author: ISHEE, JUSTICE, FOR THE COURT: KING, PRESIDING JUSTICE, DISSENTING: COLEMAN, JUSTICE, DISSENTING:

text:
    In the Interest of M.D.G., a Minor, G.J., a Minor, N.B., a Minor: Pass Christian School District v. HARRISON COUNTY YOUTH COURT OF MISSISSIPPI, Roy Cuevas and Kimberly Cuevas, Individually and as Next Friends and Guardians to E.C., a Minor
    NO. 2017-CA-00915-SCT
    Supreme Court of Mississippi.
    July 25, 2019
    ATTORNEYS FOR APPELLANT: EDWARD C. TAYLOR, GULFPORT, KATIE RYAN VAN CAMP
    ATTORNEYS FOR APPELLEES: SCOTT WATSON WEATHERLY, JR., BIRMINGHAM, TERRENCE J. LESTELLE, METAIRIE
    BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶1. E.C. alleged she was sexually assaulted on the premises of Pass Christian High School. The Harrison County Youth Court adjudicated the alleged perpetrators not delinquent. Later, Roy and Kimberly Cuevas, individually, and on behalf of their minor daughter, E.C., filed a negligence action in the Harrison County Circuit Court, seeking damages from the Pass Christian School District associated with the alleged assault.

¶2. Pass Christian unsuccessfully sought the records from the youth-court action to use in its defense in the civil case. It argues on appeal that the youth-court judge abused her discretion in denying its requests for disclosure of the youth-court records and trial transcripts relating to the three minor perpetrators. It also argues it would be denied due process and fairness if the sworn testimony of E.C. were not released due to the confidentiality rules protecting the subjects of youth-court actions.

¶3. We reverse and remand for the circuit court to conduct an in camera review of the youth-court record to determine whether any of it should be disclosed.

FACTS

¶4. E.C. alleged she was sexually assaulted on the campus of Pass Christian High School. She said attended a practice for an end-of-the-year program on April 20, 2015, in the gymnasium. After the practice concluded, the supervising teacher left the premises, leaving E.C. unsupervised. E.C. claims that, after the teacher left, M.G. sexually assaulted her while G.J. and N.B. aided. Five days later, police asked the principal of Pass Christian High School if the school had surveillance footage. Pass Christian did not possess any surveillance footage that could confirm or deny the alleged assault, because the footage was taped over every seventy-two hours.

¶5. A trial was conducted in the youth court, and the three alleged offenders were adjudicated not delinquent. Plaintiffs then filed suit against Pass Christian in circuit court for negligence.

¶6. Pass Christian first attempted to obtain the three youth-court files by issuing a subpoena duces tecum from the circuit court on October 20, 2016. In response, the youth court filed a motion for a protective order on October 31, 2016. A hearing was held before the circuit court on November 30, 2016. The circuit court granted the youth court a protective order, ruling that the disclosure of the record and transcript was within the discretion of the youth court.

¶7. Pass Christian then tried to gain access to the youth-court records by filing three separate petitions for the records in the youth court. The Plaintiffs filed a response objecting to the release of the youth-court records on April 4, 2017. A hearing was held before the youth court, and on May 24, 2017, the youth court entered an order denying Pass Christian's request for the records

¶8. On June 23, 2017, Pass Christian filed two notices of appeal, one to the circuit court and one to this Court, along with a statement of the issues and designation of the record. Pass Christian sought disclosure of the youth-court records and trial transcript. The appeal to the circuit court was voluntarily dismissed on July 11, 2017. On August 29, 2017, the youth court entered an order excluding the youth-court record and transcript from the appellate record.

¶9. On September 12, 2017, Pass Christian again sought access to the youth-court record and trial transcript by filing a "Certificate of Examination and Proposed Corrections to the Record on Appeal" in the youth court. Plaintiffs filed their "Certificate of Examination and Opposition to Proposed Corrections of Appellant" in the youth court on September 25, 2017. The attorney for M.G. filed a response opposing Pass Christian's Certificate of Examination and Proposed Corrections to the Record on Appeal on September 27, 2017. Pass Christian then filed a motion to correct the record on appeal in the youth court on October 10, 2017. The Plaintiffs filed a response opposing the motion on October 23, 2017. The youth court entered an order on March 19, 2018, that denied access to the youth-court records and trial transcript.

¶10. Once again, Pass Christian tried to gain access to the youth-court records and trial transcript by filing a motion to correct the record on appeal in this Court on April 4, 2018. Plaintiffs and the youth court filed responses opposing the motion on April 17, 2018. This Court entered an order denying Pass Christian's motion on August 2, 2018.

