Decisisons – COA – 4/10/18 – part 2

Socorro Saylon O’Brien, Individually, and as Executrix of the Estate of Carroll J. O’Brien v. Susan Westet –   fraudulent land transfers (or be careful whom you marry) – In  1972, Carroll and Susan  purchased 104 acres of land in Simpson County, Mississippi with money inherited by Susan.  Title to the property was conveyed to Carroll and Susan as joint tenants with full rights of survivorship. They divorced in  1987 and agreed that the real property would stay as it was. The agreement prohibited any disposition of any land holdings may be made while both parties are alive unless by mutual agreement in writing.  In 1995,  Carroll used a 25-year-old power of attorney that Susan had signed in 1970 to quitclaim title of the 104 acres from Susan and himself to himself and his new wife Socorro. In 2000, he used the same power of attorney to execute a warranty deed conveying title of the acreage from himself and Susan to Socorro and himself as tenants by the entirety with full rights of survivorship. In 2007,  Carroll and Socorro executed a quitclaim deed, conveying the subject property to Socorro. Carroll died in 2012. . Susan filed a complaint to void the deeds and remove the clouds on her title to the land. The chancellor granted summary judgment for Susan and ruled that all attempts by Carroll to transfer the property were void. Socorro appeals. The COA affirms.

Chris Andre Fairley  v. State of Mississippi –  right to confront medical examiner who conducted autopsy – After a confrontation in front of a shaved ice stand in Biloxi in July 2015, Chris Fairley shot and killed his cousin Mark Fairley. He claimed it was self defense but was found guilty of deliberate-design murder. On appeal, he argues that his right to confrontation was violated when the medical examiner who testified at trial was not the one who did the autopsy. The COA finds no error.

Dr. LeVaughn testified that, although he did not perform the actual autopsy procedures, he examined the autopsy reports, along with the photographs and case notes. He also consulted with Dr. Barnhart at the time of the autopsy, testifying that he reviewed and discussed the report with Dr. Barnhart prior to signing off on the report. And he concluded based on a reasonable degree of medical certainty that Mark died from gunshot wound.

Dennis Thompson  v. State of Mississippi –  cautionary instruction – Thompson was convicted of the November 2008 murder of Carlos Buford whose body was found in a car parked outside a Clarksdale Motel.  On appeal he argues that the evidence was insufficient. He also argues that the court should not have allowed two witnesses to testify. One was a fellow inmate who testified that Thompson told him that he was two other guys, McLymont and Starks, when they spotted Buford and decided they wanted his necklace.  They all got into a car and when one of them reached for the necklace, the man shot him. Thomas then shot him in the back of the head. Starks gave similar testimony.  Thomson argued that the testimony of jail snitches and codefendants is suspect.  The COA finds no error noting that the court gave a cautionary instruction with regard to informant testimony. He also argues that his conviction violates double jeopardy because at his first trial, he was acquitted of capital murder but the jury deadlocked on murder. The COA finds no double jeopardy violation.

Mac Kenzie Willis v. Lt. Westley, Lt. Brooks and Warden Wendell Banks circuit court jurisdiction of prison rules violation – Willis is an MDOC inmate having been convicted of one count of unlawful touching of a child and one count of statutory rape.   In September 2016 he was issued a rule violation report (RVR) for the possession of major contraband, a cell phone and battery. After a disciplinary hearing, he was found guilty and received an eighteen month loss of all privileges.  Willis appealed the hearing officer’s decision through the MDOC’s administrative remedy program  claiming  a violation of due process. When he lost, he  filed a complaint for judicial review in the Circuit Court of Rankin County pursuant to MCA sect.  47-5-807.  The circuit court  dismissed the complaint for lack of jurisdiction. Willia appeals. The COA reverses.

Under section 47-5-807, any offender aggrieved by an adverse decision may seek
judicial review “within thirty (30) days after receipt of the [MDOC’s] final decision.” The record indicates Willis filed his complaint for judicial review in the circuit court within thirty days after receipt of the MDOC’s final decision, as required by section 47-5-807. However, it appears that when Willis filed his complaint in the circuit court, he failed to attach or include any documentation that showed when he received the MDOC’s final decision. Without such documentation, the circuit court was unaware that Willis had in fact exhausted his administrative remedies and timely sought judicial review.

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