Archive for September, 2010

Supreme Court Hand Down 9/23/10

Posted in Uncategorized on September 24, 2010 by tobywelchlaw

Boyd v. State.  James Earl Boyd was indicted and subsequently convicted of aggravated assault for stabbing Wanda Sherrod.  Boyd went to Sherrod’s house, and after being invited to sit down:

“Boyd then moved to a seat that was closer to Sherrod and her grandson. As Sherrod got up to get her grandson some juice, Boyd said “Hold up Wanda, I got something
for you.” He then produced a knife and cut Sherrod several times.”
A subsequent mental exam found Boyd competent to stand trial, and, after Boyd took his paints off and threw them at Judge Kitchens at the beginning of the trial, Judge Kitchens found that it was an act, and they proceeded to trial.  Not surprisingly, the jury found him guilty, and he appealed on the ground that the jury instructions failed to state that a knife was a deadly weapon.  The majority held, “But we find, as we have before, that no fair-minded and properly instructed jury could fail to find that Boyd’s knife was a deadly weapon, and that Boyd’s cutting and stabbing Sherrod multiple times was likely to produce serious bodily injury.”
Justice Kitchens, in his dissent, stated: “The majority finds that jury instruction S-2 “did not properly instruct the jury . . . .”  Maj. Op. at ¶ 14. Yet, in the same paragraph, the majority opines that “no fair-minded and properly instructed jury could fail to find that Boyd’s knife was a deadly weapon . . . .” Id. (emphasis added). Because the trial court’s instructions fell short of apprising the jury of all the essential elements of the crime of aggravated assault, thus failing to put before the jurors the question of whether the instrument wielded by the defendant was, in fact, a deadly weapon – a question entirely within the jury’s province – I respectfully dissent.”
He goes on to say, “Whether a thing is a deadly weapon is not a query that is susceptible of judicial interpretation in the State of Mississippi, unless we are willing and ready to overrule well over a century of jurisprudence to the effect that this is always an issue of fact for determination by the trier of fact, in this case, the jury. Although the term a knife may have an ominous ring to it, and while we may, from our lofty perch on High Street, wisely opine that no one could doubt that the knife at issue in this case is a deadly weapon, such a determination is not within the province of jurists, but of jurors. The jurors who were empaneled to decide the present case were not given that opportunity, no matter how fervently we may believe that we know what they would have decided if only they had been asked. No matter how compelling we may believe the evidence to have been, no matter how graphic the photographs in the record before us may be, the issue of whether the knife allegedly wielded by Boyd should be classified as a deadly weapon was, and continues to be, a question of fact that should have been placed before the jury for the jury’s resolution, not the trial judge’s and not ours.”
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Supreme Court 9/16/10

Posted in Uncategorized on September 16, 2010 by tobywelchlaw

It must be the week of the unsympathetic defendant.

Tillis v. State.  Tillis was convicted of simple assault on an employee of a private correctional facility.  Tillis was serving a sentence in Walnut Grove for grand larceny.  While there, Nurse Kathy Hogue was administering medicine to the inmates.  When she put her hand through the feeding slot to give Tillis his medicine, Tillis grabbed her hand and attempted to take the rings off her finger, which resulted in Ms. Hogue having her ring finger fractured.  Where Tillis thought he was going to get away to with the rings, I have no idea.

Tillis appealed on the grounds that Ms. Hogue was actually employed by Health Insurance, and merely worked at Walnut Grove, and as such the charge could not be sustained.  The Majority held that Ms. Hogue held dual employment and as such the conviction should stand.  Justice Kitchens dissented on the grounds that who Ms. Hogue was employed by was a jury question, and as such, the Jury Instruction stating she was employed by Walnut Grove took a question of fact, out of the jury’s finding.

Banyard v. State.  Banyard was convicted of capital murder and sentenced to life in prison.  Banyard appealed on the grounds that he was denied his “duress” jury instruction.  The Supreme Court agreed and remanded the case for a new trial.

