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Date: 06-16-2024

Case Style:

Shalia Malone a/k/a Shaila Malone v. State of Mississippi

Case Number: 2022-CA-00281-COA

Judge: Jack L. Wilson

Court: IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Plaintiff's Attorney: OFFICE OF THE ATTORNEY GENERAL
BY: ALEXANDRA LEBRON

Defendant's Attorney:
Victoria Valencia Washington

Description:

Jackson, Mississippi criminal defense lawyer represented the Defendant with filing a motion for post-conviction relief (PCR), arguing that her conviction should be set aside based on newly discovered evidence and because her attorney provided ineffective assistance



Just after midnight on September 10, 2017, two men—Lee Bryson and Wallace
Young—were struck by vehicles on Victoria Road in Marshall County. A Computer Aided
Dispatch (CAD) report, which includes 911 operators’ time-stamped narrative entries, shows
that multiple individuals called 911 to report the events. At 12:17 a.m., Jamonica Street
called 911 and reported Bryson’s body lying in the middle of Victoria Road. Street also said
a “dark color Ford” was on the side of the road. Young called 911 at 12:24 a.m. and reported
that he “ran over” Bryson’s body “because he didn’t see him” lying in the road. Young told
the operator that he believed Bryson was dead, which proved to be true. Young also stated
that he (Young) was driving a black Ford Taurus. After his 911 call ended, Young was
struck by a car while he was standing in the road near Bryson’s body. The car that struck
Young did not stop. Young suffered injuries to his leg and head. An ambulance took him
to a hospital in Olive Branch, and he was later transferred to a Memphis hospital.
¶3.
Around noon on September 10, 2017, Malone and her father went to the Marshall
County Sheriff’s Department. Malone, who was twenty-nine years old at the time, waived
her Miranda rights,1 talked to Investigator Jason Mills, and gave a voluntary written
1Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).
2
statement. Malone admitted that she had struck a pedestrian while driving on Victoria Road
the previous night. After hitting the person, Malone drove to a “store parking lot” and called
her father. She told her father that she “hit something” but “wasn’t sure what it was.” She
“sat in the store parking lot for about 5 minutes” and then “called [her father] again because
[she] was nervous and scared.” Malone then drove home and went to bed. The next
morning, she went to work. Malone’s father called her at work and told her that they needed
to go to the police station because he thought Malone had “hit a person.”
¶4.
In October 2017, a Marshall County grand jury indicted Malone for failing to stop at
the scene of an accident in violation of Mississippi Code Annotated section 63-3-401 (Rev.
2022). Section 63-3-401 provides that
[t]he driver of any vehicle involved in an accident resulting in injury to or
death of any person shall immediately stop such vehicle at the scene of such
accident or as close thereto as possible but shall then forthwith return to and
in every event shall remain at the scene of the accident until he has fulfilled the
requirements of section 63-3-405.[2]
Id. § 63-3-401(1). If the accident “results in injury to any person,” a willful violation of the
statute is punishable by imprisonment for thirty days to one year, a fine, or both. Id. § 63-3
401(3). But if the accident “results in the death of another or the mutilation, disfigurement,
permanent disability or the destruction of the tongue, eye, lip, nose or any other limb, organ
2Section 63-3-405 requires any driver involved in an accident that results in death,
injury, or damage to another vehicle to stop, give his name and address, and show his
registration number and license to the person he struck or the driver or occupant of the other
vehicle. Miss. Code Ann. § 63-3-405 (Rev. 2022). The statute also requires the driver to
render “reasonable assistance” to anyone injured, including taking the injured person to the
hospital “if it is apparent that such treatment is necessary or if [it] is requested by the injured
person.” Id.
3
or member of another,” a willful violation of the statute is punishable by imprisonment for
five to twenty years, a fine, or both. Id. § 63-3-401(4). Although Malone’s indictment did
not specifically cite subsection (4), the indictment tracked that subsection by alleging that she
“failed to stop at an accident in which she was involved, to-wit: Hitting and striking Lee
Bryson and causing permanent disability or injury and or death to said Lee Bryson, as he was
hit with a vehicle in violation of the provisions of Section 63-3-401.”3
