Ross v. State

• Decision Date: 11 August 2009
• Docket Number: No. 2007-KA-01889-COA.,2007-KA-01889-COA.
• Citation: 16 So.3d 47
• Parties: Shirley ROSS, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

16 So.3d 47

Shirley ROSS, Appellant v. STATE of Mississippi, Appellee.

No. 2007-KA-01889-COA.

Court of Appeals of Mississippi.

August 11, 2009.

Lisa Mishune Ross, Jackson, attorney for appellant.

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

Before KING, C.J., BARNES and ISHEE, JJ.

BARNES, J., for the Court.

¶ 1. Shirley Ross was convicted of aggravated assault after a jury trial in the Yazoo County Circuit Court. Ross now appeals her conviction and sentence of ten years in the custody of the Mississippi Department of Corrections (MDOC). Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Ross and her husband, Walter Ross (Walter), were married in 1999. The couple continually experienced marital strife due to financial and intimacy issues. On June 19, 2005, which was coincidentally "Father's Day," Ross and Walter went to Sunday School together. Afterwards, Walter went to visit his family in Pickens; Ross stayed at home. When Walter returned, Ross was leaving to attend another church program. Ross claimed that, when she returned, Walter was upset with her and intentionally spilled tea on the food she had brought home to eat. Walter told her that he was going to church "out on Fifteenth Street" and asked Ross to accompany him. She declined; so he left.

¶ 3. While Walter was gone, Ross proceeded to heat grease in an electric fryer. She also boiled water in an electric roasting pan. Ross testified that the grease was to cook shrimp and that the water was for her bath.¹ Walter later testified that they did not have any shrimp and that, although he had repeatedly heated water in this manner in order to bathe, Ross had never done so as she went to her mother's house to bathe. After Walter returned home the second time, the couple resumed their argument. Walter went to the bedroom, removed his shirt, and headed back to the kitchen. Ross first poured the grease and then the scalding water on Walter. Both Ross and Walter fell to the floor, fighting and rolling around in the grease and water. Walter ran from the house and stumbled into the neighbor's yard for help; Ross followed him in their truck. The neighbor, Adam Selby, Jr., who had run outside to help Walter, testified that he heard someone in a truck drive by the yard and yell, "I'm going to get you!" before the truck sped off down the street. Ross contradicted this testimony stating that she shouted, "Call 9-1-1." Ross flagged down an off-duty police officer and told him what had happened. The officer directed her to the nearest police station, where she made a report. Ross and Walter were sent to King's Daughters Hospital for treatment of their injuries. Ross sustained minor injuries to her left arm and right finger. Walter, however, sustained third-degree burns on his head, chest, and back and was transported to the Vanderbilt University Burn Center in Nashville, Tennessee. Walter was hospitalized for over three months, received skin grafts, and was unconscious for five to six weeks. At trial, Walter testified that he still required rehabilitative treatment for his injuries and had suffered permanent nerve damage to his arm, chest, and legs. Ross, on the other hand, claimed that the pictures of Walter's injuries were "nothing but a sympathy trick." Ross told the deputy at the hospital that Walter had verbally and physically abused her, which is why she threw the grease and scalding water on him. Ross's adult children testified that Walter had been physically violent with them. However, testimony at trial showed that Walter was physical with Ross only once before, approximately four years prior to this incident.

¶ 4. Ross was indicted on two counts of aggravated assault. Prior to trial, Ross filed a motion to dismiss Count Two of the indictment, which the circuit court granted, finding that the charges did not constitute two separate offenses. After a jury trial, Ross was convicted on April 13, 2006, of aggravated assault, and sentenced to ten years in the custody of the MDOC.

¶ 5. On April 20, 2006, Ross filed a motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial, through her trial counsel, Henry Clay III. On the same day, attorney Lisa Ross also filed an "Entry of Appearance" as counsel of record for Ross and a request for extension of time to file post-trial motions.² On May 1, 2006, the circuit court entered an order denying Ross's motion for JNOV or, alternatively, a new trial, filed by Ross's trial counsel. Ross filed a second motion for a new trial on August 3, 2006, which raised the issues we now address on appeal. The circuit judge denied this motion on October 18, 2007, and Ross filed her notice of appeal the same day.

