MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 8/15/2017

Transcription

1 MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 8/15/2017 RASDON v. THRASH, NO CA COA Civil Topics: Contract - Implied covenant of good faith - Bad faith - Accuracy of test results - Attorney's fees - M.R.A.P. 4 HON. JUSTIN MILLER COBB LAUDERDALE COUNTY CIRCUIT COURT BRANNON LEE BERRY STEPHEN B. JACKSON Judge Barnes Affirmed. Hunter Rasdon brought an action for breach of contract and breach of the covenant of good faith and fair dealing against Charles Thrash, individually and/or on behalf of the Mississippi State Championship Challenge Series. Rasdon had been fined $500 and disqualified as the winner of a racing event because tire samples taken from his vehicle were tested and found to be nonconforming under the MSCCS s Rules and Specifications. The county court granted summary judgment in favor of Thrash. Rasdon appealed, and the circuit court affirmed. Rasdon appeals. Rasdon argues that the mere compliance with the express terms of an agreement without a sensible attempt to carry out the fundamental purpose of those terms calls into question one s commitment to execute the agreement in good faith. All contracts contain an implied covenant of good faith and fair dealing in performance and enforcement. Good faith means the faithfulness of an agreed purpose between two parties, a purpose which is consistent with justified expectations of the other party. A party does not breach the implied covenant of good faith and fair dealing when the party took only those actions which were duly authorized by the contract. Here, the terms outlined in the MSCCS Rules and Specifications were unambiguous. As Rasdon was the fastest qualifier and the winner of the race, Thrash was authorized to take the tire samples from Rasdon s car and submit those samples for testing. The rules also explicitly provided that a finding of a nonconforming sample would disqualify Rasdon and require him to pay a $500 fine. Rasdon testified that he had read the rules previously and that there was no evidence of bad faith in this instance. The underlying purpose of the MSCCS tire rules is to ensure that no driver has an unfair advantage. Thrash s actions under the rules satisfy this purpose. Rasdon also disputes the accuracy of the test results. However, as the county court noted, there was no provision in the rules for contesting lab results... [, as] neither MSCCS nor Whynot Motorsports Park, LLC ha[d] any control over the independent testing lab[.] Although Thrash requests the Court to address his claim that he was entitled to attorney s fees and expenses, he failed to file a notice of cross-appeal under M.R.A.P. 4. Page 1 of 19

2 Page 2 of 19

3 Topics: Wills & estates - Service of process - M.R.C.P. 81(d)(1) - Notice of hearing - Waiver - M.R.C.P. 60(b) - Property line dispute - Exclusion of testimony - M.R.E. 803(3) - M.R.E. 803(20) - Statement of reputation - Adverse possession RUSSELL v. BYRD, NO CA COA HON. JACQUELINE ESTES MASK PRENTISS COUNTY CHANCERY COURT THOMAS MELVIN MCELROY DUNCAN L. LOTT Judge Fair Civil Affirmed in part, vacated in part and remanded. Vernon Marie Horn Wylie died in She left a will, executed in 1972, and a codicil from She left her property to her two daughters, Sheila Russell and Donnie Byrd. The codicil devised to Russell the South part of the bottom... and this is the portion where she has her house situated. To Byrd, it gave the North part of the bottom. The remainder was devised to Byrd and Russell, in equal shares, to share and share alike. The codicil named Byrd and Russell coexecutors, and they filed a petition for probate in Byrd later filed a motion to construe will, which contended that the specific devises of real property (i.e., the north and south parts of the bottom ) were confusing and inapplicable due to subsequent transfers. Attached to the motion was a certificate of service stating that the motion had been mailed to Russell s attorney. Russell s attorney was allowed to withdraw in The same day, the chancery court held a hearing on the motion to construe the will. Russell did not appear. The court entered an order construing the will, finding that the devises in question were ambiguous and that insufficient evidence had been offered at the hearing to determine their meaning. The chancellor found the devises to be void for uncertainty and that the share-and-share-alike residual clause controlled the inheritance of the real property. Russell s newly hired attorney filed a motion seeking additional time to file a motion for rehearing. For reasons that are unclear, Russell believed the February 23 hearing had been canceled after her attorney withdrew. The chancellor s order denying relief stated only that Russell had not shown she was entitled to relief under M.R.C.P. 60(b). Russell appeals. Issue 1: Service of process Russell argues she received insufficient notice of the February 23 hearing and that the chancellor s decision construing the will is void because she did not receive process. Byrd argues that the issue has been waived. M.R.C.P. 81(d)(1) is clear that the issue should have been raised by petition or complaint rather than by motion and that Russell, rather than her attorney, should have been served with notice of the petition and the date of the hearing. In Rule 81 matters, a Rule 81 summons must be issued; otherwise, service is defective. The fact that Russell knew a hearing had been scheduled is irrelevant. Byrd argues that the issue was waived by Russell s pursuit of the Rule 60(b) motion. While service under Rule 81 can be waived by an appearance at the hearing and the presentation of a defense on the merits, the relevant question should be whether the defendant appeared and defended the specific Rule Page 3 of 19