ISSUES

¶11. Pass Christian presents two issues on appeal: (1) whether denying the petitions for youth-court records was an abuse of discretion and (2) whether keeping the youth-court records and trial transcript confidential would deny it due process and fairness. These issues overlap and will be discussed together.

DISCUSSION

¶12. Disclosure of youth-court records is subject to the discretion of the youth-court judge. Miss. Code. Ann. § 43-21-261(1) ; see also State v. U.G. , 726 So. 2d 151, 154 (Miss. 1998). Section 43-21-261 of the Mississippi Code governs disclosure of youth-court records and states that

records involving children shall not be disclosed, other than to necessary staff of the youth court or a Court-Appointed Special Advocate (CASA) volunteer that may be assigned in an abuse and neglect case, except pursuant to an order of the youth court specifying the person or persons to whom the records may be disclosed, the extent of the records which may be disclosed and the purpose of the disclosure. Such court orders for disclosure shall be limited to those instances in which the youth court concludes, in its discretion, that disclosure is required for the best interests of the child, the public safety or the function of the youth court.

Miss. Code Ann. § 43-21-261(1) (Supp. 2018). If disclosure is deemed proper, the records are to go only to:

(a) The judge of another youth court or member of another youth court staff;
(b) The court of the parties in a child custody or adoption cause in another court;
(c) A judge of any other court or members of another court staff;
(d) Representatives of a public or private agency providing supervision or having custody of the child under order of the youth court;
(e) Any person engaged in a bona fide research purpose, provided that no information identifying the subject of the records shall be made available to the researcher unless it is absolutely essential to the research purpose and the judge gives prior written approval, and the child, through his or her representative, gives permission to release the information;
(f) The Mississippi Department of Employment Security, or its duly authorized representatives, for the purpose of a child's enrollment into the Job Corps Training Program as authorized by Title IV of the Comprehensive Employment Training Act of 1973 ( 29 USCS Section 923 et seq. ). However, no records, reports, investigations or information derived therefrom pertaining to child abuse or neglect shall be disclosed;
(g) To any person pursuant to a finding by a judge of the youth court of compelling circumstances affecting the health, safety or well-being of a child and that such disclosure is in the best interests of the child or an adult who was formerly the subject of a youth court delinquency proceeding.

Id. Pass Christian does not fit into any of those specified categories.

¶13. In In re J.E. v. State , 726 So. 2d 547, 549 (Miss. 1998), a criminal defendant sought disclosure of the youth-court records of a minor who had accused him of sexual battery in order to prepare his defense. We found that, in the interest of confidentiality, the defendant had no right to full disclosure or inspection of the records. Id. at 553. For the same reasons, disclosure of the youth-court record and trial transcripts directly to Pass Christian is inappropriate.

¶14. But Pass Christian also requested that the youth-court record and trial transcript be disclosed to the circuit court for an in camera review to determine relevance and admissibility. In In re J.E. , this Court went on to hold that although the defendant did not have the right to full disclosure or inspection of the records, he did have the right to have the records disclosed to the circuit court for an in camera review to determine if any information material to the pending case was in the records. In re J.E. , 726 So. 2d at 552-53. That is what should be done here.

¶15. Pass Christian is seeking the youth-court record and the transcript of witness testimony because it believes that conflicting testimony may be in the record and transcript that could aid in its defense. Concerning conflicting testimony, this Court has held,

The credibility of [the alleged victim's] recanting testimony is the tightrope upon which [the defendant's] conviction stands or falls. The reasoning and authorities establish that the youth court would abuse its discretion if it did not authorize disclosure here.

Yarborough v. State , 514 So. 2d 1215, 1219 (Miss. 1987). In analyzing the holding in Yarborough , this Court has said, "The implication of this statement is that this Court, at the very least, contemplated the notion that a youth court ought to disclose youth court records when such can provide the basis for the impeachment of a witness ...." J.E. , 726 So. 2d at 551.

¶16. This Court recognizes the statutory authority granted to the youth court to use its discretion in deciding matters of disclosure. Confidentiality of youth-court proceedings is crucial, but "[t]he right of 'confidentiality' on behalf of the child is a 'qualified' and not an 'absolute' privilege." Daniels by Glass v. Wal-Mart Stores, Inc. , 634 So. 2d 88, 93 (Miss. 1993) (citing Ex Parte State Farm Fire & Cas. Co. , 529 So. 2d 975, 977 (Ala. 1988) ). The youth court should cooperate with the circuit court in order to achieve judicial economy and efficiency all the while maintaining confidentiality, which are tenets of all of our courts.

