MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 1/24/2017

Transcription

1 MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 1/24/2017 BEDFORD CARE CENTER OF MARION, LLC v. NICHOLSON, NO CA COA Civil Topics: Unemployment benefits - Misconduct - Falsification of employment application HON. LESTER F. WILLIAMSON JR. LAUDERDALE COUNTY CIRCUIT COURT ROBIN L. ROBERTS CENITHER NICHOLSON (PRO SE) Judge Greenlee Affirmed. While working as certified nursing assistant at East Mississippi State Hospital, Cenither Nicholson injured her back at work. The Hospital paid for Nicholson s emergency-room visit. Four years later, Bedford Care Center of Marion LLC hired Nicholson as a CNA. As part of the post-offer hiring process, Nicholson filled out a questionnaire asking if she had ever been injured on the job or filed a workers compensation claim. She answered no. Some months later, a routine audit of personnel files revealed the previous workers compensation claim on her behalf. Nicholson was terminated from Bedford Care for falsifying information on her employment application. Nicholson filed an unemployment claim which was denied. Nicholson appealed. The administrative law judge determined that Nicholson was disqualified from receiving benefits. Nicholson appealed to the Mississippi Department of Employment Security s Board of Review. The Board affirmed the decision of the ALJ. Nicholson appealed to circuit court which reversed the Board. Bedford Care appeals. In misconduct cases, the employer bears the burden to prove by substantial, clear, and convincing evidence that a former employee s conduct warrants disqualification of benefits. Disqualifying misconduct is conduct evincing such willful and wanton disregard of the employer s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Falsification of an employment application can be grounds for disqualification of benefits. Here, Nicholson did not understand the application questions about workers compensation to be related to her emergency-room visit and injury from several years previously. Her testimony at the hearing supports that she understood filing a workers compensation claim to involve receiving a paycheck substitute for inability to come to work, and that she did not understand her employer s payment for the emergency-room visit to be within the concept of workers compensation. This misunderstanding falls short of willful and wanton misconduct that would disqualify her from receiving unemployment-insurance benefits. Thus, there is no error. Page 1 of 17

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3 DAVIS v. DAVIS, NO CA COA Civil Topics: Modification of child support - Section Contempt - Lump-sum alimony HON. VICKI B. DANIELS DESOTO COUNTY CHANCERY COURT JERRY WESLEY HISAW, M.W. ZUMMACH A.E. (RUSTY) HARLOW JR., DALANEY LEE MECHAM, KATHI CRESTMAN WILSON Judge Fair Affirmed. Suzann and Greg Davis were divorced on the ground of irreconcilable differences. They entered into a property, child-support, and child-custody agreement, with Suzann retaining physical custody of all three children. Suzann did not request Greg pay child support. The judgment was later modified by agreement after Suzann moved to South Carolina. Both judgments were consent orders approved by the chancellor. In one judgment, both parties agreed that Greg would pay $1,850 a month in child support. The second judgment awarded custody of Greg and Suzann s middle child to Greg, with the other two children remaining with Suzann. Visitation was modified and set out in detail. Monthly child support payable from Greg to Suzann was set at $1,000 per month, to increase automatically to $1,750 should the middle child move in with her mother and become enrolled as a full-time student (which did not occur). Specifically included in the order was their agreement that [t]he payment of said child support shall constitute [Greg s] only obligation for support of the children to [Suzann]. In 2014, Greg was convicted of criminal charges of making a false representation with the intent to defraud the government and embezzlement. A couple of weeks later, Suzann filed for further modification of physical custody and for contempt on Greg s part for missing required payments, including monthly alimony payments, which he had not paid for a year. Greg answered and sought modification of child support based on the expected emancipation of the oldest child or, in the alternative, based on the fact that she refused to have any relationship with him. The chancellor denied all relief sought by Suzann. Monthly payment of $2,300 remained an obligation of Greg. The chancellor found that his childsupport obligation for the two children living with Suzann was $1,196 a month twenty percent of Greg s monthly income. The chancellor then ordered Suzann to pay support for her child still living with Greg in the amount of $632 fourteen percent of her monthly income. Offsetting the payments, Greg s obligation for child support was reduced to $564 per month. Suzann appeals. Issue 1: Modification of child support Suzann argues that the chancellor erred in lowering Greg s child support. The burden of proof that must be met by the party seeking a financial modification is to show a material change of circumstances of one or more of the interested parties. The change must occur as a result of after-arising circumstances of the parties not reasonably anticipated at the time of the agreement. In this case, the child support approved in 2013, at the request of both Page 3 of 17