Court of Appeals 9/14/10

Posted in Uncategorized on September 15, 2010 by tobywelchlaw

Chris Hanson would be proud.

Shaffer v. State.  Justin David Shaffer was convicted of exploitation of a child.  It was the classic “To Catch a Predator” set up.  Shaffer met “Chloe” in a Yahoo chatroom where they engaged in conversation.  The conversation switched from the chatroom to instant messaging and then phone calls where they agreed to meet in Byram, Mississippi.  Shaffer, thinking he was talking to a 13-year-old girl, was in fact talking to a 29-year-old operative of Perverted Justice.  When it came time to speak on the phone, another employee of Perverted Justice, with a child like voice, spoke with Shaffer.  When Shaffer arrived to meet Chloe, he was arrested by the Hinds County Sheriff’s Office.  He was convicted of exploitation of a child and sentenced to 25 years.  He appealed his conviction and his most cogent argument was that there never was a child involved and thus he could not be guilty of exploiting a child.  The majority of the Court of Appeals kinda agreed with him, to the point of reversing and rendering his conviction and remanding him to be resentenced under “attempted exploitation of a child” which carries the same penalty.

I think Justice Roberts, in his dissent, is dead on.

“We can all agree that Shaffer’s subjective intent was absolutely reprehensible. Be that as it may and as much as we may desire otherwise, the Mississippi Legislature did not define sexual solicitation of an “adult posing as a child” as a felony offense.”

Criminal statues must be strictly construed.  There can be no room for the “spirit” or “intent”  of a criminal statute.   It is hard to rise to the defense of someone who thinks he is speaking to a 13-year-old, the fact of the matter is, there was no child.  It is analogous to a “buy bust” where a Defendant sells an undercover officer a pound of baking soda.  The intent to commit the crime of sale of illegal narcotics is there, but the crucial element, illegal narcotics, is missing.  The Court points out the absurdity of requiring the  government to use actual children in this regard, but the fact that a person can be convicted for a crime that is physically impossible for them to commit is dangerous.  Again, this is the wrong kind of case to drum up any real sympathy for though.

MS Court of Appeals 8/31/10

Posted in Uncategorized on September 2, 2010 by tobywelchlaw

Stanbro v. State.  A lawyer that has forgotten more law than I will ever know would call this a technality.  Mr. Stanbro pled guilty to DUI 3rd on May 18, 2009 for 1 year to serve and four suspended.   The Court gave him until June 15, 2009 to turn himself in.  When he failed to do so, the Court found him in contempt and modified his sentence to 1 and 1/2 years to serve.  The Court of Appeals reversed the contempt and modification of sentence because the Judge had not retained jurisdiction, in his written order, only on the record, and there was a new term of court.  A technality.

MS Supreme Court 8/26/10

Posted in Uncategorized on September 2, 2010 by tobywelchlaw

Means v. State.  An interesting decision.  Charles Means pled guilty to possession with intent and was given a 25 year suspended sentence by Judge Helfrich in Forrest County conditioned on Means remaining 100 miles away from the Forrest County Courthouse for the entire 25 years.   Less than four months later, Means was found in Hattiesburg, which is well within 100 miles of the Forrest County Courthouse.   Judge Helfrich didn’t appreciate it, and gave him the full 25 years to serve.  The Supreme Court held that, as it did in Rowland v. State (discussed here https://tobywelchlaw.wordpress.com/2010/07/29/ms-supreme-court-hand-down-72910/) due process claims that affect fundamental constitutional rights are excepted from the procedural bars of the Post Conviction Relief Act.  The Supreme Court felt that the trial court did not set out the proper factors in banishing Means and as such reversed and remanded the case.

Tapper v. State.  Randy Tapper was convicted on two counts of sexual battery and four counts of touching and handling a child for lustful purposes.  He was given two life sentences and another 75 years, all to run consecutively to one another.  He appealed alleging certain errors.