¶17. As in J.E. , two very important interests intersect in this case: the Plaintiffs' interest in the confidentiality of youth-court records and Pass Christian's interest in receiving a fair trial. "[T]he right to impeach or attack a witness' credibility is secured both by the Mississippi Rules of Evidence and the confrontation clauses of the state and federal constitutions." J.E. , 726 So. 2d at 550 (quoting Brown v. State , 690 So. 2d 276, 292 (Miss. 1996) ). As the Daniels Court held, the search for truth requires a total view of the evidence. Daniels , 634 So. 2d at 93. Allowing disclosure of information deemed relevant to Pass Christian's defense through an in camera review balances these two interests. "[T]he State's interest in the confidentiality of such records is protected, our statutory scheme is satisfied, our youth courts function within constitutional parameters, and our rules of discovery are honored, while allowing [Pass Christian] limited access to information which might prove vital to [its] defense." J.E. , 726 So. 2d at 553.

¶18. The names and addresses of the witnesses who testified in the related youth-court proceedings should be disclosed to Pass Christian. If Pass Christian believes there is conflicting testimony, it may ask the circuit court to perform an in camera review. Then, if the circuit court determines there is information relevant to Pass Christian's defense, the relevant information should be disclosed to Pass Christian.

¶19. Finally, all information disclosed shall be "limited for the purposes of the related civil litigation." In re R.J.M.B. v. Jackson Cty. Dep't of Human Servs. , 133 So. 3d 335, 341 (Miss. 2013) (citing Daniels , 634 So. 2d at 91 ).

CONCLUSION

¶20. In summary, the names and addresses of all witnesses who testified in the youth-court proceeding should be made available to Pass Christian. Pass Christian can then depose those persons. If Pass Christian believes any of the deponents testified contrary to their testimony in the youth-court proceedings, it may ask the circuit judge to do an in camera review of the deponent's earlier testimony. If the circuit judge finds contrary testimony, Pass Christian may obtain the conflicting testimony to use in its defense. All information disclosed shall be used only for purposes of the pending civil litigation.

¶21. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

RANDOLPH, C.J., MAXWELL, BEAM AND GRIFFIS, JJ., CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.; COLEMAN AND CHAMBERLIN, JJ., JOIN IN PART. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHAMBERLIN, J.

KING, PRESIDING JUSTICE, DISSENTING:

¶22. This Court engages in discovery for the Pass Christian School District, inappropriately awarding it a remedy that Pass Christian does not request. Further, the Court preemptively, and without setting a legal standard, orders the youth court to disclose its records to the circuit court to potentially perform an in camera review of the youth-court records. Therefore, I respectfully dissent.

¶23. The Court orders that "[t]he names and addresses of the witnesses who testified in the related youth-court proceedings should be disclosed to Pass Christian." Maj. Op. ¶ 18. Pass Christian did not ask for the names and addresses of the testifying youth-court witnesses, either from the youth court or this Court, nor has any party been availed the opportunity to respond to this. See Pitchford v. State , 45 So. 3d 216, 232 (Miss. 2010) ("The trial court cannot be held to err on an issue not presented to it for decision.... A trial court has no duty to sua sponte second-guess decisions by ... counsel." (footnote omitted) (citation omitted)); Sanders v. State , 678 So. 2d 663, 669-70 (Miss. 1996) (Issues not raised in the appellant's initial brief are waived. The appellees should not be denied an opportunity to respond to arguments.). This Court has inappropriately created this remedy without a request to do so. Pass Christian has presented no argument that this information is essential to its case, nor any argument that it does not already know the identities of these witnesses. Indeed, it is highly likely that Pass Christian could simply glean this information through discovery requests and/or depositions, because Pass Christian clearly knows the identities of the four minors directly involved in the alleged incident. I believe it is inappropriate for this Court to proactively engage in discovery on behalf of Pass Christian and to order the youth court to give Pass Christian information that Pass Christian did not request and that it could likely obtain through other means.

¶24. The Court also preemptively orders the youth court to disclose the records to the circuit court for a potential in camera review. The Court does not outline any standard for when youth-court records should be disclosed in such a case as this: a civil case in which none of the parties share privity of party with the youth who was the subject of the youth-court case.

In such a case, this Court must balance the importance of youth-court confidentiality and the strict rules of Mississippi Code Section 43-21-261(1) (Supp. 2018) with a civil defendant's procedural due-process right to present a defense. This Court should set a standard for such a balance. I suggest that this Court follow a balance similar to that found in Mississippi Rule of Civil Procedure 26(b)(3), which details when documents and things prepared in anticipation of litigation are discoverable. Those items are discoverable "only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of that party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means." M.R.C.P. 26(b)(3). In civil litigation, a party seeking to have the civil court review youth-court records in camera for relevance should first show that the party has a substantial need of the review in order to preserve its procedural due-process right to present a defense. It should then show that it cannot obtain these materials or information by other means without substantial hardship.