4 81 matter rather than some other issue in the underlying cause. Here, Russell s only appearance on the will construction issue was her filing and pursuit of what the chancellor interpreted as a Rule 60(b) motion for relief from the judgment, where Russell argued that she was not accorded proper notice of the hearing. She did not appear at the hearing on the merits of the Rule 81 matter. Russell s Rule 60(b) motion was not a defense on the merits and thus did not serve to waive her insufficiency of process defense. However, the record does not affirmatively show that Russell argued the specific issue of a Rule 81 summons to the trial court. There was no written Rule 60 motion, and at the chancellor s direction, Russell s legal arguments were presented by letter brief rather than at the hearing on her Rule 60 motion. Those briefs are not found in the record. The practical effect of Russell s failure to make those briefs part of the record is that the Court must assume the specific Rule 81 argument was, in fact, not made. And the Court will generally not address issues for the first time on appeal. Nonetheless, the specific issue of service of a Rule 81 summons, because it is jurisdictional, can be raised for the first time on appeal. Thus, relief can be granted on appeal notwithstanding Russell s failure to make the specific argument in the trial court. Because Russell was not served with a Rule 81 summons on the will construction issue and she did not waive service, the judgment on the will construction is void. Issue 2: Property line dispute One other dispute remains on appeal: the chancery court s resolution of a boundary dispute between Russell and the estate. The question is the location of the boundary of Russell s property that was described by calls in the deed as running east 526 feet more or less to a ditch; thence run[ning] in a northernly direction with the center of said ditch approximately 990 feet, more or less, to the north boundary of [a specified] quarter section.... It was undisputed that nothing resembling a ditch was found 526 feet from the previous marker as described in the deed. Continuing on that course, there were two candidates for the monument: a man-made ditch more than 900 feet along, and a small natural waterway, Martin Creek Branch, at more than 1,200 feet. The disputed property is a strip, approximately five acres, between the land Wylie undisputedly deeded to Russell and the land she deeded to Russell s cousin around the same time. The chancellor concluded that the manmade ditch was the boundary. Russell argues that the chancery court lacked substantial evidence to reach the conclusion it did. She also argues that the court erred in excluding certain testimony and erroneously failed to consider other evidence for relevant purposes or to weigh it the way Russell contends it should be weighed. Russell offered the testimony of Doyle Taylor regarding statements made by the decedent/grantor, Wylie. Taylor would have testified that Wylie told him the boundary was the Martin Creek Branch. Russell argues that this testimony was admissible under M.R.E. 803(3). Taylor s testimony is actually either ambiguous as to when the statements were made, or he describes Wylie speaking about her intent in the past tense. Thus, the chancellor acted within her discretion in refusing to admit the proffered testimony as a statement of memory or belief regarding the boundary. Russell also argues that the chancellor failed to properly weigh her testimony regarding statements her mother made to her around the time of the transfer. However, when this testimony was offered at trial, Byrd objected, and, in response, Russell s attorney stated that the testimony was offered only for the purpose of showing Russell s own understanding of the boundary line. Thus, the chancellor did not err in limiting her consideration of the testimony to the purpose for which it was offered and admitted. Russell also argues that this testimony was admissible under M.R.E. 803(20). But a review of Taylor s testimony indicates that he only testified to his own personal belief and that it was based on what Wylie had told him, apparently in a private conversation. This was not a statement of reputation at all. Russell s remaining arguments are essentially a challenge to the chancellor s ultimate Page 4 of 19

