Decisions – COA – 9/18/2018

Hand down list

Shamor Billups  v. State of Mississippi –  felon in possession –  In March of 2013, two men approached the gun counter of K and S Outdoors in Columbus.  One asked to look at a pistol, and the other asked to look at a long gun. When handed the guns they both attempted to run. The clerk tackled one of them.  The one who ran  turned out to be Billups. The stolen gun was found in the rifle in which Billups was found hiding. A Lowndes County jury found him guilty of felon in possession but acquitted him of shoplifting (go figure; the rifle was identified by its serial number).  On appeal he challenges the sufficiency of the evidence. The COA affirms.

Deidi Rodrigue v. Mitchell Rodrigueaward of appeal costs – Deidi and Mitch separated  in July  2010 after twenty-one years of marriage. In August 2012,  the chancellor granted Deidi a divorce based on uncondoned adultery and awarded her custody of the parties’ two minor children. Mitch was  ordered Mitch to pay $1,112.66 in monthly child support.
With regard to alimony, the chancellor ordered Mitch to pay Deidi’s car note, allowed Didi the house with Mitchell to pay the mortgage, and ordered the parties to sell the marital property and divide the proceeds.  Deidi appealed. The COA reversed in part and remanded for further proceedings on the issues of equitable division and alimony.  On remand the chancellor divided the property in a different way. Deidi again appealed but the court affirms the property division and alimony. It reverses the trial court’s refusal to award Deidi the $1,543.00 she incurred in pursuing the first appeal inasmuch as the COA had assessed all costs of the appeal to Mitch.

Tamira Peoples  v. State of Mississippi –  witness outburst/ allegedly lost evidence – Peoples lived in an apartment complex next door to  Rotanda Gholar and her daughter Samina.  The neighbors had constant problems. One day Rotanda and Samina were leaving to go look at another apartment in a different apartment complex when Peoples shot Rotanda as she was walking out of her front door. Rotanda ran back to her apartment shooting Samina in the head as she did so. Peoples was convicted of murder and aggravated assault.  On appeal she challenges the sufficiency of the evidence. She also argues that the court should have granted a mistrial when Rotanda, shown a picture of her daughter, blurted out “That’s my baby. That’s my baby” on the witness stand.  And she argues that the state failed to preserve evidence because a police officer testified he seized several bags of evidence from the house where Peoples was arrested but the state only introduced one. The COA affirms.

Rickarius Kimble  v. State of Mississippifailure to file motion for new trial –  Kimble was convicted of raping  Lakeisha Adams after breaking into her house (he was acquitted of burglary).   Kimble testified that Kimble had invited him to her home while her boyfriend was out. On appeal he challenges the weight and sufficiency of the evidence.  The court finds that the issue is barred because Kimble failed to file a motion for new trial. It goes on to decide that the evidence was not against the weight of the evidence.  Therefore, Kimble also loses his next issue – that his attorney was ineffective in failing to file a motion for a new trial.

Martin Blake Pugh  v. State of Mississippiadmission of video of defendant raping victim – Pugh was convicted of conspiracy to commit sexual battery and sexual battery of an incapacitated person and given the unbelievably light sentence of  one year  with six months suspended, followed by four years and six months of post-release supervision.  He was one of three people who thought it was a great idea to rape an unconscious 17-year-old and then post the video on Snapchat.  The other two pleaded guilty.  On appeal Pugh argues that it was error to admit the Snapchat video as well as text messages among the  co-conspirators as well as text messages between one of them and the victim. The COA affirms.

Cortavius Ferguson  v. State of Mississippiadmissibility of text messages – Ferguson was convicted on two counts of armed robbery.  In May of 2016, a man dressed all in black entered an Attala County Dollar General and held up a customer and the cashier.   The man ran from the store. Shortly thereafter, a woman who lives across the street opened her door to find Ferguson there clad in all black and missing his shoes. He explained that he had had an argument with his girlfriend and ran from the house. The woman called 911. The sheriff arrived and found $837 in Ferguson’s pocket and a cell phone. The phone contained test messages regarding Ferguson’s need t o “hit a lick.” On appeal Ferguson complains that the text messages were inadmissible hearsay. The COA disagrees finding that they were not introduced to prove the truth of the matter.  He next argues that his attorney was ineffective for failing to object to the admission of the text messages. The COA finds no error since the admission of the text messages was not error. The COA affirms.

Walter Blanden v. State of Mississippi –  pre-arming instruction – Walter Blanden was convicted of the first-degree murder of his wife, Remell Blanden.  He shot her while they were arguing about her son. On appeal he argues that at most he was guilty of heat of passion manslaughter, that the court erred in giving a pre-arming jury instruction and in admitting  hearsay testimony of the investigating officer.  The COA affirms.