¶25. At this juncture, Pass Christian has shown neither need nor that it cannot otherwise obtain this information. According to the record before this Court, Pass Christian has not yet deposed the four minors directly involved. It merely asks that the records be disclosed to the circuit court due to the potential that E.C. may give inconsistent statements in the future . Such speculation does not demonstrate need. Pass Christian should be required to show need through deposition testimony or other discovery, namely, to show that it was highly likely that inconsistent statements were made. Moreover, without depositions or other documentation, it is difficult or impossible for Pass Christian to show that it cannot obtain this information elsewhere. For example, in a deposition, E.C. may admit to any suspected inconsistencies. It would be difficult for Pass Christian then to argue that it also needed the confidential youth-court records to further bolster such an under-oath admission. At this juncture, Pass Christian merely asks this Court to order that the confidential youth-court records be disclosed to the circuit court to engage in a fishing expedition. While Pass Christian may be able to establish a need for in camera review at a later point, it has not yet done so. The importance of the confidentiality of youth-court records and the statute requiring this confidentiality demand that we strike a stricter standard for disclosure of those records than the majority offers. For that reason, I would affirm the youth court's order and remand the case for further proceedings without prejudice to Pass Christian's ability to file another petition seeking records that establish what is required under Mississippi Rule of Civil Procedure 26(b)(3).

KITCHENS, P.J., JOINS THIS OPINION. COLEMAN AND CHAMBERLIN, JJ., JOIN THIS OPINION IN PART.

COLEMAN, JUSTICE, DISSENTING:

¶30. The Harrison County Youth Court denied Pass Christian School District's request to release the youth court records pertaining to an alleged assault of a minor by three other minor students. Because the youth court judge followed the dictates of the applicable statute in refusing to disseminate the records at issue, and, with respect, because the majority does not, I would affirm.

¶31. In her May 24, 2017, order, the youth court judge properly set forth the standard required by statute, writing that "disclosure of records is allowed only where 'the Youth Court concludes, in its discretion, that disclosure is required for the best interests of the child, the public safety or the functioning of the Youth Court' ...." Her recitation of the standard directly quotes Mississippi Code Section 43-21-261(1) (Supp. 2018). The youth court judge noted that the three minors, whose best interest was at issue in deciding whether to release the records, were not parties to the underlying action in circuit court involving the Pass Christian school, and she found no valid ground for holding that the release of the record was in the best interest of the minors.

¶32. The majority makes several reasonable and pragmatic arguments in favor of forcing the release of parts of the youth court record. Maj. Op. ¶ 17. However, unlike the youth court, the majority does not follow the Section 43-21-261(1) requirement that disclosure be "required for the best interests of the child, the public safety or the functioning of the youth court."

¶33. I agree with Presiding Justice King that In re J.E. v. State , 726 So. 2d 547 (Miss. 1998), does not apply. The holding in In re J.E. rested in large part upon the application of the Confrontation Clause of the United States Constitution to a criminal defendant's request for records in order to enable cross-examination of potential witnesses. In re J.E. , 726 So. 2d at 549 (¶ 6). The underlying litigation involving the Pass Christian School District is civil in nature; accordingly, the Confrontation Clause and, by extension, In re J.E. , do not apply.

¶34. Justice King correctly points out that the relief afforded by the majority, i.e. , the partial release of the files, has not been requested. To the extent that his separate opinion makes the point, I join it. However, I, with respect, disagree with Justice King's assertion that the Court needs to create a standard for "when youth-court records should be disclosed in a case such as this ...." King Dis. Op. ¶ 24. The standard, as noted above, is supplied by statute.

CHAMBERLIN, J., JOINS THIS OPINION.

      Initials are used to protect the confidentiality of the minors.

      The cases relied on by this Court are distinguishable. Daniels v. Wal-Mart Stores, Inc. involves privity of party-the very youth-adjudicated delinquent sued Wal-Mart, his victim, for defamation surrounding the same issue for which he was adjudicated delinquent. Daniels v. Wal-Mart Stores, Inc. , 634 So. 2d 88 (Miss. 1993). The holding in Daniels is very limited, as well, finding that the court did not err in admitting the youth-court adjudication because the youth subject to the youth-court adjudication placed his character directly at issue in the civil litigation. It also noted that Wal-Mart, as the victim, was already entitled to information about the adjudication, without restriction as to the use of that information. See In re R.J.M.B. v. Jackson Cty. Dep't of Human Servs. , 133 So. 3d 335, 341 (Miss. 2013) ("We hold that Daniels does not support the proposition that record confidentiality is waived completely whenever a related civil suit is filed. 'Daniels stands only for the narrow proposition that a juvenile adjudication is admissible on the issue of character where that trait is at issue, such as, for example, in a slander suit.' " (quoting Sample v. State , 643 So. 2d 524, 528 n.1 (Miss. 1994) )). In re J.E. v. State is grounded in the right of criminal defendants to receive from the State evidence favorable to the defense and/or evidence material as to guilt or punishment. In re J.E. v. State , 726 So. 2d 547 (Miss. 1998).

