Decisions – COA – June 20, 2017

Annie Figures v. Jackson Housing Authority –  eviction –  Golden Key Apartments is an apartment building for disabled and elderly people in Jackson owned by the Jackson Housing Authority.  Figures was a resident.  After she threatened to other residents in violation of her lease, JHA moved to evict her.  The JHA gave her a hearing and she was ordered to evict.  When she refused to move,  JHA obtained an order of eviction from the Hinds County Justice Court.   Figures appealed to county court. A de novo trial was conducted. At trial, witnesses testified that Figures had threatened to “blow their heads off.” The county court ordered Figures to vacate the premises and to refrain from further “threatening and/or harassing other tenants.” Figures appealed the ruling to the Circuit Court of Hinds County which affirmed.  She now appeals again arguing that the burden of proof should not have been on her, that the court erred in letting a witness who had violated the rule of sequestration testify, and that the trial court wrongfully assumed an adversarial role.  The COA affirms.

Kemper Ehrhardt and Robert Ehrhardt v. Helen Donelson and Gary T. Huffman, as Co-Executors of the Estate of Julia Donelson Ehrhardt, Deceased  – joint tenancy with rights of survivorship – In 1988 Robert Ehrhardt Sr and his wife purchased a home as joint tenants with full rights of survivorship.   When Robert died in 2007, his will left his his interest in the home to his wife in trust which would terminate on her death.  At that point the house was to be sold and 50% of the proceeds were to go to the residuary beneficiaries.  When his will was probated the court found this provision inapplicable. Julia died in 2015. Her will was admitted into probate and the house sold for $243,277.00.  Her two stepsons Kemper and Robert Jr. (who were Robert Sr’s  sons) field a claim alleging that they were entitled to 50% of the sale proceeds.  The chancellor denied the claim finding that the marital home passed to Julia on Robert Sr’s death.  Kemper and Robert appealed arguing that Julia and Robert terminated the joint tenancy and that  they entered into mutual wills.  The COA affirms finding no evidence of joint wills and that Robert Sr alone could not sever the joint tenancy.

Jameil Clark  v. State of Mississippi – pcr/notice of sentence enhancement – Jameil Clark was indicted for aggravated assault.  The indictment charged an enhancement under M.C.A. 41-29-152 which deals with drug offenses. When the State realized its mistake, it asked for and was granted an amendment to change the enhancement to M.C.A. 97-37-37.  Clark pled guilty and was sentenced to twenty years with five years suspended plus a consecutive five years under the firearm-enhancement statute.   Clark filed a motion for postconviction relief arguing that he did not get sufficient notice.  The trial court denied relief and on appeal the COA affirms.

Nicholas Demorst  v. State of Mississippi – suggestive lineup – Demorst was charged with capital murder in the killing of Hunter Miller.  Miller was addicted to prescription drugs.  He arranged to buy some from Demorst.  Miller and two friends Collin Cooper and Kenneth Knox took $1000 to meet Demorst.  When Knox asked to see the pills, Demorst drew a gun.  Knox took off running but before warning Cooper and Miller that it was a robbery.  Demorst responded by shooting into Miller’s vehicle.  Miller drove away but crashed into a fence and died. On appeal Demorst argues that it was plain error to allow Cooper and Knox to make in court identifications of Demorst after having identified him prior to trial based on suggestive lineups (Know originally picked out someone else and when shown a second set of six photos, picked out Demorst but said he was only 70 to 80% sure).  The court finds that the issue is unsuitable for plain error (plain error is urged because Demorst did not object at trial).  He also argues that the court should have excluded recordings of conversations he had with his girlfriend while he was in jail on the grounds that they were irrelevant.  He also argues that his attorney was ineffective.  The COA finds that most of these issues will need to be developed in a pcr.  The COA affirms.

Melvin Hare v. State of Mississippi –  lesser included instruction – Hare was convicted of depraved heart murder in the stabbing death of  Roy  Clark, his sometime girlfriend’s ex boyfriend.  On appeal he argues that his trial counsel was ineffective because he  did  not submit an instruction on heat-of-passion manslaughter, and allowed the State’s instruction on culpable-negligence manslaughter.  He also claims that the evidence was insufficient. The COA affirms. Two justices dissent and would give Hare a new trial because the trial court should have conformed the instructions to the evidence and given the jury a heat of passion manslaughter instruction.

