a felon in illegal possession of a firearm. The trial court  sentenced him to  twenty years for the aggravated-assault conviction and ten years for being a felon in possession of a firearm, with the sentences to run concurrently. The circuit court went on to enhance Sallie’s sentence by ten years for his use of a deadly weapon in the commission of the aggravated assault. The ten-year enhancement was ordered to run consecutively to the other sentences.  In other words, Sallie would do 20 years.  The Mississippi Supreme Court affirmed Sallie’s initial two convictions but reversed the ten-year enhancement. On remand, the  court  resentenced Sallie to twenty years for the aggravated-assault conviction and ten years for being a felon in possession of a firearm but ordrered them to run  consecutively. So he was again sentenced to 30 years.  Sallie appeals. The COA affirms.

The supreme court vacated Sallie’s entire sentence on remand and, hence, the circuit court was with authority to impose upon Sallie a new sentence within the original thirty-year parameter. The circuit court sentenced Sallie to twenty years and ten 5 years on each offense, respectively, as had been the original sentence. By changing the sentences from concurrent to consecutive, the circuit court kept the new sentence within the original thirty-year window. Therefore, the restructuring of the sentence does not fall within the confines of Leonard or Eastman.

 

Pro Se PCR appeals affirmed:

Dexter Moore v. State of Mississippi

Kirby Shavers v. State of Mississippi

Allen Nicolaou v. State of Mississippi

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