JURISDICTION

¶ 6. Before we analyze Ross's claims, we must first address the issue of whether this Court has the authority to consider this appeal. Although the State has not questioned the issue of appellate jurisdiction, it is incumbent upon this Court to assure that such jurisdiction exists. Rule 4(e) of the Mississippi Rules of Appellate Procedure instructs that a criminal defendant who makes a "timely motion" for a judgment of acquittal notwithstanding the verdict or a motion for new trial, under the Uniform Rules of Circuit and County Court Practice, has thirty days from the entry of the order denying such motion to file his notice of appeal. M.R.A.P. 4(e). In order for the time for notice of appeal to be tolled, the post-trial motion for a new trial must be filed within ten days of the entry of the judgment or order from which appeal is taken. Williams v. State, 4 So.3d 388, 391(¶ 8) (Miss.Ct.App.2009); see also Rogers v. State, 829 So.2d 1287, 1288(¶ 4) (Miss.Ct.App.2002) (under Rule 10.05 of the Uniform Rules of Circuit and County Court, a motion for a new trial must be filed within ten days of the entry of judgment). While there is no express provision in the Uniform Rules of Circuit and County Court regarding the filing of a motion for a JNOV, the Mississippi Supreme Court has found that a motion for a JNOV, as it relates to a criminal case, is untimely where filed beyond the ten-day limit for a motion for new trial and beyond the term of the court. McGraw v. State, 688 So.2d 764, 770 (Miss.1997). The March 2006 term of the Yazoo County Circuit Court began on the third Monday of March, March 20, 2006, and ran for four weeks until April 14, 2006.³ Ross was convicted and sentenced on April 13, 2006. Therefore, the term of court actually expired prior to the ten-day limit for filing a motion for new trial.

¶ 7. There is no question that Ross's original motion for a JNOV or, alternatively, a new trial, which was filed by Ross's trial counsel, on April 20, 2006, seven days after the entry of judgment, was timely filed. However, Ross's appellate counsel failed to file a timely notice of appeal after the circuit court's denial of the first post-trial motion. Instead of filing a notice of appeal within the thirty-day time requirement under Rule 4 of the Mississippi Rules of Appellate Procedure, Ross filed three separate requests for additional time in which to file additional post-trial motions. The requests were filed on April 20, 2006, May 17, 2006, and June 21, 2006, respectively.⁴ The circuit court granted the first two requests; however, we find no evidence in the record that the court entered an order on the last request. Further, we find no authority that the circuit court has any discretion to extend time limits for filing a motion for a JNOV or for a new trial. As previously stated, Rule 10.05 requires that a motion for a new trial must be made within ten days of the judgment, and in the case of a motion for JNOV, the motion must be made either within the ten days or by the end of the term of court. Further, the circuit judge did not have the authority to extend the thirty-day requirement for filing a notice of appeal in the case at bar. In Draper v. City of Flowood, 736 So.2d 512, 513(¶ 4) (Miss.Ct.App.1999), this Court found that nothing in the rules "authorize[s] the circuit court to extend or reopen the time to appeal except for certain limited authority in Rule 4(g) and 4(h)" of the Mississippi Rules of Appellate Procedure, neither of which are applicable in this case.⁵ Consequently, the failure by Ross to file a timely notice of appeal would typically bar this appeal from review.

¶ 8. However, under Rule 2(c) of the Mississippi Rules of Appellate Procedure, this Court may suspend the rules in the interest of expediting decision, or for other good cause shown, in cases where the defendant who is convicted, "through no fault of his own[,] is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court." Dorsey v. State, 986 So.2d 1080, 1084(¶ 12) (Miss.Ct.App.2008) (citation omitted). The Mississippi Supreme Court has stated that: "We may suspend Rules 2 and 4 `when justice demands' to allow an out-of-time appeal in criminal cases." McGruder v. State, 886 So.2d 1, 2(¶ 4) (Miss.2003) (citing Fair v. State, 571 So.2d 965, 966 (Miss.1990)).⁶ While we find no circumstances that would indicate good cause in this case, the result of dismissing this appeal for lack of jurisdiction would most likely be a motion for post-conviction relief filed by Ross citing ineffective assistance of appellate counsel based on her failure to file a timely notice of appeal. Therefore, in the interest of "expediting decision" pursuant to Rule 2(c), we hereby suspend the rules and review Ross's out-of-time appeal and assignments of error.

I. Whether the circuit court committed reversible error in allowing the prosecutor to strike members of the venire in the absence of a showing that the jurors were incompetent

and would not follow the instructions of the court.

¶ 9. Ross argues that the circuit court allowed the State to strike jurors for cause where the record failed...