Decisions – COA – Nov. 28, 2017

Larry Lewis  v. State of Mississippi statutory rape –   Lewis was convicted of statutory rape of his girlfriend’s daughter, J.T.  She testified that he had had sex with her from the time she was 12 or 13 until she was 16. On appeal he argues that he was entitled to a directed verdict.  The COA affirms.

Tina Lee v. Keller Williams Realtylease – In April of 2013, Lee leased a home in Horn Lake from  Keller Williams for $875 a month.  Three days after she moved in, the house flooded after a heavy rain. This happened throughout the lease period and the flooding created mold.  A year later Lee filed a complaint alleging negligence and breach of contract for failure to repair the property or relocate her to another property.  The trial court granted summary judgment to  Keller Williams.  On appeal Lee argues that (1) she did not waive Keller Williams’s duty to repair the property, and (2) Keller Williams assumed the duty to repair.  Lee also filed an amended complaint alleging her son was injured as a result of Keller Williams’ negligence.  She did not, however, get permission to amend her complaint which she was required to do since Keller WIlliams had answered the complaint.

James Lee Johnson, III  v. State of Mississippi –  ineffective assistance of counsel –  Johnson was indicted for acting along with Larry Gilliam to murder  Curtis Mumford which they were alleged to have done because Mumford owed Johnson some money.  Johnson was convicted and on appeal he argues that his trial counsel was ineffective because he provided no opening statement,  failed to challenge the State’s evidence, failed to request an expert to review the State’s forensic evidence, failed to challenge the  voluntariness of Johnson’s statements to police, and failed to offer any jury instructions on his  theory of defense. The COA finds that the record is insufficient to decide Johnson’s ineffectiveness claims and affirms.
Sergio Sebastian Gonzalez v. State of Mississippi – introduction of jail medical screening form – Sergio was married to Gina.  At one point they separated and Sergio returned to the marital home to find Gina’s boyfriend Andres there.   According to Sergio, Andres said “Here I am. Do you want something from me?” Sergio  grabbed two kitchen knives  to protect himself and in the ensuing struggle, Andres was stabbed.  Sergio left but turned himself into police four days later.   Sergio testified that he sustained a bite to his arm and some bruising. In rebuttal, the state called two jailers who prepared the paperwork booking Sergio. They testified that, as part of the booking process, Sergio was asked about his physical health and the answers entered onto a  medical screening form. Sergio denied having any medical problems.  One jailer also testified that she  did not notice any bite-marks or bruising.  The medical screening form was introduced even though it had bot been provided to the defense in discovery.  The  form was unsigned, undated, and no portion of it was filled out other than to indicate Sergio’s  name, date of birth, nationality and sex.  On appeal, Sergio argues that it was error to allow this testimony and form into evidence. The COA affirms.

Franklin N. Williams v. US Bank Trust, N.A., as Trustee for LSF8 Master Participation Trust as Assignee of Mortgage Electronic Registration System, Inc., Nominee for Ameritrust Mortgage Company –  reformation of deed of trust – Franklin Williams defaulted on a promissory note and deed of trust. US Bank Trust foreclosed the deed of trust and received a substitute trustee’s deed. When the Bank later discovered that the property description in both Williams’s deed and the purchase money deed of trust contained errors, it  filed for a declaratory judgment and reformation of its deed of trust to correspond with the corrected description contained in Williams’s deed, and thus allow it to proceed with foreclosure. The Pearl River County Chancery Court granted summary judgment to US Bank.  Williams appealed and the COA affirms.

Henry Bernard Lewis  v. State of Mississippi –  defendant’s right to make an opening statement –  Lewis was found  guilty of possession of a firearm as a convicted felon.  On appeal, Lewis argues the circuit judge committed reversible error by telling Lewis that he would have to represent himself at trial with standby counsel if he chose to give his own opening statement. The COA finds that this was error and reverses and remands.

The Mississippi Supreme Court has repeatedly recognized a defendant’s right to make his own opening statement. See Armstead v. State, 716 So. 2d 576, 580 (¶16) (Miss. 1998) (citing cases upholding the defendant’s right to make his own opening and closing arguments). Furthermore, our supreme court has reversed and remanded cases for a new trial where the trial court refused to allow the defendant to do so. See Bevill v. State, 556 So. 2d 699, 710 (Miss. 1990); Trunell v. State, 487 So. 2d 820, 825-26 (Miss. 1986); Gray v. State, 351 So. 2d 1342, 1345 (Miss. 1977).

Michael Ishee v. State of Mississippiexploitation of a child/scienter –   In 2011 Ishee was charged with 19 counts of  exploitation of a child  after pictures of children under the age of eighteen years engaging in sexually explicit conduct were found on his  hard drive.  He pleaded guilty to one count.  He later filed a PCR alleging that the statute was unconstitutional because it lacked a scienter requirement.  The trial court denied relief and the COA affirms. “The crux of this case is whether Ishee was convicted under an unconstitutional statute. During his plea hearing, he admitted to willfully possessing child pornography. “Willfully” indicates scienter.”

Ned B. Clark, Jr. and Edna Marie Clark v. Charles McCorklecar wreck – In October of 2012,  Ned Clark  was driving his truck on Highway 35 in Carroll County  when he rear-ended McCorkle, who was driving a 1985 John Deere farm tractor that was pulling a flatbed cotton trailer. Ned suffered five broken ribs, a punctured lung, and his left arm was amputated. Two years later the Clarks sued  McCorkle alleging that he was negligent
because he was operating a tractor and trailer with inadequate lighting in a
low-visibility area. The trial court granted summary judgment. Teh COA reverses and remands.

 Upon review, we find that the Clarks presented sufficient evidence showing that genuine issues of material fact precluding summary judgment exist as to the following: (1) whether the fog constituted an unusually dangerous condition; and (2) whether McCorkle was negligent in the illumination of his trailer in said fog at the time of the collision.


Jason Alston v. Mississippi Department of Employment Securityunemployment benefits – Alston had been employed with MDOT as a  Maintenance Tech for three years when he resigned claiming he was being subjected to  workplace harassment by his coworkers and supervisors.  He told a supervisor, though, that  he was leaving for another job. His application for unemployment benefits was denied. He appealed.  The COA affirms.

Pro se PCR appeals affirmed: 

Edward Johnson v. State of Mississippi


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