Archive for July, 2010

MS Supreme Court Hand down 7/29/10

Posted in Uncategorized on July 29, 2010 by tobywelchlaw

While I ordinarily skip talking about post conviction relief actions on my blog, this one bears discussion.

Rowland v. State. Robert Rowland pled guilty to two counts of Capital Murder and two counts of Armed Robbery that arose from a robbery at the Leflore County Country Club in 1979.  Eight men had gathered to play poker at the club, and three other men, Rowland and his co-defendants Donald Keeton, and Keith Ouzts, broke in with shotguns and forced the men to line up against the wall.  During the course of the robbery, two men, James Campbell and Paul Hughes, were shot and killed.

Rowland and his co-defendants pled guilty to the four charges and was sentenced to two terms of life imprisonment and twenty-four years each for the armed robberies. Rowland filed his PCR in 2007 arguing that his convictions for armed robbery, as they were the underlying felonies in the capital murder indictments, constituted double jeopardy.  The Court of Appeals in a 6-4 decision found that the Rowland’s PCR was time-barred and did not fall under any of the exceptions to the time rules that govern PCRs.  The Supreme Court in a 9-0 decision found that Double Jeopardy was a fundamental right and thus was exempt from the time limit requirements of PCRs and remanded the case back to the Circuit Court for an evidentiary hearing.

Justice Kitchens in a concurring in part, dissenting in part opinion wrote that remanding the case back to the Circuit Court was a “buck-passing exercise by us”.  Justice Kitchens stated that “When a petitioner is entitled to a judgment as a matter of law, this Court has the authority and the duty to grant the petition and render the appropriate judgment.”  As such, he would vacate Rowland’s two armed robbery convictions immediately.

And while not criminal, City of Jackson and Miranda Morton v. Presley deals with a police officer.  The Supreme Court overturned a verdict rendered against the City of Jackson for a car accident in which Officer Morton, while responding to a call, went through an intersection at 5 miles an hour, with lights and sirens going, and struck a pickup driven by Ms. Presley.  Judge Yerger awarded $148, 763.63 in damages to Ms. Presley.  The Supreme Court reversed and rendered the decision stating that the actions of Officer Morton were not reckless and as such, the verdict was against the overwhelming weight of the evidence.

Court of Appeals 7/27/10

Posted in Uncategorized on July 27, 2010 by tobywelchlaw

Two criminal cases today, both of which were affirmed.

Jones v. State.  Jones claims that his arrest for burglary of a building was illegal as it was a warrantless arrest.  The fact he was 150 yards from a building that still had the alarm ringing, at 1:00 A.M. or thereabouts, standing next to a street lamp and a computer, doesn’t rise to the level of “Probable cause exists where the facts and circumstances within an arresting officer’s knowledge are sufficient within themselves to warrant a man of reasonable caution to believe that a person has committed an offense.”

Because of this improper arrest, Jones felt his confession should be suppressed and his lawyer was ineffective for filing a motion to suppress based on coercion instead of illegal arrest.  Not surprisingly, the Court didn’t agree with Mr. Jones.

Walker v. State.  Another burglary of a dwelling.  Must be theme month in the appellate courts.  Mr. Walker was convicted of burglary of a convenience  store.  He appealed on the grounds of the verdict was against the overwhelming weight of the evidence.  Mr. Walker was positively ID’d on the videotape by two people, the T-shirt worn by the burglar was found on his bed, and a box with the convenience store specific labels were found behind his house.  Mr. Walker said it wasn’t him and had his mother and brother as an alibi, blaming the police for planting the evidence.  The Court of Appeals disagreed with him.

MS Supreme Court 7/22/10

Posted in Uncategorized on July 27, 2010 by tobywelchlaw

Brown v. State.

In one of the most confusing reversals I have ever read, the Supreme Court 9-0 reversed a murder conviction, (Murder must have been the crime of the week in the appellate courts) that had been affirmed 10-0 by the Court of Appeals on the trial court’s failure to give a confusing jury instruction.

Johnny Brown was convicted of murder of his sometime girlfriend Violar Bracey.  Brown testified that he and Bracey had just had relations and Brown was laid back relaxing when he felt Bracey push him in the back of the head and he turned and saw the gun.  They struggled and the gun went off, killing Bracey.  Brown fled the scene, to see his kids because he knew he was going to jail.