4 parties, was $1,000 an amount lower than provided by the section guidelines. So, in actuality, the chancellor increased Greg s child-support obligation by $196 (to conform with statutory guidelines), but that figure was offset by the chancellor s decision to order Suzann to pay Greg child support for their one child living with Greg. When parents are given custody of separate children, a chancellor may require the parent with the higher income to pay only the difference in the child support that each custodial parent owes to the other. The chancellor found Greg s criminal convictions in 2014 to be a substantial and material change in circumstances. The chancellor based her finding on the fact that Greg only agreed to pay $1,000 a month because he thought he would have other income besides his state retirement. Thus, there is no abuse of discretion. Suzann also argues that the chancellor erred in including lump-sum alimony as part of her income when calculating her child-support obligation, because lump-sum alimony is not the type of alimony contemplated in the statute. A chancellor retains the discretion to classify lump-sum alimony as income when calculating child support. Thus, there is no error. Issue 2: Contempt The chancellor was within her discretion to deny Suzann s request for contempt. A case for contempt is based on prima facie evidence of failure to comply with a court order. Here, the chancellor found that Greg was never in default because he had tendered a payment to Suzann greater than the amount owed at the time of the hearing. Greg had paid $30,000 to Suzann when he sold their former marital home, which he had been awarded in the divorce. The chancellor found that payment sufficient to cover all the unpaid alimony. Page 4 of 17

5 Topics: Wills, trusts & estates - Breach of duty of loyalty by trustee - Section Section Violation of trust agreement - Damages - Approval of withdrawals - Attorney's fees CASSIBRY v. CASSIBRY, NO CA COA HON. CATHERINE FARRIS-CARTER BOLIVAR COUNTY CHANCERY COURT JEFFREY A. LEVINGSTON, KAYTIE MICHELLE PICKETT STEVEN TODD JEFFREYS Judge Barnes Civil Affirmed in part, reversed and remanded in part. Napoleon Cassibry Jr. died in 1998, leaving an estate of $1,225,064. He was survived by his wife, June Cassibry; three sons: Napoleon, Graham, and John Cassibry; and their issue. Per the terms of his will, the Napoleon LePoint Cassibry Jr. Family Trust was established, and his eldest son, Napoleon, was appointed as Trustee. The trust was initially valued at approximately $300,000, consisting of 2,789 shares of Mr. Cassibry s stock in Cleveland State Bank (valued at $93 per share), and a one-half interest in the marital home, which was valued at $75,000. By 2004, the Family Trust owned 5,558 shares of CSB stock and 7,500 shares of Covenant Bank stock. Upon June s death, the Trustee was to transfer any remaining trust property in equal shares to the three sons. From May 2003 to January 2008, it is undisputed that Napoleon withdrew at least $55,325 in funds from the Family Trust, which he characterized as loans. He claimed that June authorized the withdrawals. Napoleon also disbursed funds from the account for his daughters expenses. In 2004, Napoleon pledged the Family Trust s stock holdings as collateral for a $200,000 CSB loan to buy stock in Paragon National Bank. Because of a loss in stock value due to the economic climate, the pledged stock had to be sold in 2007 to repay the loan debt. In 1999, June formed the Cassibry Children Irrevocable Trust, with Napoleon appointed as Trustee. The trust was funded with 5,563 of June s shares of CSB stock, which were collectively valued at approximately $517,000, and the beneficiaries were Napoleon, John, and Graham. The purpose of the trust was to avoid estate gift tax and to protect the assets from pending lawsuits involving John s ex-wives. Napoleon withdrew funds in excess of the trust s annual withdrawal provisions. He also pledged the trust s entire 5,563 shares of CSB stock as collateral for a $200,000 loan to buy Paragon stock, which he was authorized to do under the trust s terms. In 2000, June established the June C. Cassibry Irrevocable Trust, with Napoleon as Trustee, and the three brothers as beneficiaries. The sole purpose of this trust was to receive life-insurance proceeds upon June s death. After expenses of the estate were paid, the beneficiaries were to receive the remaining proceeds in equal shares. In 2004, Napoleon purchased 20,000 shares of Paragon stock in his own name, and 20,000 additional shares which were held by a shell partnership, Cassibry Brothers Partnership. Napoleon and John were the only CBP partners. Although the shares were held by Napoleon and CBP, there was a stock-collateralization agreement that stated actual ownership of the stock was roughly as follows: the Family Trust and CBP collectively owned seventy-five percent (75%), while Napoleon s two daughters owned twenty-five percent (25%). To purchase the shares, Napoleon used a personal $200,000 line of credit at CSB, as well as a Family Trust Page 5 of 17

