The Mississippi Court of Appeals handed down seven opinions today. There are three criminal cases that address jury instructions, improper prosecutorial argument, and the admissibility of a letter aimed at the credibility of a State’s witness. There is also a divorce case addressing issues several issues related to alimony, a case deciding whether the right to arbitration was waived, a case seeking to impose a constructive trust on land, and an unemployment case.
Vector Transportation Co. v. Mississippi Department of Employment Security, 2021-CC-00574-COA (Civil – State Board and Agencies)
Affirming the circuit court and MDES Board of Review’s finding that the claimant was entitled to unemployment benefits, holding that the circuit court’s determination that the employer failed to prove that the claimant was discharged for misconduct was not contrary to law, arbitrary or capricious, or not supported by substantial evidence.
(9-0: Chief Judge Barnes did not participate.)
Clay v. State, 2021-KA-00790-COA (Criminal – Felony)
Affirming conviction of uttering a forgery and sentence as a nonviolent habitual offender, holding that the circuit court did not err in refusing the defendant’s mistake-of-fact jury instruction considering all jury instructions read together.
(9-1-0: Judge Westbrooks concurred in part and in the result without separate written opinion.)
Murry v. State, 2020-KA-01363-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding (1) that that the prosecutor made an improper “send-a-message” argument during closing but that absent the prosecutor’s improper argument the jury would have found the defendant guilty and (2) that the circuit court did not commit plain error in admitting photographs that the defendant did not object to. The Court of Appeals also declined to decide the defendant’s ineffective assistance of counsel claim and recognized that it was preserved for PCR.
(10-0)
NOTE – Here are the “send-a-message” comments that the Court of Appeals held “[w]ithout question . . . run afoul of the clear direction given by the highest appellate courts in our state and nation” and that the defendant’s attorney did not object to at trial:
Lewis v. State, 2021-KA-00736-COA (Criminal – Felony)
Affirming convictions of conspiracy and armed robbery, holding that the trial court did not err by excluding a letter the defendant sought to introduce that accused a witness of past instances of false accusations because it was hearsay and did not fall within an exception to the inadmissibility of hearsay.
(9-1-0: Judge Emfinger concurred in part and in the result without separate written opinion.)
Phang v. Phang, 2021-CA-00752-COA (Civil – Domestic Relations)
Affirming in part and reversing in part several aspects of the chancery court’s judgment of divorce, holding that the chancellor (1) did not err in the award of permanent alimony, (2) erred in not specifying what happened to the alimony obligation if the ex-husband predeceased the ex-wife, (3) erred in requiring the ex-husband to maintain an excessive life insurance policy naming the ex-wife as the beneficiary, (4) erred in ordering the ex-husband to provide annual proof of income to his ex-wife.
(10-0)
White v. White, 2021-CP-00333-COA (Civil – Contract)
Affirming in part and reversing in part the circuit court’s dismissal of a son’s complaint against his mother seeking damages and to impose a constructive trust on land he had deeded his mother, holding that the circuit court did not err in ruling that the claim for damages was barred by the statute of limitations but did err to the extent it dismissed the claim to recover and impose a constructive trust because the 10-year statute of limitations had not run on those claims when the complaint was filed.
(10-0)
Note – There was a lengthy footnote to remand declaration, discussing the odd situation presented where the Court of Appeals was remanding to the Harrison County Circuit Court a claim seeking to impose a trust on land located in Pike and Lincoln County.
Purvis v. Mar-Jac Poultry MS, LLC, 2021-CA-00039-COA (Civil – Contract)
Affirming the circuit court’s decision granting the defendant’s motion to compel arbitration, holding that the defendant did not waive arbitration by refusing the plaintiff’s pre-suit arbitration demand or by filing a counterclaim contemporaneously with its motion to compel arbitration and holding that the arbitration provision requiring an arbitration demand within 120 days after notice of a claim did not and could not alter the three-year statute of limitations.
(6-1-2: Judge Westbrooks dissented, joined by Judge McDonald and joined in part by Judge McCarty; Judge Smith did not participate.)
Other Orders
Wofford v. State, 2020-KA-01341-COA (denying rehearing)
Adams v. State, 2020-KA-01383-COA (denying rehearing)
Smith v. Mississippi Department of Public Safety, 2021-SA-00020-COA (denying rehearing)
Frost v. State, 2021-CA-00152-COA (denying rehearing)
Edwards v. State, 2021-KA-00259-COA (denying rehearing)
Carter v. Total Foot Care, 2021-CA-00610-COA (denying rehearing)
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