Decisions – MSSC – 4/11/2019

Hand down list

Alvin C. Wilson v. State of Mississippi –  trial in absentia – Wilson was convicted in absentia  of sexual battery of an eleven-year-old who ended up giving birth to his child at the age of 12.  Wilson had been scheduled to  plead to statutory rape.   The trial commenced on a previously-scheduled date after Wilson failed to appear for his guilty plea.  On appeal he argues that it was error to admit into evidence a videotape of him being interviewed by law enforcement.  He claims there was no foundation to support its admission. He also argues that it was error to try him in absentia. The MSSC affirms.

William Ray Collins v. State of Mississippipcr – Collins was convicted of armed robbery and sentenced to serve forty years.  His conviction was affirmed on appeal in 2002. This is his sixth pcr petition. The Court dismisses it and warns that any future pleadings may incur monetary sanctions.

Gregory Dunn v. State of Mississippipcr –  Dunn was convicted of murder and his conviction was affirmed in 1997.  He has filed multiple pcr petitions since. In this latest he argues that he is actually innocent and that it was illegal to impose a life sentence without a jury recommending the same. The Court dismisses his petition and holds that he must pay the docket fee for any future petitions.

Michael J. Malouf v. Lisa Evans d/b/a Lake Harbour Marine – – proof of partnership – In May 2014, Malouf took his boat to Michael Evans at Lake Harbour Marine for repairs. Malouf subsequently had problems getting anyone at Lake Harbour Marine to answer his calls. He finally reached Lisa Evans who told him on July 11 that his boat was ready. Malouf picked up the boat but it would not accelerate beyond 5 to 10 mph. Malouf sued Michael Evans who later died, his wife Lisa, and Lake Harbour Marine. The trial court granted a directed verdict for Lisa on the grounds that there was no evidence she was in a partnership with her husband. Malouf appealed the ruling. The COA affirmed and the MSSC granted cert. and reverses. “[I]n granting Lisa a directed verdict, the court wrongly gave Lisa, not Malouf, favorable evidentiary inferences drawn from Malouf’s testimony and did not take Malouf’s testimony as true—as is required before a trial judge may take a case away from a jury. The trial judge also incorrectly found that insufficient proof of a partnership between Lisa and her husband was dispositive of all of Malouf’s tort claims—even those that did not hinge on the existence of a partnership.”

The Court grants cert in Jeremy Shane Fogleman v. State of Mississippi  involving whether a defendant can be found to have committed a crime of violence based on findings made by a judge and not a jury.  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 did not challenge his conviction on appeal. He argued 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. The COA agreed 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.  The COA reversed and rendered the provisions of Fogleman’s sentence stating that the conviction was for a “crime of violence” making his sentence  a term of five years in MDOC custody. The state  filed a cert petition which was granted.

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