      For example, Pass Christian could ask the three accused minors whether E.C.'s deposition testimony was consistent with her testimony they witnessed at youth court.

      Effective July 1, 2019, the Legislature amended Section 43-21-261, but the amendments do not appear to change the standard.


source: Caselaw Access Project

author: GRIFFIS, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    Edward Lamar WARE a/k/a Edward Ware a/k/a Little 50 v. STATE of Mississippi
    NO. 2018-KA-00239-SCT
    Supreme Court of Mississippi.
    July 25, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART, Jackson
    BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.
   GRIFFIS, JUSTICE, FOR THE COURT:

¶1. Edward Lamar Ware was convicted of possession of a weapon by a convicted felon. Ware appealed, and his counsel filed a brief under Lindsey v. State , 939 So. 2d 743 (Miss. 2005). Ware's counsel states that she has searched the record but was unable to find any arguable issues for appellate review. Ware was given the opportunity to file a pro se brief, but he declined. We have reviewed the record and find no error. We, therefore, affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On February 10, 2015, Ware went to Lakeshia Anderson's apartment in Starkville. Ware and Anderson previously had dated but were no longer in a relationship. When Ware arrived, Anderson who was in her car in the parking lot, was about to drive to the hospital. As Anderson began to leave, Ware pulled out a pistol and pointed it at Anderson's car. As a result, Anderson sped up and continued to the hospital.

¶3. Anderson returned home later that day and went to bed. She awoke to Ware beating on her apartment door. Anderson instructed her children not to answer the door. But, Anderson's youngest daughter opened the door. Anderson gave her purse to her oldest daughter, Ta'Kya, to hide. Ware saw this and an argument occurred.

¶4. Anderson and Ware went into Anderson's bedroom, where Ware hit Anderson in her face. Ta'Kya came into the bedroom to check on her mother but was told to leave. Ta'Kya returned to the bedroom that she shares with her younger sister and called the police. Ta'Kya advised the police that her mother and Ware were arguing and that Ware had hit her mother.

¶5. Officer Pedro Yerra with the Starkville Police Department responded to the call. When Officer Yerra entered the apartment, Anderson advised that Ware was in the back with her daughters and that he possibly had a gun. Officer Yerra walked through the apartment, calling for Ware. Ware responded that he was in the bathroom. After Officer Yerra determined that Ware was not in the bathroom, he again called for Ware. At that time, Officer Yerra realized that Ware was in the bedroom with Anderson's two daughters.

¶6. Officer Yerra saw the two girls in the bedroom but was only able to see a portion of the bedroom. Officer Yerra asked one of the girls where Ware was and she responded, "right here" and looked toward the part of the bedroom where Officer Yerra could not see. She further responded that Ware was "hiding a gun."

¶7. Officer Yerra, now joined by other police officers, asked Ware to come out of the bedroom. After several requests, Ware came out of the bedroom and was apprehended and taken into custody. Officer Yerra went into the bedroom and asked the girls where the gun was located. The girls advised that the gun was in a shoebox in the closet and pointed to the specific shoebox where the gun was located. Officer Yerra recovered the gun. The girls further advised Officer Yerra about a hidden magazine clip, and Officer Yerra recovered it.

¶8. Following his conviction, Ware was sentenced as a habitual offender under Mississippi Code Section 99-19-81 (Rev. 2015) to serve ten years in the custody of the Mississippi Department of Corrections. Ware filed a motion for a judgment notwithstanding the verdict or, alternatively, a new trial. The motion was denied. Ware timely appealed.

DISCUSSION

¶9. In Lindsey , this Court implemented the following procedure for cases in which appellate counsel does not believe any arguable issues exist for appellate review:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28(a)(1) -[ (5), (8) ].
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify that there are no arguable issues supporting the client's appeal, and he or she has reached this conclusion after scouring the record thoroughly, specifically examining: (a) the reason for the arrest and the circumstances surrounding arrest; (b) any possible violations of the client's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant, inform the client that counsel could find no arguable issues in the record, and advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate court discover any arguable issue in its review of the record, the court must, if circumstances warrant, require appellate counsel to submit supplemental briefing on the issue, regardless of the probability of the defendant's success on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its merits and render a decision.

Lindsey , 939 So. 2d at 748 (footnotes omitted) (citations omitted).

