Category: Hand Down Summaries

Mississippi Supreme Court Decisions of February 16, 2023

The Mississippi Supreme Court handed down one opinion today, along with several orders including the suspension of a municipal court judge for abuse of power.

Garcia v. State, 2020-DR-01224-SCT (Civil – PCR)
Affirming denial of PCR motion, holding that even under heightened scrutiny due in capital cases the plaintiff did not present a substantial showing that he was denied the right to effective assistance of counsel for not pursuing and presenting fetal alcohol syndrome disorder as a mitigating factor, for not presenting and explaining all mitigating evidence, or for not developing and presenting evidence that the defendant was under the substantial domination of another person.
(6-3-0: Kitchens concurred in part and in the result, joined by King and Ishee and joined in part by Coleman)

Other Orders

Cooper v. State, 2018-M-01124 (denying PCR motion)

Gilmer v. McRae, 2021-CA-00028-SCT (granting appellees’ motion for fees and costs)

Mississippi Commission on Judicial Performance v. Municipal Court Judge Carlos E. Moore, 2022-JP-00504-SCT (suspending respondent from office without pay for sixty days from his position as municipal judge for both Grenada and Clarksdale, ordering public reprimand in each county, and ordering a $1,500 fine)

Yates Services, LLC v. Hill, 2022-M-00879-SCT (denying petition for interlocutory appeal)

Hawkins v. State, 2022-M-01131 (denying application for leave to proceed in trial court, finding the application frivolous, and warning against future frivolous filings)

Hand Down List

Mississippi Court of Appeals Decisions of February 14, 2023

The Mississippi Court of Appeals handed down ten opinions on this Valentine’s Day. These opinions cover a lot of territory including criminal, custody, personal injury, and PCR.

Clayton v. State, 2021-KA-00505-COA (Criminal – Felony)
Affirming conviction of two counts of first-degree murder, holding that the trial court did not err by refusing the defendant’s lesser-included instructions and that the evidence was sufficient to support the deliberate design element for both counts.
(10-0)

Kirk v. State, 2021-KA-00733-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the evidence was sufficient to support the conviction and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

MIMG C Woodridge Sub LLC v. Course, 2021-CA-00535-COA (Civil – Other)
Affirming award for past and future pain and suffering against an apartment complex to a plaintiff whose apartment was burglarized by someone who used an office key, holding that the award of $450,000 in noneconomic damages ($250,000 for past; $200,000 for future) was not excessive based on the evidence.
(8-2: Wilson dissented, joined by Barnes)

NOTE – The jury also awarded $42,080 in economic damages for the stolen items medical bills for psychiatric care.

Hull v. State, 2022-CP-00088-COA (Civil – PCR)
Affirming denial the plaintiff’s PCR petition, holding that the plaintiff was properly sentenced, he was not denied effective assistance, and his motion to receive a copy of his record and transcript was moot.
(10-0)

Stevenson v. State, 2021-KA-00411-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that allowing the State’s forensic pathologist testify remotely violated the Confrontation Clause because there was no case-specific determination of necessity but that it was harmless error since there was other sufficient evidence to support the verdict.
(5-5-0: Wilson, Lawrence, Smith, and Emfinger concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only without separate written opinion)

McFarland v. State, 2021-CA-01311-COA (Civil – State Boards and Agencies)
Affirming in part and reversing/rendering in part the trial court’s rulings on a petition to correct eligibility for parole, holding that the trial court erred in treating the petition as a motion to modify the sentence and that the trial court had jurisdiction to consider the petition but also holding that the record supported a finding that the plaintiff was not eligible for parole.
(8-1-0: Emfinger concurred in part and in the result without separate written opinion)

Jordan v. State, 2021-KA-01421-COA (Criminal – Felony)
Affirming conviction of sexual battery of the defendant’s minor stepdaughter, holding that the trial court did not err in allowing a sexual assault nurse examiner was not reversible error, that the trial court did not err in admitting “nanny cam” video into evidence, that trial counsel’s lack of hearsay objection to a letter did not affect the outcome, and that the evidence was sufficient to support the verdict.
(8-1-0: Wilson concurred in part and in the result without separate written opinion; Judge Smith did not participate)

Rye v. State, 2021-CA-00477-COA (Civil – PCR)
Reversing denial of motion for PCR, holding that the trial court erred in denying the motion on the basis that the guilty plea prevented the plaintiff from asserting that newly discovered evidence existed that could prove his innocence.
(10-0)

Denham v. Lafayette County Department of CPS, 2021-CA-00871-COA (Civil – Custody)
Affirming judgment terminating a mother’s parental rights, holding that the chancellor’s ruling was based on substantial credible evidence and that there was no merit to her arguments regarding her attorney’s performance or the GAL’s report and testimony.
(5-2-2: Emfinger concurred in part and in the result without separate written opinion; Carlton concurred in result only without separate written opinion; McCarty concurred in part and dissented in part, joined by Westbrooks; Greenlee did not participate)

