Archive for August, 2010

Court of Appeals 8/24/10

Posted in Uncategorized on August 31, 2010 by tobywelchlaw

Lewis v. State.  Mary Lewis was convicted of murder of her boyfriend Arthur Patterson in Hinds County in 2008.  Her main point on appeal was the denial of a manslaughter instruction.  She claimed that Patterson threw a beer bottle at her as well as threatened her.  Lewis introduced a self-defense instruction and attempted to introduce a manslaughter instruction which was denied by the Court.  The Court held that, as the MS Supreme Court found in Brown v. State (discussed here a Defendant is entitled to jury instructions that are based on the facts, even if they are wildly inconsistent theories.  The Court reversed and remanded for a new trial.


Supreme Court 8/19/10

Posted in Uncategorized on August 19, 2010 by tobywelchlaw

The ole harmless error.

White v. State.  Tommy White was convicted of possession of a firearm by a convicted felon and sentenced under the smaller habitual statute to 10 years to serve day for day.  He appealed claiming that hearsay was improperly allowed.  The Supreme Court agreed but said it was harmless error.  The State sought to elicit, and did so, testimony from two witnesses about a phone call from Latoya Anderson.  They were allowed, over Defense objection, to testify as to what Anderson told them, a clear example of hearsay.  The State used the tried and true “present sense impression and/or excited utterance” exception, which the Trial Court agreed with.  The Supreme Court found that there was no testimony given as to

“[a] statement describing or explaining an event or condition made while the
declarant was perceiving the event or condition or immediately thereafter.”
“Excited Utterance. A statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or

and without evidence of one of the either, the testimony was hearsay.

But, it was a harmless error, as the police chief disarmed White, who had a sawed off shotgun, as well as shotgun shells in his pocket.

Court of Appeals 8/17/10

Posted in Uncategorized on August 17, 2010 by tobywelchlaw

This will make the non lawyers happy.

Graves v. State.  Charles Graves is the County Prosecutor for Tunica County.  Stan Little, a classmate of mine at Ole Miss Law, was the defense attorney for the first two cases.  Three DUI’s were appealed to the Circuit Court level in front of Judge Smith.  Graves and Stan agreed to dismiss the first one, but Judge Smith refused to do so, and Little stated that he had not had an opportunity to view the video tape.  Judge Smith had previously ordered Graves to make the discovery available.  Judge Smith held both Graves and Little in contempt for not being prepared.   Second case, Little hasn’t viewed the video, both attorneys held in contempt.  In the third case, the defense attorney had requested a continuance, and Graves had no objection, but the defense attorney wasn’t present.  Contempt.  The Court of Appeals reversed and rendered Judge Smith’s sanction of a $100 fine and 2 days in jail, holding that Graves had not committed a contemptible act.

Court of Appeals 8/10/10

Posted in Uncategorized on August 17, 2010 by tobywelchlaw

I was preparing for trial last week and didn’t get around to my very much anticipated hand down synopsis.

Not a whole lot going on, other than the usual post conviction relief denials.  The only case that even merited a dissent was Roy Lee Johnson v. State.

Johnson was convicted of possession of a firearm by a convicted felon.  The State got a search warrant based on information that illegal narcotics were being sold out of the mobile home.  When they arrived, they found Johnson on the couch with a .22 rifle 8 feet away, but no trace of narcotics.  A female was also found in the residence.  The jury found Johnson in constructive possession of the .22 rifle.  Justice Lee dissented from the majority due to the fact that the State put on no evidence of who owned the rifle, or who owned the trailer or if Johnson even lived there.  The majority relied on the fact that 10 pair of Johnson’s shoes were found in one of the bedrooms and the sheriff testified that every time they had been there, Johnson had apparently been there.

MS Supreme Court Hand Down 8/5/10

Posted in Uncategorized on August 10, 2010 by tobywelchlaw

This post is a little late due to the fact that I was working on a Petition of Writ of Cert to the Supreme Court myself on Thursday.

Wanda Clark v. State.  This is a real life Cinderella (but with abuse) story.  Wanda Clark was convicted of two counts of felonious child abuse and sentenced to 18 years per count to run concurrently.  The charges were pretty gruesome.  Clark was tried with her husband and they accused of breaking their daughter’s arm in one incident and accused of beating her with an extension cord in two other incidents.  In addition to the beatings, Hailey (the victim) was forced to do chores at the house, while the other daughters didn’t, Hailey had food withheld from her, she was locked in a closet for days on end, she had to sleep on the floor while the other daughters had beds and bedrooms, and had to walk to and from school everyday and was forbidden from accepting rides.  Clark and her husband, as well as other relatives and the other daughters in the home, all testified that they never struck Hailey with an extension cord nor do they ever witness any abuse of Hailey.

