Decisions – COA – 3/13/18

Julius Bender  v. State of Mississippi –  felon in possession –  Bender was found guilty of felon in possession after having been in an altercation at which shots were fired.  Bender eventually admitted he had been jumped by a gang and had fired in self defense.  The Office of Indigent Appeals filed a Lindsey brief stating that it could find no issues.  Bender filed his own brief. The COA affirms.

Todd Michael Claverie  v. State of Mississippirevocation of post release supervision –  In 2013 Claverie pleaded guilty to  possession of marijuana with the intent
to transfer or distribute.  He was sentenced to fifteen years  suspended for time served with three years’ post release supervision.   Claverie was arrested and charged with sexual battery in January 2015.  The State moved to revoke his  PRS based on the arrest, failure to report to his supervising officer for four months, and failure to pay supervision fees and court fines. The Court revoked his PRS.  Claverie was then acquitted of the sexual battery charge but found guilty of intimidating a witness. Claverie filed a  PCR arguing that the revocation was error. The trial court dismissed the case without a hearing. On appeal the COA affirms. “As we recognized in Elkins, ‘even when a parolee is acquitted in a criminal proceeding, this ‘does not per se preclude parole revocation predicated upon facts and circumstances giving rise to the criminal charge.’”  Furthermore, he also failed to report and pay costs and fines.

Danny Wilson  v. State of Mississippinewly discovered evidence presented on motion for new trial – On December 27, 2014, Wilson was convicted of shooting and killing Roviel Mays in Port Gibson in December of 2014.   Apparently the two had been at a nightclub “talking trash” to each other.  Mays left in a car with several others.  Wilson was in a car behind them.  When Mays got out of of the car, he was seen stopping at Wilson’s car whereupon Wilson shot him. After he was convicted, Wilson produced an affidavit from one of the witnesses stating that Mays had a gun in his pants when he walked up to Wilson, and Mays hit Wilson “on the side of his head.” At the hearing on he motion for new trial, the witness  testified that  May walked to the car and  hit Wilson and that’s when the gunshot was fired from Danny Wilson’s car.  Wilson’s grandmother, Theresa Wilson, testified that Mays had threatened Wilson’s life on several occasions prior to the shooting. The trial court denied relief.  On appeal the COA affirms.   “We find that the evidence presented at the hearing was either known prior to trial,
‘reasonably discoverable’ at the time of trial, or ‘merely cumulative.'”

Walter Corneilus Lewis v.  State of MississippiBatson – Lewis was convicted of possession of cocaine.  During jury selection, the defense objected when the state used  its first two peremptory strikes against two African-American women.  The trial judge ruled that the defense had not made a prima facie case by showing the State’s first two peremptory strikes were for a discriminatory purpose, overruling the Batson challenge “at this time.”   On appeal Lewis argues that the trial court used an incorrect legal standard.  The COA affirms.

Ultimately, four jurors, or one-third of the jury, were minorities. The trial judge did
not abuse his discretion in finding no inference of purposeful racial discriminatory intent from the State’s first two peremptory strikes. Finally, the trial judge’s finding of no prima facie case was a sufficient ruling—no further explanation was necessary.



Michael Ray Fontaine  v. State of Mississippirule of completeness – Michael Fontaine was found guilty of burglary of a nonresidential dwelling and conspiracy to commit burglary of a nonresidential dwelling.  The Cooleys were in the process of moving out of their trailer when they found that it had been burglarized.  Law enforcement learned that the stolen items might be at another trailer nearby.  They asked to search that trailer, which was owned by Mark Walker,  and found some of the stolen items laying on the living room floor.  Fontaine was living in one of Walker’s bedrooms.  More stolen items were found in Fontaine’s bedroom. Walker died before Fontaine’s trial. At trial,  Fontaine wanted to  introduce an affidavit by Walker that he alone burglarized the Cooley’s trailer.  The trial court granted the state’s motion to exclude the affidavit.  Walker’s girlfriend testified that she, Walker and Fontaine burglarized the Cooley’s trailer.  The state also introduced a two minute excerpt of a conversation between Fontaine and a polygrapher wherein Fontaine explains that his wife was interested in looking at Cooley’s trailer and as a result went with Walker and McDaniel to look at it. The defense objected to introducing the two minute excerpt without allowing in the entire conversation.  The trial court overruled the objection but the defense did not proffer  the rest of the tape. On appeal Fontaine argues that it was error to introduce the excerpt of the conversation with the polygrapher. The COA finds that to preserve that error, Fontaine needed to proffer the rest of the conversation. As for the affidavit from Walker, Fontaine failed to give notice of an alibi defense. Furthermore, the affiavit was pure hearsay.

Pro se PCR appeals affirmed

John Frank Gaulden  v. State of Mississippi

Dean C. Boyd  v. State of Mississippi

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