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.



Court of Appeals 1/11/11

Posted in Uncategorized on January 13, 2011 by tobywelchlaw


A very strange case.  Lenard was convicted of felony child deprivation.  It sounds horrible.  The facts are confusing as to what, if any, crime she committed.  On October 26, 2007 Lenard served as a fill-in for Stephanie Havens at David Walker’s law office in Batesville.  She asked Shannon Caine, her friend and former boyfriend, to babysit her son Aaron while she was at work.  Late in the day, Caine called Lenard to tell her that Aaron had been burned by hot water.  He said he had been running a bath for Aaron when the phone rang and he got distracted and Aaron had gotten in the tub and burned himself.  Caine brought the baby to Lenard where she comforted him.  Shannon’s mother testified that she saw the baby’s neck and it was red and he was fussy.  The next day, Oct. 28, Mrs. Caine saw the child and he was playing normally with his brother.  An investigator at Walker’s law firm testified that he saw the child and during the time period and he appeared to be playful and not in real pain.

Other witnesses then testified that they say the boy and between Oct. 27 and Oct 29 and his back appeared sunburned but the boy appeared to be ok.  Ms. Havens testified that she saw Aaron’s back and it appeared to be sunburned and she suggested that some salve be put on the boy’s back.  Lenard put something called Burn Gel Plus on Aaron’s back on Oct. 30 and the following morning Lenard said that the baby’s back appeared different.  Lenard brought the child to work and there others examined him and his back appeared to be severely burned, it had blistered, and then Lenard took Aaron to Tri-Lakes Medical Center in Oxford.  There the police were called and the child was taken to the burn center at Le Bonheur Children’s hospital in Memphis.  Lenard and Caine were subsequently indicted for felony child deprivation.  During the trial three experts testified, a child abuse specialist, a treating doctor and a pharmacist.  The doctor stated that the skin would begin to blister in one to three days.  The pharmacist testified that the gel caused a chemical burn that aggravated the injury and contributed to the damage in the photographs.  The jury convicted her.

The Court of Appeals reversed the conviction based on the trial court’s refusal to grant the defense’s proposed instructions as to culpable negligence and “mistake-of-fact”. I can’t seem to understand what crime was committed.  If the testimony showed that the child was ok with a sunburned back, and after applying the gel three days later the blisters appeared, again after the gel is applied,  and Lenard took the child to the hospital the same day, what deprivation was there?  If a child is taken to the doctor when a problem appears, how can that be deprivation?


I don’t usually write about PCR’s but this one contains some scary facts.  For lawyers.  Sellers was convicted of aggravated assault.  He hired Kevin Camp to defend him in the trial.  In the contract between Sellers and Camp, Camp clearly points out that the fee does not include any appeal to a higher court.  The Court of Appeals held that a criminal trial lawyer’s obligation to file a client’s appeal is part of their obligation as trial counsel.  It remains viable until the court gives the trial counsel leave to withdraw.  I don’t know if that means it is the trial counsel’s duty to perfect an appeal, should the client wish one, or if that means that a trial counsel has to perfect an appeal and then file the briefs and carry the appeal to its conclusion.  I hope it is not the latter.  To basically interfere with a contract, and have the appellate courts mandate that regardless of the agreement between two parties, a lawyer must do work for free, if necessary, seems to be unjust.  If a lawyer’s duty is to handle an appeal through completion, does it terminate when the Court of Appeals rules?  Does a lawyer then have to file a motion for reconsideration?  A petition for writ of certiorari to the Mississippi Supreme Court?  The U.S. Supreme Court?  Where does the duty end?  If the Court of Appeals means that a lawyer must perfect an appeal, that I agree with.  I will be curious to see what, if anything, is written further about this.