¶5.
On February 7, 2018, Malone waived arraignment and pled not guilty. However, on
February 13, 2018, Malone entered a negotiated guilty plea. The circuit court accepted
Malone’s plea, finding that it was made voluntarily and intelligently. The court sentenced
Malone to twenty years in the custody of the Department of Corrections with seven years to
serve, thirteen years suspended, and five years of post-release supervision. The court allowed
Malone to report to the Marshall County jail on or before March 2, 2018, and reserved a
“right of review for 365 days” to enforce the sentence.
¶6.
After Malone reported and began serving her sentence, she obtained new counsel and
petitioned the circuit court to review and reduce her sentence. Malone argued that newly
discovered evidence showed that she did not cause Bryson’s death. The State opposed
Malone’s petition. In January 2019, the circuit court granted Malone’s petition. Although
the court did not directly address Malone’s newly discovered evidence claim, the court stated
that information in a “public petition circulated” in support of Malone was “incorrect.”
3 The indictment also erroneously stated that the offense was punishable by
imprisonment for one year to five years and by a fine, which was the sentencing range under
subsection (4) prior to 2010. The circuit court later entered an order amending the indictment
to reflect the correct sentencing range of five to twenty years.
4
Nonetheless, “the [c]ourt was moved to reduce [Malone’s] sentence” based on “the testimony
of her witnesses, especially [her] parents.” The court reduced Malone’s sentence to five
years to serve, fifteen years suspended, and five years of post-release supervision. The court
further ordered that after Malone had served one year, she could serve the remaining four
years in the Intensive Supervision Program, commonly known as “house arrest.”
¶7.
On February 12, 2021, Malone filed a PCR motion alleging that her conviction should
be set aside based on newly discovered evidence, because her plea was not made voluntarily
and intelligently, and because her plea counsel provided ineffective assistance. She
submitted several exhibits in support of her motion, including her own affidavit, affidavits
from Jamonica Street and Kenneth Wilson, the CAD report, the coroner’s report, phone
records, and contemporaneous witness statements obtained by the Marshall County Sheriff’s
Department.
¶8.
Malone’s own affidavit stated as follows:
I hit something. I wasn’t sure what it was at the time. I pulled over to the
store and called my daddy. He told me to go back to see what it was. I went
halfway back and could not see. So I turned around and went home.
The next day my dad told me we needed to go [to] the police station. . . .
[Investigator] Mills told me that he knew I killed Mr. Bryson because [a blue
bumper was found] at the scene.[4] He asked me why I called my dad first and
not the police. [I told him] I was not sure what I hit, so I did not think I had
hurt anybody to call the police.
[Public defender] Kent Smith . . . never showed me discovery or any evidence
against me. So I had trust what they told me. [Smith] never talked about
interviewing any witnesses. . . . He told me the first [plea] offer and that since
I left the scene the charges could go up. He told me I could plead guilty or go
4Malone was driving a blue Nissan.
5
to trial. But, if I went to trial the prosecutor could change the charge to murder
or manslaughter. He never told me that I was not the first person to see the
body or drive [past] the body on Victoria Road. He did not go over any
defenses I had available to the charge. He never told me that Wallace Young
was the person I hit and not [Bryson]. If I had known that I was not at fault for
the charges in the indictment, I wouldn’t have plead guilty.
¶9.
The circuit court5 held an evidentiary hearing, and Malone introduced affidavits and
exhibits without objection from the State.6 Malone did not call any witnesses.7 Malone
offered the affidavits of Wilson and Street, which were signed on February 11, 2021. Wilson
stated that on September 10, 2017, he and Street departed from his grandmother’s house in
separate cars “at about 12:07 a.m.” While driving on Victoria Road, Wilson had to swerve
to avoid a “dead body” in the road. Wilson and Street both pulled to the side of the road and
discussed that they had both seen the body. They saw a white Chevy Tahoe and a red truck
further down the road on the other side of a bridge, and the red truck appeared to have on its
“high beam” headlights. Neither Street nor Wilson recalled seeing a blue bumper near the
