I have moved my blog to my new website.

Posted in Uncategorized on May 18, 2012 by tobywelchlaw

Please go to Sumrall and Associates Our Blog.


I am still here, there has just been little of note from the Courts. Until yesterday.

Posted in Uncategorized on September 16, 2011 by tobywelchlaw

The Supreme Court, in a unanimous decision, reversed and rendered a sexual battery case.  That, alone, is of note, but the opinion speaks to an issue that plagues these kind of cases.

Goforth v. State.  Amanda Goforth was a high school teacher in Newton County, MS in 2008-09.  Without going into the prurient details (to the chagrin, I am sure, of at least one prosecutor I know) she was indicted for five counts of sexual battery on Jane Doe, a minor student.  Doe was under investigation by the school’s resource officer already for theft, and after being confronted, gave a statement implicating Goforth as having had a sexual relationship with her.  Deputy Spence, the school resource officer, interviewed Goforth and after telling Goforth that she had a statement from Doe and Doe’s friend Chase Rigdon, Goforth said she did not with to speak further.  The interrogation continued anyway and she eventually admitted to having had sexual activity with Doe, but she claimed it was under duress.

At the trial, the State called Rigdon, whose statement corroborated Doe’s, and was the main piece of evidence to rebut Goforth’s claims of duress.  However, between giving the statement and the trial, Rigdon suffered a catastrophic injury and was confined to a wheelchair and could not remember Doe or Goforth or his statement but did recognize his signature.  Over Goforth’s objection, his statement was allowed to be read to the jury.  The jury convicted Goforth on two of the five counts.

The Court reversed the conviction based on Rigdon’s statement being allowed in.  Under a Crawford analysis, the statement should never had been allowed.  Rigdon’s statement was testimonial in nature, and Goforth, due to Rigdon’s inability to remember anything, was unable to cross-examine him as to his statement.  Allowing his statement in, without an ability to cross-examine it, then or when it was taken, violated the Confrontation Clause.  Even though Rigdon was physically there, he couldn’t be crossed as to his statement because he didn’t remember.

After reversing based on the Crawford violation, the Court turned to whether to remand or render.  As all five counts had the exact same wording, including the time frame, there was no way to differentiate between the counts she was found guilty on and the counts she was acquitted on.  Since a remand would subject Goforth to possible Double Jeopardy, the Court had no choice but to render.

Now that is a dissent.

Posted in Uncategorized on July 5, 2011 by tobywelchlaw

“But  today…makes crystal clear this Court’s position on the right to a speedy trial: the life-support plug has been pulled, and the right to a speedy trial exists no more.”

Justice Dickinson wrote a dissenting opinion worthy of being mentioned with Justice Diaz’s concurring opinion on Edmonds.  Virgil Johnson v. State is a Hinds County case where Johnson was convicted of armed robbery and aggravated assault.  The case merits discussion on the Speedy Trial issues that it raised.  The 6th Amendment right to Speedy Trial test is laid out in the Barker v. Wingo a 1972 U.S. Supreme Court opinion.  In it, there are four factors to decide; 1. Length of Delay, 2. Reason for Delay, 3. Assertion of right to speedy trial, 4. Prejudice.   Justice Dickinson’s dissent discusses the four prongs in relation to Johnson’s case.  Anything over 8 months is presumed prejudicial, so that prong is for Johnson.  2. The reason for the delay, as relied upon by the plurality, is the clogged docket, but as pointed out by Justice Dickinson, there was no actual evidence of that and regardless, that must weigh against the State even if evidence was there.  The third prong also was met by Johnson in his multiple demands for a speedy trial.  The demand for speedy trial is generally the prong that most prosecutors hang much of their response on.  Few defendants actually demand speedy trials, but that is generally, as pointed out by a learned trial judge in a speedy trial hearing I had earlier this year, without an indictment and the cause number that comes with it, where does one and to whom does one, demand the speedy trial?