Supreme Court 1/6/11

Posted in Uncategorized on January 13, 2011 by tobywelchlaw


Osborne was convicted of capital murder and was sentenced to life without parole.  The Court affirmed his conviction.  The major issue raised, and the reason Justices Kitchens Graves and Dickinson dissented, was the failure of the trial court to declare a mistrial based on a sitting juror making inappropriate comments during voir dire. During jury selection, Juror Hull testified that he wanted to  know if he was going to sit on the jury rather than just sit around and wait.  Another potential jury member, Pitts, remarked that “I wish we would just hang him and get it over with and get out of here.”  Pitts was subsequently sat on the jury.  When brought to the trial court’s attention, Pitts was questioned and didn’t remember making the statement and she confirmed her impartiality.  The trial court deemed her remark ambivalent and merely a poor choice of words indicating a desire to avoid jury duty, like many others.  The trial court denied the motion for mistrial and the majority held that the trial court was in best position to determine if the jury was impartial and as such found the issue without merit.   I don’t know how her comment could be considered ambivalent.  In any trial, but a capital murder trial especially, jurors being impartial is crucial.  I wonder if the court would have reached a different decision if the jury had sentenced Osborne to death.

Supreme Court 12/16/10

Posted in Uncategorized on December 16, 2010 by tobywelchlaw

The Supreme Court today did away with the State’s ability to amend an indictment after a conviction.  In Gowdy v. State, Gowdy was indicted for Felony DUI.  He was set for trial on February 4, 2009.  The morning of the trial, he was offered a plea bargain of one year to serve and two years of post-release supervision.  Gowdy rejected the offer and proceeded to trial.  The jury voted to convict.  The following day, the State informed the Court that it had just received information as to Gowdy’s prior convictions in Iowa and that they would seek to amend the indictment to reflect habitual status.  Sentencing was held two months later and Gowdy was sentenced under Section 99-19-83 to life imprisonment.  Gowdy appealed the life sentence.


The majority held that an amendment shall be allowed only if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised.  “We find that, in line with Akins, an amendment to the indictment to allege habitual status after conviction is an unfair surprise.”  The dissent states that habitual status is not an offense, and thus has no bearing on the indictment.  I have to agree with that.  It also states that there is no constitutional right to a plea bargain.  Again, correct.  However, there has to be fairness for a justice system to properly work.  It is not fair for a person to exercise their constitutional right to a trial and if they lose, be subject to a penalty that they were not subject to during trial.  All today’s ruling states is that a defendant has to be made completely aware of the entirety of the penalty they are facing.  Rule 8.04 of the Uniform Circuit and County Rules  states before a defendant can plead guilty, the trial court has a duty to ensure that he “understands the nature and consequences of the plea, and the maximum and minimum penalties provided by law.” “The rule should not be different for defendants who choose to exercise their right to trial by jury.”


On a tangential note, the dissent points out that seventy days passed between Gowdy being made aware of the convictions and the proposed amendment and the sentencing hearing and that Gowdy could not have been unfairly surprised.  “Further, the record is clear that the State did not have the information at the time it offered the plea deal to Gowdy.”  Forgetting the fact that the State got the information it did not have the day of trial, the day after trial, the State had arrested and indicted Gowdy approximately 10 months prior to the trial.  Why a duty, a duty laid out in UCCR 9.04 (A) (3) “The prosecution must disclose… Copy of the criminal record of the defendant, if proposed to be used to impeach”, the State had is weighed against the Defendant, and not the State, I don’t know.

Reports of the death of the 4th Amendment have been somewhat exaggerated.

Posted in Uncategorized on December 15, 2010 by tobywelchlaw

The 6th Circuit Court of Appeals held in United States of America v. Warshak on December 14, that a persons emails can not be seized by the government without a search warrant based on probable cause.  I’d like to use the real Mark Twain quote instead of having to paraphrase it, but the Court held that since the government relied upon the Stored Communications Act of 1986, the warrantless seizure was ok under a good faith exception and the emails did not have to be excluded.


The government got Warshak’s ISP to turn over all his emails, past and all future ones, without getting a search warrant.  The government relied upon the Stored Communications’s Act, which when passed in 1986, had not contemplated email and the public’s utter reliance upon it.  The 6th Circuit found email analogous to regular letters and said, “As we have discussed above, the police may not storm the postoffice and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant, that is.”  But since the SCA was there, the government relied upon it in good faith and thus the emails were not supressed.

One would hope that going forward, the government, in whatever manifestation it appears in, would have to get a search warrant to open mail, electronic or otherwise.