Clark appealed on four grounds, that the trial court erred in:

(1) denying her motion for a mistrial based on the court’s comments to the victim; (2) admitting the testimony of an employee of the Mississippi Department of Human Services; (3) excluding defense exhibits; and (4) refusing her “theory of the case” jury instruction.
The trial court, at the conclusion of Hailey’s testimony said, “You may be excused. Thank you. I think you held up nicely.”  Clark asked for a mistrial on the basis the comment may have swayed the jury to Hailey’s favor.  The Court gave the ole limiting instruction, and all was well.
Next, “Clark argues that (1) Shumpert was allowed to bolster the testimony of Hailey, a competent witness; (2) Shumpert gave opinion evidence on confidential matters;
(3) Shumpert opined that Hailey was placed into DHS custody “due to the severity of the injuries as a criminal act committed by Wanda Clark[,] which usurped the province of the jury;” and (4) the trial court permitted Shumpert to testify about Clark’s statements made to Shumpert during the home investigation and allowed the State to cross-examine Clark using those statements.”
The Court fell back on the no contemporaneous objection for Clark’s first three arguments, but failed to follow that up with the usual, “procedural bar notwithstanding”, so it appears the first three arguments had at least some merit but will not be discussed.  The final argument was based on Clark not being read her Miranda rights prior to the questioning.  While it is not in debate that two law enforcement officers accompanied the DHS worker to Clark’s home, the Court felt that since she was not arrested until two weeks later, it wasn’t a custodial interrogation.  Quite frankly, I don’t see how that could be, but that was what the court ruled.  They cited a code section that authorizes DHS to request the presence of law enforcement during the course of an investigation into child abuse, but that doesn’t imply a custodial interrogation.
Thirdly, exhibits offered by the Defense were not allowed in due to being irrelevant.  The only possible one that had relevancy was a disciplinary slip from Hailey’s teacher in which Hailey denied any abuse.  In addition, Hailey wrote a letter where she denied abuse and also praised Clark’s parenting skills.  The Court found the exclusion of the disciplinary slip to be harmless, as Hailey had previously testified that she had lied about her true living conditions.  How concrete evidence that goes to the veracity of the victim not being allowed in is harmless error strikes me as odd.
Finally, Clark submitted Jury Instruction D-7 which was denied.  It read,
“The Court instructs the jury that you must be convinced by the evidence
presented beyond a reasonable doubt that the alleged abuse of [Hailey] was
inflicted and caused by Wanda Clark on the dates as charged in the indictment,
and if you can determine from the evidence that the alleged abuse of [Hailey]
could have been or was caused by something else other than the intentional
acts of Wanda Clark then you shall find Wanda Clark not guilty of the charges
against her.”
The indictment tracking jury instruction does not contain the word intentionally, and D-7 does.  Miss. Code Ann. § 97-5-39(2)(a) states,
(2) (a) Any person who shall intentionally (i) burn any child, (ii) torture any child or, (iii) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm, shall be guilty of felonious abuse of a child and, upon conviction, shall be sentenced to imprisonment in the custody of the Department of Corrections for life or such lesser term of imprisonment as the court may determine, but not less than ten (10) years. For any second or subsequent conviction under this subsection, the person shall be sentenced to imprisonment for life.”
Not requiring an intentional act portion of the jury instructions fails to include the most essential element.
And then we have Davis v. State where an inept criminal feels aggrieved that his previous crime, that no one was arrested for, was allowed into evidence.  Davis attempted to rob the night deposit of the Dollar Tree in Greenwood, but, when he approached the manager at the bank as she was dropping the money in the night deposit, the magazine from Davis’ gun somehow fell out, Davis panicked and fled.  The trial court allowed evidence of his previous successful robbery of the Dollar Tree six months prior into evidence finding it showed motive.  While I ordinarily find the “motive, plan, opportunity, etc.” exception used by District Attorney’s to be abused, in this case, when the prior robbery was Davis robbing his wife, whom he had called fifteen minutes prior to robbing it, it seems to be a legit “proving motive” use.