At this point Johnson has 3 prongs firmly in his favor and Justice Dickinson repeatedly cites from case law that says no one factor is dispositive.  That is where the catchall provision comes in.  Prejudice.  As is usually the case, despite the case law saying no one is dispositive, if you can’t show a crucial witness has become unavailable, evidence has been destroyed, or some other catastrophic blow to the defense, you haven’t demonstrated prejudice, so tough.

Here is the dissenting opinion.  I hope Justice Dickinson is wrong and speedy trial hasn’t shuffled off this mortal coil, but if so, it got a great eulogy.

Supreme Court looks at the Vulnerable Adult Statute.

Posted in Uncategorized on June 17, 2011 by tobywelchlaw

Decker v. State. Today the Supreme Court reversed and rendered an exploitiation of a vulnerable adult case. Decker was indicted for four counts of exploting her mother by using her money “without her consent”. Ms. Morris, Decker’s mother, had short term memory loss and could not provide for her own needs. Decker, her daughter, was allowed to write checks on Morris’ account “for whatever she needed”. The checks totaled $10, 255.02. The State dismissed count 1 and the Decker was found not guilty on the next two counts but was found guilty on Count 4, when Decker wrote checks totaling $4,120 while Morris was living with Decker’s sister and Decker was in Texas caring for her son, and sentenced to four years in prison. The indictment read that Decker had used her mother’s money “without her consent”. The proof, which was uncontroverted, was that Morris had given Decker permission to use the money. The trial court, instead of granting a directed verdict, allowed the State to have an instruction, over Decker’s objection, that stated Decker could be found guilty, “regardless of whether it was done with, or without (her) consent.” The Supreme Court, 7-0, reversed and rendered the case on the grounds that allowing the State to have a jury instruction that was the the opposite of the language in the indictment was improper. Frankly, I don’t understand how they got the instruction.

A broader and disappointing point to this case was the Court’s decision to not address the vulnerable adult statute on its face. The Court addressed, briefly, its very real concerns with the statute. They wrote, that as applied by the Attorney General, a vulnerable adult can not give a spouse permission to withdraw money from a checking account to buy herself a birthday present, or give a child permission to pay for tuition.

“We are troubled by the statute’s broad reach. But because we have decided his case on the conflict between the language of the indictment and the jury instruction, we decline to address today the constitutionality of the statute.”

I understand the basis and reasoning for the statute but it is very over broad and should be sent back to the drawing board. I don’t know how you do it, but as seen from this case, trusting the State to exercise prosecutorial discretion doesn’t always work. If the vulnerable adult gives permission, without fraud or coercion, there should be no crime. Interpreting the statute the way the AG does, a vulnerable adult is precluded from disposing of their assets how they decide. That is too much government interference, for me.

I sense a change on Speedy Trial coming.

Posted in Uncategorized on May 13, 2011 by tobywelchlaw

In McBride v. State that was handed down yesterday, Justice Dickenson wrote an excellent dissent laying out how our 270-day rule got where it is today.  I am going to post it verbatim.  Thank you, Justice Dickenson.

II.       The State violated McBride’s statutory right to a speedy trial.

¶.           The trial court erred in denying McBride’s pretrial motion to dismiss for violation of the Mississippi Speedy-Trial Statute. Over the years, numerous decisions of this Court have interpreted this statute’s clear language into meaninglessness.  It is long past time for us to apply the plain meaning of the text — as it was written by the Legislature.

¶.           Mississippi Code Section 99-17-1 reads, in its entirety:

Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.

¶.           Under a plain reading of the statute, a trial must occur within 270 days of the defendant’s arraignment unless two requirements are met.  First, good cause must be shown.  Second, a continuance must be “duly granted by the court.”  When these two requirements are not met, if “the accused is not tried within 270 days of his arraignment, the defendant is entitled to dismissal.”

¶.           Despite our well-settled precedent requiring the strict application of clear, unambiguous statutes,  this Court — apparently unfettered by “the most fundamental rule of statutory construction”– has subjected the Speedy-Trial Statute to no small amount of judicial evolution.

