Decisions – COA – Aug. 15, 2017

Dezjon Daniels  v. State of Mississippi –  expert evidence in child sexual battery cases –  In July  2014, Pamela Ard reported to law enforcement that her 9 or 10 year old son H.A. had been raped or molested by his 19-year-old cousin Dezjon Daniels. Daniels was convicted and sentenced to 35 years. On appeal he argues that the court erred in allowing a social worker to give expert testimony that H.A. testimony was consistent with a child who had been abused. The COA finds no error. The witness did not testify that Daniels was the perpetrator.  The court did not abuse his discretion in admitting the testimony.  He also argues that it was error to allow the admission of H.A.’s forensic medical records and ineffective of his attorney to stipulate to their admissibility. Finally he argues that there was insufficient evidence of the Pike County venue. The COA affirms.

Demarco Wolfe v. State of Mississippi Batson – Demarco Wolfe was convicted of aggravated assault, carjacking, and armed robbery and was sentenced to serve concurrent terms of twenty, thirty, and thirty-five years.  On appeal he argues that the state improperly excused African American jurors in violation of Batson.   On the first two panels, the State peremptorily struck two of the only three African American males.   (several African American females served on the jury). The State claimed that they were both inattentive and unengaged.   The trial court held that there was no proma facie case. On appeal, the COA affirms.

Dedrick Small v. State of Mississippi –  use of out-of-court statement as substantive evidence – Dedrick Small was convicted of aiding and abetting Cortez Bass in the murder of Donterrius Jackson.  Two groups of teens had gotten into an argument on a street corner in Tunica. Before a fight could break out, Bass shot Jackson in the back of the head, killing him.  Some witnesses claimed that Small had given Bass the gun just before he shot Jackson. At first Small and Bass were tried together.  Small had moved to sever and the court reserved ruling.  Once Bass testified  the court granted the motion to sever.  Bass testified that Small handed him the gun just before he shot Jackson.  The state then called a detective to the stand who testified that Bass had told law enforcement that Small did not bring the gun; Bass did.   At Small’s trial, he moved to have the statement made by Bass to the detective that Small did not hand Bass the gun into evidence.  “The trial judge denied Small’s motion after finding that Bass’s statement was not against his interest because Bass’s statement was a claim of self-defense.”  Bass did not testify at Small’s trial.  On appeal Small argues that it was error to disallow him the use of Bass’ out-of-court statement to law enforcement.  The COA affirms finding that the statement was hearsay that did not meet any exception for admission.

State of Mississippi v. Joe Frank Hardin –  parole consideration –  Hardin was convicted on two counts of murder and sentenced to two consecutive life sentences in 1995.  In 2015 he was denied parole and the Parole Board “set off” his case for three years.  Hardin filed a pcr petition claiming that the 2014 amendments to MCA Sects. 47-7-3.1 and 47-7-18(6) that he was entitled to an annual hearing and a plan to identify the actions he needed to take to prepare him for parole.  The trial court agreed.  The State appeals and the COA reverses.  For one thing,  the Miss.S.Ct. has held that the 2014 amendments are not retroactive.   Fisher v. Drankus, 204 So.3d 1232 (Miss. 2016).  Furthermore, Hardin’s case should have been dismissed because he did not sue the Parole Board.

Jeffery Cantrell  v. State of Mississippisufficiency of the evidence for possession of drugs – Cantrell came to the attention of law enforcement when a citizen of Cleveland called the police and reported a suspicious blue truck parked  behind her house.  As an officer approached the truck, he spotted Cantrell walking toward the truck. The officer triad to approach Cantrell but Cantrell tried to elude him. The officer then ordered Cantrell and two persons in the truck to step out and put up their hands. Cantrell then tossed two syringes and a screwdriver  out of his pocket. One of the syringes contained meth. Cantrell was found guilty of possession of meth.  On appeal he argues that the verdict was against the weight of the evidence.   The COA affirms.