body. After Street called 911, she and Wilson continued driving. Neither Street nor Wilson
was ever contacted by law enforcement or Malone’s original attorney.
5The judge who accepted Malone’s plea, sentenced her, and then re-sentenced her
had retired by the time she filed her PCR motion, and the district’s active circuit judges all
recused themselves because Malone’s former counsel, Smith, had become a circuit judge for
the district. Therefore, the Chief Justice appointed a special judge to hear the PCR motion.
6See Miss. Code Ann. § 99-39-23(4) (Rev. 2020) (“The court may receive proof by
affidavits, depositions, oral testimony or other evidence and may order the petitioner brought
before it for the hearing.”).
7Six days before the hearing, Malone had subpoenas issued for Young and Street.
Young was served and was present at the hearing, but Malone did not call him to testify.
Street was not served and was not at the hearing.
6
¶10. A written statement that Wendy Jones provided to Investigator Mills at 1:56 a.m. on
September 10, 2017, was also admitted into evidence. Jones’s statement was signed but not
sworn. Jones stated that she had also seen the body in the road. She called Wallace Young
to warn him about the body because Young was in a car behind Jones. According to Jones,
Young “answered the phone screaming, ‘I found the body, and I just got hit! They ran me
over when I was looking down at the body.’” (Punctuation added).
¶11. Phone records for Malone’s father’s account were also admitted into evidence.
According to counsel for Malone, the records show that Malone called her father on
September 10, 2017, at 12:25 a.m. and 12:27 a.m. The phone records were not authenticated
by any witness or affidavit. Nonetheless, the State did not object to their admission.
¶12. Bryson’s death certificate and a document that Malone’s counsel represented to be the
“coroner’s report” were also admitted into evidence. Both documents showed a date and
time of death of September 10, 2017, at 12:17 a.m. The death certificate identified the cause
and manner of death as “multiple blunt force trauma to the head and body” due to Bryson
having been “struck by vehicles.”
¶13. A report written by Investigator Mills sometime after the accident was admitted into
evidence. In his report, Mills stated that he asked the county coroner to send Bryson’s body
to Jackson for an autopsy, but the coroner refused, stating that “he was not sending the body
to Jackson” because “we knew the cause of death [was] that [Bryson] was obese.” Mills
stated that the district attorney’s office also instructed him to get an autopsy, but the coroner
still refused. According to Mills, the coroner told him that the State Medical Examiner’s
7
Office agreed that an autopsy was unnecessary and that the body had already been embalmed.
Regarding his interview of Malone, Mills wrote:
[Malone] told me how the incident happened. I asked [Malone] if she saw Lee
[Bryson]? She said yes about the time she hit him. [Malone] stated she went
to the store called her father said she had hit something. I asked do you know
what you hit? [Malone] said yea a man. I asked did you tell your father that?
She said no I told him I hit something. She stated her father told her to go
back and see what she hit. I asked if she went back[.] She said well I walked
about a foot from the car then I went back, called my father to say I didn’t see
anything. I asked what she did then? [Malone] stated she drove home, took
a shower, and went to bed. [Malone] stated the next morning when she got up
she looked at [F]acebook and seen where Lee [Bryson] had been hit and killed.
[Malone] stated she then got ready and went to work at Subway. [Malone]
said she got a phone call from her father who told her to come home.
Mills’s report noted that on September 11, 2017, Wallace Young also came to the Sheriff’s
Department to give a statement, which was recorded.
¶14. Malone also offered a ten-second video clip that showed two men fighting outside a
convenience store. Malone’s counsel represented that Malone’s cousin received the video
at some point “after [they] began to investigate,” that Bryson was one of the men in the
video, and that the video was taken on the night of his death. Counsel speculated that the
video “tend[ed] to prove” that someone killed Bryson in a fight and then “dumped” his body
in the road. Counsel speculated that the killer could have been in the red truck or white
Tahoe that Street and Wilson saw that night. However, the record reveals nothing else about
the brief video clip, which does not show either man sustaining any serious injury. Counsel