¶.           For instance, with no statutory authority to do so, this Court now requires that a defendant raise a violation of the Speedy-Trial Statue within some undefined period or risk “waiv[ing] his right to complain” about the violation.  And if the defendant manages to do that properly, we still will deny him relief unless he can adequately convince the Court that the illegal delay actually prejudiced his defense — another requirement imposed by this Court without legislative authority.  Let’s review how we got here.

¶.           The Speedy-Trial Statute, passed in its present form in 1976, was first discussed in Payne v. State, which held that the statute “is plain and unambiguous” and that, when a defendant is not tried within the mandated 270 days, “[t]he only question [that] remains is whether or not the delay comes within the framework of the exceptions in the statute.”  If not, the defendant is entitled to dismissal.  At least as recently as 1991, the statute was applied in this clear, straightforward manner.  Then, the Court began to stray.

¶.           In State v. Harrison, decided in 1994, this Court, with no authority whatsoever to do so, decided that a violation of the statute did not really require dismissal of the case unless the delay prejudiced the defendant.  This Court stated that, where the State has violated the plain wording of the statute,

dismissal with prejudice is not required by the statute unless the state upon the finding of a violation fails to persuade the court that the violation did not prejudice the defendant’s ability to defend against the charge and that the state did not deliberately engage in oppressive conduct.  If the court is so persuaded the remedy shall be dismissal without prejudice to reindictment.

¶.           So this Court’s initial judicial amendment to the statute placed the burden on the State to disprove prejudice.  And in cases where the State was able to disprove prejudice, the case was dismissed without prejudice to reindictment, so the State had the opportunity to get it right a second time.  But where the State could not disprove prejudice, the case was dismissed with prejudice.

¶.           The camel’s nose was under the tent.  In a 1996 case, this Court further amended the statute to provide that the Speedy-Trial Statute was not violated at all absent a showing of prejudice.  And where Harrison had put the burden on the State to disprove prejudice, Walton shifted that burden to the defendant to prove affirmatively that he was prejudiced. Walton also brought with it the interesting revelation that a criminal defendant loses his statutory right unless he “asserted his right to a speedy trial or objected to a delay,” even suggesting that the defendant may have to raise the issue before the State’s 270 days have expired. As an interesting observation, I know of no other statutory violation that must be raised before the violation actually occurred.

¶.           This Court has followed these ill-conceived and incorrectly decided cases for the past fifteen years.  And for those who believe the Legislature erred in passing the statute in the first place, this Court’s amendments have worked well.  Since Walton, notwithstanding numerous cases in which defendants have been brought to trial long after expiration of the statute’s 270-day limit, this Court has never once held that the State violated a defendant’s statutory right to a speedy trial.

¶.           These unfounded and unauthorized judicial amendments to the statute have no place in our jurisprudence.  It is facially absurd to expect a defendant to raise the Speedy-Trial-Statute issue inside the 270-day window because, at that point, the statute has not yet even been violated.  And beyond that, nothing in the statute even remotely suggests that a defendant will be deemed to have waived the statute unless he demands a speedy trial within some arbitrary time frame.  This statute is really no more than a statute of limitations.  Just as a cause of action for trespass must be commenced within two years of the offending action, a criminal trial must be commenced — absent the statutory exceptions — within 270 days of arraignment.  I know of no other statute of limitation that must be raised before it expires.

¶.           The prejudice requirement is likewise erroneous.  Nothing in the text of the statute even hints that prejudice must be shown, for any purpose.  And even if we assume that prejudice must be shown, there is still no indication in the statute that the defendant should bear the burden of establishing that prejudice.  But even if the statute did require the defendant bear the burden of establishing prejudice, this Court repeatedly and consistently has held that when a delay exceeds eight months — or approximately 240 days — the defendant is legally presumed to have been prejudiced.  So even if we are to pretend that the statute requires the defendant to prove prejudice, there is no reason to believe that the defendant should not be entitled to the presumption of prejudice created by this very Court.

¶.           Mississippi’s Speedy-Trial Statute — which already is one of the most lenient statutes of its kind in the country — does not need this Court’s help.  If trying a defendant within 270 days is too onerous a burden, or if dismissal with prejudice in the wake of a violation is too harsh a remedy, Mississippi already has a legislative body, and it doesn’t need another one.  The Legislature is perfectly free to do with the Speedy-Trial Statute what it will. We are not.

