Perjury or Trial Strategy?

October 23, 2017 § 1 Comment

Thomas and Christy Ethridge consented to a divorce on the ground of irreconcilable differences and agreed that the chancellor would adjudicate custody. The chancellor awarded physical custody to Christy and awarded joint legal custody to both. After the judge denied Thomas’s R59 motion for a new trial, Thomas appealed.

In Ethridge v. Ethridge, handed down September 26, 2017, the COA affirmed. The court first addressed and rejected Thomas’s argument that the chancellor’s Albright analysis was erroneous. It then turned its focus on his claim that Christy had committed perjury at trial, and that the judge had committed error by not granting him a new trial. Judge Irving wrote for a unanimous court:

¶15. The judgment of divorce was entered on January 5, 2016, and Thomas filed his motion for a new trial on January 11, 2016. In seeking a new trial, he alleged that the trial court had, in its Albright analysis involving the physical and mental health and age of the parents, found that both he and Christy were in good health. However, he alleges that Christy has a history of inpatient treatment for mental-health issues, including depression and suicidal ideation, having been treated as an inpatient for such at Pine Grove Recovery Center. He alleges that she intentionally failed to disclose these facts and committed outright perjury at trial in order to affect the outcome of the case. Thomas asserts that the reason the issue of her mental fitness was not brought before the court was because his trial counsel was involved in a hit-and-run accident and was distracted when he returned to the court. In response, Christy points out that Thomas’s counsel rested before the break for lunch, and after lunch, the judge announced his ruling from the bench, so Thomas’s counsel’s incident during the break had no effect on the proceedings.

¶16. In rejecting Thomas’s post-trial motion for a new trial based on the allegation that Christy had committed fraud during the trial, the chancellor stated:

At oral argument [Christy]’s counsel represented that all parties and [Thomas]’s trial counsel were aware that [Christy] had a prior stay at Pine Grove in Hattiesburg as a result of a break up with a prior fiance before her marriage to [Thomas]. Those records were provided in discovery and appear to concern the years 2010 through 2012. Copies of those records were provided by [Christy]’s counsel to the Court and [Thomas]’s current counsel at the motion hearing. Those records are being filed under seal in the court file. The records are not in evidence from trial.

The use, non-use, or relevance of such information by [Thomas] at trial is deemed by the Court to involve trial strategy. The information was apparently known to [Thomas] and his counsel at trial. It was not introduced nor offered into evidence. Thus, there is no new or unknown evidence intentionally withheld by [Christy] that supports [Thomas]’s motion for a new trial on the grounds of perjury or fraud upon the Court.

¶17. As noted, the chancellor found that there was “no new or unknown evidence intentionally withheld by Christy that supports Thomas’s motion for a new trial on the grounds of perjury or fraud upon the Court.” If Thomas believed that Christy gave false testimony when his trial counsel questioned her about her mental fitness to care for the parties’ minor child, it was incumbent upon him to confront her with her medical records at that time if he thought they contradicted her testimony. Thomas does not claim, and there is no evidence, that he was somehow prohibited from bringing Christy’s past mental history to the court’s attention during the trial.

¶18. The standard for obtaining relief based upon an allegation of fraud upon the court has been succinctly addressed by the Mississippi Supreme Court:

Relief based on fraud upon the court is reserved for only the most egregious misconduct, and requires a showing of an unconscionable plan or scheme which is designed to improperly influence the court in its decision. Mere nondisclosure of pertinent facts to the court does not add up to fraud upon the court for purposes of vacating a judgment under Rule 60(b). Furthermore, the fraud must be proved by clear and convincing evidence. Doe v. Smith, 200 So. 3d 1028, 1033 (¶15) (Miss. 2016) (internal citations and quotation marks omitted).

¶19. As noted, the chancellor found that “there [was] no new or unknown evidence intentionally withheld by [Christy] that support[ed] [Thomas’s] motion for a new trial on the grounds of perjury or fraud upon the [c]ourt.” We agree. This issue is without merit, and we find no error in the April 26, 2016 order denying the relief requested by Thomas.

It appears from the opinion that Christy was never confronted on the witness stand with the information that Thomas claims was so damning. If she was not given the opportunity to lie about it, how can she be accused of lying? Also, the information had been disclosed in discovery and was in Thomas’s possession during the trial. When Christy did not volunteer the information, he had the opportunity to confront her with it.

So, was Christy’s failure to volunteer the information tantamount to perjury or fraud on the court? If you say yes, what is your authority for that position? I don’t believe it was.

Finally, this case underscores a key consideration: you can not try to introduce new evidence via a R59 motion unless you can show that it was newly obtained evidence that was previously unavailable. The outcome would probably have been different if Christy had concealed the existence of the records and Thomas only discovered them after trial. Unlikely, but stranger things have happened.

§ One Response to Perjury or Trial Strategy?

  • rondoleac@co.forrest.ms.us says:

    Learned Chancellor Primeaux –

    Thanks for the accurate take on this case

    and my rulings…..it is as if your were there…..!!!

    See you Wednesday….

    Best regards,

    Ron Doleac

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