6 CSB $200,000 line of credit. In 2004, Napoleon withdrew $190,000 from the Family Trust Union Planters checking account. Napoleon claims that money also went to purchase the Paragon stock, but there is no documentation to that regard. In 2007, the loans used to purchase the stock were in default. To satisfy the debt, Napoleon found a purchaser for the CSB stock. However, since Graham never agreed to participate in the Paragon stock purchase, Napoleon and John distributed to Graham one-third of the Children s Trust CSB stock. Napoleon also sold June s home, and Graham purchased her a condominium with the real-estate proceeds. June died in 2008, and $401, was paid into the JCC Trust. Napoleon used the assets to pay off debts and liabilities associated with the Paragon transaction, even though the trust s terms did not authorize such expenditures. In 2009, Graham filed a complaint against Napoleon, as Trustee and individually, and his brother, John, alleging that Napoleon breached his fiduciary duty in relation to the three trusts. Graham requested that Napoleon be removed as trustee and a constructive trust be established. The chancery court preliminarily ordered Napoleon to deposit $239, related to the JCC Trust into the court registry. An accounting was ordered by the chancery court. After a bench trial, the chancery court determined that Napoleon s investment decisions concerning Paragon were not a breach of fiduciary duty, since no one could have predicted the economic downturn, she did conclude that Napoleon had a duty of loyalty as Trustee, and his cash withdrawals and loans for his own benefit from the three trusts were a blatant example of breach of fiduciary duty. The chancellor also determined that Graham was entitled to 7,757 of the Paragon shares, as a beneficiary of the Family Trust. The chancery court, however, rejected Graham s remaining claims and Napoleon s counterclaim, and denied Graham s request for an award of attorney s fees. The chancery court awarded Graham and John the remaining JCC Trust insurance proceeds on deposit with the chancery clerk, with each receiving $109, Furthermore, Napoleon was ordered to pay Graham an additional money judgment of $143,665.86, plus post-judgment interest in the amount of eight percent (8%) per annum from the date of the judgment. The chancellor later amended the judgment and awarded Graham $28,500 in attorney s fees, in addition to $144, in monetary damages. Napoleon was also ordered to pay $17,902 in costs (for the accounting), and to transfer 7,757 shares of Paragon National Bank stock to Graham. Napoleon appeals. Issue 1: Breach of duty of loyalty Napoleon argues that the chancellor applied an erroneous legal standard in finding that Napoleon s loans from the Children s Trust constituted a breach of the duty of loyalty. Under the terms of the trust agreement, the Trustee was authorized to make loans, secured or unsecured, with interest or without, to the executor of the estate of the Grantor, or to a beneficiary, and shall be without liability for a loss resulting therefrom. He cites section (b)(1) as support. However, section was not enacted until 2014, after the chancery court entered its amended final judgment. Since the statute was not enacted until after the chancery court rendered its decision, applicability of the new statute would substantially interfere with the effective conduct of the judicial proceedings under subsection (a)(3). Further, subsection (a)(5) is applicable to Napoleon s actions taken before July 1, Napoleon s withdrawals are act[s] done before July 1, 2014, and are not affected by the Code s enactment. The duty of loyalty has been codified in section , which states: A trustee shall invest and manage the trust assets solely in the interest of the beneficiaries. Thus, there is no merit to Napoleon s claim that the chancellor erroneously applied the duty of loyalty. Napoleon also argues that since there was no evidence of any injury suffered by Graham as a result of Napoleon s loans to himself, there was no breach of fiduciary duty. There is no dispute that Napoleon was authorized to make Page 6 of 17

