Decisions – COA -7/24/2018

Hand down list 

Rose Cox v. Memorial Hospital at Gulfportworkers comp. –  Cox was employed  as a distribution technician at Memorial Hospital when she was struck by a vehicle while she was walking in the employee parking lot.  Almost a year later she returned to work performing the same tasks and received a raise.  She filed a petition to controvert seeking  permanent-partial disability benefits.  The AJ denied them as did the Commission. On appeal the COA affirms.

Tameka Smith  v. State of Mississippi Batson, etc. –  Smith was convicted of armed robbery of a Forrest County General Store., On appeal she argues that there was a Batson violation because the state used three of its five peremptories to strike black jurors. The state offered that it struck the three black jurors and one white juror because they all seemed disinterested. Smith’s attorney noted that no one wants to be on a jury.  The COA finds that the burden was on Smith to rebut the reasons proffered by the strike and since she did not, the issue is procedurally barred.  She also claims that the prosecution committed misconduct by arguing that the defense has not put on a shred of evidence thereby shifting the burden to the defense. The COA finds that this was merely commenting on the weakness of Smith’s defense.  As for the prosecution’s comment that Smith claimed that she was at her grandmother’s house but failed to call her grandmother as a witness, Smith objected and the Court told the jury to ignore the argument.  She argues that it was error to allow an officer to testify about what someone else said about the car that Smith used the night of the robbery. The Court finds that Smith failed to make a confrontation objection at trial.  She also claims that the trial
court erred in refusing Smith’s requested jury instruction on the defense’s theory of
misidentification and that  the trial court erred in allowing the State to introduce CD exhibits in envelopes containing written notations. The COA affirms.

Thomas Earl Gabriel  v. State of Mississippiprejudicial statements made by defendant –  Gabriel lived with his wife Ann, Ann’s daughter Ashley, and Ashley’s three young children. One day  Ashley was changing her son’s diaper when her four-year-old daughter Amber noted that her brother was touching himself the way that Gabriel touched her.  Amber was taken to the hospital for an examination. A physician determined that Amber’s symptoms were consistent with sexual molestation. When officers interviewed Gabriel,  a registered sex offender, he discussed with them his prior conviction as well as his sex practices with his wife  and the fact that he watched porn.  At trial, the prosecution admitted Gabriel’s statement over Gabriel’s objection that it contained irrelevant, prejudicial information. The COA agrees that the statements concerning pornography and his sexual practices with his wife were irrelevant and prejudicial. The COA  reverses and remands.

Chad Sanders  v. State of Mississippisufficiency of the evidence – Chad Sanders was convicted of the first-degree murder of Timothy Butler and possession of a firearm by a convicted felon. On appeal he raises sufficiency of the evidence even though there were two witnesses who saw Sanders shoot Butler.  He also argues that his trial attorney was ineffective in failing to timely designate the expert who would have testified that Sanders did not kill Butler.  The COA finds that this issue is not sufficiently developed for direct appeal. The COA affirms.

Eric Darrell Lott  v. State of Mississippi –  self defense instruction – Eric Lott was indicted for the murder of Adrian Eley and convicted of manslaughter.  Eley  had accused Lott of having sex with Eley’s  girlfriend and thet were arguing in a parking lot when Lott shot Eley.  Lott argues that his attorney was  ineffective for failing
to request a self-defense jury instruction indicating that he was afraid of being seriously injured by a larger, though unarmed, victim. The COA finds no error since Lott got two self defense instructions. He next argues that it was error to allow the pathologist to testify as an expert when he was not tendered as an expert but Lott failed to object on this basis at trial.  Finally he objects that the trial judge was partial to the state and even assisted the state throughout the trial. But, again, he failed to object below. The COA affirms.

Christopher Wise  v. State of Mississippi –  discovery violation –  Wise was indicted for the murder of  Jerrell Brown and convicted of manslaughter.  Brown had gone to Marcus Ware’s apartment where he purchased drugs from Wise.  Brown later called Ware to complain about the quality.  Brown was going to come back to Ware’s apartment but did not. Wise left and later called Ware to say that he had shot Brown implying that Brown had tried to rob him.  Brown’s body was found slumped over in the driver’s seat of his car.  His cousin Benard Vaughn was asleep through the shooting and only woke up when roused by a police officer.  Wise testified at trial and claimed to have shot Brown only after Brown put a gun to Wise’s head. On appeal Wise argues that the prosecution committed a discovery violation. The COA notes that it is not clear what evidence Wise is complaining about but it seems to be the crime scene photos that the State provided right before trial.  If so, Wise waived this issue by failing to request a continuance.  He also argues that his right to a speedy trial was violated. Like that’s a right.  And that he should have been granted a directed verdict pursuant to Weathersby or, at least, a Weathersby instruction.  The COA affirms.

Reginald Desmond Wallace  v. State of Mississippiineffectiveness of attorny at plea –  Wallace pleaded guilty to the armed robbery of the Sand Dollar store in Ridgeland. He later filed a pcr arguing that his trial attorney failed to communicate a plea offer of simple robbery. The MSSC ordered a hearing. At the hearing his attorney testifies that he does not remember communicating the offer but it is always his practice to do so. The trial court denies relief. On appeal the COA affirms.

Justin Bryce Brown v. Kristin Franklin Anslum –  custody – Brown and Anslum had a child, K.B., although they never wed. They split up when K.B. was four months old after they had a ridiculous argument over football tickets. Both parents were a mess but  the court ended up awarding them joint physical and legal custody after it seemed as though they cleaned up their acts. Justin appealed unaware he’s lucky DHS did not get the kid. The COA affirms. Good luck, K.B.

Pro se PCR appeals affirmed:

Edward House v. Pelicia Hall and Warden Frank Shaw

Jerri Collins  v. State of Mississippi

 

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