¶.           I would overrule HarrisonWalton, and their progeny, and hold that the plain, unambiguous language of Section 99-17-1 requires that all defendants be tried within 270 days of arraignment unless the State can show good cause, and the trial court duly enters an order of continuance.

¶.           Turning then to the facts of this case, McBride was arraigned on August 10, 2006.  He was not tried until February 19, 2008 — a span of 558 days.  McBride requested a single continuance on February 14, 2008 (five days prior to trial), which was granted.  Other than that, there is no indication in the record either that the State requested, or that the trial court granted, any continuances.  So 553 days count against the State, more than twice the statutory limit.  Consequently, the trial court erred in denying McBride’s motion to dismiss.  I would reverse McBride’s conviction and order the charge dismissed with prejudice.


Surprise, surprise. (No more)

Posted in Uncategorized on May 10, 2011 by tobywelchlaw

In a case sure to be cited over and over and over again by defense lawyers, the Court of Appeals today reversed and remanded Jerome Patterson v. State of Mississippi.  Patterson was indicted for delivery of a controlled substance and sentenced to 8 years to serve.

Patterson was indicted on January 26, 2010 and set for trial on February 18, 2010.  Patterson attorney filed a Motion for Discovery on January 28 asking for all witnesses and statements.  The case revolved around a confidential informant but the State did not release the CI’s name or statements until two days prior to the trial.  Defense counsel moved for a continuance that was denied because the Trial Court felt that since the State divulged the CI’s id two days prior to the trial, that was enough time and denied the continuance.  The COA disagreed.  They held,

“The State’s abuse of the rules of discovery unquestionably handicapped the defense
in formula ting a tria l stra tegy. Having only be en afforded the requisite informa tion rega rding
the witne ss and an inte rview with the witne ss le ss than twenty-four hours before the tria l, the
defense was not allowed adequate time to assess the State’s case, investigate the witness,
follow up on informa tion gle aned from the inte rview and newly ga the red informa tion, and
generally prepare for trial.”

Furthermore, the opinion stated an argument I made years ago, that I still can’t get my head around.

“By comparison, under Uniform Rule of Circuit and County Court 4.04 (A), absent special circumstances, a court ” will not allow testimony at trial of an expert witness who was not designated…at least sixty days before trial.” (Emphasis added.)  Just as civil cases often hinge upon expert testimony, many criminal cases turn upon the testimony of a confidential informant, as in this case.  Yet counsel involved in a civil case would receive the requisite information  regarding a star expert witness months before the trial begins, whereas here, counsel in a criminal case, which involves a human being’s freedom, was not granted critical information on a star witness until hours before the trial.”

Thank you for saying it.  I have never understood why civil cases (money) are granted so many more protections than criminal cases (freedom).

Could Speedy Trial rights be coming to a Courthouse near you?

Posted in Uncategorized on March 31, 2011 by tobywelchlaw

Today the Supreme Court handed down this Order.



    Merlin Hardison v. State of Mississippi; Hinds Circuit Court 1st District; LC Case #: 04-0-034-03 WSY; Ruling Date: 05/24/2006; Ruling Judge: W. Yerger; Disposition: On the Court’s own motion, this matter is remanded with instructions to the Circuit Court of the First Judicial District of Hinds County to hold a hearing within sixty days of the date of this order for the limited purposes of providing the State an opportunity to provide reasons for the delay, and to overcome the presumption that Hardison was prejudiced by the twenty-seven-month delay. After conducting the hearing, the trial judge shall enter findings of fact and conclusions of law and shall provide this Court with a certified copy of the findings of fact and conclusions of law, a transcript of the hearing, and all exhibits and documents related thereto. Upon receipt of these materials, the Clerk of the Supreme Court shall supplement the appellate record before this Court and give the parties notice of the filing of that supplemental record. Within thirty days of that notice, the parties shall file simultaneous supplemental briefs not to exceed twenty pages and limited to the speedy-trial issue. Order entered.