mississippi court of appeals opinions hand … · mississippi court of appeals opinions hand down...

MISSISSIPPI COURT OF APPEALS OPINIONS

HAND DOWN DATE: 10/17/2017

Attorney(s) for Appellant: S. CHRISTOPHER FARRIS

Attorney(s) for Appellee: NANCY E. STEEN

Topics: Child custody - Joint physical custody - Section 93-5-24(3) - Albright

factors - Child support - Section 43-19-101 - Section 43-19-103

Author: Presiding Judge Griffis

Trial Judge: HON. FRANKLIN C. MCKENZIE JR.

RAYNER v. SIMS, NO. 2016-CA-00496-COA

https://courts.ms.gov/Images/Opinions/CO124653.pdf

Trial Court: JONES COUNTY CHANCERY COURT

Civil

Holding: Affirmed.

Facts: Sarah Rayner (“Mackie”) and Chance Sims are the natural parents of a female child. Mackie

and Chance dated and lived together briefly, but never married. Chance filed a “complaint

for adjudication of paternity and for custody and other matters,” requesting custody of the

child or, alternatively, that the parties have joint custody. Mackie filed an answer and

requested physical custody of the child. Mackie further requested that Chance have

“restricted” visitation rights, limited to “the daytime only and supervised by a suitable

person.” The chancellor awarded the parties joint legal and “shared” physical custody of the

child. Specifically, the chancellor ordered that Chance would have physical custody of the

child three days/nights per week, and Mackie would have physical custody of the child four

days/nights per week. Additionally, the chancellor ordered the parties to pay child support

“based upon 14 percent of each party’s adjusted-gross income” and “in proportion to their

periods of shared custody and their incomes.” Mackie appeals.

Analysis: Issue 1: Joint physical custody

Mackie argues the chancellor erroneously granted joint physical custody of the child since

the record shows she and Chance cannot cooperatively share custody. Section 93-5-24(3)

allows joint custody to be awarded in the discretion of the court, upon application of one or

both parents. Here, Chance requested joint custody. Although Mackie opposed Chance’s

request for joint physical custody, the record shows both Mackie and Chance are capable of

sharing joint custody cooperatively. Although the parties do not always agree, they are

willing and able to communicate with each other regarding their daughter. Additionally, the

parties successfully worked together to implement the visitation schedule ordered by the

chancellor. Moreover, both parties testified that they wanted their daughter to be close to the

other. Despite Mackie’s criticism of Chance and her opinion that she is capable of providing

a more stable environment the child, the record does not reflect any inability to cooperatively

share custody of the child.

of 23Copyright © 2012 Mary E. Miller subscribe or renew at: http://law.mc.edu/mlibulletin

http://law.mc.edu/mlibulletin

CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION

Judge Westbrooks

Issue 2: Albright factors

Mackie argues the chancellor failed to consider all of the Albright factors when making his

custody determination. As with all child-custody cases, the polestar consideration is the best

interest and welfare of the child. Here, the record shows the chancellor considered the

Albright factors and specifically addressed seven of the twelve factors. The five factors not

specifically noted by the chancellor include the willingness and capacity to provide primary

care, the moral fitness of the parents, the home, school, and community record of the child,

the preference of the child, and the stability of the home environment. The home, school,

and community record of the child, as well as the preference of the child, are not applicable

in this case, as the child was only two years old at the time of trial. Although the chancellor

did not specifically note the remaining three factors, significant evidence was adduced by

each party relevant to each factor and the determination of custody. In light of the amount of

evidence adduced at trial relevant to the Albright factors, including the three factors the

chancellor did not specifically note, and the fact that each parent was shown to be a good and

fit parent, the chancellor’s failure to specifically address each Albright factor was not

reversible error.

Issue 3: Child support

Mackie argues that the chancellor erroneously computed child support. However, there is

statutory support for the chancellor’s decision. Section 43-19-101(1) provides that 14% of a

party’s adjusted gross income should be awarded for the support of one child. Pursuant to

section 43-19-101(2), the percentage outlined in subsection (1) applies unless the court

“makes a written finding or specific finding on the record that the application of the

guidelines would be unjust or inappropriate in a particular case as determined under the

criteria specified in section 43-19-103.” Under section 43-19- 103(g), the “particular shared

parental arrangement” is a factor the chancellor may consider in his adjustment of the

statutory guidelines established by section 43-19- 101(1). Thus, the chancellor’s decision is

supported and authorized by statute.



Attorney(s) for Appellant: WAYNE L. HENGEN

Attorney(s) for Appellee: DAVID A. WHEELER, GERALD HENRY BLESSEY

Topics: Real property - Violation of access rights to property - Public street - Section

21-37-7


Trial Judge: HON. LAWRENCE PAUL BOURGEOIS JR.

ALPERT v. CITY OF BILOXI, NO. 2016-CC-01121-COA


Trial Court: HARRISON COUNTY CIRCUIT COURT

Civil

Holding: Affirmed.

Facts: Upon application by Boyd Gaming Corporation, the City of Biloxi adopted the Biloxi

Planning Commission’s approval of a requested right-of-way vacation and realignment of

Fayard Street. Leonard Alpert, Izabella Alpert, and Thuy Land Pawn Shop appealed the

City’s decision to the circuit court which upheld the City’s decision. Alpert appeals.