5 factual findings. While Russell presented a strong case for her interpretation of the deed, substantial evidence supported the chancellor s interpretation. Russell also argues that the case should be remanded for further consideration of her claim to have adversely possessed the property. However, the chancellor s decision on this question was supported by substantial evidence; Russell admitted that she did not occupy the property and that she allowed Wylie to do what she wanted with it, including to lease it and collect the payments. CONCUR IN PART, DISSENT IN PART Judge Wilson joined by Presiding Judge Griffis and Judge Carlton Page 5 of 19

6 Topics: Workers' compensation - Permanent total disability - Section (c)(2) - Scheduled member - Section (c)(25) - Section (a) - Permanent partial disability - Loss of wage-earning capacity LOGAN v. KLAUSSNER FURNITURE CORP., NO WC COA Civil - MODIFIED OPINIONS ON MOTION FOR REHEARING MISSISSIPPI WORKERS COMPENSATION COMMISSION ROY O. PARKER, HALEY WADE MCINGVALE II AMY LEE TOPIK, JOSEPH ANTHONY GERACHE III Judge Greenlee Reversed and remanded. The motion for rehearing is denied, and these opinions are substituted for the original opinions. Bettye Logan was employed by the Klaussner Furniture Corporation d/b/a Bruce Furniture Industries. Logan was injured when her foot became caught in some fabric fibers at work, causing her to fall. Logan filed a petition to controvert with the Mississippi Workers Compensation Commission. The administrative judge entered an order finding that Logan had not suffered any industrial loss of use to her left lower extremity. Logan then filed a petition for review before the full Commission which affirmed the decision of the AJ. Logan appealed, and the Court of Appeals reversed and remanded the decision of the Commission. On remand, the AJ again conducted an analysis of the prior evidence and claim of Logan rather than focusing on the findings within the opinion of the Court of Appeals. The AJ then found that Logan suffered a sixty-percent loss of industrial use to her left lower extremity. The Commission affirmed the decision, stating that it agreed with the AJ that Logan had the ability to return to employment at least at a sedentary level based on the medical and vocational evidence. The Commission s ruling relegated Logan to permanent partial disability (scheduled member) instead of permanent partial disability (body as a whole) or permanent total disability. The Commission s ruling also limited Logan to the 175 weeks of compensation allowable under the schedule for the loss of industrial use of her leg (scheduled member), instead of the 450 weeks allowable for her loss of wage-earning capacity under either permanent total disability or permanent partial disability (body as a whole). Logan appeals. Logan argues that the Commission erred by not finding that she suffered a permanent total disability for the maximum of 450 weeks of compensable time. When the Court of Appeals has already addressed a case by a ruling, barring a grant of certiorari by the Mississippi Supreme Court, a question settled by the Court of Appeals should be treated as no longer open for review, and such decisions constitute a body of precedent that should be followed in subsequent cases. Whether a claimant s permanent disability is partial or total is a question of fact determined by the evidence as a whole, including both lay and medical testimony. The Commission s finding focused on Logan s leg as a scheduled member covered under section (c)(2). With regard to Logan s injury, the Court of Appeals held in the first appeal that the evidence supports her injury was a permanent partial or total disability, and at the very least, Logan should have been assessed a loss of wage-earning capacity. Given that a loss of wage-earning capacity is only pertinent to section (c)(25) with respect to a Page 6 of 19