7 loans to himself as a beneficiary under the terms of the trust; nor does Graham argue that Napoleon took more than his one-third share. Rather, Graham asserts Napoleon breached his fiduciary duty with the thousands of dollars poured into the Children s Trust accounts and thousands of dollars poured directly into Napo[leon] and his family s pockets, Napoleon violated the trust s annual withdrawal limits, and he failed to provide a proper accounting as required by the trust. Instead of acting with due regard to his obligation as a fiduciary, Napoleon clearly violated the terms of the trust agreement. The maximum amount that Napoleon could have withdrawn from the trust from 2003 to 2007 was $50,000; yet he withdrew more than double that amount. Furthermore, he had no recollection of the purpose of the withdrawals or loans, as he terms them. Napoleon also failed to provide an annual statement of each receipt and disbursement to each beneficiary, as required under the trust agreement. Thus, there is no error in the chancellor s finding that Napoleon breached his duty of loyalty as a fiduciary. In addition, the damages award was within the discretion afforded the court, particularly as it is apparent the chancellor took great efforts to make sense of the convoluted figures and various accounts involved with both the Children s Trust and the Family Trusts. Issue 2: Damages Napoleon argues that, as a whole, the withdrawals from the Family Trust should not be charged against him, as there was undisputed evidence... that June gave permission for each of these withdrawals. The only evidence to support Napoleon s claim is his own testimony that he [had] discussions with [his] mom about her business, and about things she wanted done through the trust, and she directed that in conversations that I had with her. The chancellor pointedly asked when Napoleon was granted power of attorney over his mother, and it was noted that his power of attorney was executed approximately the same time as his father s will was probated. Napoleon also admitted that his mother was very tentative about giving her bank stock away, because she felt a very personal relationship with it, which is why the Children s Trust had been established to protect her assets. Yet he pledged those same assets to obtain a loan for a business venture. Thus, there is no merit to the argument that the chancery court had to conclude that June approved of Napoleon s withdrawals. Issue 3: Attorney s fees Napoleon appeals the chancellor s award of attorney s fees, which were granted in response to Graham s motion to amend the judgment. Graham acknowledges the attorney s fee itemization was not properly admitted into the chancery court s record. Therefore, the case is reversed and remanded for a hearing on the award of attorney s fees. CONCUR IN PART AND IN RESULT WITHOUT OPINION Judge Wilson Page 7 of 17

8 Topics: Modification of child custody - Modification of child support - Section Recommendations of guardian ad litem - Power of attorney DAVIS v. DAVIS, NO CA COA HON. WILLIAM R. BARNETT COVINGTON COUNTY CHANCERY COURT AUDRY REGNAL BLACKLEDGE W. TERRELL STUBBS Chief Judge Lee Affirmed. Civil The divorce decree of Gary Davis and Angela Davis incorporated a child-custody, support, and property-settlement agreement, which provided for joint legal and joint physical custody and visitation for the noncustodial parent of the couple s two children. Angela was the custodial parent, and Gary was the noncustodial parent with visitation. The agreement also provided that Gary would pay $500 per month in child support. In 2013, Angela filed a petition to terminate Gary s parental rights or, in the alternative, modify Gary s custody/visitation rights and increase the amount of child support. Gary filed an answer and a counterclaim for contempt and for modification, seeking sole custody of the children. The chancellor appointed a guardian ad litem to make recommendations as to the termination of Gary s parental rights. After a hearing, the chancellor denied Angela s requests to terminate Gary s parental rights, modify custody/visitation, and increase the amount of child support. But the chancellor did order Gary to pay the private-school tuition for both children as long as both girls continued to visit Gary. The chancellor also ordered that Gary could execute a power of attorney allowing his current wife to have access to the children s school records while Gary was working out of town. Angela appeals. Issue 1: Modification of custody Angela argues that the chancery court should have modified custody/visitation. It seems Angela would like to change the child-custody, support, and property-settlement agreement to reflect what is already in practice physical custody to Angela and visitation to Gary. To modify child custody, the noncustodial party must prove that a substantial change in circumstances has transpired since issuance of the custody decree; that this change adversely affects the child s welfare; and that the child s best interest mandates a change of custody. Here, the chancellor did not abuse his discretion in denying both parties petitions for modification. The evidence presented failed to show a material change in circumstances had occurred. Issue 2: Modification of child support Angela argues that the chancery court should have increased the amount of child support. An award of child support is governed by section The guidelines establish that there is a rebuttable presumption that an award of child support should be twenty percent of the noncustodial parent s adjusted gross income where two children are due support. Page 8 of 17