At the trial, the State put on a number of witnesses who testified to the forensics of the scene.  Every witness contradicted Brown’s account of the shooting.

We already have found that the evidence against Brown was legally sufficient to sustain the jury’s verdict finding Brown guilty of the murder of Violar Bracey. Briefly stated, the evidence in favor of the State indicated Bracey’s hands were under a blanket at the time the fatal shot was fired while she was lying in bed. David Whitehead, a forensic scientist assigned to the trace-evidence section of the MCL in Jackson, testified that his tests of the gunshot-residue kit generated by the autopsy of Bracey revealed no gunshot residue on Bracey’s hands, which would thus contradict Brown’s theory of an accidental shooting while Brown and Bracey were struggling over the gun.

Certainly, the testimony of Whitehead, Hathcock, and Hayne would not support Brown’s theories of self-defense or accidental shooting in the killing of Bracey. However, this fact is of no moment when considering the instructions of law to be given to the jury by the trial judge.

Brown attempted to introduce a jury instruction that combined the elements of self-defense and an accidental shooting.  The prosecutor objected and the Trial Court sustained the objection and the instruction wasn’t given.

Regardless of the fact that neither the jury, the Court of Appeals nor the Supreme Court buys Brown’s theory, Brown is still entitled to his theory, and as such he is entitled to his jury instruction combining self-defense and accidental shooting.

The case was remanded back to Hinds County.

Court of Appeals Hand Down July 20, 2010

Posted in Uncategorized on July 20, 2010 by tobywelchlaw
BANTON v. STATE OF MISSISSIPPI
Banton was convicted of Murder on May 29, 2009.  That lead to a six page opinion.  The only novel argument was that Banton claimed that since he was 17 when he committed the murder, a sentence of life, violates the 8th amendment.  It didn’t get anywhere.
PILCHER v. STATE OF MISSISSIPPI
Pilcher was convicted of Murder on April 4, 2008.  That lead to an eight page opinion.  Pilcher claims prosecutorial misconduct regarding some erroneous claims during the State’s opening statements.  Even from a defense lawyer, the statements seem pretty innocuous.  His claim also doesn’t get anywhere.
And to complete the trifecta of Murder Opinions of ten pages or less, we have:
STATE v. DOUGALEWICZ
Dougalewicz was convicted on March 8, 2006.  The only interesting aspect to his opinion is the mention of the Weathersby Rule.  The Weathersby Rule states:
[W]here the defendant or the defendant’s witnesses are the only eyewitnesses
to the homicide, their version, if reasonable, must be accepted as true, unless
substantially contradicted in material particulars by a credible witness or
witnesses for the [S]tate, or by the physical facts or by the facts of common
knowledge.”
Dougalewicz did not testify, and all the physical evidence, along with his confession, precluded a directed verdict based on Weathersby.
Finally, there is REW v. STATE.
Rew was convicted under 99-19-81 for one count of burglary of  a dwelling, two counts of kidnapping and one count of felon in possession of a firearm.  Rew should have been sentenced to 95 years to serve, day for day, or mandatory.  Instead he was sentenced to ten years for the burglary, ten years per kidnapping count, and one year for the possession of a firearm by a convicted felon.  Justice Roberts writes a concurring opinion speaking to the illegality of the sentence imposed.  Justice Roberts says that to give a trial court back discretion in sentencing an 8th amendment analysis must be done, and one wasn’t done in this case, or if done, the Court was unswayed.  In fact, the trial court said:
And that there was not a request from the State for him to serve the rest of his
life in jail, although it could have been requested and submitted to the jury.
. . . .
Considering all these factors, certainly, the breaking into a residence at
night at gunpoint, holding people hostage, and having a gun when you’ve got
two prior felony convictions, those are very serious offenses. They are very
dangerous. And the truth is, Mr. Rew is very lucky that he didn’t kill
somebody there when he did that because he would be looking at a capital
murder, possibly the death penalty.
That didn’t happen. But short of that, it is about as serious of a case
that you could have here and that we have to deal with, the home invasion type
thing.
Without a finding that the punishment far outweighs the crime, trial courts are not supposed to deviate from the mandatory sentencing found in 99-19-81, and that doesn’t appear to be the case here.  While prosecutors sometimes get very overzealous in the application of habitual status, burglary, firearms and kidnapping seem to be good crimes for it, as opposed to say, misdemeanor embezzlement masquerading as a felony.