Analysis: Alpert argues that his access rights were taken, rather than diverted, and no route of access

was substituted. He asserts that the taking is equivalent to eminent domain. He argues that

there is no evidence to support the claim that the vacation is in the public good and therefore,

the approval of the resolution was beyond the City’s power and unsupported by substantial

evidence. Section 21-37-7 provides that “[t]he governing authorities of municipalities shall

have the power to close and vacate any street or alley, or any portion thereof. No street or

alley or any portion thereof shall be closed or vacated, however, except upon due

compensation being first made to the abutting landowners upon such street or alley for all

damages sustained thereby.” As the governing authority of Biloxi, the City Council had the

power to vacate any portion of Fayard Street which is a public street. Although Alpert and

his customers have utilized the street for parking, there is no evidence in the record to

substantiate Alpert’s claim that the City’s approval violates the access rights to his property.

Alpert’s property has not been taken, as the public street never belonged to Alpert.

Moreover, the present layout of Fayard Street, and the proposed realignment under

Resolution No. 449-15, will not result in any change to the street. Fayard Street will remain a

two-way street with no designated parking spaces. Alpert also argues that the City’s

approval of the resolution will make the intersection more dangerous. In a detailed report,

the Planning Commission justified its findings and noted that the proposed vacation and

realignment “better addressed the intersection and provided reasonable levels of safety.” The

City Council considered information and testimony provided by both Alpert and Boyd.

Therefore, the City’s subsequent approval was based upon reasoned judgment. The approval

was based on more than a mere scintilla of evidence and was neither arbitrary nor capricious.



Attorney(s) for Appellant: WAYNE L. HENGEN

Attorney(s) for Appellee: VIRGIL G. GILLESPIE

Topics: Contract - M.R.C.P. 60(b) - Dismissal for want of prosecution -

Attentiveness of attorney to case

Author: Presiding Judge Irving

Trial Judge: HON. JAMES B. PERSONS

THOMPSON v. MEYER, NO. 2016-CA-00806-COA


Trial Court: HARRISON COUNTY CHANCERY COURT

Civil

Holding: Affirmed.

Facts: Joseph Thompson and his wife Vickie entered into an agreement creating a joint venture

with John Meyer and William Meyer, involving End of the Rainbow Trailer Park, which was

owned and operated by the Thompsons. The agreement stipulated that the Thompsons would

sign over all rights to their property, and, in exchange, Meyer would pay the existing debt on

the property in furtherance of purchasing it. Meyer also agreed to remit any rents to the

Thompsons that were in excess of the amount needed to service the debt pursuant to the

partnership agreement. Meyer obtained a loan for $350,000 to pay off the existing debt on

the property and took up the payments. Two years later, Meyer sent a letter to the

Thompsons, stating that they had violated the agreement by encumbering the property with

further debt after they had transferred it to Meyer. Meyer sent a second letter to the

Thompsons, informing them that the agreement was null and void because they had not

remedied the breach. Joseph filed a complaint for a preliminary injunction against William,

John, and Bud’s Mobile Homes, Inc. The complaint alleged, among other things, that Meyer

had failed to honor any of its contractual obligations other than accepting the transfer of the

property from the Thompsons to Meyer. Five years later, the chancellor issued an order,

directing the parties’ counsel to, among other things, meet and try to resolve the case within

sixty days and to “set the matter for a conference with the court no later than sixty days out.”

Nothing else transpired in the case until over a year later, the clerk filed a motion to dismiss

for want of prosecution. The chancellor entered an order granting the motion to dismiss the

case. Joseph filed a Rule 60 motion for relief from judgment which the court denied without

prejudice. Joseph appeals.

Analysis: Joseph argues that the chancellor abused his discretion in denying the M.R.C.P. 60(b)

motion, because his attorney’s dereliction of duties was the reason the case had not been

adjudicated timely. He asserts that he never received notice that the case was to be

dismissed, and the Rule 60(b) motion should have been granted in light of his attorney’s

failure. At the hearing on the motion, Joseph testified that, at some point, his attorney had

been suspended by the Mississippi Bar for failure to pay his dues. He also testified that his

attorney had pending indictments for drug charges. Rule 60(b) provides for extraordinary

relief which may be granted only upon an adequate showing of exceptional circumstances,

and neither ignorance nor carelessness on the part of an attorney will provide grounds for

relief. Here, based on the record, the delay could be equally attributable to Joseph’s inaction

to assert his rights to hire another attorney if he was unsatisfied with the representation that

he was receiving. The record is unclear as to both the date of Joseph’s attorney’s



inattentiveness to Joseph’s case, and the date when the attorney no longer served as his

attorney. Joseph testified that he was unaware of the ultimate dismissal of his case, and when

he heard rumors that his attorney might lose his license, he then obtained new counsel.

Underlying Rule 60(b) is the implicit burden on the party and counsel to make periodic

inquiries into the course of the proceedings. Joseph failed to meet his burden of proof

necessary to obtain relief under Rule 60(b).



