Decisions – COA – 7/23/2019

Hand down list

Allen John Putney and Linda Louise Putney v. Danny R. Sanford correction of deed – In November 2012 the Putneys transferred 196 acres to Carl Mann via warranty deed pursuant to a contract and agreement for the sale and purchase of real property.  In June 2015, Mann transferred the same 196 acres to Sanford via warranty deed.   Shortly after purchasing the property from Mann, Sanford became aware of an error in the land description contained in Tract 1 of the Putney-Mann deed.  The attorney who prepared the deeds filed an affidavit of scrivener’s error to correct the error in August 2015.  In January 2016, Sanford filed his petition for declaratory judgment, requesting that title to the two disputed parcels of land be vested solely in his name.  After a trial, the chancery court found by clear and convincing evidence that the Putney-Mann deed contained a mistake in the Tract 1 land description.  The court also found that the affidavit of scrivener’s error properly corrected the Putney-Mann deed to reflect the parties’ intentions.  And the court found that the Putneys intended to convey the property described in the Mann-Sanford deed—the entire 196 acres originally transferred by the Putneys to Mann and then by Mann to Sanford.  The court vested title to all of the real property described in the Mann-Sanford deed to Sanford.  The COA affirms on appeal.

Sidney Bishop v. State of Mississippi –  sexual battery –  Bishop was convicted  of four counts of gratification of lust, two counts of sexual battery, and one count of statutory rape after two girls, Alice and Brenda accused him of abuse.  On appeal he argues that the evidence was insufficient to prove statutory rape, (1) whether the evidence was sufficient for the statutory rape conviction in Count III or whether the verdict was contrary to the overwhelming weight of the evidence; (2) whether Bishop was irreparably prejudiced by an improper limitation of his cross examination of Brenda’s mother; (3) whether the trial court erred by excluding evidence that Brenda had been in the presence of another man suspected of abuse; and (4) whether trial counsel was ineffective for failing to request an alibi instruction.  The COA affirms.

Michael Greene v. State of Mississippi –  Facebook evidence – “Michael Greene was convicted of possession of a firearm by a felon after a traffic checkpoint that led to the discovery of a gun on the floorboard of the car he was driving.  At trial, the State firmly tied the weapon to Greene through the testimony of the officer on the scene, who saw it pinned beneath the defendant’s left foot.  The State also attempted to connect the weapon to the defendant through the use of a photograph and a video found on Facebook.   On appeal, Greene argues that the trial court should have suppressed the internet based evidence presented against him, as it was not properly authenticated.  While the evidence should have been excluded under our rules of evidence, its admission was harmless error in light of the properly admitted eyewitness testimony presented at trial.  As a result, we affirm.”

Donald E. Smith v. State of Mississippi parole – “Donald Smith filed a motion in the Forest County Circuit Court for release from incarceration, believing he was eligible to be released on  parole.  The circuit court denied the request, finding that he had not served sufficient time.  Although Smith is eligible for parole, it is beyond the reach of this Court to order his release.  We affirm the circuit court’s conclusion that the petition should be denied.”

Harold Newell d/b/a A-Absolute Bail Bonding Company v. State of Mississippi –  proper notice for bond forfeiture –  Antonio Grant had been indicted for armed robbery and possession of a firearm by a convicted felon.    A-Absolute Bonds guaranteed Mr. Grant would appear at trial via an appearance bond for $30,000.  The company, owned and operated by Harold Newell, had an agent named Taluna Hunt, and she wrote the bond. Grant failed to appear.  The trial court issued a bench warrant for his arrest and a judgment nisi1against his sureties, namely Newell and Hunt.  The trial court found that the $30,000 bond was forfeited; it also gave the duo ninety days to explain why the judgment “should not be made final.”  This gave the sureties a time period to cure the failure to appear.  The sureties were to be given formal service of process of scire facias—the name for a summons, or “to make known.” The deputy sheriff served Hunt with the judgment nisi even though she was not the surety and no longer worked for Newell. Newell was not served. Newell sought to set aside the judgment nisi.  On appeal the COA reverses on the grounds that Newell was not served. 

Roscoe Johnson v. State of Mississippi ineffective assistance –  Roscoe Johnson was convicted of  sexual battery having been accused of inappropriately touching his wife’s 16-year-old granddaughter.  On appeal he argues that his trial counsel was ineffective by failing to file a motion in limine to prevent any mention of prior abuse against his step-grandson, SM, and failing to offer a jury instruction that would define “position of trust or authority.”  The COA finds that the record is not sufficiently developed to decide these issues and denies the appeal without prejudice for Johnson t o raise this issue in a PCR motion.  

