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In re S.M.K.S.

Court of Appeals of Mississippi

January 7, 2014

IN THE INTEREST OF S.M.K.S., A MINOR, APPELLANT
v.
YOUTH COURT OF UNION COUNTY, MISSISSIPPI, APPELLEE

DATE OF JUDGMENT: 07/20/2012.

COURT FROM WHICH APPEALED: UNION COUNTY YOUTH COURT. TRIAL JUDGE: HON. FREDERICK ROBBINS ROGERS. TRIAL COURT DISPOSITION: FOUND THAT MINOR HAD COMMITTED A DELINQUENT ACT.

FOR APPELLANT: DAVID G. HILL, TIFFANY LEIGH KILPATRICK.

FOR APPELLEE: STEPHEN P. LIVINGSTON.

BEFORE LEE, C.J., ROBERTS AND CARLTON, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY ISHEE, J.

NATURE OF THE CASE: CIVIL - JUVENILE JUSTICE

Page 877

ROBERTS, J.

¶1. The Union County Youth Court found that thirteen-year-old S.M.K.S.[1] was a delinquent child because he resisted arrest for disorderly conduct. S.M.K.S. appeals, and claims there was insufficient evidence for the youth court's decision. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. The events that led to S.M.K.S.'s appeal occurred on April 29, 2011, in New Albany, Mississippi. Officers with the New Albany Police Department received a report that shots had been fired in the vicinity of Madison Street or Garfield Street. The report also indicated that the suspects had been driving a tan Oldsmobile Cutlass. When Sergeant Ben Kent heard the radio dispatch, he was alone in his patrol car. Sergeant Kent immediately activated his blue lights and his siren, and drove toward a set of duplex apartments on Cleveland Street, which is in the vicinity of both Madison Street and Garfield Street. Sergeant Kent knew that someone who lived in one of the duplex apartments drove a tan Cutlass. When Sergeant Kent arrived at the duplex, he found the tan Cutlass and " several people in the yard."

¶3. Based on the report that someone had been firing a weapon, Sergeant Kent got out of his patrol car and drew his pistol. He focused his attention on S.M.K.S.'s sixteen-year-old brother. S.M.K.S. was in Sergeant Kent's peripheral vision. Sergeant Kent sought to ensure that neither S.M.K.S. nor S.M.K.S.'s older brother was armed. To that end, Sergeant Kent told S.M.K.S. and S.M.K.S.'s brother to display their hands. Neither S.M.K.S. nor S.M.K.S.'s brother complied. Next, Sergeant Kent told them to put their hands on the car. S.M.K.S.'s older brother started walking to the front porch of one of the duplex apartments. According to Sergeant Kent, S.M.K.S. said, " I'm not putting my hands on the car."

¶4. Sergeant Kent testified that he holstered his pistol and " grabbed [S.M.K.S.'s]

Page 878

right wrist with [his] right hand, and [he] used the straight[-]arm bar to put [S.M.K.S.] over the hood of the car to gain his compliance so that [Sergeant Kent] could pat [S.M.K.S.] down to check whether . . . he had weapons." Other members of the New Albany Police Department arrived around that time. Officer Gabe Wilson drove up to the scene seconds before Officer Brent Baker and Officer Stewart Dodds arrived. Meanwhile, S.M.K.S. continued to struggle with Sergeant Kent. According to Officer Wilson, S.M.K.S. was " doing everything [he could] to keep from putting his hands behind [his back]. He's kicking. He's yelling. He's punching. He's doing whatever he can to try to keep the officers from taking control." Officer Baker and Officer Wilson took S.M.K.S. to the ground. Officer Baker used his taser on S.M.K.S. S.M.K.S. stopped struggling, and Officer Wilson handcuffed him and put him in a patrol car. Sergeant Kent turned his attention toward S.M.K.S.'s brother while Officer Dodds attempted to keep onlookers away from the other officers.

¶5. According to the officers, " another incident broke out" after S.M.K.S. was tased. Officer Wilson described the scene as " mass chaos." According to Officer Dodds, it was the " most hostile environment" he had experienced during his four years as a police officer. Additional officers responded, including Lieutenant Mark Golding and Detective Chris Robertson. Ultimately, officers took S.M.K.S., S.M.K.S.'s brother, and an adult into custody.

¶6. In May 2011, the Union County prosecuting attorney filed a petition alleging that S.M.K.S. resisted arrest in violation of Mississippi Code Annotated section 97-9-73 (Rev. 2006) " by refusing to put his hands on the [patrol] car and struggling with the officers." On July 20, 2012, the youth court conducted a hearing on the prosecution's petition. Sergeant Kent, Officer Wilson, Officer Baker, Officer Dodds, Officer Jason McDaniel, Lieutenant Golding, and Detective Robertson all testified regarding their involvement in the events that led to S.M.K.S.'s arrest. Latrina Bynum testified for S.M.K.S. Bynum lived in the duplex apartment next to S.M.K.S.'s mother. Bynum testified that S.M.K.S. complied with Sergeant Kent's instructions to put his hands on the car. Bynum further testified that S.M.K.S. did not struggle with Sergeant Kent. According to Bynum, Sergeant Kent behaved aggressively from the moment he arrived at the duplex apartments. Bynum also testified that Sergeant Kent immediately told S.M.K.S., " You MF, I told you I was going to get you."

¶7. The youth court found that S.M.K.S. was a delinquent child based on his resisting arrest.[2] The youth court placed S.M.K.S. on probation for six months and ordered that he seek ...


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