¶10. Here, Ware's counsel filed a brief in compliance with Rule 28 and stated that she had "diligently searched the procedural and factual history of this criminal action and scoured the record, searching for any arguable issues which could be presented to the Court on Mr. Ware's behalf, in good faith, for appellate review." Ware's counsel's review included: (a) the reason for Ware's arrest and the circumstances surrounding the arrest; (b) any possible violations of Ware's right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; (h) possible misapplication of the law in sentencing; (i) the indictment and all pleadings in the record; (j) any possible ineffective assistance of counsel issues; and (k) any other possible reviewable issues. Ware's counsel concluded that there were no issues that she could, in good faith, present to this Court for appellate review.

¶11. Ware's counsel sent a copy of the brief to Ware and informed him that although she found no arguable issues in the record, he had the right to file a pro se brief. The record shows that Ware was given forty days but that he did not file a brief.

¶12. We have independently reviewed the record and find no arguable issues that require supplemental briefing or further review. Accordingly, the trial court's judgment is affirmed.

¶13. AFFIRMED.

RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      Anderson testified that she was not feeling well and was having chest pains.


author: BARNES, C.J., FOR THE COURT:

text:
    Alfred BROOKS a/k/a Alfred Vernon Brooks a/k/a Alfred V. Brooks, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KM-00194-COA
    Court of Appeals of Mississippi.
    March 26, 2019 Rehearing Denied August 13, 2019
    ATTORNEY FOR APPELLANT: ALFRED BROOKS (PRO SE)
    ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT, BARBARA WAKELAND BYRD, Jackson
    DISTRICT ATTORNEY: JOSEPH W. GRIFFIN
    EN BANC.
   BARNES, C.J., FOR THE COURT:

¶1. Alfred Brooks was convicted of misdemeanor stalking in the George County Justice Court (cause number 2015-10,157(3) ) and the Lucedale Municipal Court (cause number 2016-10,005 (3) ). He filed an appeal with the George County Circuit Court. After a de novo trial, the circuit court affirmed the justice court's ruling. The municipal court case was dismissed. On January 18, 2017, Brooks was sentenced to six months' imprisonment in the George County Correctional Facility, with all but 45 days of the sentence suspended pending two years of good behavior, with credit for all time served, and a fine of $ 500 and court costs. On January 31, 2017, the court amended the sentence sua sponte to take out the requirement that Brooks serve 45 days in custody. Brooks filed a motion for a new trial, which was denied. Brooks was represented during these proceedings by attorney David Futch.

¶2. Brooks filed a pro se notice of appeal. In a June 23, 2017 order, the Mississippi Supreme Court remanded the case to the circuit court for consideration of whether Brooks had waived his right to appellate counsel under Mississippi Rule of Appellate Procedure 6(c)(1) and suspended the appeal pending further order of the supreme court. After a hearing, the circuit court appointed Ben Holland as Brooks's appellate counsel on July 24, 2017.

¶3. A month later, Holland filed a motion to withdraw as counsel with this Court, claiming Brooks no longer wanted his representation on appeal. The motion was denied because it did not comply with the requirements of Mississippi Rule of Appellate Procedure 46(c). On August 31, 2017, Brooks filed a "Removal of Attorney of Record," requesting that the Court of Appeals remove Holland as his counsel. We remanded the motion to the circuit court for a hearing, which was held on September 7, 2017. The court allowed Brooks additional time to decide whether he wanted Holland to represent him.

¶4. On December 29, 2017, Holland filed a second motion to withdraw as counsel because Brooks had named Holland as a defendant in a civil action filed in the United States District Court for the Southern District of Mississippi. On January 11, 2018, we held Holland's motion in abeyance pending the circuit court's ruling on whether Brooks "should be appointed substitute counsel, or whether he has knowingly and intelligently waived the right to counsel."

¶5. At a January 30, 2018 hearing, Brooks indicated to the circuit court that he desired to be represented by counsel on appeal. During the course of the hearing, however, the circuit judge determined that Brooks would only accept counsel who would "argue matters personal to Mr. Brooks" and that are "wholly outside the record of the proceedings." The judge also noted that Brooks had sued three of the four attorneys who had represented him in the prior proceedings and had filed a bar complaint against one of the four. Given Brooks's actions, the circuit court concluded that it would be unfair to appoint another attorney to represent Brooks since such representation might expose the attorney to "the risk of vexatious litigation, bar complaints, and perhaps financial ruin."

Therefore, because it appeared that no attorney would be capable of satisfying Brooks's "needs and objectives," the court held that Brooks had effectively waived his right to appointed counsel on appeal, and Holland should be allowed to withdraw as counsel. The circuit court entered its order and findings on February 7, 2018.

¶6. On February 21, 2018, a panel of this Court granted Holland's motion to withdraw as counsel and allowed Brooks to proceed pro se on his appeal.