7 finding of permanent partial disability, if the Commission were to find that Logan s disability was permanent and partial, then section (c)(25) would be the only plausible section under which it could compensate. For permanent and total disability, then section (a) would apply. Therefore, either section (a) (permanent total) or (c)(25) (permanent partial) controls in this case, not section (c)(2) as applied by the Commission. Thus, the Commission s decision is based on an erroneous application of law, and the case is reversed and remanded for the Commission to determine the amount of Logan s loss of wage-earning capacity and apply that accordingly under either the permanent total or the permanent partial disability provisions of section (a) or (c)(25). DISSENT Judge Wilson joined by Presiding Judge Griffis and Judges Carlton and Fair Page 7 of 19

8 DANIELS v. STATE, NO KA COA Criminal Topics: Sexual battery - Expert testimony - M.R.E Medical records - Right to confrontation - Ineffective assistance of counsel - Proof of venue HON. DAVID H. STRONG JR. PIKE COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: HUNTER NOLAN AIKENS OFFICE OF THE ATTORNEY GENERAL: JOSEPH SCOTT HEMLEBEN Judge Westbrooks Affirmed. Dezjon Daniels was convicted of sexual battery and sentenced to thirty-five years, with twenty-five years to serve, ten years suspended, and five years of post-release supervision. He appeals. Issue 1: Expert testimony Daniels argues that the opinion of a forensic interviewer was based on speculation, not reliable scientific principles and methods applied to the facts of the case. Under M.R.E. 702, the court must determine whether the expert testimony rests on a reliable foundation and is relevant to the matter. Furthermore, the testimony must be grounded in the methods and procedures of science, not merely a subjective belief or unsupported speculation. Here, the witness has a master s degree in social work. She trained for the ChildFirst forensic interviewing protocol through the National Child Protection Training Center. She has interviewed over 900 children regarding alleged sexual abuse, alleged physical abuse, and witnesses to violent crime. She relied on her training in gathering as much information as possible from the victim. Therefore, the court did not abuse its discretion in accepting her as an expert witness in forensic interviewing. Daniels also argues that the witness s testimony impermissibly passed judgment on whether he was the specific perpetrator of the alleged abuse. While the expert should not be permitted to pass judgment on whether the defendant was the specific perpetrator, the testimony in this case did not conclude that Daniels was the perpetrator. The testimony pertains to the victim s credibility rather than the victim s veracity. The scope of permissible expert testimony under Rule 702 includes an expert s opinion that the alleged victim s characteristics are consistent with those of children who have been sexually abused. Issue 2: Medical records Daniels argues that the victim s forensic medical records are testimonial in nature and violate his Sixth Amendment right to confrontation. A document is testimonial when it is created for the sole purpose of the State s use as evidence against the defendant. Daniels s trial counsel did not object to the introduction of the records into evidence. In fact, Daniels s trial counsel stipulated to the forensic records being submitted into evidence. Daniels s trial counsel relied on the results of the forensic records to develop a defense. Thus, there is no error. Page 8 of 19

9 Issue 3: Ineffective assistance of counsel Daniels argues his counsel provided deficient representation because of counsel s decision to stipulate to the admission of the forensic report. However, the stipulation of the medical records into evidence is a part of trial counsel s defense strategy. Thus, there is no merit in Daniels s claim that he received ineffective assistance of counsel. Issue 4: Venue Daniels argues the State failed to present sufficient evidence to establish beyond a reasonable doubt that the incident occurred in Pike County. Proof of venue is indispensable to a criminal trial, and it may be proved by direct or circumstantial evidence. Here, the victim s mother testified that the house where the incident took place is located in Pike County. Although the State could have presented additional evidence to establish venue, this testimony sufficiently established venue. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Judge Wilson Page 9 of 19