Court of Appeals Hand Down 6/29/10

Posted in Uncategorized on July 1, 2010 by tobywelchlaw

Chisolm v. State.  Chisolm was convicted of sexual battery of a 9 year old and was subsequently sentenced to 30 years.  (Mandatory  is now the term du jour)  Chisolm sole issue on appeal is that he received a larger sentence based on the fact he exercised his right to trial.  He based that belief on a pre-trial warning given by Judge Johnson.

BY THE COURT: And it puts a lot on the Court because in a district where they have plea bargaining, the DA can come to you and say, well, if you plead guilty we’ll recommend. This would be our recommendation of sentence.One of the primary things that’s involved in this case from everybody’sviewpoint, clearly the State’s, the idea of a nine-year-old child having to get up on the witness stand in front of a lot of people here in court and relate things of a very personal nature to people, and I just want to make you understand that in the event that you’re found guilty, that’s clearly one of the things I take into consideration.

BY [CHISHOLM]: Yes, sir. I understand.
BY THE COURT: I hope you understand what I’m saying here because we are fixing to cross a bridge that can’t be uncrossed. I don’t know what the evidence is going to show in this case or what the jury is going to do, but I just want you to understand and let me say this. It’s not a matter of – you have an absolute right to go to trial, but in the event that you are found guilty, that will be one of the things I take into consideration. Do you understand that?
Chisholm responded, “[y]es, sir.”

After the conclusion of the trial, a Jury found Chisolm guilty and the Court, during the sentencing phase said:

First of all, it’s disgusting what happens when a child nine years of age is . .. not given a chance to grow up, but just immediately jump[s] in the wor[l]d

of sex with an adult. That is disgusting enough, and that’s horrifying enough for a child to go through, but you know what a lot of people think is worse

than that[?] . . . [T]hat’s when that child has to come up here and sit up here in public on a witness stand in front of a bunch of strangers on a jury and people

in their family that they know out there in the courtroom and have to go through it in detail. That’s what’s just as bad, and I have had a lot of people

in your situation come up here that do despicable acts, and I am going to tell you, everybody – – I firmly believe that when you commit an act, you ought to

be given a chance to do right after it and given a second chance, and a lot of people sitting in your situation do the right thing afterwards, and you know

what they do? They come up here and admit what they do and be a man about it, and they save a child from having to go through the second trauma which

is coming up here and testifying, but you chose not to do that. I don’t know who you were listening to or what, but you apparently at some point you told –

– admitted to law enforcement what you did,[3] and the evidence is you admitted to the child’s grandmother what you did . . . , but be that as it may,

this is America and you have a right to a public trial, and you chose to do that and chose to put that child through this even in the face of all this compelling

evidence. So I’m sitting up right here and trying to find a reason to cut your sentence down and be lenient with you, and I can assure you if you had been

straight forward with this Court as apparently you were willing to do at one time and admit your guilt and come forward and had done that, I would be

looking at you as far as a sentence a lot differently, but this is a despicable act. . . . You have had your day in court. You have had your right, and I just hope

this child can move on with her life. I know you’re sitting up here and you’re worried about your children, but you know what? You know who’s fault that

is? You know who caused that to come about? You. We’re accountable for our actions. And I wish you had done the right thing after this had happened

and save[d] this child from testifying, but I just hope this nine-year-old child . . . can go on with her life and find some type of normalcy . . . . In summary,

I see no reason to deduct a single day from what you can get.

The Court held that it is impermissible for a trial court to impose a harsher sentence due to a Defendant exercising their right to trial.  They said that wasn’t the case here. It was “imminently clear” that the trial judge was not maxing Chisolm out because he had gone to trial, but because he did not accept responsibility for his actions.  The Court said that Chisolm, even after addressing the Court, did not show remorse for his actions.  His speech to the Court is not quoted.