Decisions – COA – 4/10/18 – part 1

Marquis D. Saunders v. State of Mississippi –  admissibility of text message – Saunders was living with his girlfriend Shantile Torres and her daughter.  Shantile was living in a house with  Jamel Jones and his wife Maxine.  On a morning in January 2015,  Jones’s daughter Starquasha Colon was at home when her father left for work.  Shortly thereafter she heard gunshots.  Colon went outside where Torres’s daughter exclaimed that Saunders shot Jones. Colon shortly found her father lying face-down on the ground in blood and his SUV was gone.  Saunders was convicted of murder and auto theft. On appeal he argues that it was error to admit a screenshot from a phone found in Saunders’ possession that stated  “Greyhound Biloxi, MS, to Albany, NY, 232.50 10 am Sunday the 1st day of February 2015.”  The COA finds that the  evidence presented at trial demonstrated that the phone was recovered from a vehicle last seen driven by Saunders and at that point, the burden was on Saunders to rebut the presumption which he did not.  He also objects to the message as hearsay. The COA affirms.

Amy Voss v. Daven Joseph Doughtycustody modification –  Amy and Daven had a daughter in 2014. They were not married.  A year later a chancery court granted Voss and Doughty joint legal custody of Aqua,  granted Voss physical custody with visitation for Doughty.  The court also ordered Doughty to pay child support of $150 per month. A month later, Voss filed a motion to modify custody and to hold Doughty in contempt.   Voss claimed that the visitation schedule did not work because Aqua was “heavily exposed” to secondhand and thirdhand smoke, which was making her sick. Voss also claimed that an increase in child support was warranted because Aqua no longer qualified for Medicaid benefits and it would be financially burdensome for Voss to pay for health insurance by herself.  Doughty counterclaimed for modification claiming  that Voss had failed to keep him informed of Aqua’s doctors’ appointments. The chancellor  granted Doughty’s petition to modify custody finding that  Voss was working nights and sleeping during the day, leaving her mother to care for Aqua, and (2) Voss’s language and communication issues (“her flat affect that I observed here today”)and awarded Doughty joint physical custody with Voss, with physical custody to alternate on a weekly basis. The chancellor also  terminated Doughty’s child support obligation and made each parent responsible for the cost of Aqua’s care during their respective periods of custody.  Voss appealed.  The COA reverses. “We hold that custody should not have been modified because there was no evidence of a material change in circumstances since the prior custody order. Therefore, we reverse and render the modification of custody. We also reverse and render the chancellor’s sua sponte modification of child support, which was based on the erroneous modification of
custody.”

Julia N. Bennett v. Andre D. Bennettchange in custody where one parent moves – Andre and Julia married in 1999.  They had two daughters born in 2002 and 2006.  In 2011 they divorced and were awarded  joint legal and physical custody of the children, with Julia maintaining physical custody. In 2016 Andre filed a petition to cite Julia for contempt and to modify physical  custody based on  Julia’s decision to relocate with the children to St. Louis, Missouri.  Two weeks later he filed a petition for an emergency hearing requesting temporary  custody to keep them in  Rankin County schools.  The court ruled that the children would continue attending schools in Rankin County until the scheduled hearing on custody modification. At the custody hearing, the elder daughter testified that if her mother moved, she wanted to go with her. “After weighing the Albright factors, including Madeline’s expression of preference, the family master determined that the evidence favored a modification of custody to Andre. The chancellor agreed. So, if Julia moved, Andre would get physical custody and Julia would have liberal visitation. Julia would also have to pay $750 a month in child support. Julia appealed. The COA affirms.

Gerome Moore  v. State of Mississippi escape – Gerome Moore was supposed to be awaiting trial in the  Hinds County Detention Center in Jackson for capital murder and carjacking. One day in May 2015, a JPD officer spotted him and two fellow inmates running from the detention center. It turned out that inmates started a fire in  a cell and used the heat to melt the adhesive around a window and escape.  Moore was acquitted of malicious mischief but convicted of  felony escape and sentenced to five years.  The Office of Indigent Appeals filed a Lindsey brief on appeal. The COA affirms.

