The Mississippi Court of Appeals handed down five opinions today. There are two direct criminal appeals, two custody cases, and a real property case deciding the parties’ respective rights to a common wall that gave me bar exam flashbacks.
In the Matter of the Guardianship of B.P., 2021-CA-01288-COA (Civil – Custody)
Affirming the chancellor’s order in a custody matter, holding that the chancellor did not err in finding that the child’s appointed guardians successfully rebutted the natural parent presumption and that it was in the child’s best interest to remain in the guardians’ custody.
(8-1-1: No separate opinions. Westbrooks concurred in the result only and McDonald concurred in part and dissented in part without separate written opinion.)
Ndicu v. Gacheri, 2022-CA-00415-COA (Civil – Custody)
Affirming the chancellor’s judgment in a custody matter, holding that the chancellor did not manifestly abuse his discretion by denying the father’s request for past child support and education expenses.
(10-0)
Kelly v. State, 2022-KA-00577-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that the circuit court did not err in denying the defendant’s motion for new trial based on an allegation that a juror misrepresented her lack of familial relationship with the victim where the claimed familial relationship was not supported by credible evidentiary support and, even if there was a familial relationship, there was no evidence the juror knew about it when she said she was not related to the defendant.
(8-1-1: No separate opinions. Westbrooks concurred in result only; McDonald dissented.)
NOTE – The alleged familial relationship surfaced when a member of the defendant’s family sent the juror in question a Facebook message:
LIFE TIP – Do not message jurors.
Alford v. Cotton Row Hospitality, LLC, 2022-CA-00125-COA (Civil – Real Property)
Affirming in part and reversing in part on direct appeal and cross-appeal in a case about a common wall between two properties in a downtown area, holding that Side A of the wall had established a prescriptive easement for the use of the wall but did not obtain an ownership interest by adverse possession of the wall that was located on Side B’s property and included in Side B’s deed, that there was no equitable need for Side B to sell the wall to Side A, and that Side A did not have to reimburse Side B for its expense in supporting the wall Side B incurred after tearing down the other three walls of Side B’s property.
(10-0)
NOTE – This opinion also discusses the doctrine of unclean hands (it did not apply) and the adequacy of pleading the prescriptive easement claim (it was adequate).
Smith v. State, 2020-KA-00774-COA (Criminal – Felony)
Affirming conviction of assault and possession of a firearm by a felon, holding that the trial court committed harmless error (i.e. not plain error) by giving a pre-arming jury instruction that was not objected to, that the evidence was sufficient to establish the defendant’s identity, that the trial court did not err in giving a flight instruction where the defendant did not provide an independent and uncontradicted reason for his flight, and that the defendant’s trial counsel was not ineffective.
(8-2: Emfinger dissented, joined by Wilson.)
NOTE – The dissent’s position is that the defendant’s appeal of his conviction and sentence was not properly before the court:
Other Orders
Friley v. State, 2021-KA-00791-COA (granting pro se motion for time for rehearing motion)
Renfroe v. Parker, 2021-CA-01048-COA (denying rehearing)
McFarland v. State, 2021-CA-01311-COA (denying rehearing)
Everett v. State, 2021-CP-2021 (denying rehearing)
Fagan v. Faulkner, 2022-CA-00130-COA (denying rehearing)
Mississippi Appeals Blog 