Decisions – COA – May 30, 2017

William Brady Foster  v. State of Mississippi –   Lindsey brief – Foster was charged with burglary and being a felon in possession of a firearm.  He was acquitted of the burglary but found guilty on the felon in possession charge and sentenced as an habitual to ten years without parole.  His appointed counsel filed a Lindsey brief.  Foster was offered the opportunity to file a pro se brief and did not.  The Court affirms Foster’s conviction and sentence.

In the Interest of M.M., S.M., A.M., Minors: Jane Doe v. Hinds County Youth Court – child in need of supervision/service of summons – The Hinds County Youth Court adjudicated Jane Doe’s son A.M. a child in need of supervision and adjudicated her two younger sons S.M. and M.M. as sexually abused children. As a result,  A.M. was removed from the mother’s custody. A.M. had been sexually abused and there were allegations that he had been seen humping the younger children. A summons was issued the the mother’s previous address in Brandon and not her current address in Clinton so neither she nor A.M. were present for the hearing.  Jane Doe obtained counsel and moved to set aside the court’s order due to lack of jurisdiction because of insufficient notice.  Eventually A.M. was returned to his mother’s custody.  The court, however, denied the motion to set aside the adjudication. Jane Doe appealed and the COA reverses holding that the judgment is void because of a jurisdictional defect in service of process. “Because the mother is challenging the judgment as void due to lack of jurisdiction, her almost nine-month delay in bringing the motion to set aside the judgment is irrelevant.”

Richard Coll v. Wal-Mart Stores East, L.P.slip and fall –  In September 2013,  Coll was shopping at a Wal-Mart in Biloxi when he slipped an fell while reaching from some drinks in a Coca-Cola display.   Coll stated in his deposition that he did not see anything on the floor when he entered the display and was unsure what caused him to fall, but concluded it was one of the display signs because the sign was near him on the floor after he fell. Coll settled with Coca-Cola.  The trial court granted summary judgment for Wal-Mart.  On appeal,  the COA affirms in light of the fact that Coll had no evidence that Wal Mart either created a dangerous condition or was aware of a dangerous condition.

Johnny Lewis Washington v. State of Mississippi –  PCR jurisdiction –  Washington was convicted of capital murder for the killing of a man during an armed robbery in Lowdnes County.  He was eventually granted a new sentencing hearing by the Fifth Circuit on the grounds that the jury had been precluded from hearing non-statutory mitigating factors.   His attorney filed a motion to waive a  jury trial and to impose a life sentence. The court did so.  In 2015 he filed a pcr which the trial court denied  as lacking merit.  On appeal, the COA finds that because Washington was found guilty by a jury, he should have asked the Mississippi Supreme Court for permission to file a pcr in the trial court and because he did not, the trial court was without jurisdiction.

Ola Kirk v. Mississippi Department of Public Safety – sex discrimination – Kirk applied for the position of lieutenant with the Department of Public Safety in 2013.  When she was denied promotion, she sued claiming gender discrimination. Both the Employee Appeals Board and the Circuit Court found against Kirk and she appeals.  The COA affirms.

Cameron Travelstead  v. State of Mississippi – child pornography – Travelstead was  indicted in 2011 for exploitation of a child by possessing child pornography under Miss. Code Ann. § 97-5-33 (5).   He was eventually tried in October 2015 and found guilty.  The charges arose over Travelstead’s use of a peer-to-peer networking software program called FrostWire.  Peer-to-peer networking software allows users to share electronic media between themselves directly over the Internet.  Law enforcement discovered that an IP address belonging to Travelstead’s uncle had downloaded child pornography.   Travelstead admitted to downloading pornography to his laptop computer.  The agents later performed a forensic examof Travelstead’s computer and found numerous deleted photos constituting child pornography, as well as child-pornography search terms used in searches that had been performed using the computer’s search engines. He was convicted.  On appeal he argues the trial court admitted hearsay, that there was improper argument by the prosecutor, and ineffective assistance of counsel. The COA affirms.

Remill Mason v. State of Mississippi – de  facto life for juvenile –  In June 2008, fifteen-year-old Remill Mason killed Terrell Richmond by shooting him in the back of the head. He was indicted for deliberate design murder but he pled guilty to manslaughter and kidnapping. The circuit judge imposed consecutive sentences of twenty and thirty years.   In 2014, Mason filed a  second PCR motion claiming he was  innocent of the kidnapping charge and that his sentence violated the Eighth Amendment as per Miller v. Alabama, 132 S. Ct. 2455 (2013). The circuit court denied Mason’s motion and he appealed.  The COA affirms. Justices Barnes, Irving and Westbrook would remand  for a hearing as to whether Mason’s  fifty year sentence “constitutes a ‘de facto’ life sentence that affords him consideration of the factors discussed in Miller.”

Pro Se PCR appeals affirmed:

Mark A. King  v. State of Mississippi

Elliott Freeman  v. State of Mississippi

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