Attorney(s) for Appellant: STEVEN HISER FUNDERBURG, CRAIG ROBERT SESSUMS

Attorney(s) for Appellee: JASON HOOD STRONG, ROBERT L. GIBBS, RICHARD BENJAMIN

MCMURTRAY

Topics: Personal injury - Negligence - Admission of exhibit - Admission of

photographs - Expert testimony - M.R.E. 702

Author: Judge Wilson

Trial Judge: HON. JEFF WEILL SR.

BROWN v. PROFESSIONAL BUILDING SERVICES, INC., NO. 2016-CA-00818-COA


Trial Court: HINDS COUNTY CIRCUIT COURT

Civil

Holding: Affirmed.

Facts: Curtis Brown was the clubhouse manager at Colonial Country Club in Jackson. Brown

alleges that he suffered simultaneous bilateral patellar tendon ruptures when he fell over a

chair in the doorway of the club’s grill. He alleges that the club’s cleaning service,

Professional Building Services, eft the chair in the doorway. Brown sued PBS for

negligence, and the case proceeded to a jury trial. The jury returned a verdict for PBS, and

Brown appeals.

Analysis: Issue 1: Admission of exhibit

Prior to trial, Brown filed a motion in limine that sought to exclude several types of

evidence, including photos “taken by defense counsel . . . in an attempt to ‘re-create’ the

scene.” The photo that was eventually admitted into evidence as exhibit 29 depicts a chair in

the doorway to the grill. Some probative value is the only requirement needed in order to

support a trial judge’s decision to admit photographs into evidence. The mere fact that the

photographs were taken at a time when conditions were somewhat changed does not render

such photographs inadmissible so long as the changes are carefully pointed out to the jury.

Here, the trial judge did not abuse his discretion by overruling Brown’s objections to exhibit

29. The photo depicts the chair facing the wrong direction, but Brown does not explain how

that inaccuracy was material to any issue in the case. Otherwise, the photo was consistent

with and fairly depicted Brown’s recorded statement, which he gave with counsel present.

At his deposition (and again at trial) Brown testified to differences in the angle and

positioning of the chair. However, these differences were straightforward and could be

carefully pointed out to the jury. Brown also argues that exhibit 29 shows significantly more

light than there was in the grill at the time of his injury, which occurred at night with the

overhead lights in the grill turned off. As Brown did not object to exhibit 29 based on

lighting conditions, the issue is waived.

Issue 2: Expert testimony

Prior to trial, PBS disclosed that it would call Dr. Charles Bain to testify at trial as an expert

witness in the field of biomechanics. Dr. Bain’s undergraduate degree from the Royal

Military College of Canada is in nuclear engineering, which he described as a combination

of mechanical and chemical engineering and nuclear science. Dr. Bain also has a medical



DISSENT

Judge Westbrooks joined by Chief Judge Lee, Presiding Judge Irving and Judge Barnes

degree from Queen’s University in Canada. He practiced family and emergency medicine in

Canada for nineteen years. For the past thirteen years, he has studied biomechanics while

working as a consultant and expert witness for Biodynamic Research Corporation. Dr. Bain

also serves as an adjunct professor at the United States Air Force School of Aerospace

Medicine. He has co-authored six published articles in the field of biomechanics, and

numerous courts have accepted him as an expert witness in the field, although his testimony

has been excluded in other cases. In this case, Dr. Bain conducted an “Injury Causation

Analysis” or “ICA.” He testified, to a reasonable degree of scientific certainty, that walking

into a chair, even at a fast walking speed, would not generate forces sufficient to produce a

bilateral patellar tendon rupture. Thus, he opined that it was “highly implausible” or “highly

unlikely” that the injury in this case occurred as described by Brown in his trial and

deposition testimony. Brown argues that Dr. Bain’s opinions were not reliable because he

did not conduct “any testing or simulation,” take “any measurements,” examine Brown, or

visit the alleged scene of the injury. Pursuant to M.R.E. 702, the proponent of expert

testimony must show by a preponderance of the evidence that the expert is qualified, that he

possesses scientific knowledge that will assist the jury, and that his testimony is based on

sufficient facts and data and reliable principles and methods, reliably applied to the facts of

the case. Here, the trial judge did not abuse his discretion in allowing Dr. Bain to testify.

Dr. Bain’s testimony was relevant to issues in the case, and he demonstrated scientific

knowledge that would assist the trier of fact. Dr. Bain’s report cited specific, published

studies and articles regarding the forces and mechanisms that can cause the patellar tendon to

rupture. And Dr. Bain then testified that this research supported his opinion that simply

walking into a chair would not produce forces sufficient to rupture a patellar tendon.

Although Dr. Bain did not discuss the details of the studies that he cited, there is nothing in

the record to refute his characterization of them or to show that they do not support his

opinion. While Brown criticizes Dr. Bain for not conducting “any testing or simulation” in

this case, there is nothing to show that the relatively simple facts of the case required such

testing. The record on this issue is limited, and it does not show that the trial judge clearly

erred in finding that PBS met its burden as the proponent of the testimony.



Attorney(s) for Appellant: JERRY WESLEY HISAW

Attorney(s) for Appellee: DAVID VASSAR (PRO SE)

Topics: Divorce: Irreconcilable differences - Child custody - Albright factors -

History of perpetrating family violence - Section 93-5-24(9)(a)(i) - Financial

burden - Child support - Equitable division of marital property - Alimony -

Attorney's fees - Incarceration

Author: Judge Wilson

Trial Judge: HON. PERCY L. LYNCHARD JR.

