Decisions – COA – 2/12/2019

Hand down list

John Knight v. State of Mississippi –  criminal defendant representing himself at trial – Knight was convicted of sexually abusing his 12-year-old stepdaughter. Knight decided on representing himself at trial and was allowed to do so after he was deemed competent following a competency hearing.  On appeal, his appellate counsel argues that as the trial progressed it became clear that Knight was incapable of representing himself and that the trial The COA finds that “Knight cannot decide that he wants to represent himself and then, dissatisfied without the outcome, claim that the circuit court should have saved him from himself. We are not persuaded that the circuit court should have spontaneously declared a mistrial or forced Knight to step aside so Wallace could take over.”   Knight also argues insufficiency of the evidence because the twelve year old testified to a birth date that made her ten years older.  The COA finds that there was ample evidence that she was 12. Finally he objects to the admission of close up pictures of the 12 year old’s vagina. The COA affirms.

Darryl Metcalf a/k/a Peanut v. State of Mississippi –  continuance to procure witness – Darryl Metcalf was found guilty of two counts of sexual battery, attempted sexual battery, and fondling involving a four-year-old. On appeal he argues that the trial court erred in refusing him a continuance to procure the attendance of witness Sarah Ward.  Sarah Ward did the initial forensic interview and found that the child did not provide any information or statements to corroborate the suspicion that he may have been sexually abused.   The COA finds no error. “Ward was not properly served with a subpoena; the defense was not diligent in its efforts to locate Ward; and Ward’s name was stricken from the witness list.”   He next argues that the instructions constructively amended the indictment. For instance Count One charged Metcalf with sexually penetrating M.W. by inserting his penis into M.W.’s anal opening. The instruction, though,  allowed the jury to convict Metcalf of sexual battery upon a finding that Metcalf inserted his “penis and/or object” into M.W.’s anal opening. First of all, Metcalf did not object and secondly, it matters not what M.W.  was penetrated with.  He also argues that his attorney was ineffective in  failing to object to amending the indictment to correct the dates of the crime.  The record, though, shows that his attorney did object.  The COA affirms.

Johnny Jerome Edwards v. Nancy Jewel Pierce Edwardssummons ineffective for failing to specify place of hearing –  Johnny and Nancy Edwards were divorced in  December of  2013. The court  awarded Johnny the marital home, and he was to refinance the mortgage within ninety days of the judgment, If unable, he was to sell it.  Nancy afterwards filed a petition for contempt claiming that Johnny refused to sell the marital home and had defaulted on mortgage payments,  The court found Johnny in contempt and ordered the home to be sold in 60 days.  A fiat was filed on March 22, 2017, setting a review hearing for April 11.  On April 11, 2017, another fiat was entered, re-setting the hearing for May 15, 2017.  A Rule  81 summons was issued to Johnny Jerome Edward (not Edwards) on April 11, requesting that he  appear on May 15, 2017.  The proof of service that the summons was delivered to Hazel Harris, Johnny’s “daughter,” on April 19, 2017, at his place of residence and later mailed to the residence on April 27.  Johnny was eventually fond in contempt and ordered to vacate the home.  On appeal he argues that the summons was defective because it told him to appear at the “Oktibbeha County Courthouse at Columbus, Mississippi.”  The Oktibbeha County Courthouse is in Starkville, Mississippi, not Columbus.   The COA agrees that the summons was defective.

In this instance, the Rule 81 summons failed to specify the correct place for the
hearing. Reviewing the notice, Johnny would not have known whether to appear at the Oktibbeha County Courthouse in Starkville or the Lowndes County Courthouse in Columbus.  Therefore, finding the notice was defective under Rule 81, we reverse the judgment and remand for further proceedings.

 

 

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