MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 4/10/2018

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1 MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 4/10/2018 Topics: Child custody - Modification of custody - Material change in circumstances - Modification of child support - Visitation - Contempt - Exposure to secondhand smoke VOSS v. DOUGHTY, NO CA COA HON. VICKI B. DANIELS DESOTO COUNTY CHANCERY COURT MARGARET ANNA REID DAVEN JOSEPH DOUGHTY (PRO SE) Judge Wilson Civil Affirmed in part, reversed and rendered in part. Analysis: The chancery court granted Amy Voss and Daven Doughty joint legal custody of their daughter, granted Voss physical custody, and granted Doughty visitation. Voss filed a petition to modify visitation and to hold Doughty in contempt. Doughty answered and filed a counterclaim for modification of custody or visitation and for contempt. The chancellor denied Voss s petition, granted Doughty s request to modify custody, ordered the parties to share joint physical custody of their daughter, and terminated Doughty s child support obligation. Voss appeals. Issue 1: Custody A modification of custody is warranted when the moving parent successfully shows that a material change of circumstances has occurred in the custodial home since the most recent custody decree, that the change adversely affects the child, and that modification is in the best interest of the child. If there has been no material, adverse change in circumstances, the Albright factors need not be addressed. Doughty s request to modify custody did not allege any specific change in circumstances. After trial, the chancellor found that Voss s schedule, working at night and sleeping during the day, was a change in circumstances. The chancellor also found that Voss s communication problems (English is her second language) were a change in circumstances because her daughter was at an age at which she should be learning how to talk. Although Voss worked nights and relied in part on her mother s help, Doughty failed to show that this was a change in circumstances since the prior custody order. Moreover, there was no evidence that this purported change adversely affected the child. Thus, the modification of custody is reversed and rendered. When the chancellor modified custody, she also modified child support. Because the chancellor s modification of custody is reversed and rendered, so too is the modification of child support. Issue 2: Visitation Page 1 of 22

2 Voss argues that the chancellor erred by denying her petition to modify and limit Doughty s visitation, because the child was being exposed to secondhand smoke during her visitation. All that need be shown to obtain a modification of visitation is that there is a prior decree providing for reasonable visitation rights which isn t working and that modification is in the best interests of the children. Here, no evidence was presented that the visitation schedule was not working or was not in the child s best interest. Voss petitioned the court to modify custody only thirty-six days after the original visitation order was entered. A visitation plan should be given an opportunity to work. Also, the evidence indicated that Doughty tried to protect his daughter from exposure, and there was no clear link between exposure and the child s congestion, runny noses, and coughing. Thus, there is no error. Issue 3: Contempt Voss argues that the chancellor should have cited Doughty for contempt because he violated the prior order s provision that neither party shall smoke cigarettes in [the child s] presence. However, the evidence did not clearly establish when or where the child was exposed to smoke. Thus, the chancellor did not manifestly err or abuse her discretion by not finding Doughty in contempt. Page 2 of 22

3 BENNETT v. BENNETT, NO CA COA Civil Topics: Contempt - Modification of child custody - Material change in circumstances - Perference of minor child - Section (1)(a) - Move of custodial parent to another state HON. JOHN C. MCLAURIN JR. RANKIN COUNTY CHANCERY COURT WILLIAM P. FEATHERSTON JR. TAMEIKA LADANYA BENNETT Judge Fair Affirmed. Julia Bennett and Andre Bennett divorced in The final judgment of divorce ordered Andre and Julia to share joint legal and physical custody of the children, with Julia maintaining physical custody, and ordered alternating weekly custodial periods. In 2016, Andre filed a petition to cite Julia for contempt, modify physical child custody, and other relief. He claimed that a material change in circumstances had occurred, because Julia had plans to relocate with the children to St. Louis, Missouri. Julia counterclaimed Andre s petition to modify custody. She requested sole physical custody of the minor children. She also requested that Andre receive visitation based on the move to St. Louis. The court appointed a family master who found that no material change in circumstances had occurred yet. The family master conducted an Albright analysis in light of Julia s possible move and determined that the evidence favored a modification of custody to Andre. The chancellor agreed. So, if Julia moved, Andre would get physical custody and Julia would have liberal visitation. Julia would also have to pay $750 a month in child support. Julia appeals. Analysis: Julia challenges one Albright factor, the preference of the minor child. Section (1)(a) provides that a child s preference may be taken into account in determining child custody. If a chancellor declines to follow a child s election, he must place the reasons in the record. Here, the family master appropriately explained his reasons for awarding custody to Andre instead of Julia in the event that Julia relocates, even though the couple s daughter expressed a preference to reside with her mother. It was within the chancellor s discretion to adopt the family master s recommendation. Page 3 of 22

