Opinion
2022-KA-00988-COA Serial 245732
05-01-2023
ANTHONY GERALD FOX Appellant v. STATE OF MISSISSIPPI Appellee
EN BANC ORDER
JOHN H. EMFINGER, JUDGE
This matter comes before the Court en banc on Anthony Gerald Fox's motion for bail pending his direct appeal of his conviction for culpable negligence manslaughter. The Hinds County Circuit Court denied Fox's request for bail pending appeal. The matter is now before this Court by Fox's motion pursuant to Rule 9 of the Mississippi Rules of Appellate Procedure. We review the circuit court's denial of appeal bail for abuse of discretion. Parks v. State, 228 So.3d 853, 872 (¶74) (Miss. Ct. App. 2017).
"A person convicted of any felony, [other than felony child abuse, sexual battery of a minor, or any offense in which a sentence of death or life imprisonment is imposed,] shall be entitled to be released from imprisonment on bail pending an appeal to the Supreme Court, within the discretion of a judicial officer[.]" Miss. Code Ann. § 99-35-115(1)-(2)(a) (Rev. 2020). Thus, Fox is not necessarily prohibited from being released on bail pending his appeal. However, he must first show "by clear and convincing evidence that [his] release . .. would not constitute a special danger to any other person or to the community." Id. Second, he must show "that a condition or a combination of conditions may be placed on [his] release that will reasonably assure [his] appearance... as required." Id. Finally, he must show that "the peculiar circumstances of the case [must] render it proper." Id. "Clear and convincing evidence is so clear, direct, weighty, and convincing that it enables the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts of the case." Koestler v. Koestler, 976 So.2d 372, 381 (¶31) (Miss. Ct. App. 2008). "Clear and convincing evidence is such a high standard that even the overwhelming weight of the evidence does not rise to the same level." Id.
After a full consideration of all matters before the trial court in this cause, the trial court found that Fox's "release would constitute a special danger to a person or to the community" and that "there are no peculiar circumstances of the case that render it proper for the convict, Anthony Fox, to be released after a felony conviction for manslaughter pending an appeal to the Supreme Court."
After due consideration of the matters presented, we find that the circuit court did not abuse its discretion when it denied Fox's request for bail pending appeal.
THEREFORE, the appellant's motion for bail pending appeal is denied.
SO ORDERED.
TO DENY:
WESTBROOKS, McDONALD, WcCARTY, SMITH AND EMFINGER, JJ.
TO GRANT:
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE AND LAWRENCE, JJ.
CARLTON, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY BARNES, C.J., WILSON, P.J., GREENLEE AND LAWRENCE, JJ.
CARLTON, P.J., OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:
¶1. I find that the circuit court abused its discretion in denying Anthony Fox's motion for bail pending appeal, and I therefore object to this Court's May 1, 2023 order.
¶2. Mississippi Code Annotated section 99-35-115(1)-(2)(a) (Rev. 2020) provides that "[a] person convicted of any felony, [other than felony child abuse, sexual battery of a minor, or any offense in which a sentence of death or life imprisonment is imposed,] shall be entitled to be released from imprisonment on bail pending an appeal to the Supreme Court, within the discretion of a judicial officer[.]" In order to be released on bail pending his appeal, Fox must first show "by clear and convincing evidence that [his] release... would not constitute a special danger to any other person or to the community." Id. Second, he must show "that a condition or a combination of conditions may be placed on [his] release that will reasonably assure [his] appearance ... as required." Id. Finally, he must show that "the peculiar circumstances of the case [must] render it proper." Id. We review the circuit court's denial of appeal bail for abuse of discretion. Parks v. State, 228 So.3d 853, 872 (¶74) (Miss. Ct. App. 2017).
¶3. Although Fox bore the burden of proof on his motion for bail pending appeal, the circuit court stated that not all of Fox's witnesses would be allowed testify at the hearing. The circuit court did, however, indicate that it would consider the affidavits and letters that were submitted. During the hearing on Fox's motion for bail pending appeal, he called five witnesses, each of whom clearly stated they did not believe Fox was a special danger to the community. The record reflects that Fox was released on a $250,000 bond during the entire pendency of his trial, and testimony from the bail hearing showed that Fox was employed by the Clinton Police Department until he was convicted. Although the prosecution argued that Fox did not meet his burden of proof in his motion for bail pending appeal, the prosecution did not rebut Fox's evidence in any way. In fact, the prosecution did not call any witnesses who testified that Fox presented a danger to the community. The prosecution also presented no other documentary evidence of any type to rebut Fox's evidence that he presented no special danger to any other person or to the community.
¶4. Additionally, in response to Fox's September 2022 motion asking this Court to grant bail pending appeal, the Attorney General's office initially stated that the State does not oppose Fox's request. However, George Robinson's family subsequently filed a response opposing Fox's request for bail pending appeal. This Court ultimately found Fox's motion to be premature and entered a panel order stating that the circuit court should address Fox's request for bail pending appeal before this Court considers the issue. As stated, on remand, the prosecution argued that Fox did not meet his burden of proof for bail pending appeal pursuant to section 99-35-115(2)(a). However, the prosecution failed to call any witnesses or present any documentary evidence to rebut Fox's evidence.
¶5. At the conclusion of the hearing on Fox's motion in the circuit court, the court found that there were "individuals who took the stand that threatened the [circuit court], threatened the [circuit judge], [and] threatened those that were on the jury." However, no such evidence was presented during the hearing on Fox's motion for bail pending appeal, and no evidence of any threatening behavior by Fox was presented during the bail hearing or at trial. Although there was testimony that Fox's wife damaged a prosecutor's vehicle and that a spectator in the audience shouted expletives after the jury announced Fox's conviction, nothing supports a conclusion that these individuals did so at Fox's behest. Nevertheless, the circuit court denied Fox's request for bail pending appeal after finding that his "release would constitute a special danger to a person or to the community[,]" and "there are no peculiar circumstances of the case that render it proper for ... Fox ... to be released" after his felony conviction.
¶6. Because the State presented no evidence to rebut Fox's evidence that the conditions placed on his release would be sufficient to assure his appearance and that Fox did not present a special danger to any other person or to the community, in accordance with section 99-35-115(2)(a), I find that the circuit court abused its discretion when it denied Fox's request for bail pending appeal. I would therefore grant Fox's motion for bail pending appeal.
BARNES, C.J., WILSON, P.J., GREENLEE AND LAWRENCE, JJ., JOIN THIS SEPARATE WRITTEN STATEMENT.