for Malone agreed with the circuit court that her theory was “a little speculative.”
¶15. After the evidentiary hearing, the circuit court entered a one-page order denying
Malone’s PCR motion. The court found that Malone “failed to prove by a preponderance of
8
the evidence that the additional information produced or uncovered since [her] guilty plea
. . . would have changed the result of her case.” The court also found that the new evidence
did not “prove[] that [Malone was] not guilty of the crime for failure to stop at the scene of
an involved accident” under section 63-3-401. Malone filed a notice of appeal.
ANALYSIS
¶16. In a PCR case, the movant bears the burden of proving by a preponderance of the
evidence that she is entitled to relief. Miss. Code Ann. § 99-39-23(7). “On appeal from the
denial of a PCR motion, we review findings of fact for clear error and review issues of law
de novo.” Waters v. State, 309 So. 3d 39, 41 (¶3) (Miss. Ct. App. 2020). Malone argues that
the circuit court erred in denying her PCR motion and that her guilty plea should be set aside
(1) based on newly discovered evidence and (2) because her plea counsel provided
ineffective assistance.8
I.
The circuit court did not err by rejecting Malone’s newly
discovered evidence claim.
¶17. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), a court may
set aside a conviction if the movant produces “evidence of material facts, not previously
presented and heard, that requires vacation of the conviction or sentence in the interest of
8Malone makes two additional arguments. First, she argues that the circuit court
applied the wrong legal standard by finding she failed to prove she was “not guilty.”
According to Malone, the court “inherently heighten[ed] [her] burden of proof from a
preponderance of the evidence to a beyond-a-reasonable-doubt standard” by making that
finding. However, the circuit court’s order expressly applied the statutory preponderance
of the evidence standard. The court did not err by making an additional finding that Malone
failed to prove that she was not guilty. Second, Malone argues that her plea was involuntary
because she received ineffective assistance from her plea counsel. This argument overlaps
with her ineffective assistance claim, so we address it within our analysis of that claim.
9
justice.” Miss. Code Ann. § 99-39-5(1)(e) (Rev. 2020). Nevertheless, “[i]t will . . . be [a]
rare case where a defendant’s knowing, intelligent, and voluntary guilty plea is vacated . . .
on the basis of newly discovered evidence.” Rye v. State, 356 So. 3d 188, 192 (¶9) (Miss.
Ct. App. 2023). To prevail on such a claim, the movant “must show that the evidence ‘has
been discovered since the trial, that it could not have been discovered before the trial by the
exercise of due diligence, that it is material to the issue, and that it is not merely cumulative,
or impeaching.’” Brewer v. State, 819 So. 2d 1169, 1172 (¶10) (Miss. 2002) (quoting
Ormond v. State, 599 So. 2d 951, 962 (Miss. 1992)). In her brief, Malone identifies the
following pieces of evidence that she “discovered” after pleading guilty: Wilson’s and
Street’s affidavits, the brief video clip of an altercation allegedly involving Bryson, her
father’s phone records, Bryson’s death certificate, and the coroner’s report.
¶18. Malone failed to meet her burden to prove that any of this evidence “could not have
been discovered” prior to her guilty plea “by the exercise of due diligence.” Id. Indeed, in
her appellate brief, Malone expressly “concedes that her [plea] counsel could have
discovered the affidavits, video, and AT&T phone records, with due diligence before her
guilty plea.” Malone further concedes that “this Court will probably find that due diligence
would and should have uncovered this evidence before her plea.” We agree with Malone that
the information she obtained from Wilson and Street, her father’s phone records, and the
video could have been discovered by due diligence prior to her plea. Therefore, her
subsequent discovery of this evidence is not a ground for post-conviction relief.
¶19. In addition, Malone cannot show that the death certificate or coroner’s report was not
10
discoverable by the exercise of due diligence. In fact, the face of Bryson’s death certificate
shows that it was filed on September 20, 2017, just ten days after the fatal accident and
months before Malone pled guilty. Likewise, nothing in the record shows that the coroner’s
report was unavailable at the time of Malone’s plea. Malone’s newly discovered evidence
claim fails for this reason alone.
¶20. Malone also cannot satisfy her burden to show that the death certificate and coroner’s