4 Topics: Real property - Quitclaim deed - Failure of acknowledgment - Section Joint tenancy with rights of survivorship - Property settlement agreement - Waiver of defenses - Statute of limitations - Homestead exemption O'BRIEN v. WESTEDT, NO CA COA HON. DAVID SHOEMAKE SIMPSON COUNTY CHANCERY COURT L. WESLEY BROADHEAD LAURA MCKINLEY GLAZE Presiding Judge Irving Affirmed. Civil Analysis: In 1972, Carroll O Brien and his then wife Susan, using money that Susan inherited from her family, purchased 104 acres of land. Title to the property was conveyed to Carroll and Susan as joint tenants with full rights of survivorship, and not as tenants in common. They recorded the deed among the land records of Simpson County. In 1987, Carroll and Susan obtained a judgment of divorce based on irreconcilable differences. Their separation and propertysettlement agreement provided, It is agreed between the parties that all real property jointly owned by these parties shall remain as same now is, with each party owning a one-half undivided interest in all real property and that said real property cannot become community property by any future marriages by either spouse. No disposition of any land holdings may be made while both parties are alive unless by mutual agreement in writing. In 1995, without the knowledge or consent of Susan, Carroll used a twenty-five-year-old power of attorney that Susan had signed in 1970, while she was still his wife, to quitclaim title of the 104 acres from Susan and himself to himself and his new wife, Socorro. In 2000, again using the same power of attorney, Carroll executed a warranty deed, conveying title of the acreage from himself and Susan to Socorro and himself as tenants by the entirety with full rights of survivorship, and not as tenants in common. In 2007, Carroll and Socorro executed a quitclaim deed, conveying the subject property to Socorro. After Carroll died in 2012, Susan filed a complaint to void the deeds and remove the clouds on her title to the 104 acres of land. Socorro filed an answer and counterclaim, wherein she denied generally the allegations of Susan s complaint and alleged that the doctrines of equitable estoppel, laches, and/or waiver barred Susan from receiving any relief. Socorro also sought reimbursement for one-half of all taxes paid on the land since Susan filed a motion for summary judgment. The court found that Susan was the sole owner of the property and granted her motion for summary judgment. Socorro appeals. Issue 1: Quitclaim deed Socorro argues that because of the failure of the acknowledgment included in the 1995 quitclaim deed to comport with the requirements of section , the purported conveyance of Susan s undivided one-half interest in the property is void or voidable. She argues that the defect in the acknowledgment affects only Susan s undivided one-half interest. She also argues that the 1995 conveyance by Carroll of his undivided one-half interest in the property to himself and Socorro terminated Carroll and Susan s joint tenancy Page 4 of 22

5 with full rights of survivorship. The property-settlement agreement clearly contemplated that the property would pass by survivorship unless both parties agreed otherwise in writing. Property settlements under divorce actions are binding on the parties if fair, equitable and supported by consideration. Socorro does not claim that the property-settlement agreement entered into by Carroll and Susan was unfair, inequitable and not supported by consideration at the time Carroll and Susan executed it. The contract was enforceable, and the conveyances were void. Thus, the original joint tenancy with rights of survivorship was still intact at Carroll s death, and Susan is entitled to the entire property. Issue 2: Waiver of defenses Susan argues that Socorro pleaded neither any statute of limitation nor any homestead exemption right which she now attempts to argue on appeal and therefore, waived those defenses. An appellate court will not review matters on appeal that were not raised at the trial court level. The record contains no evidence that Socorro brought either the issues of the statute of limitations or the right to homestead exemption before the trial court, either during trial or in her post-trial motion for reconsideration. Thus, the issues will not be considered on appeal. Page 5 of 22