VASSAR v. VASSAR, NO. 2016-CA-01340-COA


Trial Court: DESOTO COUNTY CHANCERY COURT

Civil

Holding: Affirmed in part, reversed and remanded in part.

Facts: David and Amaria Vassar consented to an irreconcilable differences divorce and submitted

several issues to the chancellor for decision: custody of their son, child support, equitable

division of the marital property, alimony, attorney’s fees, and contempt. Amaria appeals.

Analysis: Issue 1: Child custody

The chancellor discussed each of the Albright factors. He found that the sex of the child,

continuity of care, willingness to provide care, and parenting skills favored David. He found

that the child’s age and Amaria’s stable employment record weighed in favor of Amaria—he

commended her consistent employment and criticized David’s employment record as “spotty

at best.” The chancellor found that other factors were neutral or inapplicable. Finally, the

chancellor stated that he had considered the guardian ad litem’s report. Although his analysis

differed from the GAL’s on some factors, he agreed with her recommendation that David

should have physical and legal custody of the couple’s child, with liberal visitation for

Amaria. Amaria argues that the chancellor erred because he failed to consider the

“rebuttable presumption that it is detrimental to the child and not in the best interest of the

child to be placed in [the] sole custody . . . of a parent who has a history of perpetrating

family violence” under section 93-5-24(9)(a)(i). She also argues that the chancellor gave

insufficient weight to her allegations that David physically and verbally abused her and that

the chancellor’s Albright analysis was flawed because it rewarded David under multiple

factors for his unemployment—crediting his availability to provide care, “continuity of

care,” and demonstrated parenting skills. In the trial court, neither party argued that the

statutory “rebuttable presumption” applied. Each party accused the other of abuse, but each

also denied the other’s allegations. None of the incidents about which Amaria testified

resulted in charges against David, and David disputed Amaria’s versions of those incidents.

In addition, Amaria did not testify that any of the incidents resulted in a serious bodily

injury. Thus, there was no error in light of the conflicting testimony and inconclusive

evidence at trial. With regard to Amaria’s allegations of abuse, the chancellor found that

both parties were to blame for their “severe arguments, sometimes resulting in assaults.” For

this reason, the chancellor found that the “moral fitness” factor did not favor either party.

This was not clear error or an abuse of discretion. Also, the chancellor did not commit

reversible error in his Albright analysis by giving David excessive credit for his



unemployment. The chancellor reasonably considered David’s greater availability to provide

childcare and did not abuse his discretion by doing so.

Issue 2: Financial burden

Amaria argues that the chancellor erred in setting child support, dividing the marital

property, and awarding alimony and attorney’s fees. She alleges specific errors with these

awards and also argues generally that they are beyond her ability to pay. Amaria’s average

net monthly income at the time of the divorce was $2,341.19.5 Her assets and liabilities

included a 2004 Chevy Tahoe, a checking account with a balance of about $1,000, and credit

card debt of nearly $4,000. The divorce decree required her to make the following payments:

$443/month child support; $638/month for half of the mortgage payment on the marital

home; $638/month periodic alimony (David’s half of the mortgage payment); $12,997.65 in

mortgage arrearages (due immediately); and $10,058.25 in attorney’s fees ($1,462.50 due in

ten days, with the balance due in ninety days). Although Amaria had no significant assets

and a net monthly income of only $2,341.19, the court ordered her to make total monthly

payments of $1,719, maintain health insurance for her son, and pay more than $23,000 in

mortgage arrearages and attorney’s fees. The financial aspects of the divorce decree must be

reversed because the various obligations imposed on Amaria simply do not leave her with

sufficient resources to meet her own reasonable living expenses. Amaria argues that the

chancellor erred by using an incorrect income figure to calculate child support. In

determining child support, chancellors may consider, inter alia, the health, income, and

earning capacity of both parents, the reasonable needs of the child, and the necessary living

expenses of the noncustodial parent. There is a rebuttable presumption under section 43-19-

101(1) that a parent should pay fourteen percent of his or her adjusted gross income for the

support of one child. In ruling from the bench, the chancellor stated that Amaria’s “current

net income from all sources, including Gossett[], her military pay, and disability payments

for her injury to her foot while deployed overseas, totaled $3,167.42 per month.” He then

ordered Amaria to pay support of fourteen percent of that amount—$443 per month. As

Amaria points out on appeal, the chancellor’s ruling was based on a mistake—her actual net

income at the time of the divorce was only $2,341.19, as she was earning far less now than

she had at her prior job as a medical laboratory technician. Thus, the chancellor’s

calculation of child support was based on a clear mathematical error and must be reversed.