report were “material” and “not merely cumulative.” Id. Malone argues that these two
documents are material because both show Bryson’s time of death as 12:17 a.m., and Malone
claims that she struck Young or Bryson a few minutes after 12:17 a.m. However, nothing
in the record shows that the time of death stated in either document was based on anything
other than the time of the first 911 call reporting that Bryson’s body was lying in Victoria
Road. That information was also contained in the CAD report. Moreover, nothing in the
record shows that Malone could not have driven down Victoria Road prior to 12:17 a.m.
Accordingly, Malone cannot show that either Bryson’s death certificate or the coroner’s
report was material and not merely cumulative. For this reason as well, the circuit court did
not clearly err by rejecting Malone’s newly discovered evidence claim.
II.
The circuit court erred by not addressing Malone’s ineffective
assistance of counsel claim.
¶21. Malone further contends that her plea counsel provided ineffective assistance by
advising her to plead guilty without carefully reviewing the available evidence and
investigating Malone’s possible defenses to the indictment. Essentially, Malone argues that
the CAD report and witness statements available at the time she pled guilty should have at
11
least indicated to her plea counsel that it was possible, or even likely, that Malone struck
Young, not Bryson, or that some other vehicle struck and killed Bryson before Malone’s
vehicle struck him. Malone argues that such evidence would have refuted the indictment’s
allegations that she struck Bryson and caused his death. She argues that if she only struck
Young and not Bryson, then she could not have been sentenced to more than one year in
prison pursuant to Mississippi Code Annotated section 63-3-401(3).
¶22. Malone’s ineffective assistance claim raises additional issues that the parties’ briefs
do not directly address. Although Malone’s indictment alleged that she struck Bryson and
caused his death, section 63-3-401(4) only required the State to prove that Malone failed to
stop after she was “involved in an accident that result[ed] in the death of another or the
mutilation, disfigurement, permanent disability or the destruction of the tongue, eye, lip, nose
or any other limb, organ or member of another.” Even if we assume that Malone struck
Young and not Bryson, the State might have attempted to amend the indictment or obtained
a new indictment to proceed on a different theory. For example, the State might have
prosecuted Malone on the theory that she left the scene of an accident that resulted in the
“mutilation, disfigurement, or permanent disability” of Young. Id. Alternatively, the State
might have argued that Malone was “involved in [the] accident that result[ed] in [Bryson’s]
death,” id., even if her vehicle was not the first to strike Bryson and did not proximately
cause his death. In other words, the evidence that Malone faults her plea counsel for failing
to discover would not necessarily have absolved her of criminal liability under section 63-3
401(4), even if it might have supported possible defenses to the specific allegations of her
12
indictment. These issues and possibilities surely would have played into any decision to
accept or reject a plea offer.
¶23. To prevail on a claim of ineffective assistance, the movant in a PCR proceeding must
show both (1) “that counsel’s performance was deficient”—i.e., “that counsel made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment”—and (2) that the movant was prejudiced as a result. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Moreover, “[a] voluntary guilty plea waives claims
of ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to
the voluntariness of the giving of the guilty plea.” Thomas v. State, 159 So. 3d 1212, 1215
(¶10) (Miss. Ct. App. 2015) (quotation marks omitted). “Thus, to obtain post-conviction
relief, a petitioner who pled guilty must prove that his attorney’s ineffective performance
proximately caused the plea—i.e., that but for counsel’s errors, the petitioner would not have
entered the plea.” Worth v. State, 223 So. 3d 844, 849 (¶17) (Miss. Ct. App. 2017); see also
Hill v. Lockhart, 474 U.S. 52, 59 (1985) (“[I]n order to satisfy the ‘prejudice’ requirement,
the defendant must show that there is a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.”). “[T]o obtain
relief on this type of claim, a petitioner [also] must convince the court that a decision to reject
the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky,
559 U.S. 356, 372 (2010).
¶24. In addition, when we evaluate claims regarding “counsel’s duty to investigate,” we