10 WOLFE v. STATE, NO KA COA Criminal Topics: Aggravated assault, Carjacking & Armed robbery - Peremptory challenges HON. JEFF WEILL SR. HINDS COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: W. DANIEL HINCHCLIFF OFFICE OF THE ATTORNEY GENERAL: ALICIA MARIE AINSWORTH Judge Greenlee Affirmed. Demarco Wolfe was convicted of aggravated assault, carjacking, and armed robbery. He was sentenced to serve concurrent terms of twenty, thirty, and thirty-five years. He appeals. Wolfe argues that the trial court erred in denying his Batson challenge, because the State impermissibly sought to exclude African American males from the jury. The court noted that one of the three African American males was not struck and was seated as an alternate, and that there are a number of jurors, a very large number of African American females, that were accepted by the State without challenge. Looking at the totality of the relevant facts, including that a large number of African American females served on the jury and that an African American male served as an alternate, the Court defers to the trial court s determination that the circumstances did not imply discriminatory intent by the State. Even if a prima facie case was established, inconsistency between oral responses and a juror s questionnaire has been determined a valid neutral reason for exercising a peremptory challenge. Inattentiveness and demeanor during voir dire have also been as held race/genderneutral reasons for exercising a peremptory strike. Thus, there is no error. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Presiding Judge Irving CONCUR IN RESULT ONLY WITHOUT SEPARATE OPINION Judge Westbrooks Page 10 of 19

11 Topics: Aiding and abetting murder - Exclusion of prior statement - Hearsay - Statement against penal interest - M.R.E. 804(b)(3) SMALL v. STATE, NO KA COA HON. CHARLES E. WEBSTER TUNICA COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: ERIN ELIZABETH BRIGGS OFFICE OF THE ATTORNEY GENERAL: SCOTT STUART Judge Wilson Affirmed. Criminal Dedrick Small was convicted of aiding and abetting Cortez Bass in a murder. He appeals. Small argues that the trial judge abused his discretion by excluding a prior statement by Bass, who was convicted in a separate trial. The judge ruled that Bass s statement, which tended to exculpate Small, was inadmissible hearsay. Small argues that the statement was admissible as a statement against Bass s penal interest, because it tends to show premeditation. There is no dispute that Bass s statement to law enforcement was hearsay and, as such, was inadmissible absent some exception. Small sought to introduce Bass s statement under M.R.E. 804(b)(3), which provides that hearsay is admissible if, at the time of its making, the statement so far tended to subject [the declarant] to... criminal liability... that a reasonable man in his position would not have made the statement unless he believed it to be true. Three requirements must be met before a statement against interest may be admitted under this rule: the declarant must be unavailable; the statement must have clearly subjected the declarant to criminal liability; and corroborating circumstances must clearly indicate the statement s trustworthiness. As to the first requirement, although Bass had not been subpoenaed for Small s trial, the trial judge assumed, for purposes of ruling on Small s pretrial motion, that Bass would invoke his Fifth Amendment privilege to refuse to testify if called as a witness at trial which would render him unavailable for purposes of Rule 804. In general, a declarant s statement that he shot the victim in self-defense is not admissible because the statement constitutes a defense to criminal liability. Therefore, it cannot be said that the statement so far tends to subject the declarant to criminal liability that a reasonable man in his position would not have made the statement unless he believed it to be true. Bass s claim was that he went home and retrieved the gun from his house because he feared that there would be trouble with two other men. His alleged fear seems to have been based on his prior encounter with the two men, some alleged shooting the night before, or both. Regardless, Bass s claim that he retrieved the gun based on this fear was part and parcel of his self-defense narrative. In context, Bass s statements that he retrieved the gun, that the gun was his, and that Small did not give him the gun did not so far tend to subject him to criminal liability that a reasonable man in his position would not have made the statements unless he believed them to be true. Therefore, the trial judge did not abuse his discretion by excluding the statements. Moreover, even if Bass s statement had been against his interest, Small failed to show that the statement s corroborating circumstances clearly indicate its trustworthiness. To the contrary, the relevant circumstances and evidence indicate that it was not reliable or trustworthy. Bass s statement to law enforcement was Page 11 of 19

12 unsworn, and, in relevant part, it was directly contradicted by Bass s sworn testimony at his trial. Page 12 of 19