6 AVAKIAN v. WILMINGTON TRUST, NATIONAL ASSOCIATION, NO CA COA Civil Topics: Contract - Judicial foreclosure - Breach of contract - Unjust enrichment - Res judicata - Assignment of deeds of trust HON. H.J. DAVIDSON JR. LOWNDES COUNTY CHANCERY COURT STEVEN CRAIG PANTER WILLIAM JACOB LONG IV, CHRISTOPHER DANIEL MEYER Chief Judge Lee DA-Affirmed; CA-Affirmed. Norair and Burnette Avakian purchased a house and executed a deed of trust to secure a loan for the purchase from Southstar Financing LLC. At that time, the title to the property was vested in both their names as joint tenants. Two years later, Norair executed a deed conveying title to the property to Burnette alone. The Avakians later refinanced the mortgage with EquiFirst Corporation, and Norair took out a loan in his name only and executed a promissory note in favor of EquiFirst. Because title was vested in Burnette alone, EquiFirst required both Burnette and Norair to execute a deed of trust. Norair was out of state at the time of the closing, so Burnette and Norair each signed separate deeds of trust on the property. This resulted in two deeds of trust on the property. Each deed of trust was recorded as a separate instrument. Norair s promissory note to EquiFirst was later sold to Citibank N.A. in its capacity as trustee of the Bear Sterns Asset Backed Securities Trust. J.P. Morgan became the servicing agent for Citibank. Wilmington Trust replaced Citibank as the trustee for Bear Sterns. So, J.P. Morgan served as the servicer for the loan, and EquiFirst, Citibank, and Wilmington Trust were the successive creditors. Norair defaulted on the promissory note and died shortly after in In 2012, Citibank, the trustee/creditor at that time, noticed Burnette its intention to foreclose on the house and set the foreclosure sale. The day before the scheduled foreclosure sale, Burnette filed suit in the chancery court against Citibank seeking to enjoin the foreclosure. Citibank removed the lawsuit to the United States District Court for the Northern District of Mississippi. Following a trial, the district court entered a final judgment in favor of Burnette, holding that the deeds of trust on the house were unenforceable. Citibank appealed. The Fifth Circuit reversed the district court, finding that the Mississippi Supreme Court would likely construe the two deeds of trust as together creating a valid deed of trust. On remand in the district court, Citibank filed a motion for entry of final judgment. Burnette filed a motion to dismiss the action without prejudice, arguing that it became moot when Wilmington Trust succeeded Citibank as trustee for the lienholder. Citibank responded by filing a motion to substitute Wilmington Trust as the defendant and then renewed its request for entry of a final judgment. The district court found that it was proper for Citibank to continue as the named defendant even after it ceased to have any interest in the subject property and denied Burnette s motion to dismiss with prejudice, granted Citibank s motion to substitute Wilmington Trust, and granted Citibank s motion for final judgment in favor of Wilmington Trust. Burnette had also filed a petition in the Lowndes County Chancery Court to probate Norair s last will and testament. Burnette did not identify any entity as a known creditor of the Estate and did not provide Wilmington Trust, or any creditor, notice by mail regarding the probate of the Estate. She did file a Page 6 of 22