Hunter Rasdon v. Charles Thrash, Individually and/or on behalf of the Mississippi State Championship Challenge Series contract for race participation –  Rasdon accepted an invitation to race in a Miss. State Championship Challenge Series race in Meridian.   The winner would receive $2000 and championship points.  Rasdon was both the “Fast Qualifier” as well as the winner of the race.  Per the rules, the race organizers took a sample of Rasdon’s tires and he was disqualified when tests indicated positive for an undisclosed chemical alteration.  He was also fined $500 and denied the right to enter any more races until the fine was paid.  Rasdon filed suit alleging breach of contract.   The county court granted summary judgment to Thrash.  On appeal, the circuit court affirmed. On appeal again the COA affirms.

Brent Ryan  v. State of Mississippi proof of habitual status – Ryan was found guilty of aggravated domestic violence for choking his girlfriend unconscious  and for felony fleeing when his arrest the next day took place only after a high speed chase. On appeal he argues that the verdict was against the weight of the evidence.  He also argues that the state failed to prove he was an habitual offender. The state offered three priors. Two of these were  uttering  forgeries convictions out of Oklahoma because they listed  an incorrect date of birth and social security number.  To verify Ryan’s identification, the state  printed a web page from the Oklahoma Department of Corrections’ website  with Ryan’s photo on it. And Ryan admitted to the offenses in his pre-sentencing report.  The COA affirms.
Bettye Logan v. Klaussner Furniture Corporation d/b/a Bruce Furniture Industries and American Casualty Company of Reading, PA –  workers comp –  (the court denies rehearing but substitutes the opinion from November 15, 2016) – Logan was employed by the Klaussner Furniture Corporation  when in  October 2003, she was injured  when her foot became caught in some fabric fibers at work, causing her to fall. The AJ found that Logan had not suffered any industrial loss of use to her left lower extremity. The Commission affirmed. The COA  reversed and remanded  finding that (1) Logan had suffered a loss of wage-earning capacity, and (2) the evidence supported a finding of permanent-partial 2 disability or permanent-total disability.  On remand, the AJ  found that Logan suffered a sixty-percent loss of industrial use to her left lower extremity.  The  Commission affirmed  stating that it agreed with the AJ that Logan had the ability to return to employment at least at a sedentary level based on the medical and vocational evidence. On appeal, the COA reverses because the Commission failed to follow the COA’s opinion.

In Re the Estate of Vernon Marie Horn Wylie: Sheila Russell v. Donnie Euvon Horn ByrdRule 81 summons needed for hearing to construe a will – When Vernon Wylie died in 2006, she left land to her daughters Sheila and Donnie.  A codicil  devised to Sheila  “the South part of the bottom . . . and this is the portion where she has her house situated.” To Donnie, it gave “the North part of the bottom.” The remainder was devised to Sheila and Donnie  in equal shares.  The daughters were named as executors and they filed a petition for probate in March 2008.  A few months later Donnie  filed a “motion to construe will,” which contended that the specific devises of real property  were “confusing and inapplicable due to subsequent transfers.” Attached to the motion was a certificate of service stating that the motion had been mailed to Sheila’s attorney.  The chancellor held a hearing to construe the will. Sheila  did not appear; her attorney had withdrawn and Sheila was under the impression the hearing would be continued.  The court found that  the devises in question were ambiguous and that insufficient evidence had been offered at the hearing to determine their meaning.  Sheila appeals.  The COA reverses finding that MRCP 81(d) provides that will construction must be raised by petition or complaint, and that Sheila should have been served with a Rule 81 summons for the  hearing. Since she was not, and since she did not waive service of process by appearing, “the chancery court’s decision construing the will is void for want of jurisdiction, and the partition of the property must be vacated.”  The chancellor’s decision regarding a boundary dispute is affirmed.

Pro se PCR appeals affirmed:

Andrew Leon Bradley  v. State of Mississippi 

Wendell Duncan  v. State of Mississippi

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