13 Topics: Post-conviction relief - Denial of parole - Amendments to sections and (6) - Retroactive application of amendments - Failure to name Mississippi Parole Board as party STATE v. HARDIN, NO CA COA HON. JOSEPH H. LOPER JR. CHOCTAW COUNTY CIRCUIT COURT OFFICE OF THE ATTORNEY GENERAL: DARRELL CLAYTON BAUGHN, ANTHONY LOUIS SCHMIDT JR. JOE FRANK HARDIN (PRO SE) Judge Fair Reversed and rendered. Criminal In 1995, Joe Hardin was convicted of two counts of murder and sentenced to two consecutive life sentences. In 2015, Hardin was denied parole, and the Mississippi Parole Board set off his case for another hearing in three years. Hardin filed a motion for postconviction relief claiming that, under the 2014 amendments to sections and (6), he is entitled to an annual hearing and a case plan to identify corrective actions he needs to take to prepare him for parole. The circuit court agreed with Hardin, and the State appeals. The State argues that the circuit court should have dismissed Hardin s complaint, since the Mississippi Parole Board was not named as a party or served with process. The State is correct. In addition, when the circuit court decided this case on the merits, the Mississippi Supreme Court had not yet ruled on the issue. Since then, it has held that the 2014 amendments to the parole statute are not retroactive and thus do not apply to prisoners admitted prior to the amendment s effective date. And since the 2014 amendments are not retroactive, they do not create a liberty interest that permits circuit courts to exercise jurisdiction over what is effectively an appeal from the denial of parole. Hardin was admitted to the custody of the Mississippi Department of Corrections long before the effective date of the 2014 amendments to the parole statute. Page 13 of 19

14 Topics: Post-conviction relief - Voluntariness of plea - Factual basis for plea - Preliminary hearing - Defective indictment - Section Habitual offender sentence - Section BRADLEY v. STATE, NO CP COA HON. JAMES MCCLURE III TATE COUNTY CIRCUIT COURT ANDREW LEON BRADLEY (PRO SE) OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE Judge Fair Affirmed. Criminal Andrew Bradley pled guilty to one count of possession of cocaine with intent to distribute, as a habitual offender. The circuit court sentenced Bradley to ten years, as a habitual offender and without the possibility of probation or parole. Bradley filed a motion for post-conviction relief which was dismissed. He appeals. Issue 1: Voluntariness of plea Bradley argues that his guilty plea was involuntary. He alleges that he only agreed to plead guilty because the prosecutor threatened him with a life sentence if he went to trial. His claims are directly contradicted by his sworn petition to enter a guilty plea and by his testimony at the hearing. He repeatedly admitted under oath that he had not been threatened, intimidated, or coerced and that he was pleading guilty of his own free will. Issue 2: Factual basis for plea Bradley argues that there was no factual basis for his guilty plea. However, at the guilty plea hearing, Bradley admitted under oath to every element of the offense. And a valid guilty plea waives the right to challenge the sufficiency of the State s evidence. Issue 3: Preliminary hearing Bradley argues that he did not receive a timely preliminary hearing and if he had, that it would have determined that the prosecution could not make a case against him. Bradley was indicted by a grand jury, which both disproves Bradley s claims about the evidence and renders the question of a preliminary hearing moot. Issue 4: Defective indictment Bradley argues that his indictment was defective. He appears to argue that his indictment conflicted with another indictment rendered against him several months prior, but that indictment is not found in the record. He also argues that his indictment was defective because it did not allege the specific amount of cocaine he ultimately admitted to possessing 2.15 grams but instead tracked the language of the statute and accused him of possessing Page 14 of 19

15 two or more grams, but less than ten grams, of cocaine. The ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense. Under section , it is not an element of the offense that the State prove the amount of drugs the defendant possessed to two decimal places; it is only required to prove that the defendant possessed them in an amount punishable under the statute. That was alleged by the indictment here. Issue 5: Habitual offender sentence Bradley argues that one of the prior convictions and sentences was fabricated in the sense that he was actually sentenced to a term of less than one year. He also argues that one of the convictions could not be used because he was presently serving that sentence at the time he was sentenced in this case. Bradley did not object to his sentencing as a habitual offender. He is therefore procedurally barred from raising these issues on appeal. In addition, section requires only that Bradley have been sentenced to a year or more; the length of the sentence controls, not how much of it is actually served. Moreover, the record says nothing about the prior convictions beyond what was alleged in the indictment, which Bradley specifically admitted as true and accurate in both his sworn petition to enter a plea of guilty and his testimony at the guilty plea hearing. Page 15 of 19

