Archive for November, 2010

Supreme Court Hand Down 11/11/10

Posted in Uncategorized on November 12, 2010 by tobywelchlaw

In a very rare Wednesday appearance, the Supreme Court reversed two cases today.


The first case is Flowers v. State.  Ronregus Flowers was convicted of burglary of a dwelling in Hinds County, Mississippi.  Flowers testified that someone was trying to shoot him and he ran to a house, broke in and hid.  He attempted to offer a jury instruction of necessity but the trial court refused the instruction.  The Court of Appeals affirmed the conviction but the Supreme Court granted Cert.  The majority held that it was reversible error to not allow the defendant to have a jury instruction that was supported by the evidence.


The Supreme Court in recent weeks has had a number of cases reversed based on Trial Courts not granting Defendant theory of the case jury instructions.


In another failure to give Defendant’s instruction case, the Supreme Court reversed the conviction in Williams v. State.


This case made headlines all over.  David Williams was indicted for murder in the death of Demetria Bracey.  Williams, who is white, and Bracey, who was black, were in a relationship in November of 2005.  Williams claims the two of them made a suicide pact and that they consumed massive amounts of alcohol and drugs and that Bracey stabbed herself in the heart with a kitchen knife.  Williams said he took the knife out and threw it across the room.  Williams then claims to spend the next few days drinking and playing video games.


In a battle of experts, Dr. Steven Hayne testified that it was homicide and based his opinion on what he said were strangulation marks on Bracey’s neck, lack of hesitation wounds and what he characterized as a defensive wound on her hand.  He also stated that it would take a significant amount of force to commit suicide by stabbing through the cartilaginous portion of the rib cage. Williams called Dr. Arthur Copeland, a forensic pathologist.  Dr. Copeland disagreed with Dr. Hayne’s conclusions.  He testified that the marks on Bracey’s neck could have been from decomposition and that there were no offensive injuries to Williams, which would have been an indication of manual strangulation.  He testified that he could not render a conclusion but that his observations were consistent with suicide.


At the conclusion of the trial, Williams attempted to have a lesser not included assisted suicide jury instruction and the trial court denied it.   The majority held that there was sufficient evidence that a juror could have found Williams assisted in Bracey’s suicide and as such, the requested instruction should have been given.


The dissent, joined by Justice Graves(!?), stated that the facts brought out in trial showed that Williams was guilty of murder and he had failed to show that he had assisted Bracey in killing herself and as such was not entitled to the lesser non included instruction of assisted suicide.


Super Lawyers Mid-South Rising Stars

Posted in Uncategorized on November 8, 2010 by tobywelchlaw

Supreme Court Hand Down for 11/04/10

Posted in Uncategorized on November 4, 2010 by tobywelchlaw

Justice Kitchens strikes again.  I don’t know if any Justice in the history of MS has had as much of an impact on jurisprudence as Justice Kitchens has.


In an opinion written by Justice Graves, Tucker V. State, the Supreme Court reversed and rendered Anthony Tucker’s conviction for possession of stolen property.  Tucker was arrested in Clay County for having numerous items of clothing in his possession that allegedly came from a burglary of Foot Gear in West Point, Mississippi.  The indictment stated,

“On or about the 18th day of October, 2005, in the County aforesaid, [AnthonyTucker] did unlawfully, willfully and feloniously, receive or possess thepersonal property of Haresh Khiantani d.b.a. Foot Gear, to-wit: athleticapparel, said property having a total value in excess of $500.00, and havingbeen feloniously taken away from the said Haresh Khiantani d.b.a. Foot Gear,and further that the said ANTHONY TUCKER knew or should have know atthe time of the receiving or possessing of said property that said property hadbeen so feloniously taken, in violation of MCA §91-17-70; contrary to theform of the statutes in such cases made and provided, and against the peaceand dignity of the State of Mississippi.”


The majority held that  the phrase “athletic apparel” did no describe the stolen property with sufficient particularity as required by law.  They found that the phrase was unconstitutionally vague and that Tucker was not put on sufficiently legal notice as to the charges against him.


Justice Pierce dissented, arguing that bags of clothes were recovered from Tucker, and the fact that some blue jeans were recovered, i.e. not athletic apparel, does not make it uncertain.


In Winters v. State, Jeremy Winters, age 20!, was convicted of DUI 3rd.  The indictment contained the language included in the Zero Tolerance for Minors section of the DUI law, but it also contained his previous convictions, and the felony section of the code as well.  Winters was sentenced as a felony.  Justice Kitchens in his dissent stated that since the indictment was ambiguous, the rule has always been to sentence according to the lesser of the two possibilities.