DISCUSSION

¶7. The State argues that Brooks "has failed to present any discernable legal issues" for his appeal and has failed to cite to the record or relevant legal authorities. Admittedly, among his allegations of corruption and conspiracy in the legal system as a whole, it is difficult to ascertain any legal arguments in Brooks's briefs. It appears Brooks's chief complaint is that he was subjected to double jeopardy because he was charged with misdemeanor stalking in both the justice and municipal court. Double jeopardy protects a defendant against a second prosecution for the same offense after an acquittal or conviction. Brown v. State , 731 So.2d 595, 599 (¶ 9) (Miss. 1999). Although Brooks was charged for stalking in both the justice court and the municipal court, he was only prosecuted for the justice court charge; the municipal court charge of stalking was dismissed. Thus, he was not prosecuted for the same offense after his conviction; so we find no merit to this claim.

¶8. Furthermore, this Court has already ruled on this issue in a separate order dated February 27, 2018, in which we addressed a petition for writ of mandamus filed by Brooks. In his petition, Brooks requested that we "review the order given by the lower court in its dismissal of cause number 2016-10,005(3)" and claimed that the order was erroneous because "a double-jeopardy case under Mississippi law ... must be guilty or not guilty. It cannot be a dismissal." We concluded:

[I]t appears that Brooks wants this Court to compel the circuit court to provide him with relief from the dismissal order in cause number 2016-10,005(3). However, Brooks has no right to appeal from a dismissal order. "Any person convicted of an offense in a circuit court may appeal to the Supreme Court." Miss. Code Ann. § 99-35-101 (Rev. 2015). Because Brooks was not convicted in cause number 2016-10,005(3), he may not appeal from the dismissal order in that case. Since Brooks may not appeal the dismissal order, this Court has no jurisdiction over cause number 2016-10,005(3) even though it has jurisdiction over the appeal from cause number 2015-10,157(3). But this Court has no authority to order the circuit court to take any action in cause number 2016-10,005(3). See M.R.A.P. 21 (b) ("a writ, order, or other process in any appeal not transferred to the Court of Appeals ... shall be of no effect.").

¶9. Brooks also contends that he was deprived of counsel on appeal. Once again, this Court has ruled on this issue when we granted Holland's motion to withdraw as appellate counsel on February 21, 2018. As discussed, Brooks was afforded ample opportunity to work with the attorneys assigned to him by the circuit court. He refused to do so and filed lawsuits against three of them to express his dissatisfaction with their representation.

¶10. Accordingly, as this Court has already ruled on the issues raised by Brooks through two separate motions, we find there are no issues remaining on appeal for this Court to address. We affirm the circuit court's judgment.

¶11. AFFIRMED.

CARLTON AN D J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.

      On June 27, 2018, the State filed a motion to dismiss for failure to comply with Mississippi Rule of Appellate Procedure 28(a)(1) and to suspend the briefing schedule. Brooks responded with a motion for a default judgment. This Court denied the State's motion to dismiss without prejudice and granted the motion to suspend the briefing schedule. Brooks's motion was denied.


author: MAIN, Justice.

text:
    EX PARTE CAVALIER HOME BUILDERS, LLC, d/b/a Buccaneer Homes
    (In re: Jeremy J. Gowan v. Minton Industries, Inc., et al.)
    1170847
    Supreme Court of Alabama.
    November 16, 2018
    W. Scott Simpson, Jonathan E. Beling, and Michael Skotnicki of Simpson, McMahan, Glick & Burford, PLLC, Birmingham, for petitioner.
    William Eugene Rutledge of The Rutledge Firm, LLC, Birmingham, for respondent.
   MAIN, Justice.

This petition for a writ of mandamus results from an appeal of an arbitration award. We ordered answer and briefs to review whether the Calhoun Circuit Court, by setting the case for a jury trial before a judgment had been entered on the arbitration award, had improperly deviated from the procedure for the appeal of an arbitration award established by Rule 71B, Ala. R. Civ. P. Because the issue raised in the mandamus petition is now moot, we deny the petition.

On February 12, 2014, Jeremy J. Gowan filed this action in the Calhoun Circuit Court against Cavalier Home Builders, LLC, d/b/a Buccaneer Homes ("Buccaneer"), Minton Industries, Inc. ("Minton"), Monster Movers, LLC ("Monster Movers"), Jerry Dudley, and Britt Richards. Buccaneer, Dudley, Richards, and Minton moved to compel arbitration based on an arbitration agreement Gowan had signed relating to the sale of a manufactured home. Although Monster Movers was not a party to the arbitration agreement, Gowan's claims against Monster Movers were submitted to arbitration by consent of the parties. While the arbitration proceeding was pending, Monster Movers entered into a joint dismissal with Gowan. The case proceeded to arbitration against the remaining defendants.

