Decisions – COA – 2/27/18

Ashley Bryant v. State of Mississippi –  intimidating a witness  –   Cortez Washington was being tried for armed robbery  Freda Austin  testified against him.  During the trial, Cortez’s aunt showed up at the store where Austin worked. The next day Bryant came to the store along with Cortez’s sister Cortaia Washington to speak to Austin.  When they spotted Austin, they started yelling at her and Cortaia hit Austin in the face.  Bryant and Cortaia Washington were charged with intimidating a witness. At first they were tried together and the jury could not reach a verdict.  Tried separately Bryant was convicted. On appeal she claims that the indictment was flawed because it did not specify whether the intimidation was verbal or physical. She did not object nor can she show that the indictment was so flawed as to prevent her from defending herself.  She also argues that the trial judge erred when it refused to accept a plea deal whereby Bryant would serve two years’ probation.   “However, here, unlike Moody [v. State], there was no detrimental reliance, and the trial judge based his decision on the public interest in protecting the security and integrity of the court system.” The COA affirms.

William R. Edmonson, Jr. v. State of Mississippi revocation of post release supervision –   In 2006, Edmonson pled guilty to two counts of uttering a forgery and got a sentence of  ten years of incarceration, followed by ten years of post release supervision.  In  2015, Edmonson’s PRS was revoked because he had violated several conditions of his PRS by getting arrested, being charged with grand larceny, testing positive for illegal drugs, failing to pay supervision fees, etc. The judge ordered him to serve the ten years that he would have been on PRS.   Edmonson filed a pcr arguing that the circuit court lacked authority to impose a period of imprisonment greater than ninety days for his first technical violation. “As Edmonson was found to have committed at least three technical violations, we cannot say the circuit court’s decision was clearly erroneous.”   Next he argues that due  process was violated because he was held in the county jail for sixty-seven days awaiting a revocation hearing when the statute requires the probationer to be released from custody if held more than 21 days.   “While we acknowledge that Edmonson has a statutory right to a timely revocation hearing, his failure to file a habeas corpus petition or any motion for relief with the court at the time of his imprisonment procedurally bars this Court from considering the issue.”

Gregory Shows v. Hope Shows Crossmodification of custody – Greg and Hope married in 2005; had their son S.S. 2006 and separated two months later and divorced in 2007.  Hope was awarded primary physical custody.  Four years later Greg filed a motion to modify custody alleging that Hope had remarried and allowed her husband and her children by a  previous marriage to emotionally and verbally abuse S.S. The hearing stretched out over three years after which the chancellor found that Greg had not met his burden of proof to show a material change of circumstances. He also found that Greg had agreed to pay $335 per month in child support and not $200. Greg appeals. The COA affirms.

Beverly Irwin-Giles, Individually and as Executrix of the Estates of William Irwin, Deceased, and Lynda Irwin, Deceased, and for and on Behalf of the Wrongful Death Beneficiaries of William Irwin, Deceased, and Lynda Irwin, Deceased v. Panola County, Mississippi –  MTCA/reckless disregard – In July of  2015, Lynda and William Irwin were traveling west on Highway 6 in Panola County.  Deputy Terry Smith of the Panola County Sheriff’s Department was driving north on Lawrence Brothers Road, which crosses
Highway 6.   He was returning  to his office and was not using his lights or siren.  As Smith crossed Highway 6, his car entered the path of the Irwins’ Buick. William Irwin died from the accident.  The black box taken from Smith’s vehicle showed that he was doing 75 mph which was 10 miles over the speed limit.  The Irwins sued and the trial court granted summary judgment for Panola County finding that Smith was not acting in reckless disregard. The COA reverses and remands finding that since there were no obstruction to Smith’s sight, a fact finder could conclude that he did not keep a proper lookout and that this was reckless disregard.

Vanessa Lynn Page  v. State of Mississippi felony DUI –   Page was arrested for DUI after a fellow AA member called and reported her as having been drunk upon leaving a meeting.  Page was pulled over near where she lived based on the information from the call.  The officer noted that  Page smelled like alcohol, her eyes were glassy, her speech was slurred, and she had problems with balance.  After field tests and a breath tests could not be finished, she consented to a blood test which came back with a .19 bac. She had two prior DUIS within the last five years. After a bench trial, the court found her guilty and  sentenced her to five years with three suspended.  On appeal Page argues that there was not reasonable suspicion to make the stop and that her confrontation rights were violated when the lab person who performed the test on Page’s blood did not testify but rather another lab person who did the technical review on t eh report.  The COA affirms.

Kendrick Lamont Casey  v. State of Mississippicontinuance -Casey was convicted of aggravated assault and armed robbery.  On appeal he argues that the trial court should have granted him a continuance or issued subpoenas instanter to require the attendance of two witnesses. The crime occurred after Johnny Holmes had arranged to sell oxycodone to Jonathan Young who was buying them for Jessica Orr (Orr was Casey’s girlfriend).  When Holmes arrived at the meeting place, Casey,  who was in the back seat of Young’s car,  beat Holmes and took the drugs. Casey was granted several continuances.  At trial, he claimed that he had an alibi.  He claimed that he was with his  Jessica Orr. Orr’s mother Annette Newsome would testify that she saw Casey and Orr together at the time of the robbery.  In asking for a continuance, Casey’s attorney stated that he could not find Orr or Newsome. The COA finds no error. “Considering the four continuances granted by the trial court prior to trial, including the two-month continuance granted in July 2015, we can find no abuse of discretion in the trial court’s denial of Casey’s motion for a continuance on the morning of trial.” As for the subpoenas instanter, “[t]he trial court did not deny Casey’s right to have compulsory process to obtain witnesses in his favor; instead, the trial court denied the request because this issue had been identified for months, and Casey’s counsel previously had assured the court that they would appear.”  Counsel only asked for assistance at the last minute. Four judges would reverse based on the trial court’s refusal to issue the subpoenas.

Keith O’Brien v. Andy J. Alfonso, III –  land dispute/legal malpractice – In 1998 Keith and Cheryl O’Brien   purchased 8.9 acres in Jackson County  and constructed a house on the property at  6331 Jim Ramsey Road. In 2005, they decided to sell the house and 2.3 acres of land surrounding the house.  They listed the property  with Shirley Willard of Coldwell Banker. After listing the house, they  conveyed 1.23 acres of their remaining property to their daughter and son-in-law, Khristina and Scott Storm, via a quitclaim deed on May 17, 2005.  This property was in the middle of the  8.9 acres.  Keith had  had the entire 8.9 acres surveyed and then divided it into three parcels each with a different address. The Storms’  1.23-acre parcel  was 6325 Jim Ramsey Road.  The O’Brien’s were going to keep the back 5 acres at 6327 Jim Ramsey Road.  They sold the house and 2.3 acres to Michael and Mary Ann Rogers.  Alfonso Realty recommended that Keith retain Andy Alfonso to prepare the real-estate contract and deed and execute the loan closing on the property. Alfonso made a mistake in the deed and it conveyed the entire 8.9 acres.  In 2008, the O’Briens sued the realtor, the attorney, and the Rogerses.  After much maneuvering including between chancery and circuit court, the chancellor entered judgment for the defendants. The COA reverses finding that Alfonso was negligent and remands for a determination of damages.

Pro se PCR appeals affirmed:

Jimmy Culbert v. State of Mississippi

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