7 Notice to Creditors Affidavit, stating that she had and would notify known creditors; however, she did not list any specific creditors. During the pendency of the 2012 foreclosure attempt, after the district court (prior to appeal) ruled that the deeds of trust were void and unenforceable, Citibank (through its servicer, J.P. Morgan) filed a statement of claim in the probate proceeding pending in chancery court based upon Norair s debt arising from the promissory note of $815, Burnette filed her contest of the statement of claim, asserting that any claim on the promissory note was time-barred by section The chancellor found that although Citibank filed its statement of claim outside of the ninety-day statutory time period to probate a claim against the Estate under section , the claim was still timely filed due to Burnette s failure as executor to provide all reasonably ascertainable creditors with notice of probate of the Estate as required by section The chancellor determined that although Wilmington Trust, or any other creditor, had not filed a civil action against the Estate prior to October 26, 2014, the Fifth Circuit s stay (entered May 12, 2014) prohibiting any creditor from foreclosing on the property began and triggered the tolling of the statute of limitations under section as to the promissory note. Burnette appealed, and the Court of Appeals affirmed the judgment of the chancery court. Following the final judgment of the federal district court (on remand), Wilmington Trust filed the current action now on appeal. Wilmington Trust made the following claims: Count I (judicial foreclosure); Count II (breach of contract); Count III (unjust enrichment); and Count IV (declaratory judgment). Wilmington Trust moved for partial summary judgment as to Counts I, II, and IV of the complaint. Burnette opposed the motion, arguing that there was a genuine issue of material fact as to whether Wilmington Trust was the true owner and holder of the promissory note and deeds of trust. The chancellor granted partial summary judgment in favor of Wilmington Trust as to Counts I, II, and IV. The chancellor, however, granted partial summary judgment in favor of Burnette on Wilmington Trust s unjust-enrichment claim (Count III). Burnett appeals, and Wilmington Trust cross-appeals. Analysis: Issue 1: Res judicata Burnette argues there is a genuine issue of material fact regarding whether Wilmington Trust was the true holder of the promissory note and deeds of trust. The chancellor held that this claim was barred under the doctrine of res judicata. Under the doctrine of res judicata, parties are barred from litigating claims within the scope of the judgment in a prior action. This includes claims that were made or should have been made in the prior suit. In order for res judicata to apply, the following four identities must be present: identity of the subject matter of the action; identity of the cause of action; identity of the parties to the cause of action; and identity of the quality or character of a person against whom the claim is made. In the prior federal action, the district court s judgment was based on evidence, and not rendered on technical or procedural grounds. As such, it is a final judgment on the merits for the purposes of res judicata. The subject matter of the prior federal action is the same as the subject matter of this case: Wilmington Trust s (and its predecessors ) attempt to foreclose on Burnette s property under the deeds of trust and promissory note following the Avakians default. The underlying facts and circumstances giving rise to all the previous litigation, including the prior federal case, are identical to those in the present case on appeal. In the prior federal case, Citibank was initially named as a defendant in Burnette s suit to enjoin the foreclosure. In 2012, Citibank assigned the promissory note and deeds of trust to Wilmington Trust, and Wilmington Trust replaced Citibank as trustee. Thus, Wilmington Trust is undoubtedly in privity with Citibank in regard to the previous litigation between Citibank and Burnette. It is clear that the quality and character of the parties, Wilmington Trust as trustee and Burnette as executor for the Estate and individually, are the same in this case as Page 7 of 22

8 in the prior federal action, and are acting in their same respective interests in the present case as in the prior action. In the prior federal action, Burnette could have claimed that Wilmington Trust was not the true holder of the deed of trust or promissory note, thereby contesting Wilmington Trust s right to foreclose on Burnette s home. However, Burnette instead chose to argue that Citibank s lawsuit for foreclosure became moot when its interest as trustee was transferred to Wilmington Trust. Thus, Burnette is precluded from claiming that Wilmington Trust was not the true holder of the deed of trust and promissory note, and Wilmington Trust s motion for partial summary judgment was properly granted. Issue 2: Unjust enrichment Wilmington Trust argues the chancery court erred when it granted Burnette s motion for summary judgment on its unjust-enrichment claim. The parties agree that Burnette lived and conducted a bed-and-breakfast business on the subject property without making any loan or rent payments under the promissory note or deed of trust since July It is also undisputed that Burnette profited through her commercial use of the property, although the parties dispute the amount of profit. Unjust enrichment applies to situations where there is no legal contract. Wilmington Trust cannot recover damages under an unjust-enrichment claim because there is a contract between the parties, the deed of trust and promissory note. Wilmington Trust argues that the deed of trust contemplated only that the home would be used for a residence; however, there was nothing in the deed of trust that prohibited the home from being rented out. Because the parties relationship is governed by contract, damages based on unjust enrichment are not an appropriate remedy. Page 8 of 22