On June 2, 2017, the arbitrator issued an award in favor of Gowan and against Buccaneer in the amount of $10,000. As to Gowan's claims against all other remaining defendants, the award was adverse to Gowan.

On June 29, 2017, Gowan filed an appeal in the Calhoun Circuit Court, pursuant to Rule 71B, of the arbitration award, including the $10,000 award against Buccaneer, apparently on the basis that the award was insufficient. Rule 71B(f) provides the following procedure to be followed once an appeal of an arbitration award is filed:

"(f) Procedure After Filing. The clerk of the circuit court promptly shall enter the award as the final judgment of the court. Thereafter, as a condition precedent to further review by any appellate court, any party opposed to the award may file, in accordance with Rule 59, a motion to set aside or vacate the judgment based upon one or more of the grounds specified in Ala. Code 1975, 6-6-14, or other applicable law.... The disposition of any such motion is subject to civil and appellate rules applicable to orders and judgments in civil actions."

The circuit clerk did not immediately enter the arbitration award as the final judgment of the court. Buccaneer filed a motion to dismiss the appeal on the basis that Gowan had not filed with the circuit court a complete copy of the record in the arbitration proceeding. The circuit court, on July 20, 2017, entered an order, among other things, directing Gowan to file the necessary record within 15 days. On August 21, 2017, Gowan filed a postjudgment motion to set aside or vacate the arbitration award pursuant to Rule 59(e), Ala. R. Civ. P. Gowan's motion noted that the clerk had yet to record the award as the final judgment but requested that, "[w]hen the clerk does so, [Gowan] prays that this Court will treat and regard this Rule 59(e) motion as filed in accordance with ... the language of Rule 71B, Ala. R. Civ. P." Indeed, this Court has held that a postjudgment motion filed before the entry of a final judgment "becomes effective when the judgment is entered." New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala. 2004).

On May 4, 2018, the circuit court, before the arbitration award had been entered as a judgment of the court and without ruling on Gowan's Rule 59(e) motion, set the case for a September 24, 2018, jury trial. That jury-trial setting prompted Buccaneer to file this petition for a writ of mandamus on June 15, 2018.

On May 9, 2018, the clerk of the circuit court entered the arbitration award as a final judgment of the court. Thus, although Gowan's Rule 59(e) motion was initially premature, that motion " 'quickened on the day that judgment was entered.' " Jakeman v. Lawrence Grp. Mgmt. Co., 82 So.3d 655, 658 (Ala. 2011) (quoting Miller v. Miller, 10 So.3d 570, 572 (Ala. Civ. App. 2008) ). Under Rule 59.1, Ala. R. Civ. P., the circuit court had 90 days to rule on Gowan's Rule 59 motion. Because it did not do so, Gowan's motion was denied by operation of law on August 7, 2018.

Because Gowan's postjudgment motion has been denied by operation of law, the circuit court has no jurisdiction to enter any further orders in this case. Honea v. Raymond James Fin. Servs., Inc., 240 So.3d 550, 558 (Ala. 2017) ("When a postjudgment motion is denied by operation of law, the trial court 'is "without jurisdiction to enter any further order in [the] case after that date." ' ")(quoting Ex parte Limerick, 66 So.3d 755, 757 (Ala. 2011), quoting in turn Ex parte Davidson, 782 So.2d 237, 241 (Ala. 2000) ). Here, a final judgment has been entered and postjudgment relief has been denied by operation of law. There is nothing further for the circuit court to do in this matter, and it has no jurisdiction to reset the case for a jury trial. Accordingly, the question whether Rule 71B permits a jury trial under the circumstances as presented in this petition for a writ of mandamus is now moot.

"[M]andamus will not issue in a case where the underlying issue has become moot." Ex parte Talladega Little League, Inc., 556 So.2d 386, 387 (Ala. 1990). Accordingly, the petition for a writ of mandamus is due to be denied.

PETITION DENIED.

Stuart, C.J., and Bolin, Parker, Shaw, Wise, Bryan, Sellers, and Mendheim, JJ., concur.

      Cavalier Home Builders, LLC, was initially identified in Gowan's complaint as "Clayton Homes d/b/a Buccaneer Homes."

      On July 24, 2018, this Court directed the respondents to answer Buccaneer's petition.

      Rule 59.1 applies to a Rule 59 motion filed under the provisions of Rule 71B. See Rule 71B(f) ("The disposition of any such [Rule 59 ] motion is subject to civil and appellate rules applicable to orders and judgment in civil actions."). No extension of the 90-day period appears on the record. The circuit court did grant a motion to stay pending the outcome of this mandamus petition, but the stay was expressly limited only to the trial setting. The order provided that "[t]he stay shall not be of the circuit court proceedings generally; rather it shall only apply to the trial setting in this cause."