Decisions – COA – 5/8/2018 – part 2

Leslie Danielle Dewitt  v. State of Mississippi –  unqualified juror/recording of conversation between defendant and third party  –  Leslie  Dewitt was a girls’ basketball coach at Hancock High School. She was  convicted of two counts of touching a tenth grade female basketball player, Bethany Foster, for lustful purposes.  When Bethany struggled from depression during college, she confided in her mother about what her coach had done to her while she was in high school. On appeal Dewitt argues that she should have been granted a mistrial because one of the jurors was not a registered voter and had lived in Hancock County for only two months.  Dewitt did not raise this as an issue at trial and, thus, the trial court never got an opportunity to voir dire on  this issue.  “Dewitt’s attorney made no objection as to Simmons’s admission despite his juror card plainly stating he had only lived in Hancock County for two months.” Nor can Dewitt show any prejudice. She also argues that it was error to allow the jury to hear a conversation between Dewitt and Bethany’s mother that was recorded by the mother.  She argues that the mother was acting as an agent of the state and, thus, Dewitt should have been read her Miranda rights. However, since Dewitt was not in custody nor had she been indicted, neither her fifth or sixth amendment rights had attached. Finally, she argued that she was entitled to an instruction on the lesser offense of sex between a teacher and student. The COA finds no error since “[t]he elements of the separate offenses are distinctly different, and no facts were presented in this case to persuade this Court that the trial court erred. ” The COA affirms.

In the Matter of the Guardianship of C.B.F., a Minor: Paul Fountain v. Hollee Fountain Reon, Clayton Keeton, and Armonda Fountain –  custody –   Carter was born in 2013 to Hollee and Clayton Keeton. Hollee and Carter lived with  Hollee’s mom Armonda in Meridian.  Hollee’s father Paul would visit on weekends. After Carter was born, Hollee spent a few weeks getting treatment for post partum depression. Armonda, joined by Hollee, sought a guardianship over Carter. Shortly thereafter, Hollee. Carter, and Hollee’s boyfriend Travis had a dispute with Armonda over money and they moved in with Paul.  Two weeks later they moved in with Paul’s mother for three weeks. When Hollee returned to Paul’s house, she clams he told her that she could go stay with Travis’ parents or go to East Mississippi State Hospital.  Paul then drove Hollee and Travis to Vicksburg and refused to give Carter to Hollee. Paul filed for custody in the youth court.  The chancellor gave Armonda temporary guardianship of Carter. Teh youth court transferred jurisdiction to chancery. Paul then filed a 60(b) motion for relief from the order granting Armonda the guardianship and counterclaimed for custody.  Armonda and Hollee, joined by Carter’s father, asked that Hollee be given custody.  A trial was held in 2016 and the chancellor awarded Hollee custody of her son inasmuch as Paul did not overcome the natural parent presumption.  Paul appeals. the COA affirms.

Carlos C. Jones  v. State of Mississippi –  confrontation/exclusion of firearm expert – Jones was convicted in the second murder of his wife despite the fact he claimed he accidentally dropped his gun and a bullet hit her while she was in bed. Tabatha died fifteen days later. The medical examiner  testified she had  been shot twice. While Tabatha  was in the hospital, police interviewed her on video asking her if Carlos had shot her. Tabatha lifted her hand slightly. She was asked how many times she was shot and  she lifted her fingers. The State claimed she indicated she was shot twice. CArlos argues that the admission of the video violated his right to confrontation. The COA agrees but finds it harmless. Carlos argues that his atatorney was ineffective for not asking for an accident instruction. The COA finds that Carlos’ many versions of the shootings were so inconsistent that his attorney’s failure did not amount to ineffective assistance. Carlos also argues that the court erred in not allowing his firearm expert to testify. The trial judge found that Carey’s testimony was not “based on sufficient facts and data,” because it concerned firearm shooting and not the actual mechanics of the firearm.  It did allow him to testify as a lay witness.