9 SAUNDERS v. STATE, NO KA COA Criminal Topics: Murder & Car theft - Admission of exhibit - Admission of screenshot of text message - M.R.E Authentication of exhibit HON. LAWRENCE PAUL BOURGEOIS, JR. HARRISON COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: JUSTIN TAYLOR COOK OFFICE OF THE ATTORNEY GENERAL: BARBARA WAKELAND BYRD Judge Westbrooks Affirmed. Analysis: Marquis Saunders was convicted of one count of first-degree murder and one count of car theft. He was sentenced to life in prison for the murder conviction and five years for car theft. He appeals. Saunders argues that the trial court erred in admitting Exhibit S-23, a screenshot of a single text message found on a phone in Saunders s possession at the time of his arrest. He argues that the exhibit violated M.R.E Under Rule 901, the authentication requirement is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. A text message emanated from a cell phone number assigned to the purported author has not typically been regarded as sufficient to support a finding of authenticity. Here, the evidence presented at trial demonstrated that the phone was recovered from a vehicle last seen driven by Saunders. Although Saunders objected to the admission of the screenshot, Saunders did not offer any testimony to rebut the authenticity of the message on the screenshot or the owner of the phone. A police officer testified that she was present when an inspector recovered two phones and took the screenshot of the text message. One was a T-Mobile flip phone and the other was a Samsung phone. The officer testified that the screenshot was taken from the Samsung phone and she was able to determine that the cell phone belonged to Saunders girlfriend. Thus, the State made a prima facie showing through the officer s testimony that the screenshot from the phone was authentic. Saunders argues that the State s introduction of the officer s testimony regarding the screenshot of the text message contained inadmissible hearsay. The officer only testified that she was present when the investigator took the screenshot and why the screenshot was taken in the first place. Furthermore, S-23 was the picture of the message. Saunders had the opportunity to cross examine the officer regarding her statement and the text message. Thus, CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Judges Barnes and Wilson Page 9 of 22

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11 BOLTON v. STATE, NO CP COA Criminal Topics: Post-conviction relief - Voluntariness of plea - Ineffective assistance of counsel - Inaccurate sentencing prediction - Evidentiary hearing HON. PAUL S. FUNDERBURK LEE COUNTY CIRCUIT COURT TIMOTHY L. BOLTON (PRO SE) OFFICE OF THE ATTORNEY GENERAL: ABBIE EASON KOONCE Judge Wilson Affirmed. Analysis: Timothy Bolton pled guilty to two counts of felony child abuse, first-degree arson, sexual battery, and ten felony counts of simple assault on a law enforcement officer. He was sentenced to two consecutive life sentences and additional term-of-years sentences to run concurrently with the second life sentence. Bolton filed a motion for post-conviction relief which the court denied. Bolton appeals. Issue 1: Voluntariness of plea Bolton argues that his attorney s advice renders his guilty plea involuntary. For a plea to be voluntary, knowing, and intelligent, the judge must advise the defendant of his rights, the nature of the charge against him, and the consequences of his plea, including applicable minimum and maximum sentences. Here, Bolton understood that he was entering an open plea and that the State was not making any sentencing recommendation. The circuit court clearly informed Bolton of the maximum sentence for each charge, that the court had discretion to impose any sentence up to the maximum, and that the court could order the sentences to run consecutively. Bolton confirmed under oath that he understood all of this. Bolton s claim is that his attorney misinformed him regarding the sentence that the court would likely impose upon entry of a guilty plea. Bolton s affidavit and his attorney s affidavit expressly agree that, before Bolton pled guilty, the attorney informed [him] that [she] anticipated that he would receive a ten-year sentence with five... years suspended and five... years to serve. Bolton does not allege that his attorney ever promised him a lesser sentence. Nor does Bolton allege that the attorney ever advised him that the circuit judge was required to impose a lesser sentence. The attorney s prediction did not come with any promise or guarantee. In addition, following the attorney s prediction, the circuit court thoroughly informed and warned Bolton of the possible sentences for his crimes if he pled guilty. Thus, Bolton s plea is not involuntary. Issue 2: Ineffective assistance of counsel Bolton argues that his attorney provided him with ineffective assistance of counsel, primarily by telling him that she anticipated that he would receive a sentence of only ten years with five years suspended and five years to serve. A voluntary guilty plea waives claims of ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea. Since the attorney s prediction did not render Page 11 of 22

