Decisions – COA – 12/5/17

Kenneth Hartzog  v. State of Mississippifelon in possession – Hartzog was convicted of felon in possession. Law enforcement had responded  to a home in Jackson after there was a call of shots fired.  As they approached the house, officers could see that the front door was slightly open and they could hear a loud argument.  Hartzog and his girlfriend Rosina Griffin were in the living room arguing. One of the officer’s saw a gun in Hartzog hands while the other officer could only see a cell phone. Hartzog was interviewed and he admitted he had retrieved a gun from the back bedroom and shot it. At trial  Griffin testified that Hartzog was only holding a cell phone. She said she did have a gun in the house, but that it was inside of a box some  six or seven steps away from Hartzog.  She testified that she  never told Hartzog it was there.   On appeal the state argues that Hartzog did not file a timely notice of appeal.  Twenty nine days after he was sentenced he filed a motion asking to have the court appoint him an attorney for his appeal.  The court did so and authorized Hartzog to file an out of time appeal. The court finds that this was appropriate.  Hartzog argues that it was error to not instruct the jury “if you believe from the evidence that the defendant did not know that there was a deadly weapon in the house, then it is your sworn duty to find the defendant not guilty.” He also argues that the court should not have given a supplemental instruction  on constructive possession when the jury asked about  “Mississippi law concerning convicted felon and possession.” The COA finds no error and affirms.

Robert v. Howard Industries, Inc. –  workers compensation – Robert Pruitt suffered an injury to his lower back while working at  Howard Industries.  The injuries were treated and he returned to work. Pruitt then filed a petition to controvert.  The AJ  ordered Pruitt to undergo an additional MRI of his lower back. After the additional MRI, the AJ  issued an amended order finding that  Pruitt did not suffer any permanent disability or loss of wage-earning capacity. Pruitt appealed to the Commission which affirmed.  He appealed again and the COA affirms.

Marcus Andrew Walker  v. State of Mississippi –  felony escape /Lindsey brief – In 2008, Walker was convicted of simple robbery.  In 2012 he  escaped a work detail. He was found 12 days later.  Walker was convicted of felony escape in May of  2016 and sentenced to five years to be served after his prior sentence.  His appointed appellate counsel filed a Lindsey brief attesting that no errors could be found. The COA agrees and affirms.

Joseph Paul Purvis –  standing to challenge conviction via PCR –   Purvis pleaded guilty to rape and was given time served in 2001.  In 2016 he he filed a PCR motion alleging that he received ineffective assistance.  He argued that if his attorney had investigated he would have determined that the charges were false. The trial court denied relief finding that persons no longer serving a sentence lack standing to file a PCR.  Purvis appealed and the COA affirms.

Nitin Malik  v. State of Mississippi –  Brady/improper closing argument – Malik was convicted of two counts of the sale of hydrocodone with acetaminophen (lorcet)  and  sentenced to two consecutive eight-year terms.  On appeal he argues that the state violated Brady  by failing to inform him that the confidential informant who purchased the Lorset from him  had unsuccessfully sought to purchase pills from him previously.  On appeal the COA finds that the State did not have any  physical evidence (such as a recording)  of the prior failed purchase attempt because when the CI asked to purchase pills, Malik had none.  There is no claim that Malikj had no access to the agents.  Nor can it be said that the evidence was actually favorable to Malik or that the outcome would have been different if the evidence had been disclosed. He also argues that it was improper for the state  to argue in closing that the CI had bought drugs from him on prior occasions. The state actually argued that the CI was a former nurse who had lost her license after having been caught forging prescriptions and that she had an incentive to cooperate so she went to but drugs from someone she knew had them to sell (implying previous buys).   The COA affirms.

Gregory Tyler Moore  v. State of Mississippi –  involuntary plea – Twenty-one-year old Moore was charged with various counts of auto burglary,  burglary of a dwelling, and  statutory rape.  He eventually accepted a plea whereby he would serve  fifty years.  Moore later maintained that his attorneys told him that he would  have to serve one-quarter of his sentence (twelve and one half years) and  could reduce his time for parole eligibility  to approximately six years by receiving “trusty time” and “meritorious earned time.”  He later found out that  trusty earned time and meritorious earned time could not reduce the time served to be parole eligible and he would have to serve twelve and one-half years before being eligible for parole. He thereafter filed two pro se  PCR motions  prepared by erstwhile would-be lawyer Robert Tubwell who, a few months later, was  enjoined from practicing law for the reason he is not a lawyer (the fact that he has served prison time notwithstanding). He filed a third pcr alleging that his plea was involuntary because of erroneous advice of counsel.  Although the motion was filed within the three year statute of limitations, the court dismissed it as a successive petition.  Moore appealed and the COA affirms.

Beulah M. Thibodeaux v. The Humane Society of South Mississippi, a Mississippi Non-Profit Corporation –  Humane Society/dog bite –  Thibodeaux was bitten by a dog owned by some homeless dude.  The dog was twice placed with the Humane Society when 1) the dog bit someone and 2) later when the dog was found tied up at a homeless camp and the owner was informed he couldn’t keep a dog that way. Both times the dog was parked at the Humane Society for a short period of time but the owner reclaimed it.  The dog eventually bit Ms. Thibodeaux. She sued the owner but realized he had no money so she then added the Humane Society based on a theory that she was a third party beneficiary of the contract between the City of Biloxi and the Humane Society.  The trial court granted the Humane Society’s motion for summary judgment and the COA affirms which is great because animal shelters have enough crap to deal with already.

The Court denies rehearing in Akeem Rasheed  v. State of Mississippi but substitutes the linked opinion for its previous opinion.

Pro se PCR appeals affirmed

Jerry Revette v. State of Mississippi

Christopher Carbin  v. State of Mississippi

Karen Farr  v. State of Mississippi

Daniel Israel Singleton v. Superintendent Jacquelyn Banks, State of Mississippi and Jacquelyn Banks

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