Court of Appeals 1/11/11

AMY MARIE LENARD v. STATE OF MISSISSIPPI

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?

NATHAN SELLERS V. STATE OF MISSISSIPPI

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

EMERSON OSBORNE a/k/a EMMERSON OSBORNEv.STATE OF MISSISSIPPI

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

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.

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.

 

 

Might be time to use that Maryland Law License.

Arvin Phillip Johnson was convicted of possession of a controlled substance in Marion County in March of 2009.  He was found to be in possession of .7 grams of cocaine.  On its face, an unremarkable case.  I generally do not read all that closely the affirmed decisions that do not have a dissenting opinion attached, but there was a dissenting vote so I took a look.  Wow.

My former, and at time of the incident, current employer, the Mississippi Bureau of Narcotics did a routine buy/bust in Marion County in 2006.  They wired up the CI to go and purchase marijuana from “Teddy”.  The CI went to the convenience store where Teddy worked, bought the marijuana from Teddy’s supplier and left.  One team of agents followed Teddy’s supplier, who left after the deal, and the other team, three agents per team, met the CI and then went to the convenience store to arrest Teddy.  In the intervening minutes another car, driven by Johnson, pulled up to the store.  When the agents got out they placed both Teddy and Johnson on the ground and handcuffed them.  On the ground and handcuffed them.

Agents then searched the two men and found no weapons, no drugs, and no marked money on either.  The agents then searched Johnson’s car.  Johnson’s attorney, during the hearing on the motion to suppress, questioned Jon Harless of MBN and under cross-examination, Agent Harless testified that Johnson was not under arrest at the time the vehicle was searched and that he was handcuffed on the ground.  In fact, they had no information on Johnson at all.  They searched Johnson’s car and found .7 grams of cocaine in the visor of the vehicle.  The Court of Appeals found that the search was reasonable to ensure officer safety.  The Court correctly cites to Arizona v. Gant, a U.S. Supreme Court case that says:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  When these justifications are absent, a search of anarrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

The Court found that since Johnson was not handcuffed in the back of a police car, merely handcuffed on the ground, he could still have somehow gotten to a weapon.

The Court goes on to cite to the 5th Circuit in U.S. v. Sanders

The United States Court of Appeals for the Fifth Circuit also has noted this danger, stating:Handcuffs are a temporary restraining device; they limit but do not  eliminate a person’s ability to perform various acts.  They obviously do not impair aperson’s ability  to  use his legs and feet, whether to  walk, run, or kick.Handcuffs do limit a person’s ability to use his hands and arms, but the degree of the effectiveness of handcuffs in this role depends on a variety of factors,including the handcuffed person’s size, strength, bone and joint structure,flexibility, and tolerance of pain.  Albeit difficult, it is by no means impossible for a handcuffed person to obtain and use a weapon concealed on his person or within lunge reach, and in so doing to cause injury to his intended victim,to a bystander, or even to himself. Finally, like any mechanical device,handcuffs can and do fail on occasion.

As was very astutely pointed out to me, one mechanical device, i.e handcuffs is not enough to suppress a search, but two, i.e. handcuffs and a car door, are.

Supreme Court Hand Down 11/11/10

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

Supreme Court Hand Down for 11/04/10

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.

 

Supreme Court Hand Down 10/28/10

In the companion case to Edmonds v. State, http://www.mssc.state.ms.us/Images/Opinions/CO38911.pdf,
one of the most transforming decisions in recent Mississippi jurisprudence, the Supreme Court today reversed the death penalty sentence of Kristi Fulgham.

Kristi Fulgham was indicted for capital murder in the death of her husband Joey Fulgham. Along with Kristi, her 13 year old half brother Tyler Edmonds was also indicted. Tyler was convicted and his trial and conviction made headlines as he was 13 years old at the time and sentenced to life. His conviction was later reversed and on retrial he was acquitted. Kristi was convicted and appealed her conviction. The Supreme Court affirmed her conviction but reversed her sentence of death based on the trial court’s excluding certain mitigation evidence. Justice Kitchens had a specially concurring opinion that set out grounds that will certainly be raised on post-conviction relief as the utter lack of any evidence, either in the indictment, testimony, physical evidence, etc. of the underlying offense of robbery that led to the capital murder charge. The State did not allege what thing was actually “robbed” in the indictment or throughout the trial. The only mention of an item being taken was in the prosecution’s closing argument. This case will more than likely be reversed on the guilty phase in the coming months. Without proving the underlying offense of robbery, the charge will probably be murder, taking the death penalty off the table.

Supreme Court Hand Down 10/7/10

Delker v. State.  James Robert Delker was indicted and subsequently convicted of DUI 3rd and sentenced as an habitual offender to five years, day for day.  Delker was observed by the Chief of Police of Marion, Mississippi going over the posted speed limit.  The chief activated his blue lights, at which point Delker sped up and was later stopped.  The chief noticed that Delker appeared impaired and Delker later refused to take a breathalyzer.  Delker was found guilty at trial.  Delker appealed on the grounds that he was not within the city limits of Marion and as such, the chief had no authority to arrest him.  Delker filed a motion to suppress that was denied.  The Court of Appeals affirmed and the Supreme Court granted Cert.  The majority held that the exclusionary rule did not apply as the chief made a mistake.  The dissent, by Justice Chandler held that the a chief of police not knowing his own municipal boundaries was at least gross negligence and as such the rule should apply and the suppression should have been granted.

 

And to toot my own horn, the Supreme Court granted a petition for cert today I helped write.