Decisions – COA – 1/2/2018

Quincy Holmes v. State of Mississippipost conviction –  Holmes pleaded guilty to robbery and motor vehicle theft and was sentenced to 25 years. He later filed a post-conviction petition claiming his lawyer was ineffective for not advising him of his right top appeal.  The circuit court found the petition without merit. On appeal, the COA affirms since, “among other reasons, there is no right to a direct appeal from a sentence imposed following a guilty plea.”

In the Matter of the Estate of Richard Harold Flowers, Jr.: Claire C. Flowers and Brenda Jane Flowers Paixao v. The Estate of Brenda Louise Bargas Flowers, through its Executor De Bonis Non with Will Annexed, Knox Lemee Flowers, Cecil C. Lang and Linda S. Langwills and estates –  In December of  2001, Brenda Flowers was appointed as the conservator of the estate and person of her husband Richard.  A few years later they adopted their daughter Claire’s son D.A. Richard died a few months later.  His will named Brenda as his executor.  Brenda filed to probate the estate and was appointed executor.  The will devised his residuary estate estate to Brenda if she survived him for 179 days and, if she did not survive,  “to Claire Clements Flowers, Knox Lemee[] Flowers and any other child or children born to my wife, Brenda Bargas Flowers, and me, in equal shares.”  The court then appointed their son Know as executor. As executor, Knox liquidated assets all with the court’s approval.  Claire filed several motions including one seeking to recuse the chancellor and motions to remove Know as executor. D.A. was eventually adopted by his paternal grandparents.  On appeal, Claire and her half sister Jane challenge the court’s rulings including the chancellor’s ordering that Knox’s attorneys be paid for by the estate. The COA affirms.

Fredrick Smith Jr. v. State of Mississippi –  last minute alibi witness – Frederick Smith was convicted on two counts of aggravated assault with a deadly weapon. He was alleged to have been one of three people who opened fire on Jessica Keys and Cameron Conner at a  gas station in Jackson, Mississippi. On appeal, Smith argues that the trial court erred in refusing to allow him to call his alibi witness – a witness he only told his attorney about on the second day of trial.  The COA reverses and remands for a new trial because the state never made a written request for alibi witnesses.

“The rule clearly states that the requirement to disclose an alibi witness is triggered
by the prosecution.” Hall v. State, 925 So. 2d 856, 857 (¶4) (Miss. Ct. App. 2005). “Only
after the prosecuting attorney makes a written demand is the defendant then required to provide written notice of his intent to offer a defense of alibi.” Id. (quoting Ford v. State, 862 So. 2d 554, 557 (¶11) (Miss. Ct. App. 2003)). Upon thorough review, there is nothing indicating that the prosecution made such a written demand, and we are not inclined to assume one exists. We therefore find that Smith’s lack of disclosure was not a failure to abide by Rule 9.05. On two prior occasions, we have reversed and remanded when a defendant’s alibi witness was excluded, where the State did not make a written demand under Rule 9.05. See Hall, 925 So. 2d at 857 (¶¶3-5); Ford, 862 So. 2d at 557 (¶¶10-12). The trial court likewise erred here, in denying Smith the opportunity to present his alibi witness. We reverse and remand for a new trial.

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