12 the plea involuntary, the alleged ineffectiveness does not relate to the voluntariness of the giving of the guilty plea. In addition, inaccurate sentencing predictions by defense counsel does not constitute ineffective assistance of counsel. Issue 3: Evidentiary hearing Bolton argues that he was entitled to an evidentiary hearing. However, Bolton s claims fail as a matter of law. His allegations, even if true, do not render his plea involuntary. Nor do his allegations support a viable claim of ineffective assistance of counsel. Thus, there was no need for an evidentiary hearing. Page 12 of 22

13 MOORE v. STATE, NO KA COA Criminal Topics: Felony escape - Lindsey brief HON. JEFF WEILL SR. HINDS COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: HUNTER NOLAN AIKENS OFFICE OF THE ATTORNEY GENERAL: JOSEPH SCOTT HEMLEBEN Judge Barnes Affirmed. Analysis: Gerome Moore was convicted of felony escape and sentenced to five years. He appeals. Moore s appellate counsel has filed a Lindsey brief, stating he cannot find any arguable issues to support an appeal. Moore was granted an additional forty days to file his own brief, which he has failed to do. The record contains sufficient evidence to support the jury s finding that Moore was guilty of the charged offense of felony escape, and there are no arguable appellate issues that would require supplemental briefing. Page 13 of 22

14 WATTS v. STATE, NO CP COA Criminal Topics: Post-conviction relief - Section Jurisdiction HON. CHRISTOPHER A. COLLINS LEAKE COUNTY CIRCUIT COURT ALBERT LEWIS WATTS (PRO SE) OFFICE OF THE ATTORNEY GENERAL: LISA L. BLOUNT Presiding Judge Griffis Reversed and remanded. Analysis: Albert Watts was convicted of armed robbery and sentenced to life imprisonment as a habitual offender. The Court of Appeals affirmed Watts s conviction but reversed and remanded for resentencing. On remand, Watts was resentenced as a habitual offender under section to serve twenty-three years. Watts did not appeal. Watts later filed a petition for post-conviction collateral relief in the circuit court. The court found it was without jurisdiction to entertain the petition since Watts failed to obtain leave from the Mississippi Supreme Court prior to filing his petition and dismissed the petition. Watts filed an appeal. He also filed with the Mississippi Supreme Court an application for leave to proceed in [the] trial court with petition for PCCR. The Supreme Court dismissed the request for post-conviction relief without prejudice to be filed in the circuit court. Pursuant to section , unless Watts s conviction and sentence have been appealed and affirmed, or the appeal was dismissed, any petition for PCR must be filed in the circuit court. Here, Watts s current sentence has not been appealed. Thus, Watts was not required to seek leave to proceed in the circuit court, and his petition for PCR was properly filed in the circuit court, which had jurisdiction to entertain the petition pursuant to section Therefore, the judgment of the circuit court is reversed and remanded. DISSENT Presiding Judge Irving joined by Judge Carlton Page 14 of 22

15 WEATHERSBY v. STATE, NO CP COA Criminal Topics: Post-conviction relief - Illegal search - Recusal of judge - Motion to suppress HON. PRENTISS GREENE HARRELL MARION COUNTY CIRCUIT COURT ANTONIO WEATHERSBY (PRO SE) OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE Chief Judge Lee Affirmed. Analysis: Antonio Weathersby pled guilty to possession of a firearm by a convicted felon and was sentenced to seven years, with three years to serve and four years of post-release supervision. Weathersby was also convicted of two misdemeanor crimes, driving with a suspended license and first-offense DUI, in the local justice court. Weathersby appealed his misdemeanor convictions to circuit court. Weathersby was convicted of the two misdemeanor crimes and did not appeal. Weathersby filed a motion for post-conviction relief relating to his possession-of-a-firearm-by-a-convicted-felon conviction. The court denied his motion, and Weathersby appeals. Issue 1: Illegal search Weathersby argues the traffic stop and resulting search of his car where law-enforcement officers discovered a firearm were illegal. This issue was waived when Weathersby pleaded guilty to possession of a firearm by a convicted felon. And, as the trial court noted, Weathersby never raised the illegal-traffic-stop issue by way of a motion to suppress in regard to his felony conviction. Issue 2: Recusal of judge After an initial hearing regarding Weathersby s motion to suppress, the trial judge recused himself and assigned Weathersby s case to another trial judge. Weathersby argues that this was error. However, this argument relates to the two misdemeanor convictions, not the felony conviction that is the subject of this appeal. Issue 3: Motion to suppress Weathersby argues he was entitled to a hearing on his motion to suppress. Weathersby filed this motion in his misdemeanor case, not the felony case that is the subject of this appeal. Page 15 of 22