The first error was, “Whether the Trial Court erred in failing to excuse jurors for cause”.  Tapper complained that three jurors said Tapper should have to prove his innocence.  The Judge refused to grant a challenge for cause.  The Jurors stated that they would not abide by Tapper’s constitutional rights, and the Judge refused to strike them for cause.  The Court held that since Tapper used his preemptorary challenges on the three jurors, and he couldn’t prove undesirable jurors were thrust upon him the issue was without merit.

Tapper’s second error was the lack of specificity as to the dates alleged in the indictment.  This is a common problem that defense attorneys run into. Indictments should be specific but prosecutors, especially in sex cases, routinely give wide ranges of dates, that make an alibi defense impossible.  The majority held that the wide range of dates was permissible and thus not an error.  Justice Kitchens in another well written dissent (do you see a pattern?) points out the the U.S. and Mississippi Constitution demand that a Defendant be given all the essential facts of the crime to which he is charged.  The majority held that the State did not have further proof that would have allowed them to narrow the dates, but Justice Kitchens states:

“Yet, the constitutional duty to notify the accused of the charges against him, viathe indictment, rests with the State, as does the burden of proving its case beyond areasonable doubt, and these duties are not relieved simply because the requisite informationis outside the State’s knowledge.”
He goes on to say:
“The indictment’s noninclusion of the distinguishing facts unique to each charge, however slight, limited Tapper’s defense to nothing more than mere denial, and left Tapper to defend himself, not against four distinct criminal acts, but against one criminal act that allegedly occurred four times, with absolutely nothing to distinguish one such occurrence from the other three. Clearly, Tapper’s desire to know the basic facts he was to
face at trial, including where, and approximately when, his accusers claimed they occurred, is not beyond his constitutional right to be informed of the nature and cause of the accusations against him. U.S. Const. amend. VI; Miss. Const. art. 3, § 26.”
I am going to quote the final paragraphs of Justice Kitchens dissent.
Under this Court’s decisions and the rules it has promulgated, defendants in criminal cases are entitled to a mere fraction of the pretrial discovery information that is routinely accorded to litigants in civil cases. Because the criminally accused in Mississippi courts can get no clarification, explanation, or amplification of the charge(s) laid in an indictment by means of a bill of particulars, and comparatively little through discovery, the indictment is
the defendant’s main source of information about the “who, what, when, and where” of the State’s accusations against him or her. See Cumbest v. State, 456 So. 2d 209, 221 (Miss. 1984) (“[A]n accused is not entitled to a bill of particulars on an indictment.”) (citations omitted). The indictment is far more than a mere formality, and a charging document that takes a shotgun approach to accusing a person of the very same conduct, word-for-word, four different times, with nothing to distinguish one charge from the others in terms of details or times, falls fatally short of properly informing the accused of the nature and cause of accusation(s), as mandated by our state and federal constitutions.
¶51. Today’s decision very well could provide a disincentive for those who investigate and prosecute cases of juvenile sex abuse in our state to be diligent in their efforts to ascertain the unique circumstances that will inevitably distinguish repetitious occurrences of the same type of crime by repeat offenders against children who are victimized again and again. It is elementary that nothing ever happens in precisely the same way more than once. Deja vu is always an illusion, never a reality. I join the majority in imploring Mississippi’s prosecutors “to be as specific as possible in drafting indictments, consistent with the provisions of Uniform Rule of Circuit and County Court Practice 7.06, in all cases, but specifically in cases involving allegations of sex offenses committed upon minor children.”
¶52. Counts IV, V, VI, and VII of the indictment should have been quashed for failing to inform Tapper of the nature and cause of the accusations against him in violation of the Sixth Amendment of the United States Constitution and Article 3, Section 26, of the Mississippi Constitution, and because these counts are constitutionally infirm for their clear violation of the former jeopardy provisions of the Fifth Amendment to the United States Constitution and Article 3, Section 22, of the Mississippi Constitution. Accordingly, I would reverse and render Counts IV, V, VI, and VII, but I would affirm the convictions and sentences for all of the remaining counts.