16 CANTRELL v. STATE, NO KA COA Criminal Topics: Possession of methamphetamine - Weight of evidence HON. CHARLES E. WEBSTER BOLIVAR COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: BENJAMIN ALLEN SUBER OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER Judge Carlton Affirmed. Jeffrey Cantrell was convicted of possession of methamphetamine and sentenced, as a habitual offender, to six years without eligibility for parole or probation. He appeals. Cantrell argues that the verdict was against the overwhelming weight of the evidence, because the evidence failed to establish beyond a reasonable doubt that Cantrell ever possessed the syringe containing methamphetamine. The jury is the sole judge of the credibility of witnesses. Here, the police officer testified that he was able to clearly identify Cantrell at the scene. The officer observed Cantrell remove something from his pants pocket and throw it. Once backup arrived, the officer searched the area where he saw Cantrell throw the item, and he found two syringes. He admitted to finding a screwdriver at the scene, but he testified that the screwdriver was not located in the same area as the syringes. Thus, there is substantial evidence that Cantrell possessed the syringes, one of which contained methamphetamine. Page 16 of 19

17 Topics: Felony fleeing & Aggravated domestic violence - Weight of evidence - Strangulation - Section (9)(a) - Habitual offender status - Section Ineffective assistance of counsel - Due process rights - Preliminary hearing - Prosecutorial misconduct RYAN v. STATE, NO KA COA HON. LEE J. HOWARD LOWNDES COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: ERIN ELIZABETH BRIGGS OFFICE OF THE ATTORNEY GENERAL: ABBIE EASON KOONCE Presiding Judge Irving Affirmed. Criminal Brent Ryan was convicted of felony fleeing and aggravated domestic violence. He was sentenced to five years on the felony-fleeing count and twenty years on the aggravateddomestic-violence count, without the benefit of early release or parole. He appeals. Issue 1: Weight of evidence Ryan argues that the jury s finding, that he strangled the victim, was against the overwhelming weight of the evidence, because the State failed to prove the legal element of strangulation. He points out that the victim had no visible injuries or symptoms the following day, that she refused to go the hospital on the day of the incident, and that the hospital found no abnormal results from her CT scans. Strangle is defined by section (9)(a) as: to restrict the flow of oxygen or blood by intentionally applying pressure on the neck, throat or chest of another person by any means or to intentionally block the nose or mouth of another person by any means. Here, the victim testified during trial that Ryan put his hands around her throat and choked her, making it impossible for her to breathe, which caused her to lose consciousness. She further testified, I couldn t breathe. I passed out. I kept on saying I feel the life leaving my body. I could feel me dying. I can t breathe. Please stop. A deputy testified that he observed red marks on the victim s neck on the day in question. Photographs of the victim, taken on the day the strangulation occurred, were also admitted into evidence. This evidence, coupled with the victim s testimony that Ryan had strangled her, supported the jury s verdict. Issue 2: Habitual offender status Ryan argues that the State did not present competent evidence of the three convictions it relied on to prove that he was a habitual offender within the meaning of section In order to sentence a defendant as a habitual offender, the accused must be properly indicted as a habitual offender, the prosecution must prove the prior offenses by competent evidence, and the defendant must be given a reasonable opportunity to challenge the prosecutor s proof. Here, the evidence the State used Oklahoma Department of Corrections website data and Ryan s pre-sentencing report was competent to sentence him as a habitual offender. Although the social security number and birth dates differed, there was a photo and Page 17 of 19