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17 Topics: Murder - Right of confrontation - Testimony about autopsy report - Sufficiency of evidence FAIRLEY v. STATE, NO KA COA HON. CHRISTOPHER LOUIS SCHMIDT HARRISON COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: ERIN ELIZABETH BRIGGS OFFICE OF THE ATTORNEY GENERAL: BARBARA WAKELAND BYRD Chief Judge Lee Affirmed. Criminal Analysis: Chris Fairley was convicted of murder and sentenced to life. He appeals. Issue 1: Right to confrontation Fairley claims his right to confrontation was violated when the trial court admitted Dr. LeVaughn s testimony because Dr. LeVaughn was not the medical examiner who performed Mark s autopsy or authored the autopsy report. The medical examiner who performed the autopsy no longer worked at the medical-examiner s office. When the testifying witness is a court-accepted expert in the relevant field who participated in the analysis in some capacity, such as by performing procedural checks, then the testifying witness s testimony does not violate a defendant s Sixth Amendment rights. To determine if a witness satisfies the defendant s right to confrontation, the court asks whether the witness has intimate knowledge of the particular report and whether the witness was actively involved in the production of the report at issue. Here, Dr. LeVaughn testified that, although he did not perform the actual autopsy procedures, he examined the autopsy reports, along with the photographs and case notes. He also consulted with the medical examiner at the time of the autopsy. Thus, there is no violation. Issue 2: Sufficiency of evidence Fairley argues that the evidence was not sufficient to convict him of murder. The evidence presented at trial showed that Fairley and the victim argued; Fairley first shot the victim from approximately fifteen feet away; the victim ran toward his car; Fairley followed him and continued to shoot at him; and the victim did not have a weapon in his car or near his body. Viewing the evidence in the light most favorable to the State, the evidence was legally sufficient to support the verdict. Page 17 of 22

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19 THOMPSON v. STATE, NO KA COA Criminal Topics: Murder - Sufficiency of evidence - Admission of testimony - Informant testimony - Retrial - Double jeopardy - Sufficiency of indictment HON. CHARLES E. WEBSTER COAHOMA COUNTY CIRCUIT COURT DANIEL CHRISTOPHER JONES OFFICE OF THE ATTORNEY GENERAL: KAYLYN HAVRILLA MCCLINTON Judge Greenlee Affirmed. Analysis: Dennis Thompson was convicted of murder and sentenced to life in prison. He appeals. Issue 1: Sufficiency of evidence Thompson argues that the jury s verdict should not have been allowed to stand, because he shot the victim in order to protect another person. Thompson did not raise these theories at trial and did not request a manslaughter instruction. Therefore, he cannot raise these issues on appeal. An eyewitness testified that he observed Thompson pull out a gun and shoot the victim in the back of the head and that at the time of the shooting, the victim was sitting in the driver s seat, and Thompson was sitting in the back-right passenger seat. Experts for the State testified that the victim died of a penetrative gunshot wound to the right side of the back of his head, and that the bullet recovered from the victim s head was a.38-caliber bullet. An inmate imprisoned with Thompson testified that t during his imprisonment, he had the opportunity to talk with Thompson; that Thompson told him he was in jail due to a.38-caliber gun, bought from a mutual acquaintance; and that Thompson said he shot the victim in the back of the head. Considering the evidence in the light most favorable to the prosecution, it was sufficient for the jury to conclude Thompson killed the victim with deliberate design. Issue 2: Admission of testimony Thompson argues the trial court erred by allowing two witnesses to testify because their testimonies were unreliable. The trial court granted a cautionary instruction that advised the jury to view informant testimony with caution and suspicion. The instructions taken as a whole fairly announced the applicable law and sufficiently cautioned the jury. Further, any inherent unreliability in the testimony of the witnesses was brought out on cross-examination by Thompson s attorney, and the jury was instructed to carefully weigh the credibility of all the witnesses. Issue 3: Retrial Following Thompson s first trial, the jury found Thompson not guilty on count one, conspiracy to commit robbery. However, the jury was unable to reach a verdict on count two, Page 19 of 22

