Decisions – COA – 5/22/2018

Hand down list 

Daylon Waldrop  v. State of Mississippi –  failure to instruct on underlying felony –  Daylon Waldrop was convicted of capital murder with the underlying felony of armed robbery.  On appeal, he argues that it was error to fail the instruct the jury on the elemetns of armed robbery. The COA agrees and reverses and remands.

Sammie Henry Pettis  v. State of Mississippi –  incorrect date in indictment – Pettis was convicted of the armed robbery of  Central Sunbelt Credit Union in Hattiesburg.  On appeal he argues that the  trial court erred in sentencing him as a nonviolent habitual offender because he served less than one year on one of his priors. The COA notes that “[t]he nonviolent habitual offender statute does not require that one serve a year for each prior felony conviction. Miss. Code Ann. § 99-19-81 (Rev. 2015). It is enough that he was sentenced to at least one year for at least two prior felonies arising from separate incidents. See id.”  Pettis had multiple priors.  Next he argues that the indictment was defective because the date was wrong.  It stated that the date of the robbery was July 11, 2014, instead of July 11, 2016.  The state moved to amend the indictment to correct the error at a pre trial hearing. The COA finds no error.  Pettis also argues that the evidence was insufficient. The COA affirms.

Greenwood Leflore Hospital v. Mark Anthony Bennett as the Administrator of the Estate of Jacqueline Deal, Deceasedmedical malpractice –  In November  of 2007, Deal injured her  left thigh when she was dragged by her car down the side of the road.  SHe was treated at various hospitals over the next three months.  She had surgery at GLH in January 2008  to partially close the wound.  By March there was sill a deep wound to the left groin that would not heal. By July the wound was much worse. An MRI at GLH  revealed fluid collection consistent with a subcutaneous abscess. A nurse who was cleaning the wound spotted something in it and was able to remove a  4×4-inch piece of gauze from the wound using tweezers.  She sued GLH and the judge, after a bench trial, awarded $180,000. On appeal GLH argues that  the trial court erred in allowing Dr. Carrol McLeod to testify as an expert because (1) he was not qualified to testify about wound-care procedures or a standard of care for any wound-care professionals and (2) Deal’s failure to supplement Dr. McLeod’s disclosures in accordance with MRCP  26(f).   GLH also argues that the trial court erred in refusing to grant its motion for an involuntary dismissal. The COA affirms.

James Lee Brent  v. State of Mississippi –  retroactive misjoinder – In November 2015,  Rayshaun Banks was putting air into his tires when he felt Brent  press something into his back and demand money.  When Rayshaun told Brent he had no money, Brent ordered Banks to get in the car and had  Banks drove him south on I-55 to  a bank ATM off the Gluckstadt exit.  When Rayshaun left the car he ran for safety.  Brent drove off in Rayshaun’s car.  When Brent was arrested, he stated that Rayshaun agreed to give him a ride but that he took Rayshaun’s car without permission.  Brent was convicted of  armed robbery, kidnapping, and possession of a firearm by a felon.  On appeal, the COA finds that there was no evidence that Brent used a gun and therefore he should have been given a directed verdict on that charge.  Moreover, under the theory of retroactive misjoinder, Brent has a right to retrial on the kidnapping and armed robbery charges.

 “‘[R]etroactive misjoinder’ occurs when a trial or appellate court determines that while joinder of two or more counts against a defendant was initially proper, one or more of those counts should be vacated.” Reynolds v. State, 227 So. 3d 428, 433-34 (¶23) (Miss. Ct. App. 2017) (quoting Williams v. State, 37 So. 3d 717, 721 (¶9) (Miss. Ct. App. 2010)). “[A] defendant in such a case is entitled to a new trial on the remaining count(s) if he can show that he suffered clear and compelling prejudice as a result of the evidence introduced to support the vacated count.” Id. at 434 (¶23) (internal quotation mark omitted). “The strength of the State’s case against the defendant on the remaining count[s], the specific evidence presented in connection with the vacated count, and other pertinent details of the defendant’s case and trial should be analyzed in determining if the defendant was prejudiced.” Id. at 434 (¶26).

Sanford Mason v. State of Mississippi –  post conviction DNA testing  – In 1982, Sanford Mason was tried and convicted of the crime of rape.  His conviction was affirmed on direct appeal.  In 2013, Mason filed a PCR petition requesting to be allowed to do DNA testing on the evidence.  His petition was granted an he was appointed an attorney.  Unfortunately, no one could find the rape kit or any other evidence.   A former deputy circuit clerk from Oktibbeha County testified that sometime after 1989, and probably closer to 2000, there was significant flooding in the county courthouse. Raw sewage had spilled from a bathroom in the tax assessor’s office into an exhibit room located below, and about twenty-five percent of the items stored in the exhibit room were destroyed or unsalvageable.  The record indicates that Mason was placed at the crime scene based on two latent palm prints, one found near the  point of entry into the victim’s house  and the
other found on an air conditioning unit outside the victim’s bedroom window. A rape kit was collected from the victim at the time of the crime.  After the hearing, the circuit judge entered an order closing the case since there was no evidence to be tested.  Mason appealed pro se arguing that the destruction of the rape kit and other evidence
collected during the investigation of his case violates due process. The COA finds no violation.  The law requiring the  preservation of DNA evidence was not enacted
until 2009.

Brent Ryan v. Lowndes County Adult Detention Center, Sheriff Mike Arledge, Chief Deputy Mark Miley, Captain Rick Jones, Captain Ryan Rickert, Lt. Barry Stanford, Sgt. Eric Giranderson, Sgt. Suameka Cunningham, Officer Monica Tate, Officer David Tate, R-3 Candy Davis and R-2 Karen Stanford, Any Unnamed Individuals or Their Successors in Office in Their Official Capacity –  failure to serve process – Ryan was serving 25 years for aggravated domestic assault and felony fleeing.  In January 2016, he  filed a “Petition for Judicial Review on Administrative Remedies,” alleging that the Lowndes County Detention Center  “[did] not have an established procedure for collateral review of grievances in accordance with state statutes § 47-5-801 through § 47-5-807.”  His complaint was dismissed without prejudice for failure to serve within 120 days.  Ryan appeals and the COA affirms.

Pro se PCR appeals affirmed:

Henry J. Laneri III  v. State of Mississippi

Eric LaQuinne Brown  v. State of Mississippi

Robert Williams v. State of Mississippi

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