must also keep in mind that
13
strategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the
limitations on investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary. In any ineffectiveness case, a particular
decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel’s
judgments.
The reasonableness of counsel’s actions may be determined or substantially
influenced by the defendant’s own statements or actions. Counsel’s actions
are usually based, quite properly, on informed strategic choices made by the
defendant and on information supplied by the defendant. In particular, what
investigation decisions are reasonable depends critically on such information.
. . . [W]hen a defendant has given counsel reason to believe that pursuing
certain investigations would be fruitless or even harmful, counsel’s failure to
pursue those investigations may not later be challenged as unreasonable. In
short, inquiry into counsel’s conversations with the defendant may be critical
to a proper assessment of counsel’s investigation decisions, just as it may be
critical to a proper assessment of counsel’s other litigation decisions.
Strickland, 466 U.S. at 690-91. In other words, the reasonableness of Malone’s plea
counsel’s actions must be assessed in light of Malone’s prior confession to law enforcement
and any additional information she provided to her attorney.
¶25. In this case, we are unable to review the circuit court’s findings and conclusions
regarding Malone’s ineffective assistance claim because the circuit court’s order made no
such specific findings or conclusions. The circuit court made general findings that the
evidence Malone submitted would not “have changed the result of her case” and did not
prove Malone’s innocence. But, as set out above, the relevant questions with respect to
Malone’s ineffective assistance claim are whether Malone’s plea counsel provided
constitutionally ineffective assistance; whether, but for any errors by counsel, Malone would
not have pled guilty, Worth, 223 So. 3d at 849 (¶17); and whether “a decision to reject the
14
plea bargain would have been rational under the circumstances,” Padilla, 559 U.S. at 372.
The circuit court did not make findings with respect to any of those specific questions.
¶26. In cases in which a circuit court holds an evidentiary hearing on a PCR motion, the
UPCCRA “requires that the court ‘make specific findings of fact, and state expressly its
conclusions of law, relating to each issue presented.’” Hughes v. State, 309 So. 3d 542, 551
52 (¶48) (Miss. Ct. App. 2020) (quoting Miss. Code Ann. § 99-39-23(5)); see also McVeay
v. State, 754 So. 2d 486, 491 (¶18) (Miss. Ct. App. 1999) (Bridges, J., dissenting) (“Specific
findings of fact and conclusions of law, relating to each issue presented in [a PCR motion],
must be made by the court if an evidentiary hearing is required.”). In Hughes, the circuit
court entered an order denying relief and specifically addressing some of the movant’s
claims, and we held that the court erred by failing to specifically address the movant’s other
claims. Hughes, 309 So. 3d at 551-52 (¶¶48-49). We also held that the circuit court’s error
required reversal and remand. Id. at 552 (¶49).
¶27. As in Hughes, we hold that the circuit court erred by failing to make specific findings
of fact and expressly state its conclusions of law regarding Malone’s ineffective assistance
of counsel claim. While we may infer and credit “findings of fact [that] are fairly implicit
in a trial court’s ruling,” “[w]e may not credit unspoken findings not fairly inferrable from
the trial court’s action.” Riddle v. State, 580 So. 2d 1195, 1200 (Miss. 1991). Here, the
circuit court did not specifically address Malone’s ineffective assistance claim, and because
that claim raises factual and legal issues that are distinct from Malone’s newly discovered
evidence claim, we are unable to infer the required findings or conclusions from the circuit
15
court’s one-page order. Accordingly, we reverse and remand the case for the circuit court
to specifically address Malone’s ineffective assistance claim. Hughes, 309 So. 3d at 552
(¶49). “On remand, the court should consider all evidence [previously admitted], and, in its
discretion, the court may choose to reopen and rehear the matter anew before it renders its
final opinion.”

Outcome:

We affirm the circuit court’s judgment to the extent that it rejected Malone’s newly discovered evidence claim. However, we reverse and remand for the circuit court to address Malone’s ineffective assistance claim


AFFIRMED IN PART; REVERSED AND REMANDED IN PART.



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