Decisions – COA – Feb. 28, 2017

Stephen J. Bullock v. Alaina L. Bullock –  division of property – Stephen and Alaina were married for 8 years when they separated.   They agreed that the chancellor was  to decide  the  classification and division of certain real property, the classification and division of  funds invested in two businesses,  whether to grant Alaina spousal support, and attorney fees.  Stephen appeals. The court affirms all but reverses in part and remands in  part finding that the court erred in failing to conduct  a Ferguson analysis on the record.

Javon Brown  v. State of Mississippi –  proof for habitual status –  Brown was charged with  three counts of armed robbery.  His indictment was amended to charge him as an habitual pursuant to M.C.A.  97-3-79.  He was found guilty and the Court sentenced him to serve three life sentences without parole as an habitual. On appeal Brown argues and the State concedes that the prosecution did not prove that Brown had served one year sentences on two prior charges.

Here, the State submitted with its motion to amend the indictment, over a general objection by Brown’s trial counsel, an exhibit that included sentencing orders for three prior Mississippi felony convictions, all sentencing Brown to at least one year’s imprisonment. There was no proof submitted as to whether Brown served one year or more on the Mississippi convictions

* * *

However, because the proof submitted by the State at the sentencing hearing demonstrated that Brown was twice previously convicted of felonies and sentenced to serve at least one year for each conviction, we find there was sufficient proof to sentence Brown under the habitual-offender enhancement provided by section 99-19-81, and Brown may still be sentenced according to section 99-19-81.

Keith Leon Johnson v. State of Mississippi – felony fleeing – Johnson was convicted of felony fleeing in a motor vehicle from a law-enforcement officer.  On appeal he argues that the officer lacked probable cause to stop him in the first place and that he was entitled to a lesser included of reckless driving.  Johnson admitted to making a right turn without signaling so there was probable cause.  And since no element of reckless driving is included in felony fleeing, Johnson was not entitled to a reckless driving instruction.

Kent Holifield and Laurie Holifield v. City Salvage, Inc. – innocent seller defense –  The Holifieds filed suit against City Salvage alleging that it sold then  defective Chinese drywall that was used in the construction of their home. The circuit court granted summary judgment for City Salvage based on the  “innocent seller” provision of the Mississippi Products Liability Act,  M.C.A.  § 11-1-63(h).  The COA affirms.

 

David Ray Adele  v. State of Mississippi – proof of habitual status – Adele was convicted as an habitual for aggravated domestic assault and sentenced to life without parole. In support of the habitual charge,  the state offered proof that he had two priors: one for  unlawful restraint where he was sentenced to one year and then a  conviction for first-degree murder for which he was given a 30-year sentence.  On appeal he argues that there was no proof he served the full 12 months on the unlawful restraint charge.  The Court notes that he made no objection at trial but will review for plain error.  However, “it appears that the trial court, after reviewing the evidence of Adele’s prior 7 convictions and sentences provided by the State, interpreted the documents to reflect that Adele served the twelve months on the unlawful-restraint conviction while he was serving the thirty-year sentence for murder.” The COA affirms.

Theodosius M. Torrey v. State of Mississippi  – aggravated assault – Torrey was indicted  for aggravated assault arising from an altercation he had  with Rodney Norman that left  Norman permanently disabled, confined to a wheelchair, and with significant limitations of his bodily functions.  He was convicted.  On appeal, he argues that it was error to require him to go to trial with an unprepared attorney.  At that point, the case was four years old and while Torrey claimed he had hired a new attorney (his fifth), that attorney had not been heard from.  That trial counsel was ineffective, that the court should have recused itself, that his statement to officers should have been suppressed, and that the jury should have been instructed on simple assault. The COA affirms.  .

Erin Howard v. R.M. Smith Investments, L.P. – premises liability –  Erin Howard was working at the Dollar General on Capitol Street in June  2013 when she was  kidnapped and assaulted at gunpoint by Justin Dennis.  Dennis was convicted.  Howard filed a premises liability case against Dollar General.  The trial court Dollar General’s motion for summary judgment.  As it turned out, in the months prior to the kidnapping, Howard and Dennis had had some heated exchanges and Howard had banned Dennis from the store.  On the day of the kidnapping, Dennis  was calling the store.   Howard got the phone number and texted Dennis and there was a heated exchange.  Dennis maintains she did not know who she was texting.  On appeal, the COA affirms.

Following the precedent in Titus, R.M. Smith owed no duty to Howard because she created the dangerous situation herself. She initiated contact with Dennis, provoked him over text messages, and failed to provide notice to anyone that Dennis may arrive at the store later that day. Dennis testified that upon receiving the text messages, he was extremely angry and that Howard was his only target that day. Howard was an independent intervening cause that was unforeseeable to R.M. Smith and, thus, severed any liabilityR.M. Smith might have regarding Howard’s injuries.

David Samuel-Ramos Feliciano  v. State of Mississippi –  guilty plea –  David Samuel-Ramos Feliciano was indicted  for felony fleeing the scene of an accident. He pleaded guilty and got a sentence of 17.5 years (the max, as an habitual, was 20). After pleading guilty, he filed a motion to vacate his plea. It was denied. He then filed a second pcr alleging that new medical evidence was discovered, that his plea was not voluntarily made, and that he received ineffective assistance of counsel.  The trial court denied relief.  The COA affirms.

In the Matter of the Guardianship of Frances Anne McPhail: Justin W. McPhail and Anthony Page Portera v. Pamela McPhail –  conservatorship –   Frances was eighty-six year old  Frances lived in a nursing home.  Two grandsons filed a petition to be appointed her guardian.  Before she entered the nursing home, she had lived with her daughter Pamela.  Pamela had taken care of her mother’s financial affairs.  Pamela objected  to the appointment of Justin and Anthony.  At some point during the proceedings, Justin took Frances out of the nursing home and vowed not to reveal her whereabouts until the court ruled (probably a bad move).  The Court awarded Pam the guardianship finding that Anthony had considerable debts. The court allowed family members visitation but there was nothing about overnight visitation.  Justin and Anthony appeal and lose.

 

Alvin Lee Johnson  v. State of Mississippi – statutory rape – Twenty-nine-year-old Johnson was accused of statutory rape of an 11-year- old and a 15-year-old. Johnson argues the trial court erred when it qualified Shirley Darden as a juror. On appeal he argues that one juror failed to respond when asked if the jurors knew Johnson or his relatives.  This came up during the trial and it was the State who argued that the juror should be excused while Johnson successfully argued to keep her on.  He also argues that it was error to allow a law enforcement officer to repeat statements made by others in violation of Johnson’s right to confrontation.  The COA notes that at trial, Johnson objected on the grounds of hearsay and not confrontation. Furthermore, the evidence was not admitted for  the truth of the matter but rather to explain the next steps in the investigation. The COA affirms.

Mary Carnathan, as Wrongful Death Beneficiary of Joe Carnathan, Deceased v. Dr. William Bryan Rogers, Joseph Bailey, III, M.D. and Woodrow Wilson Brand, III, M.D. –  medical malpractice – Joe Carnathan’s beneficiaries filed a medical malpractice/ wrongful death suit.  The Defendants moved for summary judgment based on the failure of the plaintiff to have an expert affidavit.  The COA affirms.
Pro se pcr appeals affirmed:

Donald Mitchell  v. State of Mississippi

LaMontay Marsh v. State of Mississippi 

Joshua Williams  v. State of Mississippi

 

 

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