20 capital murder. Although the jury was unanimous that Thompson was not guilty of the underlying felony of robbery, it was deadlocked on the lesser-included offense of murder. The trial court ordered a mistrial. After retrial, Thompson was convicted of murder. Thompson argues that his second trial for simple murder violated double jeopardy. When a mistrial is granted upon the court s own motion, or the state s motion, a second trial is not barred due to double jeopardy when, taking all the circumstances into consideration, there was a manifest necessity for the mistrial. A hopelessly deadlocked jury is a manifest necessity for a mistrial. The judge in this case granted a mistrial because the jury was hopelessly deadlocked. Thus, Thompson s subsequent retrial did not violate his right against double jeopardy. Issue 4: Sufficiency of indictment Thompson argues his indictment for capital murder was not sufficient to try him for simple murder. An indictment must contain the essential elements of the offense charged, sufficient facts to fairly inform the defendant of the charge against which he must defend, and sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense. Review of Thompson s indictment shows that the essential elements of murder were encompassed within the capital murder charge; Thompson was provided with sufficient facts to fairly inform him of the charge he had to defend against; and Thompson was given sufficient facts enabling him to plead double jeopardy in a prosecution for the same offense. Murder is a lesser-included offense of capital murder. Thus, Thompson had statutory notice that his indictment for capital murder could result in a conviction for the lesser-included offense of murder. Thompson s capital murder charge notified him, for due process purposes, that he must also be prepared to defend against any lesser-included offense even if the lesser-included offense was not expressly set forth in the indictment. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Judge Wilson DISSENT Judge Carlton joined by Presiding Judge Irving Page 20 of 22

21 Topics: Rule violation report - Possession of major contraband - Jurisdiction - Section Exhaustion of administrative remedies - Section WILLIS v. WESTLEY, NO CP COA HON. WILLIAM E. CHAPMAN III RANKIN COUNTY CIRCUIT COURT MAC KENZIE WILLIS (PRO SE) OFFICE OF THE ATTORNEY GENERAL: DARRELL C. BAUGHN Presiding Judge Griffis Criminal Reversed and remanded. Analysis: In 2006, Mac Kenzie Willis was convicted of one count of unlawful touching of a child and one count of statutory rape. He was sentenced to fifteen years for the unlawful touching of a child and twenty years for statutory rape. In 2016, Willis was issued a rule violation report for the possession of major contraband. A disciplinary hearing was held where the hearing officer found Willis guilty of possession of major contraband. As a result, Willis received an eighteen month loss of all privileges. Willis appealed the hearing officer s decision through the MDOC s administrative remedy program and claimed a violation of due process. His appeal was denied. After receiving notice of the decision, Willis filed a complaint in circuit court. The circuit court summarily dismissed the complaint for lack of jurisdiction. Willis appeals. The circuit court did not explain why it lacked jurisdiction and did not specify whether it considered subject matter jurisdiction or personal jurisdiction. The record shows Willis filed his complaint for judicial review in the county where he was detained, i.e., Rankin County. Thus, although not specifically noted, it is assumed the circuit court s dismissal for lack of jurisdiction was based upon Willis s failure to timely seek judicial review of the MDOC s final decision. Under section , any offender aggrieved by an adverse decision may seek judicial review within thirty (30) days after receipt of the [MDOC s] final decision. The record indicates Willis filed his complaint for judicial review in the circuit court within thirty days after receipt of the MDOC s final decision, as required by section However, it appears that when Willis filed his complaint in the circuit court, he failed to attach or include any documentation that showed when he received the MDOC s final decision. Without such documentation, the circuit court was unaware that Willis had in fact exhausted his administrative remedies and timely sought judicial review. Because Willis exhausted his administrative remedies and sought judicial review within thirty days of receipt of the MDOC s final decision, the circuit court had subject matter jurisdiction over Willis s complaint pursuant to sections and Thus, the case is reversed and remanded. DISSENT Presiding Judge Irving joined by Judges Carlton and Westbrooks Page 21 of 22

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