Amaria also argues that the chancellor’s equitable division of the marital property must be

reversed, because the chancellor made no findings of fact or conclusions of law regarding the

Ferguson factors. While chancellors need not make findings as to each and every factor set

forth in Ferguson, they cannot simply mention the guidelines and state they are following

them and applying them to the facts of the case. The failure to make findings of fact and

conclusions of law is manifest error requiring reversal and remand. Here, the chancellor

noted that “the parties have very little property.” While that is true, the chancellor’s equitable

division included the financially significant requirement that Amaria continue to pay the

mortgage on the marital home for up to eighteen years—even though she would have no

right to live there. Despite the significance of this provision, the chancellor did not address

any of the Ferguson factors. This was error and requires reversal. A court cannot impose

support obligations on a parent that are beyond her financial ability to provide. Moreover, a

chancellor should not award alimony that, when combined with child support and the payor’s

own reasonable living expenses, is beyond the payor’s ability to pay. At trial, Amaria

specifically requested that the marital home be sold. Based on evidence presented and the

parties’ circumstances at the time of trial, there was no sustainable financial solution that did

not include selling the home. On remand, unless the parties’ financial situation has improved

significantly or some other solution is identified, it will likely be necessary to sell the home.



CONCUR IN RESULT ONLY WITHOUT SEPARATE OPINION

Judge Carlton

The award of attorney’s fees is also reversed, because it is beyond Amaria’s ability to pay.

Where neither party is able to pay more than his or her own fees, an award of attorney’s fees

is inappropriate. On remand, the chancellor may consider whether a lesser award of fees

based on Amaria’s contempt would be appropriate. However, only a fraction of the fees that

David requested relate to the issue of contempt, and fees awarded based on a finding of

contempt should not exceed the expense incurred as a result of the contemptuous conduct.

Issue 3: Incarceration

Amaria argues that “[t]he chancellor erred in ordering [her] to be incarcerated until such time

as she purged herself of contempt” by paying the nearly $13,000 mortgage arrearage on the

marital home. Amaria is no longer incarcerated. She was released after she spent forty-seven

days in jail and filed for bankruptcy. Inability to pay to avoid incarceration is a continuing

defense as imprisonment does not accomplish the purpose of the civil contempt decree. A

litigant may be incarcerated for civil contempt for failure to pay a judgment but that litigant

is always entitled to offer evidence of inability to pay as a defense, not to the contempt, but

to the incarceration. Here, Amaria concedes that she was in contempt because she violated

the chancery court’s temporary order requiring her to pay the mortgage and utilities on the

marital home. Amaria’s only argument is that she should not have been incarcerated because

the record is clear that on July 1, 2016, she was unable to pay the $12,997.65 mortgage

arrearage that the chancellor ordered her to pay as a condition of her release. The evidence

was clear that on July 1, 2016, Amaria could not pay $12,997.65 or anything close to that

amount. The chancellor therefore erred by ordering Amaria to be incarcerated until such time

as she paid that amount.



Attorney(s) for Appellant: SAMUEL CONWILL (PRO SE)

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: ALICIA MARIE AINSWORTH

Topics: Post-conviction relief - Due process - Right to confrontation - Habitual

offender status - Authentication of pen packs

Author: Judge Westbrooks

Trial Judge: HON. LEE J. HOWARD

CONWILL v. STATE, NO. 2016-CP-00921-COA


Trial Court: CLAY COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: Samuel Conwill pled guilty to possession of methamphetamine. Following his conviction

and sentence, Conwill filed a motion to correct the Mississippi Department of Correction’s

record of a parole to a detainer, as to another charge and another sentence. The trial court

dismissed that motion. Conwill subsequently filed a petition to “vacate [the] illegal

sentence.” The trial court dismissed that petition. Conwill then filed a motion to appeal out-

of-time and his notice of appeal. The trial court granted his motion to appeal out-of-time.

Analysis: Conwill argues that he was denied due process and the right to confrontation. He claims that

during his sentencing hearing, the records of his previous convictions, known as “pen

packs,” were admitted into evidence without foundational testimony to certify their

accuracy. When an accused fails to object to the habitual offender issue during the

sentencing phase, he is procedurally barred to do so the first time on appeal. Conwill did not

object to the motion to amend the indictment. Therefore, this matter is procedurally barred.

In addition, Conwill’s assertion that pen packs are insufficient proof of habitual offender

status without a testimonial foundation is without merit. Certified copies of ‘pen packs’

suffice as competent evidence of prior convictions. The preparation and management of pen

packs are administrative in nature, and they only need to be certified by the custodian who

maintains the records in the ordinary course of business. Thus, testimonial evidence need not

be proffered to authenticate pen packs.



Attorney(s) for Appellant: OFFICE OF STATE PUBLIC DEFENDER: JUSTIN TAYLOR COOK

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER

Topics: Murder - Right to confront witnesses - Sufficiency of evidence

Author: Judge Barnes

Trial Judge: HON. CHARLES E. WEBSTER

CHATMAN v. STATE, NO. 2016-KA-01285-COA


Trial Court: COAHOMA COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: Clyde Chatman was convicted of murder and sentenced to life imprisonment with eligibility

for parole. He appeals.

Analysis: Issue 1: Right to confront witnesses

Chatman argues that his right to confront witnesses was violated during the State’s

questioning of a deputy about the search for the weapon, specifically when the deputy

testified that a co-defendant told law enforcement where to look for the gun. The defense

made no objection to this testimony, which waives this issue on appeal. In addition, the

deputy’s mention of the statement was elicited to show how police conducted their

investigation for the weapon; there was nothing testimonial about the statement.