Kunta Kidd v. State of Mississippiineffective assistance – Kidd was convicted of kidnapping and aggravated-assault.  On appeal, Kidd claims (1) the evidence was insufficient to support his convictions, (2) the jury’s verdicts are against the overwhelming weight of the evidence, (3) he was denied his right to confrontation and his right to compulsory process, (4) the prosecutor engaged in prosecutorial misconduct, and (5) he received ineffective assistance of counsel. The COA affirms.

Cincinnatus E. Alford, III v. Linda B. Alfordexpert witness and attorneys fees – Nat left his 37 year marriage after finding out that Linda had run up $55,000 in credit card debt without his knowledge.  Over a year later Linda filed for divorce on the grounds of desertion.  Nat and Linda consented to an irreconcilable differences divorce and stipulated that the chancellor would decide issues related to the equitable distribution of the marital estate, alimony, and attorney’s fees. Nat owned twenty-five percent interest in Cannonwall Plantation Inc., a closely held corporation that operates a farm in Sharkey County. An expert witness, John Paris, testified that his share was worth $138,318.  The chancellor divided the marital estate and awarded Linda assets and liabilities with a total net value of $713,123.49.  Linda received the marital home, which no longer had a mortgage.  The chancellor adopted Paris’s valuation of Nat’s interest in Cannonwall Plantation and awarded it to Nat.  The chancellor awarded Nat marital assets and liabilities with a total net value of $742,730.88.  Nat appealed  Nat challenging  the chancellor’s valuation of Cannonwall Plantation, the alimony award, and the award of attorney’s fees and expert witness fees, awarded Linda $5,000 in permanent periodic alimony, $5,000 in attorney’s fees, and $6,000 in expert witness fees.  The COA finds no error in the chancellor’s valuation of Nat’s interest in the corporation or equitable division of the marital estate.  “However, we reverse and remand the alimony award for further proceedings consistent with this opinion, and we reverse and render the award of expert witness and attorney’s fees.”

Quayteace Samarashood Evans v. State of Mississippi sentence enhancement requires notice –  Quayteace Evans was convicted of manslaughter and aggravated assault. On appeal he argues only that his five-year sentence for using a firearm must be reversed and rendered because he did not receive pretrial notice that the State would seek an enhanced sentence under section 97-37-37.  “We agree that our Supreme Court’s decision in Sallie v. State, 155 So. 3d 760 (Miss. 2015), requires us to reverse the firearm enhancement.  Therefore, Evans’s convictions and consecutive twenty-year sentences are affirmed, but his additional five-year sentence for using a firearm is reversed and rendered.”

Milton Leon Simpson  v. State of Mississippihabeas – Simpson was arrested in March of 2018 after assuming a false identity and attempting to write a bad check for over $500 in goods at a business in Lee County.  A waiver of initial appearance was entered, and the Lee County Justice Court set a $10,000 bond. Simpson then  filed a “Petition for Great Writ of Habeas Corpus” with the circuit alleging:  (1) illegal search; (2) arrest without probable cause; (3) the failure to provide him a copy of the affidavit of complaint; (4) unlawful detention; (5) denial of a preliminary hearing; (6) failure to provide adequate medical treatment during his confinement;2 (7) excessive bail; and (8) unnecessary force. In  May of 2018, Simpson was booked into the Shelby County, Tennessee jail on another charge.  Because of his transfer to Tennessee’s custody, the circuit court dismissed Simpson’s claims of excessive bail and medical treatment as moot.  Regarding Simpson’s request for a preliminary hearing, the court granted the petition in part, ordering a hearing before the Lee County Justice Court upon his return to Mississippi custody.  Simpson  appeals, claiming the court improperly dismissed a portion of his claims “without addressing certain facts requiring relief in the form of dismissing the charges.”  The COA affirms.

Cynthia Holland v. Mississippi Department of Rehabilitation Services, Ability Works Inc. and Debbie Blackstongood cause for failure to serve process within 120 days  -Cynthia Holland was involved in a motor vehicle accident with an employee of the Mississippi Department of Rehabilitation Services.  She served a notice and 95 days later filed suit against multiple defendants, including MDRS.   Holland  hired a process server, who failed to  serve the Attorney General’s Office within 120 days pursuant to MRCP  4(d)(5).  When Holland found out she served MDRS sixteen days after the 120-day deadline and immediately filed a motion for determination that service was proper upon MDRS or  alternatively for an extension of time to serve process.    MDRS filed a motion to dismiss for failure to properly serve within 120 days of filing and the trial court granted it.  The circuit court also dismissed Holland’s suit without prejudice, which Holland now appeals. The COA finds that  Holland properly demonstrated good cause for her failure to serve MDRS and reverses.

Pro se PCR appeal affirmed:

Charles Brunet v. State of Mississippi

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