The record supports these conclusions: Carey admitted that he had never written any articles or periodicals on shooting firearms, and could not provide the court with any “reliable principles and methods” on which his testimony was based. Further, Carey did not hold an engineering degree and did not seek to testify as to the gun’s mechanics. Such knowledge probably would have been more akin to relevant expert testimony in this case, which revolved around the gun’s mechanical propensity to misfire. Carey’s testimony, as presented during the voir dire examination, was largely contingent upon his own personal observations of the handgun’s functionality, in light of Jones’s theory of defense. As such, we hold that he was properly allowed to testify as a lay witness, only. We decline to address the State’s other arguments regarding Carey’s testimony, as they are consequently moot.

Vince Bates v. City of Natchez, Mississippi –  civil service discipline  – Bates was a police officer for the City of Natchez which fired him after he placed a tracking device on a fellow officer’s patrol car (he claimed he did it as a prank).  Bates appealed and the  Civil Service Commission  determined that Bates should not have been terminated and modified the City’s termination order to  suspended Bates for four months without pay and demote him to a patrolman with no supervisory duties. Bates appealed to the Mississippi Court of Appeals which affirms.

Abdulkhaliq Mohammed Murshid v. State of Mississippi, Ex Rel. Mississippi Bureau of Narcoticsforfeiture –  Murshit owned a tobacco store in Meridian. In 2015, the MBN  executed a search warrant synthetic cannabinoids.  MBN seized 180 packages of
suspected synthetic cannabinoids or “spice”,  $28,000 in cash dispersed throughout several plastic bags; $5,600 in cash locked in the office desk; $191,951 in cash locked inside a safe in the office; two guns; and various pieces of electronic quipment.  Murshid claimed that he thought the drugs were herbal incense and that his wife was  responsible for ordering them. Murshid testified that $95,549 of the cash in the safe had been returned to him by the DEA  in 2014 and that  the remaining cash in his office was from his stores’ earnings and his savings. The State filed to forfeit  the  $227,278.26,  two guns, a digital video recorder, a DVD player, and a computer tablet. The trial curt granted the forfeiture of  $131,729.26 but disallowed it as to  the remainder of the currency – the  $95,549 that had been returned by the DEA.  Murshid appeals. The COA affirms.
Pasquale Solitro  v. State of MississippiDUI –  Solitro was found guilty of driving under the influence,  first offense, and he appealed it all the way up to the COA.  His attorney filed a Lindsey brief. The COA affirms.

Victor Daren Froemel v. Estate of Mary Lou Froemel, Deceased, Danny Williams, Executor, Karen Cole, Disabled Veterans of America, and Charlie McNeal will contest – In 2014, Mary Lou Froemel made her last will.  She was 75 and had one son, Daren Froemel,  with whom she did not get along.   In her will, which was drafted by her attorney,  Mary Lou left $20,000 to her friend Karen Cole; $20,000 to the Disabled Veterans of America; and the residue of her estate in trust for the benefit of Charlie McNeal, for the remainder of his natural life. McNeal had performed some odd jobs for Mary Lou.  After she died,  Daren filed a will contest alleging that Mary Lou lacked
testamentary capacity at the time she executed the will. The trial court ruled aganst him and he appealed.  The COA affirms.

Marquan D. Stover v. Elaine G. Davis, Executrix of the Estate of Tamora G. Robinson, Deceased –  will contest/undue influence – Tamora Robinson passed away in 2013. She was  survived by her brother, Sylvester Griffin, her sister, Elaine Davis, and her great-nephew, Marquan Stover.  She left a will and two codicils  drafted by her attorney.  The second codicil left personal property that had been bequeathed to her nephew to her sister Davis (since her nephew had died).  It also made Davis the executor.  Stover challenged the second codicil on the grounds that it was the result of undue influence by Davis.  The chancellor found against Stover and he appeals. The COA affirms.

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