Nontestimonial hearsay does not trigger the need for confrontation to be admissible. And,

the testimony did not prejudice the outcome of Chatman’s trial. Had the deputy not

explained how he came to search for the weapon, which was never found, it would not have

affected the outcome of the trial.

Issue 2: Sufficiency of evidence

Chatman argues there was insufficient evidence to show he deliberately designed to kill the

victim. He says he was merely present at the shooting; the only evidence of conspiracy was

the fact that the three men were in the same car, and the evidence was “inconclusive” as to

who shot the victim. Considering the evidence in the light most favorable to the State, there

is sufficient evidence to support Chatman’s murder conviction. The victim told someone

immediately after the shooting that the persons who shot him were from Friars Point, and he

identified to his aunt that “Little Clyde and them” shot him. The prosecution also established

that Chatman had a motive to kill the victim – he was angry the victim was dating a girl that

Chatman liked. Chatman admitted that he was in a white car that evening, driving around

Jonestown, and that he liked the victim’s girlfriend. The girlfriend saw a white car drive by

while she was with the victim on her front porch. The white Crown Victoria, owned by

Chatman’s mother, contained GSR, and particles indicative of GSR were found on

Chatman’s palms. The glove found in the back seat also had Chatman’s DNA. Thus,

Chatman’s conviction for first-degree murder and life sentence are affirmed.



Attorney(s) for Appellant: OFFICE OF STATE PUBLIC DEFENDER: GEORGE T. HOLMES

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: BARBARA W. BYRD

Topics: Aggravated DUI - Sufficiency of evidence - Right of confrontation - M.R.E.

703 - Motion to suppress - Prosecutorial misconduct


Trial Judge: HON. LESTER F. WILLIAMSON JR.

ROBERTS v. STATE, NO. 2016-KA-00659-COA


Trial Court: LAUDERDALE COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: Mitchell Roberts was convicted of aggravated driving under the influence and sentenced to

twenty-five years, with seven years suspended followed by five years of post-release

supervision. He appeals.

Analysis: Issue 1: Sufficiency of evidence

Roberts argues that the evidence was insufficient to support the verdict. The testimonial

evidence indicates Roberts swerved recklessly while he drove and was unable to maintain his

lane of traffic or control of his vehicle. Testimony further shows Roberts exhibited the side

effects of Xanax, including disorientation, confusion, slurred speech, pinpoint pupils,

diaphoretic, and syncope. Two experts agreed that the amount of Xanax in Roberts’s system

was at a level that could cause impairment and affect his ability to drive. The amount in

Roberts’s system was within a range that caused or contributed to impaired driving in people

who had been arrested for DUI. Whether Roberts took Xanax once or whether he had taken

it chronically is unclear. However, it is clear, based on the record, that Roberts was operating

a motor vehicle while under the influence of Xanax and exhibited signs of impairment.

Considering the evidence in the light most favorable to the State, a rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.

Issue 2: Right of confrontation

Roberts argues that his confrontation rights were compromised since the circuit court

allowed the technical reviewer to testify in lieu of the actual crime-lab analyst. The

Mississippi Supreme Court has held that a supervisor, reviewer, or other analyst may testify

in lieu of the primary analyst where the surrogate witness was actively involved in the

production of the report and had intimate knowledge of the analyses even though he or she

did not perform the tests first hand. When the testifying witness is a court-accepted expert in

the relevant field who participated in the analysis in some capacity, such as by performing

procedural checks, then the testifying witness’s testimony does not violate a defendant’s

Sixth Amendment rights. Here, the technical reviewer was a court-accepted expert in the

field of toxicology. The record shows that he was actively involved in the production of the

report, had intimate knowledge of the tests that were performed and the process that was

used to confirm the findings, and reviewed the analyst’s work, including the data, to ensure

that the conclusions were correct and accurate. Thus, as the technical and administrative



reviewer, the witness was qualified to testify as a surrogate witness in lieu of the primary

analyst. Roberts also argues that the witness never rendered his own independent opinion

and that “[n]ot requiring a surrogate witness . . . to render an independent opinion is,

therefore, inconsistent with Rule 703 [of the Mississippi Rules of Evidence].” M.R.E. 703

allows an expert to base his opinion on the opinions of others which are not in evidence so

long as experts in the field ordinarily rely on such opinions in forming their own opinions.

The opinion of a nontestifying expert is a type of evidence reasonably relied upon by experts

in forming their own opinions. Thus, it is admissible hearsay when relied on by a testifying

expert. Here, the record makes clear that the witness was not so far removed from the

analysis as to be essentially a records custodian for the purposes of testifying at trial.

Issue 3: Motion to suppress

Roberts argues that the search warrant used to seize his blood was invalid, as no probable

cause existed for a drug analysis. Probable cause exists where it is based on information

reasonably leading an officer to believe that then and there contraband or evidence material

to a criminal investigation would be found. According to his affidavit and testimony at the

suppression hearing, a police officer had information that witnesses observed Roberts’s

erratic driving and saw him cross over into the oncoming lane of traffic. Additionally, the

officer was advised that prior to the accident, an anonymous caller had contacted law

enforcement, complained of Roberts’s erratic driving, and provided a license-plate number.