Albert Lewis Watts  v. State of Mississippipcr jurisdiction – In 2012, Watts was convicted of armed robbery and sentenced to life imprisonment as a habitual pursuant to MCA  section 99-19-83.   On appeal, the habitual sentence was reversed and the case remanded for resentencing.  On remand, Watts was resentenced as a habitual offender under section 99-19-81 to serve twenty-three years in the custody of the Mississippi Department of Corrections. Watts did not appeal. In 2016 he filed a pcr with the circuit court.  The circuit court found it was without jurisdiction to entertain the
petition since Watts failed to obtain leave from the Mississippi Supreme Court prior to filing his petition in the circuit court.  Watts appealed. The COA reverses finding since Watts’ current sentence has not been appealed, Watts was not required to seek
leave to proceed in the circuit court.

Burnette Avakian, Individually and as Executrix of the Estate of Norair Avakian, Deceased v. Wilmington Trust, National Association, as Successor Trustee to Citibank, N.A., as Trustee for Bear Stearns Asset Backed Securities Trust 2007-2, Asset-Backed Certificates, Series 2007-2 –  res judicata –    In 2002, the Avakians purchased a house (Shadowlawn) in Columbus with a loan  from Southstar Financing.  In November 2004, Mr. Avakian executed a deed that conveyed title to the property to Mrs. Avakian alone.  In March  2006, Mr. Avakian refinanced the mortgage with EquiFirst Corporation and took out the new loan in his name only.  Because the house was homestead property, EquiFirst required both Mrs. Avakian and Mr. Avakian to execute a deed of trust. Because Mr. Avakian was out of state at the time of closing, the lender forwarded one set of loan documents to Mr. Avakian for him to execute and return and had Mrs. Avakian execute a second set the following day.  This resulted in two deeds of trust. Mr. Avakian’s note was sold to Citibank with J.P. Morgan servicing the note. Mr. Avakian fdell behind on the note and then died. Norair Avakian passed away in July 2010.  His wife opened an estate.  J.P. Morgan Chase Bank filed a statement of claim on behalf of a lender based upon a promissory note signed only by Mr. Avakian (a note now held by  Wilmington Trust).  Mrs. Avakian contested the claim as  barred by the statute of limitations. The chancery court ruled for Wilmington Trust.  In early 2012, Citibank informed Mrs. Avakian that it intended to foreclose on the house. Mrs. Avakian filed suit in  Chancery Court seeking to enjoin the foreclosure by contending that the two deeds of trust on the home were both void pursuant to Miss. Code Ann. § 89-1-29 because neither contained the signatures of both Mrs. Avakian and Mr. Avakian. Mrs. Avakian argued that the SOL had run.  The chancellor held that claim was timely having been tolled by various legal maneuverings. Mrs. Avakian appealed and lost.  Meanwhile Wilmington Trust filed a lawsuit claiming judicial foreclosure, breach of contract, and unjust enrichment.  It then moved for partial summary judgment on these claims. Mrs. Avakian opposed arguing that there was a fact issue as to whether  whether Wilmington Trust was the true owner and holder of the promissory note and deeds of trust.  The chancellor found that res judicata barred this defense raised by Mrs. Avakian.  The chancellor also found that it was undisputed that the Avakians had defaulted on the promissory note, that none of the indebtedness had been repaid, and that the deed of trust provided for foreclosure upon default. Finding that no other issues were left unresolved by previous litigation or were ripe for decision and not raised, the chancellor granted partial summary judgment in favor of Wilmington Trust. The court granted partial summary judgment in favor of Mrs. Avakian  on Wilmington Trust’s unjust-enrichment claim .  Mrs. Avakian appeals. The COA affirms.

 

 

Pro Se PCRS appeals affirmed:

Timothy L. Bolton  v. State of Mississippi

Antonio Weathersby  v. State of Mississippi 

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