18 conviction data on the website, and Ryan admitted to the offenses in his pre-sentencing report. He was given an opportunity to challenge the State s proof through cross-examination at his sentencing hearing. Ryan s counsel was also given additional time after the trial concluded to investigate his claim that the charges were inapplicable. Thus, the State proved Ryan s habitual status beyond a reasonable doubt. Issue 3: Ineffective assistance of counsel Ryan argues that he received ineffective assistance of counsel because his attorney failed to object to a defective indictment, object to missing elements of the crime, pursue motions that Ryan had filed, and object to hearsay evidence. As a general rule, where an indictment tracks the language of a criminal statute it is sufficient to inform the accused of the charge against him. Here, the indictment clearly states the charge and gives sufficient descriptive facts to put Ryan on notice of the accusations against him. Ryan provided no evidence that the indictment hampered his defense in any way. With respect to hearsay, Ryan argues that the State made multiple prejudicial, inflammatory remarks during closing arguments that misstated the evidence. As a general rule, prosecutors are to be given wide latitude in making their closing arguments, and there was no error in this case. Also, there is no requirement that retained counsel pursue a defendant s pro se motions. Issue 4: Due process violations Ryan argues that his due-process rights under the Eight and Fourteenth Amendments to the United States Constitution were violated prior to and during trial. He asserts that he was not given an initial appearance within forty-eight hours of his arrest and that he was not given a preliminary hearing after he requested one. However, Ryan fails to provide any evidence supporting his argument that he never had a preliminary hearing after he requested one. Issue 5: Prosecutorial misconduct Ryan argues that his wife was a confidential informant for the Golden Triangle Drug Task Force, and had had multiple contacts with the police. He submits that a simple NCIC check or report, as he requested by motion before trial, would have shown her bias and the State s failure to turn over impeachment evidence that would be considered Brady material. However, he fails to identify any material or evidence constituting Brady material that the State failed to turn over to him. And, the prosecution is under no legal duty to inform the jury about a victim s unrelated history with police. Page 18 of 19

19 DUNCAN v. STATE, NO CP COA Criminal Topics: Post-conviction relief - Time bar - Successive writ - Illegal sentence HON. W. ASHLEY HINES WASHINGTON COUNTY CIRCUIT COURT WENDELL DUNCAN (PRO SE) OFFICE OF THE ATTORNEY GENERAL: KAYLYN HAVRILLA MCCLINTON Chief Judge Lee Affirmed. Wendell Duncan was convicted of conspiracy to commit burglary of a business and burglary of a business in In 1995, Duncan was convicted of armed robbery. Duncan filed his first motion for post-conviction relief in 1996, which was dismissed by the circuit court. The dismissal was affirmed on appeal. In 2005, Duncan filed numerous motions and other documents in both the circuit court and the Supreme Court. The motions were denied, and Duncan was sanctioned by the Supreme Court. In 2008, Duncan filed a motion in the circuit court to vacate his convictions and sentences, which the circuit court treated as Duncan s second PCR motion and dismissed as time-barred and successive writ barred. The dismissal was affirmed on appeal. In 2011, the Supreme Court denied Duncan s motion for leave to proceed in the circuit court. Duncan filed a motion in the circuit court to correct his sentence, which the circuit court treated as Duncan s third PCR motion and dismissed as successive-writ barred. The dismissal was affirmed on appeal. Duncan filed a fourth PCR motion, which was again dismissed by the circuit court and affirmed on appeal. In November 2015, Duncan filed a fifth PCR motion in the circuit court. The motion was dismissed as both time-barred and successive-writ barred. Duncan appeals. Duncan s PCR motion was filed nearly twenty-one years after his conviction. Thus, it is time barred. In addition, it is barred as a successive writ. Duncan asserts that his PCR motion is excepted from the procedural bars, arguing that he served an illegal sentence for the burglary and conspiracy convictions in violation of his fundamental constitutional rights. However, Duncan fails to go beyond merely asserting that his sentence was illegal and thus violated his fundamental constitutional rights. And, the sentence he seeks relief from is over. Thus, even assuming that his claim is excepted from the procedural bars, the alleged defect could not be remedied. Page 19 of 19