When officers arrived at the scene, they were able to confirm the information provided by the

anonymous tip. Moreover, when talking to Roberts at the hospital, the officer detected the

faint smell of alcohol. Considering the totality of the circumstances, substantial evidence

supports the municipal court judge’s determination that probable cause existed for the

issuance of the search warrant.

Issue 4: Prosecutorial misconduct

Roberts argues that the prosecutor committed prosecutorial misconduct during his rebuttal

closing argument by making an improper “send a message” argument. Given the latitude

afforded an attorney during closing argument, any allegedly improper prosecutorial

comments must be considered in context, considering the circumstances of the case, when

deciding on their propriety. Considering the context in which the comment was made here

and the circumstances of the case, the prosecutor’s remarks were made in response to the

defense counsel’s comments on race. A statement is not improper simply because it sends a

message that the community will not tolerate violence. A statement is improper if it tends to

cajole or coerce a jury to reach a verdict for the purpose of meeting public favor and not

based on the evidence. Here, defense counsel advised the jury that it must decide whether

Roberts was impaired by Xanax and was therefore criminally responsible for a death. In

response, the prosecutor advised that if the jury determined that Roberts drove impaired and

killed the fourteen-year-old decedent, he would face the consequences of his actions. Such

comments did not urge the jury to reach a verdict based on emotion or public favor. Instead,

the comments were based on the evidence presented at trial.



Attorney(s) for Appellant: LYNDON B. BRITAIN (PRO SE)

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: KATY T. GERBER

Topics: Post-conviction relief - Time bar - Section 99-39-5(2) - Voluntariness of

plea - Illegal search and seizure - Ineffective assistance of counsel


Trial Judge: HON. LESTER F. WILLIAMSON JR.

BRITAIN v. STATE, NO. 2016-CP-01474-COA


Trial Court: LAUDERDALE COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: Lyndon Britain pled guilty to possession of precursors with intent to manufacture a

controlled substance and was sentenced to twenty years, with nineteen years and 171 days

suspended, followed by five years of reporting post- release supervision, and five years of

nonreporting post-release supervision. A petition for revocation of post-release supervision

was subsequently filed. At the revocation hearing, Britain admitted that while on post-release

supervision, he committed the felony crimes of possession of methamphetamine, possession

of morphine, and possession of Schedule II, III, IV, and V controlled substances. As a result,

the circuit court entered an agreed order of revocation of post-release supervision and

sentenced Britain to serve nineteen years and 171 days. Britain filed a motion for post-

conviction relief. The court denied the motion, and Britain appeals.

Analysis: Britain did not file motion PCR motion until over four years after his conviction.

Consequently, Britain’s motion is time-barred under section 99-39-5(2). Britain argues that

“due to the lack of probable cause and no search warrant by a [j]udge, the search and seizure

was unreasonable[,] resulting in illegally obtained evidence.” Here, both the plea petition

and the plea-hearing transcript show Britain was advised of and understood his constitutional

rights, the nature of the charge against him, the minimum and maximum sentences for the

charge, and the consequences of his guilty plea. Thus, the record shows Britain’s guilty plea

was voluntarily and intelligently entered. Since the record shows Britain entered a valid

guilty plea, his claim of an illegal search and seizure was waived. Britain also argues his

counsel was ineffective since she “failed to acknowledge [the] fact that probable cause and a

search warrant were lacking.” The plea petition and the plea hearing transcript show

Britain’s attorney counseled and advised him on the nature of the charge, any lesser-included

offenses, and all possible defenses that he might have had in this case. Additionally, during

his plea hearing, Britain advised the circuit court, under oath, that he was satisfied with his

counsel and the assistance she provided. Britain has failed to show that his counsel’s

performance was deficient, and that the alleged deficiency prejudiced his defense.



Attorney(s) for Appellant: ROBERT K. DUNCAN (PRO SE)

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER

Topics: Post-conviction relief - M.R.A.P. 2(a)(1) - M.R.A.P. 4(a) - M.R.A.P. 4(h) -

Timeliness of appeal - Out-of-time appeal - Good cause - Jurisdiction

Author: Presiding Judge Irving

Trial Judge: HON. KATHY KING JACKSON

DUNCAN v. STATE, NO. 2015-CP-01367-COA


Trial Court: JACKSON COUNTY CIRCUIT COURT

Criminal

Holding: Dismissed.

Facts: Robert Duncan pled guilty to armed robbery and was sentenced to fifteen years, with eight

years to serve without parole or early release, and the final seven years to be served on post-

release supervision. While out of prison on post-release supervision, Duncan was arrested

for burglary of a dwelling. The State filed an order of revocation. The circuit court held a

revocation hearing, and Duncan admitted before the court that he had committed the crimes

set forth in the order of revocation and waived his right to require the State to prove the

allegations set forth in the order of revocation. The court revoked Duncan’s post-release

supervision and required him to serve the remaining seven years of his sentence for armed

robbery. Duncan filed a motion for post-conviction relief which the court denied. He

appeals.