Devin Shepherd  v. State of Mississippihome invasion burglary – Shepherd was convicted of home-invasion burglary.  Shepard had broken into a Southaven home and was beating on the door of the homeowner’s grandson all while threatening the grandson. On appeal he argues the weight and sufficiency of the evidence. The COA affirms.

John F. Ware  v. State of Mississippi –  felon in possession of a knife – Ware was convicted of being a felon in possession of a deadly weapon. The knife was discovered in Ware’s car after police were called to respond to a domestic dispute. On appeal he argues sufficiency of the evidence. The COA affirms.

Albinnie Bryant v. Katie Dent, Christopher Gray, and Cathy Graystatute of limitations – –   Mellie Cooley signed and executed a warranty deed transferring his house  in  Hattiesburg  to his sister, Katie Dent. After he died, Cooley’s administrator (and niece)  Albinnie Bryant filed a complaint against Dent alleging that the deed was void due to Cooley’s lack of capacity, undue influence, and fraud. The complaint was dismissed five years later for lack of prosecution.   Bryant refiled her complaint. This time she added a claim that the deed was void  because Cooley’s wife, Overa, did not sign the deed.  This time the case was dismissed based on the 3-year statute of limitations.  On appeal the COA finds that the ten year statute of limitations applies and reverses. It affirms on the fraud claim since Cooley failed to specify the fraud with the particularity required.

Cooper Tire & Rubber Company, a Self-Insured Company v. Rondie Loveless workers comp. /necessity of final adjudication –  Loveless worked at Cooper Tire. In July  2014,  she began to experience pain in her right foot,.  She did not timely report it as work related but later realized it was caused by  standing on concrete floors for twelve-hour shifts in steel-toed boots.   Cooper Tire denied compensability and Loveless sought treatment through private insurance. Loveless filed a petition to controvert in June  2015 and was fired in August.  The AJ found that Loveless made a prima facie showing that she sustained a compensable, work-related foot injury and was entitled to compensation benefits. The AJ’s order stated that the “issue of extent of permanent partial disability or industrial loss of use related to the right foot injury will be reserved until further proceedings.” Cooper Tire appealed the AJ’s order to the Workers’ Compensation Commission. The Commission “affirmed in part . . . the [AJ’s order] as to the compensability of the right-foot injury occurring on or about July l, 2014,” and remanded the case to the AJ “for all further proceedings as are necessary in the claim.”
Cooper Tire appealed.  The COA dismisses the appeal since the AJ’s order was not a final adjudication.

Jeremy Shane Fogleman  v. State of Mississippi  crime of violence enhancement based on facts found by judge – Fogleman was convicted of failing to stop a motor vehicle pursuant to the signal of a law enforcement officer while operating the vehicle in reckless disregard of the safety of persons or property.  The judge also found that Fogleman “used physical force, or made a credible attempt or threat of physical force against another person as part of the criminal act.” MCA  § 97-3-2(2). Classifying it as a crime of violence made Fogleman ineligible for parole.

Fogleman does not challenge his conviction on appeal. He argues only that his crime
should not have been classified as a “crime of violence” and that section 97-3-2(2) violates the Sixth Amendment to the United States Constitution by increasing the penalty for the crime based on facts not submitted to the jury and found by the judge alone. We agree with Fogleman that section 97-3-2(2) is unconstitutional insofar as it deems an offense a “crime of violence” based on facts found only by the judge. Therefore, we reverse and render the provisions of Fogleman’s sentence stating that the conviction is for a “crime of violence.” Fogleman’s sentence shall simply be for a term of five years in MDOC custody.

 

Edward William Speights III v. Kimberly Daniels Speights –  necessity of Ferguson findings/divorce based on habitual drunkenness – Kimberly and Trey married in 2004 and separated in December 2015. They had no children. In 2016 Kimberly filed for divorce  on the grounds of habitual cruel and inhuman treatment, excessive drug use, habitual drunkenness, or, alternatively, irreconcilable differences.  Trey failed to appear at trial (his attorney had been allowed to withdraw prior to trial because Trey would not cooperate with him). Kimberly and Trey’s parents testified at trial. The court granted the divorce on the grounds of habitual drunkenness (his drinking was so bad I’m wondering if he’s still alive).  It divided the marital property based on exhibits  provided by Trey’s parents.  Trey appealed. The COA affirms the granting of the divorce and finds no error in Trey’s allegation that his parents should not have been allowed to act as his de facto attorneys.  It does reverse on the distribution of marital property because the court failed to make Ferguson findings.

Pro Se PCR Appeals affirmed:

Justin S. Hill  v. State of Mississippi

 

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