9 Although the chancellor did not grant an upward modification of Gary s monthly childsupport payments, the chancellor did order Gary to pay the children s private-school tuition. Angela testified that tuition for both children was approximately $900 per month. As a result, Gary would be paying approximately $1,400 per month in child support. Thus, there is no error. Issue 3: Recommendations of guardian ad litem Angela argues that the chancery court should have followed the GAL s recommendation as to the modification-of-custody/visitation issue, or it should have provided written findings as to why the recommendations were not followed. When a chancellor s ruling is contrary to the recommendation of a statutorily required GAL, the reasons for not adopting the GAL s recommendation shall be stated by the court in the findings of fact and conclusions of law. Here, the GAL was appointed solely to investigate the termination of parental rights. The GAL recommended that Gary s parental rights not be terminated, and the chancery court followed the GAL s recommendation. Since the GAL was not appointed to investigate the modification-of-custody/visitation issue, the chancellor did not err by failing to state reasons for not adopting those recommendations. Issue 4: Power of attorney Angela argues the chancery court should not have given Gary s wife access to the children s school records. The chancellor gave Gary the opportunity to allow his wife access by way of a power of attorney and noted that a power of attorney would allow her to get important information from the school if Gary was out of town. There is no error in this ruling. Page 9 of 17

10 Topics: Possession of weapon by convicted felon - Suppression of confession - Sufficiency of evidence - Constructive possession - Jury instruction ADAMS v. STATE, NO KA COA HON. LAWRENCE PAUL BOURGEOIS JR. HARRISON COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: PHILLIP BROADHEAD OFFICE OF THE ATTORNEY GENERAL: ABBIE EASON KOONCE Presiding Judge Fair Affirmed. Criminal Andrew Adams was convicted of possession of a weapon by a convicted felon. He appeals. Issue 1: Suppression of confession Adams argues that the court erred in not suppressing his confession, because the confession was induced by an officer falsely stating during the arrest that Adams wife was a convicted felon who could not legally possess the rifle so Adams claimed ownership instead. This claim is procedurally barred because it was not raised in the trial court. In addition, it has no evidentiary support in the record. On cross-examination, Adams admitted he knew his wife was not a convicted felon. Issue 2: Sufficiency of evidence Adams argues that the evidence was insufficient to support the conviction, because the vehicle belonged to his wife. Since Adams was never seen in actual, physical possession of the rifle, he was prosecuted under a theory of constructive possession. Constructive possession is established by evidence showing that the contraband was under the dominion and control of the defendant. Here, the rifle was found in the trunk of the vehicle Adams was driving, and a loaded magazine that fit the rifle was in the driver s side door. Adams further confessed that the rifle was his, in some detail. Where there is a presumption that the owner of the vehicle is in possession of the items inside, it does not preclude the items from also being in the joint possession of others. An acknowledgment of ownership is clearly an incriminating circumstance. That, along with Adams s proximity to the weapon, his wife s ownership of the car and his immediate control thereof, and the presence of the loaded magazine (which fit the rifle) in the driver s door while Adams was operating the vehicle, is more than sufficient evidence to sustain a conviction under the theory of constructive possession. Issue 3: Jury instruction Adams argues that the trial court erred in refusing instruction D-6, which would have instructed the jury on the elements of constructive possession. He argues that the instruction was more detailed than the instruction given on constructive possession at trial. Instruction S- 6, which was given, was identical to an instruction approved of by the Mississippi Supreme Page 10 of 17

11 Court in another case. Instruction S-6 was a correct statement of the law and sufficiently instructed the jury on the elements of constructive possession. Page 11 of 17