Analysis: M.R.A.P. 2(a)(1) provides that “[a]n appeal shall be dismissed if the notice of appeal was not

timely filed pursuant to Rules 4 or 5.” M.R.A.P. 4(a) provides that a notice of appeal

pursuant to M.R.A.P. 3 must be filed within thirty days after the date of the entry of the

judgment being appealed. M.R.A.P. 4(h) provides that a trial court may reopen the time for

an appeal in limited circumstances. Duncan did not file his motion for an out-of-time appeal

within the prescribed seven days of receipt of notice that his PCR motion had been denied. In

his motion for leave to file an out-of-time appeal, Duncan asserts that he received a letter on

July 10, 2015, informing him of the March 6, 2015 judgment. However, Duncan did not

execute his motion until August 18, 2015, and the motion was not filed until September 8,

2015. While the circuit court held that Duncan both received notice of the judgment and filed

a notice of appeal on September 8, 2015, such a holding was erroneous. The record includes

an envelope postmarked July 10, 2015; in his motion, Duncan asserts that this envelope

contained the order informing him that his PCR motion had been denied. As such, Duncan

should have filed his motion for an out-of-time appeal within seven days of July 10, 2015,

and his failure to do so renders his motion untimely under Rule 4(h). Further, Duncan’s

appeal is barred because, after the circuit court reopened the time for Duncan to file an

appeal on October 7, 2015, he did not file a notice of appeal within the allotted fourteen-day

time period. The fact that Duncan had already filed a notice of appeal on September 8, 2015,

is inconsequential because it was untimely, and he had not yet obtained leave to file an

untimely appeal. While the appellate court may, pursuant to M.R.A.P. 2, reopen the time for

the appeal for good cause shown, based upon the facts here, justice does not demand that the

Court allow Duncan’s out-of-time appeal. Thus, the appeal is dismissed for lack of

jurisdiction.



Attorney(s) for Appellant: ELI ORR (PRO SE)

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: KAYLYN HAVRILLA

MCCLINTON

Topics: Post-conviction relief - Voluntariness of plea - Statute of limitations - Section

99-1-5 - Right to speedy trial - Ineffective assistance of counsel

Author: Judge Fair

Trial Judge: HON. LEE J. HOWARD

ORR v. STATE, NO. 2016-CP-00916-COA


Trial Court: LOWNDES COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: Eli Orr pled guilty to the sale or transfer of cocaine. He was sentenced to thirty-five years,

with thirty years to serve and five years’ post-release supervision. Orr filed a motion for post-

conviction relief which the court denied. Orr appeals.

Analysis: Issue 1: Voluntariness of plea

Orr argues that his guilty plea was involuntary because he was threatened with a lengthier

prison sentence if the case continued at trial, he was intoxicated at the time of his plea, and

the trial court made him believe he had to plead guilty. A plea is deemed voluntary and

intelligent only where the defendant is advised concerning the nature of the charge against

him and the consequences of the plea. Here, the record shows that the judge asked Orr if he

had been coerced into a guilty plea. He replied, “Naw, they ain’t said it like that. They just

tell me . . . I’m scared, Judge . . . . [The things they said] made me want to sign the guilty

plea because I don’t want to go to prison the rest of my life.” The judge informed him that

the only way he could be sentenced was if he pled not guilty and was convicted by a jury.

Further, Orr was well aware of the maximum and minimum penalties he faced for each

count. Regarding Orr’s claim that he was intoxicated, he certified in his petition to plead

guilty that he was not under the influence of any drugs or intoxicants. His attorney testified

to the same effect. However, Orr’s test results from the presentencing hearing showed he

tested positive for cocaine and marijuana. The court knew the test results during Orr’s

sentencing, but determined that there was no evidence that his plea was not voluntarily,

knowingly, and intelligently entered. He observed that Orr showed no signs of intoxication

during his plea. And Mississippi has no requirement that the defendant personally provide

the factual basis for his guilty plea. Here, the prosecutor gave a detailed account of the

charges in Orr’s indictment.

Issue 2: Statute of limitations

Orr argues that the statute of limitations had run on his charge. According to section 99-1-5,

the State had two years from the commission of the offense to indict Orr. The sale of cocaine

occurred on or about May 7, 2008. Orr was indicted on July 23, 2009, well within the two-

year time frame.



DISSENT WITHOUT SEPARATE OPINION

Presiding Judge Irving

Issue 3: Right to speedy trial

Orr argues his right to a speedy trial was violated. Factors to consider in determining if a

defendant’s right to speedy trial has been violated include length of delay, the reason for

delay, defendant’s assertion of his right, and prejudice to defendant. Orr’s trial did not begin

until over four years after he was arrested, which is presumptively prejudicial. The record

shows that there were eleven agreed continuances, one master continuance, and one

continuance granted because the prosecutor was in trial in another case and there were no

other available dates in the term. The judge assigned fault to both Orr and the State for the

delay. Orr did not file a motion for a speedy trial at any point while awaiting his trial.

Instead, he waited to raise the issue for the first time in his PCR motion. Orr failed to

provide any evidence showing he was prejudiced by the delay. Thus, there is no error.

Issue 4: Ineffective assistance of counsel

Orr argues that he received ineffective assistance of counsel. Orr has failed to provide any

affidavits to support his contention that his attorney was ineffective. Additionally, Orr

reaffirmed at his guilty-plea hearing and in his guilty-plea petition that he was satisfied with

his attorney’s performance. Thus, there is no error.



mississippi court of appeals opinions hand … · mississippi court of appeals opinions hand down...

Documents