Archive for February, 2011

MS Supreme Court 2/17/11

Posted in Uncategorized on February 18, 2011 by tobywelchlaw


Kiker was convicted of Murder.  Kiker claimed that his wife came after him with a gun and in the struggle the gun went off killing her.  The only evidence to contradict that was a supposed confession he gave in jail to a Bobby Crawford.  Kiker was represented at trial by Darryl Hurt and Sidney Barnett.  During Hurt’s cross of Crawford, Crawford was asked if he was under indictment and Crawford said he didn’t know, to ask his lawyer, Barnett.  Because Crawford couldn’t be fully crossed without undermining his credibility, which Barnett would have to bolster when Crawford’s case came up, there was a conflict of interest.  As Kiker didn’t waive it, the Court reversed the case and remanded it.


Court of Appeals 2/1/11

Posted in Uncategorized on February 3, 2011 by tobywelchlaw


Another failure to give jury instructions case.  Ford was convicted of manslaughter and sentenced to serve 18 years.  In May of 2008, Ford and his five year old son were at a convenience store to get gas and some groceries.  While there Cassius Gallion approached Ford and an argument ensued,  which, according to Ford, was over 5 dollars Ford refused to give Gallion the week prior.  The store employee was afraid of a fight and she escorted the five year old to the car.  As Ford continued to pump gas, Gallion and some of his friends surrounded Ford and began yelling at him.  One of Gallion’s friends, Mario Moore ran up to Ford and hit Ford and/or Ford’s friend, according to video surveillance.  Ford fell into his car, then went to his trunk and got a gun.  The video isn’t clear but Moore began to run when Ford got to his trunk, or after he fired his first shot. Ford claimed to have shot into the air, but nonetheless Moore was struck and died later.

Forgetting the fact that Ford probably should not have been indicted, much less tried, he was found guilty of manslaughter.  Ford appealed stating that the Judge was in error for not allowing his justifiable homicide instruction.

Ford argues this instruction was necessary to instruct the jury on three separate theories of his defense that were supported by the evidence and not covered by other instructions.  Ford claims that: (a) he had a right to use deadly force to resist the commission of a felony against him, specifically robbery; (b) he had a right to use deadly force to protect his son if he reasonably feared that his son was in danger of serious bodily harm or death;and (c) he had a right to use deadly force if he reasonably feared serious bodily harm, death,or the commission of a felony from the entire group that surrounded his car, rather than from Moore alone.

The trial judge denied his proffered instruction, and the Court of Appeals, in holding with the new wave of rulings from the Supreme Court, reversed the conviction and remanded for a new trial for failure to give the requested instruction.



Showers was convicted of manslaughter and sentenced to 20 years.  He appealed on the grounds that the Court erred in admitting video footage of Showers after he requested an attorney.  The Court of Appeals affirmed his conviction.

The facts are not really in dispute here.  Showers, 16, arrived home and found people in his house.  He asked everyone to leave so that he could talk to his mother.  Jeremy Munson, a guest, refused.  They got into a fight and Showers ended up stabbing Munson, killing him.

Showers was taken to the Columbus Police Department and was questioned.  He asked for a lawyer and the questioning ended.  However, Officer David Criddle returned to the room and told Showers he would listen if Showers wanted to make a statement.  Criddle continued to ask questions and Showers admitted to getting the knife.  The police then allowed Showers mother and aunt to talk to Showers.  All the while the Columbus Police Department is videotaping this, without Showers or his relatives knowing.  The majority held that the statement to the officer was improper and should have been suppressed.  But the majority held that since the relatives were not police officers the statements to them were ok.


Justice Ishee, in his dissent, points out that once Showers had requested an attorney, any statements obtained from Showers while in custody should be inadmissible.  He states, in regard to Columbus Police Department, “What makes this even more offensive, is the fact that this is the stated policy of the Columbus Police Department–that is, essentially to obtain evidence through secretive, shady,and illegal means.”  Does this mean that when a lawyer speaks with his attorney at the Columbus Police Department, the police are video taping it?  I have not had a client in Columbus PD, so I don’t know what the logistics are, but that is disconcerting.  I doubt we’ve heard the end of this case.




Supreme Court 1/20/11

Posted in Uncategorized on February 1, 2011 by tobywelchlaw


Harness was convicted of aggravated DUI and sentenced to 15 years to serve.  Harness appealed his conviction and the Court of Appeals affirmed and the Supreme Court granted Cert and reversed his conviction, but on the State’s Motion for rehearing, reversed themselves and affirmed his conviction.


This case presents a very scary proposition.  Harness and Clyde Hampton, the victim, were involved in a head on collision and Hampton later died from the injuries sustained.  Harness was taken to the hospital where his blood was drawn and subsequently sent to the Mississippi Crime Lab.  A test was performed and the result came back with a BAC between .1176 and .1234.  However, since the results were not within the plus or minus two percent allowed by the crime lab a second test was to be conducted.  A second test resulted in .1175 and .1170.  A report listing his BAC as .11 was sent to the Jackson Police Department with this note:

This report represents the analytical results of the examinations performed on the items of evidence in this case . . . . Should additional material be required for court purposes, please contact the laboratory as soon as possible.  All samples submitted for toxicological examinations will be routinely disposed of six months after analyses are completed. If you anticipate that this evidence will be needed, please contact the laboratory to arrange its return.

Harness was indicted on April 8, 2004.  He filed his motion for discovery on July 22, 2004, which included a request to have the blood sample sent for independent testing.  The State failed to produce the blood sample and a Motion to Compel was filed on September 30, 2004 and a hearing was set for November 5, 2004, but the crime lab disposed of the blood sample a week AFTER the motion to compel was filed.


The Supreme Court originally agreed with Harness and reversed the conviction but on rehearing, changed its mind.  Justice Kitchens, in his dissent, stated that on May 27, 2010 the Supreme Court, in an 8 to 1 vote, reversed Harness’ conviction, and there were no errors of law or fact to warrant a rehearing.  The U.S. Supreme Court has implemented a three prong test in dealing with destruction of evidence.  (1) the evidence possessed exculpatory value prior to its destruction, and (2) the evidence was of such a nature that the defendant could not have used other comparableevidence to mount a defense.  Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102L. Ed. 2d 281 (1988), added a third factor: the defendant must also demonstrate that the State acted in bad faith in failing to preserve the evidence in question.  He goes on to say that the fact that the DA’s office was on notice for three months prior to the destruction of the evidence, via formal motion for discovery, and a motion to compel, and that the prosecutors were the only ones who could make the crime lab not destroy the evidence, is tantamount to a willful disregard to the affirmative duty to preserve evidence that might be expected to play a significant role in the suspect’s defense.  He felt that Harness’ due process rights were violated.  While a Motion for Discovery is a form motion, and an argument could be made as to how much weight it really carries, a Motion to Compel, in a criminal case, should have clued the DA’s office in.  When they didn’t call to check on the blood sample until 15 days later, a week after it had been destroyed, the evidence should have been suppressed.