12 BAKER v. STATE, NO CA COA Criminal Topics: Post-conviction relief - Voluntariness of plea - Ineffective assistance of counsel HON. ROBERT P. CHAMBERLIN DESOTO COUNTY CIRCUIT COURT MICHAEL HADEN LAWYER OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE Judge Barnes Affirmed. Terrance Baker pled guilty to the sale of hydrocodone as a second offender. He was sentenced to fifteen years, followed by ten years of post-release supervision. He filed a motion for post-conviction relief which the court dismissed. He appeals. Issue 1: Voluntariness of plea Baker argues that his plea was neither knowing nor voluntary, because he was pressured by his attorney to accept the fifteen-year sentence. For a guilty plea to be valid, the trial court must advise the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea. Here, Baker was thoroughly informed of the nature and consequences of his guilty plea. The trial judge explained the plea and asked Baker several times if his plea was voluntary. Baker denied being promised anything or coerced into pleading guilty. He was explained his rights, as well as the maximum and minimum sentences for the charge. Thus, there is no error. Issue 2: Ineffective assistance of counsel Baker argues that his counsel failed to adequately investigate his case, and, although Baker was incarcerated for months, never had any substantive discussions with him about his case. As the trial court noted, Baker provides no affidavits or other evidence to support any of his numerous allegations against his trial-court counsel. At the plea hearing, Baker affirmed for the trial judge, under oath, that he was satisfied with the services of his lawyer, who had been available to him, and he had no complaints whatsoever about his representation. There was also no indication during the plea hearing that Baker was incompetent to enter a plea or assist his lawyer in his own defense. Thus, this issue is without merit. Page 12 of 17

13 Topics: Armed robbery, Felon in possession of firearm, Simple assault & Robbery - Motion to sever - Right to speedy trial - Defective indictment HUMBLES v. STATE, NO KA COA HON. JEFF WEILL SR. HINDS COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: GEORGE T. HOLMES OFFICE OF THE ATTORNEY GENERAL: BARBARA WAKELAND BYRD Chief Judge Lee Affirmed. Criminal Sidney Humbles was convicted of armed robbery, felon in possession of a firearm, simple assault and robbery. He was sentenced to three life sentences as a habitual offender, and to six months for the simple assault. He appeals. Issue 1: Motion to sever Humbles argues that the trial court erred when it declined to sever Count IV from Counts I- III. Multicount indictments can be tried together in the same court so long as the acts or transactions are connected together as part of a common scheme or plan. When a defendant seeks to sever counts in an indictment, the State must make a prima facie showing that the offenses fall within the confines of the statute. The defendant may rebut by showing the offenses were separate and distinct acts or transactions. Here, the State presented evidence that the same investigating officer would testify that Humbles gained access to rob each victim under the guise of selling donuts, he targeted elderly female victims, the offenses occurred less than a half mile apart, and the offenses occurred just forty-two hours apart from each other. The trial court did not find the amount of time between the offenses to be significant. The trial court found that some of the testimony would be admissible to prove the other counts. The trial court ultimately found that the evidence supports the State s position that the... actions of the defendant were part of the same common scheme or plan. Thus, the evidence was sufficient for the trial court looking at the totality of the circumstances to find that Humbles offenses constituted a common plan or scheme. Issue 2: Right to speedy trial Humbles argues that the trial court erred when it denied his motion to dismiss for failure to provide a speedy trial. In his appeal, Humbles asserts that his constitutional right to a speedy trial was violated while at trial, he only raised the issue of his statutory right to a speedy trial. An appellate court will not hold a trial court in error for issues not presented to it for consideration. Humbles claims his defense was prejudiced by the 1,293 days that elapsed between his arrest and trial, impairing his ability to prepare an adequate defense of the charges he faced. But in fact, Humbles was well aware of the charges before him due to his arrest, indictment, and revocation of his parole. He has failed to show plain error on appeal. Thus, his constitutional speedy-trial claim is procedurally barred. Page 13 of 17

14 Issue 3: Defective indictment For the first time on appeal, Humbles argues that Counts II and III of the indictment were fatally defective for failure to specify a date. Issues raised for the first time on appeal are waived. An indictment must contain the essential elements of the offenses charged in order to provide the defendant with sufficient notice of the charges against him. But an allegation of the date of the offense is not an essential element of the offense charged in the indictment. And, it is clear from the nature and descriptions of Counts II and III that the offenses alleged therein occurred on the same date, as a part of the same criminal conduct, and against the same victims as indicated in Count I. As such, it is clear that Humbles received sufficient notice of the charges against him. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Judge Wilson Page 14 of 17

