Decisions – COA – June 6, 2017

Jody Slade Bush  v. State of Mississippi–   judge’s comments/sleeping juror – Bush was convicted of felony leaving the scene of an accident after he flipped his car and left the scene leaving his passenger there.  The passenger Matthew Smith suffered a traumatic brain injury.  Bush was sentenced to twelve years with two years suspended.  On appeal he argues that the trial judge made two comments that prejudiced him.  One was during voir dire when the court asked the jurors “Can you give him the burden of the proof preponderance [sic]?” And the second when a witness was being question and the judge  took over and asked the witness if she knew that the issue in the case was  whether Bush was driving.  When an attorney attempted to correct the judge the judge stated “Well, he was driving the truck” and then “And he left the scene.”  The COA finds that Bush did not object either time and any issue is  waived.  Bush next argues that the jury was not given the general instruction for juries in criminal cases and one on the requirement of a unanimous verdict.  Again, Bush waived the issue. Finally, he argues that he should get a new trial because one of the jurors fell asleep.  Again the issue is waived.

Robert Andy Pinter v. State of Mississippi  – no habitual sentencing  for misdemeanor possession of xanax – Pinter was convicted of  possession of at least one-tenth but less than two grams of methamphetamine,  possession of less than thirty grams of marijuana, and  possession of less than 100 dosage units of alprazolam (xanax).  On appeal he argues that his wife’s testimony that he had been known to use marijuana and methamphetamine rises to the level of plain error or ineffective assistance of counsel; (2) the trial judge erred in denying his motion to suppress evidence of the drugs at issue and his alleged statement to police; (3) sufficiency/weight of the evidence and 4) that  his sentence as a habitual offender is illegal and plain error.  The COA finds no error with regard to Pinter’s convictions but  finds  that it was error to sentence Pinter as an habitual for  possession of alprazolam because it is “a misdemeanor offense that is outside the scope of the habitual offender statute.”

William Mack, Jr. v. State of Mississippi –  aggravated assault – Mack was indicted along with his father for aggravated assault of some man with whom they had a continuing beef necessitating multiple altercations the last one ending with the man shot in the arm and leg.    On appeal, Mack asserts that  (1) the circuit court was not impartial in dismissing members of the venire; (2) insufficient probable cause existed to issue his arrest warrant; (3) the State elicited testimony that violated his right against self-incrimination; (4) the circuit court improperly instructed the jury; (5) the circuit court erred by denying his motion for a judgment notwithstanding the verdict (JNOV); and (6) the jury’s verdict was against the overwhelming weight of the evidence. The COA affirms.

Bobby Lee Allen   v. State of Mississippi –  peremptories against disinterested jurors – In 2012,  Allen was the getaway driver for two men who  robbed and shot Jose Gurrola Ortiz at an apartment complex in Ridgeland.  Allen was convicted  for armed robbery, accessory after the fact to murder, and conspiracy to commit armed robbery.  On appeal he argues that the court erred when it sustained the State’s objections to his peremptory strikes of two potential jurors. He also challenges the sufficiency of evidence.  During jury-selection proceedings, the State raised a Batson challenge after Allen  used all six peremptories against Caucasian males.  The court disallowed two strikes against jurors that Allen claimed had  disinterested mannerisms or body language. “At trial, Allen failed to detail specific body language to indicate the jurors appeared disinterested.” The COA affirms.

Trevontae Johnson, Meekco Johnson and Isaac Johnson v. State of Mississippi – burglary – In  April  2013, Greenville resident Wayne Barrett called police because his home had been burglarized by three men who had also beaten him.  Barrett had answered the door to a teenager he recognized who asked to use the phone.  After the teen left,  three mask-wearing  men knocked on Barrett’s door and forced their way in.  The teen, Keegan Latham,  was picked up by police and he implicated four men including the three appellants and a Matthew Moore.  The four were indicted but Moore was acquitted.  All three Johnsons were convicted and argue various issues on appeal. The COA affirms.

In the Matter of C.T., a Minor, Jason Taylor and Jessica Timmons: Jason K. Taylor v. Jessica Timmons  –    modification of child support/ which parents decides school – In 2011,  Jason and Jessica had a child but were never married. In 2013, they filed a joint complaint for determination of paternity, child custody, etc. Jessica was awarded primary physical custody and Jason  was awarded visitation.  In August 2013, the DHS filed a petition for Jessica seeking greater child support and Jason counterclaimed for custody. After a trial the court held 1) that Jessica  was entitled to decide which school the child would attend; (2) modified Jason’s  child-support obligation; (3) modified the visitation schedule; (4) found Jason in contempt for failure to make timely child-support payments and failed to find Jessica in contempt for failure to notify him of her new address; and (5) assessed him with $2,000 in attorney’s fees.   Jason appealed. The COA affirms.

Darrell Shoemake v. State of Mississippi   validity of plea –  In 2009, Shoemake pled guilty to sexual battery for his sexual relationship with a seventeen-year-old National Guard recruit while he was employed as a National Guard recruiter.  He was sentenced to  seven years, with two years to serve and was required to register as a sex offender.  In May  2013, he filed a PCR claiming that he was not informed of the elements of the sexual-battery charge and that there was no factual basis for the plea.  The trial court found the petition time-barred and the COA agrees and find the petition to also be without merit.

 

Pro se PCR appeals affirmed:

Mark Steven Lopez  v. State of Mississippi

John H. Lofton  v. State of Mississippi

Terrance O. Johnson  v. State of Mississippi

Bobby Campbell  v. State of Mississippi

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