Kenny Walton  v. State of Mississippi – ineffective assistance/plea – Walton was charged along with 3 others in the robbery and beating of a pizza delivery man in Cleveland Miss.   The victim’s phone had been stolen and when it was traced, Winters was found talking on the phone.  He eventually admitted to being present when Matthews, McKnight and McGee beat and robbed the victim.  Matthews and McKnight both pleaded guilty and agreed to testify against the other two co-defendants. The state filed discovery stating that Matthews and McKnight had been interviewed and their interviews provided later but that neither Michael McGee or Kenny Walton was involved. Instead, their accomplices had been Desmond Johnson and Nookie Alexander.   The notice had a certificate of service indicating that it had been mailed and faxed to RoSharwin Williams, Walton’s attorney.   A week later, Walton pleaded guilty.  If he testified against McGee, the state would recommend 15 years. At McGee’s trial, Walton testified that neither he nor McGee were involved.  Matthews and McKnight testified that they committed the crime with  two others. McGee was acquitted.    The state moved to revoke Walton’s bond since he failed to implicate McGee.

A month later, in July of 2009,  Walton moved to revoke his plea.  At the hearing, Walton’s counsel stated that two days before McGee’s trial, he received notes that Walton was not involved in the crime. Judge Smith stated that he reviewed the transcript and was satisfied with the voluntariness of Walton’s plea and sentenced him to 51 years. In August Walton filed a motion to reconsider sentence again arguing the exculpatory evidence.  The State pointed out that Walton’s counsel was given this information prior to his plea.  Judge Smith denied relief stating that he lacked jurisdiction to revisit the sentence after the term of court ended and that the only relief Walton had was by way of a pcr.  Walton’s appeal was dismissed. Walton, represented by new counsel,  filed a pcr on June 20, 2012.  A hearing was had in 2013 and Walton’s attorney who represented him during the plea testified that he had the information and discussed it with Walton.  The circuit court ended up  denying relief on the grounds that the petition was a successor. The COA reversed and remanded finding that the pcr was not a successive petition.  The motion to reconsider was filed during term time and was never a pcr.  The state argued that Walton would not be entitled to relief anyway since he pleaded guilty.  The COA agrees that a guilty plea precludes a claim for a Brady violation.  However, in this case, the record might support a finding of ineffective assistance of counsel.    “We reverse and remand to the trial court to make findings of fact on whether Williams learned of Matthews’s and McKnight’s October 2008 statements, whether he reviewed these with Walton prior to entering his guilty plea, and the effect any nondisclosure had on Walton’s plea.”

On remand Walton’s attorney   Williams testified that he did not receive the supplemental discovery from the State and that he did not know Matthews and McKnight had testified at McGee’s trial that two other individuals, not Walton and McGee, had participated in the crimes.  However, Williams did admit that, prior to Walton’s guilty plea, he “had been in contact” with Matthews and his attorney, and Matthews “indicated that [Walton] was not involved” in the crimes. Williams said he shared that information with Walton prior to the entry of his guilty plea, and Walton entered his plea in light of that information. Based on this testimony by Williams, the circuit court found that Walton was not denied effective assistance of counsel in connection with his guilty plea and denied Walton’s PCR motion.
The COA affirms.

Terry Lynn Barber  v. State of Mississippi – circumstantial evidence instruction – Barber was convicted of possession of methamphetamine and sentenced to three years as a habitual offender without eligibility for parole. He claims on appeal that his defense counsel was ineffective in failing to request a jury instruction on circumstantial evidence. The COA affirms.

 

Russell Gaillard v. Rea Brothers’ Auctions, Inc. – dismissal for failure to prosecute –  In  2009, Gaillard filed a complaint for damages against Rea Brothers  alleging that he was injured while attending an auction on the  premises when  a vehicle driven by a Rea Brothers’ employee struck and injured him.  The case was transferred to circuit court in 2011 and there was sporadic activity in the case until November 22, 2013. On January 16, 2015, Rea Brothers filed a motion to dismiss Gaillard’s complaint pursuant to Rule 41(b) for failure to prosecute. On the same day, Gaillard filed a motion to set the case for trial.  The court dismissed the complaint for failure to prosecute.  Gaillard appeals and the COA affirms.

 

Pro se PCR appeal affirmed:

Larson Wright v. State of Mississippi

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