15 Topics: Post-conviction relief - Time bar - Successive writ - Defective indictment - Right to due process - Cross-examination of adverse witnesses - Ineffective assistance of counsel WILLIAMS v. STATE, NO CP COA HON. CAROL L. WHITE-RICHARD SUNFLOWER COUNTY CIRCUIT COURT BRIAN WILLIAMS (PRO SE) OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE Chief Judge Lee Affirmed. Criminal Brian Williams pled guilty to one count of armed robbery and one count of aggravated assault. For each count, he was sentenced to eighteen years, with five years suspended and thirteen years to serve, and five years of post-release supervision. Williams filed a motion for post-conviction relief which was denied. The denial was affirmed on appeal. Williams filed a second PCR motion which was dismissed. The dismissal was affirmed on appeal. Williams third PCR motion was also dismissed. The dismissal was affirmed on appeal. Williams filed a fourth PCR motion. The trial court dismissed the motion as both timebarred and successive-writ barred. Williams appeals. Williams argues his motion survives any procedural bars because his indictment was defective in that it charged the victim with the commission of the crimes. However, the indictment clearly charges Williams as the wrongful actor, who committed armed robbery in and upon the victim. Williams also argues that the trial court erred when it summarily dismissed his fourth PCR motion without reviewing the evidence supporting his claim. However, it is plain from the face of Williams motion that he is not entitled to relief as his claims lack merit. Williams also argues that the trial court violated his Sixth Amendment right to due process by failing to advise him of his constitutional right to cross-examine adverse witnesses before it accepted his guilty pleas. A trial court s failure to specifically enumerate the defendant s right to cross-examine adverse witnesses is not a violation of a fundamental right. Thus, Williams cannot overcome the procedural bars with this argument. Williams also argues he received ineffective assistance of counsel. However, he offers nothing apart from his own assertions to demonstrate that he received ineffective assistance of counsel. Thus, his motion is time barred and barred as a successive writ. Page 15 of 17

16 Topics: Burglary of dwelling - Admission of confession - Admission of testimony - M.R.E Lack of personal knowledge WOODS v. STATE, NO KA COA HON. MARCUS D. GORDON NESHOBA COUNTY CIRCUIT COURT EDMUND J. PHILLIPS JR. OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER Judge Carlton Affirmed. Criminal Karen Woods was convicted of burglary of a dwelling. She was sentenced to fifteen years. She appeals. Issue 1: Admission of confession Woods argues she was in a state of confusion at the time the investigator interviewed her about the burglary and that the investigator knew of her confusion and likely believed that the confusion was pill or drug induced. For a confession to be admissible at trial, it must have been intelligently, knowingly, and voluntarily given, and not a product of police threats, promises, or inducements. The State meets its burden of proving the voluntariness of a confession by testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. Here, the State offered the investigator s testimony to establish a prima facie case that Woods voluntarily, knowingly, and intelligently signed the waiver of her rights and the confession. He testified that Woods appeared to fully understand what was going on during the interview and that she was both coherent and responsive at the time of the interview. He also testified that Woods was not under the influence of any drugs when he interviewed her about the burglary and that Woods voluntarily signed her statement about the burglary. Thus, the State met its burden of proving that Woods voluntarily gave her confession. Issue 2: Admission of testimony Woods argues that the circuit court erred by overruling the defense s objection to a statement the investigator made during his trial testimony. Woods argues that M.R.E. 602 requires a nonexpert witness s testimony to be based on personal knowledge rather than mere opinion and that the investigator s trial statement was not based on personal knowledge but rather on the Mississippi Crime Laboratory s analysis matching her DNA to the blood found in the victim s home. However, the record fails to show that the investigator ever testified to a matter about which he lacked personal knowledge. His testimony complied with Rule 602 since he only testified to subject matters about which he possessed personal knowledge. He did not reveal or testify to the actual results of the DNA analysis. Instead, he merely stated that, due to evidence he now had, he no longer believed Woods s pretrial statement that she did not bleed inside the victim s home. Page 16 of 17

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