We are back in action! The Mississippi Court of Appeals handed down six opinions today after their summer break. These cover several appeals from criminal convictions, a termination of parental rights case, and an MTCA case with thorny statute of limitations computation, and PCR.
Bullock v. Mississippi Department of Child Protective Services, 2020-CA-00966-COA (Civil – Custody)
Affirming the judgment of the youth court terminating the plaintiff’s parental rights to her four children, holding that that the youth court’s decision based upon multiple, independently-sufficient statutory grounds was supported by clear and convincing evidence including evidence that one of the children had suffered severe physical, emotional, and mental abuse, and that this abuse of the one child was sufficient to support the termination of parental rights as to all four children. The Court of Appeals also held that there was no evidence that the GAL was unfair or biased.
(10-0)
Alvarado v. State, 2021-KA-00566-COA (Criminal – Felony/First-Degree Murder/Attempted First-Degree Murder)
Affirming conviction of first-degree murder and attempted first-degree murder, holding that the evidence of first-degree murder (that included surveillance footage of the defendant gunning down the victim in a gas station) and evidence of attempted first-degree murder (video showing the defendant exchanging gunfire with a second person after shooting the victim) was sufficient and that the verdict was not against the weight of the evidence.
(10-0)
Lopez v. State, 2021-CP-00331-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s motion for PCR, holding that the plaintiff’s guilty plead waived the alleged violation of his constitutional rights and that the plaintiff’s claims of ineffective assistance were waived and meritless.
(7-3-0: Judge Westbrooks concurred in part and in the result with separate written opinion, joined in part by Judge McDonald and Judge McCarty; Chief Judge Barnes concurred in result only without separate written opinion; Judge McDonald concurred in result only with separate written opinion, joined by Chief Judge Barnes.)
Keever v. The Board of Trustees for Mississippi Institutes of Higher Learning, 2021-SA-00036-COA (Civil – Personal Injury/MTCA/statute of limitations)
Reversing the circuit court’s dismissal of the complaint on statute of limitations grounds, holding that this, the plaintiff’s second lawsuit asserting an MTCA claim, was not barred by the statute of limitations because the statute of limitations was tolled during the pendency of the first lawsuit that was dismissed without prejudice (from the filing of the complaint to the issuance of the appellate mandate) and for another 95 days after a notice of claim for the second lawsuit was served. The Court of Appeals also held that a “stipulation of voluntary dismissal” of the first complaint after the defendants had filed answers was of no effect, that the complaint could not be dismissed based on the discretionary-function exemption, and that IHL is not entitled to a dismissal at this early stage.
(10-0)
Practice Point – Here is the timeline of key events, which my brain requires in order to process opinions like this:
- March 8, 2013 – Alleged injury
- March 3, 2014 – Plaintiff sent notice of claim
- March 7, 2014 First Complaint filed (this complaint was dismissed by the circuit court for failure to comply with pre-suit requirements and the dismissal was appealed and affirmed by the MS Court of Appeals)
- February 6, 2020 – MS Supreme Court denied cert
- February 18, 2020 – Ineffective “Stipulation of Voluntary Dismissal” filed
- February 18, 2020 – Notice of claim letters sent (this tolled the statute, which was already being tolled during the pendency of the first lawsuit, another 95 days)
- February 27, 2020 – Appellate mandate issued
- May 26, 2020 – Second lawsuit filed on the last possible day
And what would stressful, statute of limitations computation party be without the last day falling on a Saturday, followed by a legal holiday?
Garlington v. State, 2020-KA-00392-COA (Criminal – Felony/Sexual Battery)
Affirming the conviction of one count of sexual battery against a minor, holding that the evidence was sufficient to support a finding that the elements of the crime were proven and to allow the jury to infer that the abuse occurred within the time frame stated in the indictment despite an alleged variance in the dates in the indictment and the proof at trial; there was no error in allowing the minor victim’s out-of-court statements under the tender years exception; no error in allowing the State to amend the indictment; no error in overruling the defendant’s Batson challenges; no error in failing to allow evidence of alleged sexual misconduct of the minor victim’s father; no Confrontation Clause violation by admitting lab results without a witness from the lab testifying at trial; no error in prohibiting Defendant’s expert from referring to certain materials that he had relied upon but had not produced to the State; no error in precluded testimony from Defendant’s would-be character witness; no Brady violation in allowing a rebuttal expert to testify; and there was no error in omitting the time frame of the abuse from the jury instructions setting forth the elements of the crime.
(7-3-0: Judge Wilson, Judge McCarty, and Judge Emfinger concurred in part and in the result without separate written opinion.)
NOTE – This is a 58-page, fact-intensive majority opinion.
Jenkins v. State, 2021-KA-00145-COA (Criminal – Felony)
Affirming conviction of trafficking at least 1kg of marijuana with intent to sell, holding that that was no Fourth Amendment violation in the circuit court’s denial of the defendant’s motion to suppress evidence obtained from search warrants for his house and vehicle or his motion and no error in denying the defendant’s motion to suppress his bank records even those records were improperly obtained via subpoena duces tecum.
(8-2-0: Judge Westbrooks concurred specially with separate written opinion, joined by Judge McDonald; Judge McDonald concurred in part and in the result without separate written opinion.)
Other Orders
Fluker v. State, 2021-CP-00162-COA (denying rehearing)
Mississippi Appeals Blog 