Decisions – COA – 10/2/2018

Hand down list 

In the Matter of the Estate of John M. Kaye, Deceased: John Morgan Kaye Jr., Executor v. Patricia M. Kaye –  undue influence – Jack and Pat married in 1987 and remained married until Jack’s death in 2012.  Both  had children from previous marriages. Jack had two sons, John and William Samuel Kaye, as well as a daughter, Louise Harlan Kaye.
In  2006, Jack created a will in which he left  John, John’s three sons, and
Pat each one-fifth of his estate. Jack also devised Pat their marital home with all furnishings. In his will, Jack stated that he did not split the estate with William or Louise because William is independently wealthy and Louise, who is mentally handicapped, has a trust. On the same day Jack created the will, he executed a Power of Attorney appointing Pat as his attorney in fact. In 2008, Jack created a joint account with Pat that included rights of survivorship and later  authorized UBS to transfer all assets from his solo account to the joint account. This authorization gave Pat the right to make decisions and jointly access the funds. . After Jack’s death in 2012, his will was admitted to probate, and it was discovered that minimal funds remained in the UBS account. John brought an action against Pat claiming wrongful conversion and asked the court to deny her her  fifth of the estate and the marital home. He also requested that the court require Pat to return the joint account to the amount of $1,210,371.91. The court denied John’s requested relief. The COA affirms.

Owen Scarbrough v. State of Mississippisexual battery – Scarbrough  was convicted of  one count of fondling and two counts of sexual battery of his step-granddaughter.  The abuse was discovered when 17-year-old  Mary gave her mother a note claiming that her stepgrandfather had fondled her since she was 14.   On appeal Scarbrough challenges the weight and sufficiency of the evidence.

Laquita Burgess v. McKinley Williamsoncontempt – Laquita Burgess and McKinley Williamson had a  daughter, Elizabeth, in 1999. Up until 2015, they  had an extra-judicial custody and support arrangement. In 2015, Williamson petitioned the court to determine custody and support. The court awarded physical custody to Williamson, visitation to Burgess, and joint legal custody. The court also ordered Burgess to pay child support to Williamson. One year later, Williamson filed a petition for contempt alleging that Burgess was behind on child support. Burgess answered and sought a modification of the child support.  The chancery court denied Burgess’s motion to dismiss and found her in contempt for failing to pay child support. On appeal, Burgess argued that the chancery court lacked jurisdiction and erred in setting child support. The COA affirms.

Richard Parker  v. State of Mississippi –  Lindsey brief – Richard Parker  was discovered hunting on someone else’s property without permission. WHen a game warden responded to a report of trespass, he found a rifle in Parker’s truck.  Parker was a convicted felon and was charged and convicted of unlawful possession of a firearm by a convicted felon. On appeal his  appointed appellate counsel filed a Lindsey brief, certifying that he has thoroughly searched the record and found “no arguable issues” for appeal. Lindsey v. State, 939 So. 2d 743, 748 (¶18) (Miss. 2005).” After an independent and thorough review of the record”, the COA agrees and affirms.

James C. Graham v. State of Mississippisexual battery –  thirteen-year-old Betty
told her school bus driver that her father, James Graham, had sexually abused her the night before by coming to her bedroom and  forcing her to perform oral sex on him.  The jury found Graham not guilty of sexual battery, but it convicted him of gratification of lust.  On appeal he argues that  the trial court erred in admitting four separate statements made by Betty after the incident without holding a hearing to determine whether she was of tender years. He also claims he received ineffective assistance of counsel at trial. The COA affirms.

Louis Edward Bourgeois v. City of Bay St. Louis Civil Service Commission–  civil service firing – The City of Bay St. Louis fired Louis Bourgeois after he asked a police officer to run a license plate number for him. Bourgeois claimed that a vehicle had been following him and that he feared it related to his job as a fire inspector. As it turned out that the man who owned the vehicle was dating Bourgeois’s former girlfriend.   The City’s civil
service commission affirmed Bourgeois’s firing, and the circuit court affirmed the
commission. The COA affirms.

 

Darren Lee Wharton v. State of MississippiMiller resentencing – Wharton was 17 in 1994 when he robbed a Harrison County convenience store and shot and killed the clerk. The state sought the death penalty but the jury settled for life without parole.  He was granted a resentencing pursuant to Miller v. Alabama which held unconstitutional the giving of an automatic life sentence to juveniles (but did not necessarily prohibit such a sentence).  The trial court heard testimony and resentenced Wharton to life without parole. On appeal the court finds that Wharton was entitled to a jury trial on sentencing because in 1994 MCA Sect. 99-19-101  required a jury decide the sentence.

James Christopher Skinner  v. State of Mississippiright to hearing on PCR – Skinner was convicted in 2011 of  felony evasion of police.  This crime has a maximum penalty of 5 years but Skinner was sentenced to life without parole because he had priors of  attempted armed carjacking and aggravated assault in 1994 when he was  fifteen years old, and  possessing less than two grams of cocaine in 2006, when he was almost twenty-eight years old.  Pursuant to MCA Sect.  99-19-83, the sentence for a felony conviction must be enhanced to life-without-parole if the defendant has previously served at least one year in a penal institution for two separate felony convictions, and at least one of those prior felonies was a violent crime. His conviction and sentence were affirmed on direct appeal but after he filed a pcr challenging the sentence, the MSSC granted him leave to file his motion in the trial court.  Two months later the trial court dismissed the motion without requiring the state to respond are holding a hearing. The court held that the issue of whether his sentence was constitutional was barred by res judicata and that there was no law allowing the sentence to take into consideration mitigating circumstances.  The COA reverses and remands finding that the  supreme court’s order granting the petitioner permission to proceed [is] a finding of a prima facie case. The  court should request that the State respond to the motion. Then, the court  must examine the record and determine whether an evidentiary hearing is required.  Since the trial court here  dismissed Skinner’s PCR motion before the State filed an answer and before discovery, the case must be reversed.

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