Haynes v. Beckward, 2019-CA-01508-COA (Civil – Personal Injury)
Affirming in part and reversing in part the trial court judgment’s after a car wreck trial, holding that the trial court did not abuse its discretion in excluding the defendant-driver’s testimony that he saw three other cars pass his trailer before the accident without incident or in denying a mistrial after the plaintiff testified about the defendant’s insurance company during cross, but holding that the trial court abused its discretion in denying the motion for remittitur where the awards for future medical expenses and future lost wages exceeded the competent evidence on those elements.
(6-1-3: Westbrooks concurred in part and dissented in part without separate written opinion; Lawrence concurred in part and dissented in part with separate written opinion, joined by Westbrooks and McCarty, and in part by McDonald.)

DISCLOSURE – I was not trial counsel, but I represent the appellants in this appeal.

Other Orders

Smith v. State, 2020-KA-00775-COA (granting motion for authorization to proceed out of time)

Blagodirova v. Schrock, 2020-CA-01162-COA (denying rehearing)

Bowman v. State, 2020-KA-01371-COA (denying rehearing)

Dampier v. State, 2021-KA-00280-COA (denying rehearing)

O’Quinn v. State, 2021-KA-00534-COA (denying motion for permission to proceed out of time)

Keys v. Rehabilitation, Inc., 2021-CA-01338-COA (denying rehearing)

Young v. State, 2022-CP-00141-COA (denying rehearing)

Johnson v. State, 2022-CP-01186-COA (sua sponta allowing appeal to proceed as timely)

Boyett v. State, 2022-TA-01239-COA (sua sponte suspending appeal deadline to allow untimely appeal to proceed on the merits)

Silas v. State, 2022-TS-01265-COA (dismissing appeal for lack of jurisdiction)

Hand Down List

Mississippi Supreme Court Decisions of February 9, 2023

On Thursday, the Mississippi Supreme Court handed down one opinion, and I was approaching the confluence of a dispositive/Daubert motions deadline in one case and an expert designation deadline in another.

Heritage Hunter Knoll, LLC v. Lamar County, Mississippi, 2021-CA-01325-SCT (Civil – States Boards and Agencies)
Affirming in part and denying in part the dismissal for lack of jurisdiction of a property owner’s appeal of the County Board’s decisions related to a waste ordinance, holding that the appeal of an amendment to the ordinance was time-barred because it was not appealed within the 10-day time limitation in section 11-51-75, but also holding that the appeal of the Board’s denial of a variance request was timely filed and remanding for a full hearing on that issue.
(9-0)

NOTE – The Supreme Court also held that the property owner did not engage in claim splitting when it filed a separate lawsuit in federal court while appealing the Board’s actions:

Other Orders

Wallace v. State, 2020-M-00979 (denying application for leave to file motion for PCR, finding the filing frivolous, and warning against future frivolous filings)

Crossgates United Methodist Church v. Ming, 2020-IA-01358-SCT (dismissing interlocutory appeals)

White v. White, 2021-CT-00333-SCT (denying cert)

Beasley v. State, 2021-CT-00653-SCT (denying cert)

Norwood v. State, 2021-CT-00802-SCT (denying cert)

Bland v. State, 2021-KA-00973-SCT (denying rehearing)

Patterson v. MDES, 2021-CT-01150-SCT (dismissing “notice of appeal” and cert petition)

In re: Debbie Travis Robertson, 2022-M-01032 (denying petition for disqualification of judge)

In re: William C. Spencer, Jr., 2022-M-01041 (denying petition for disqualification of judge)

Hand Down List

Mississippi Court of Appeals Decisions of February 7, 2023

The ever-prolific Mississippi Court of Appeals handed down nine opinions today. There is a mix of criminal, domestic, and civil cases with a unifying theme of appellees running the table.

Edwards v. State, 2021-KM-01348-COA (Criminal – Misdemeanor)
Affirming conviction of first-offense DUI, holding that there was probable cause for the traffic stop and that law enforcement was not required to inform the defendant of his right to an independent and alternative BAC test.
(10-0)

Harrison v. Howard, 2021-CA-00697-COA (Civil – Domestic Relations)
Affirming judgment of contempt for failure to comply with agreed order of modification of child custody and support, holding that the father waived improper service, that the agreed modification order was voidable but not void and he failed to timely appeal it, and that he waived the issue of termination of the mother’s child support obligation by not timely objecting or appealing.
(7-3-0: Wilson, McCarty, and Emfinger concurred in part and in the result without separate written opinion.)

Washington v. State, 2021-KA-01041-COA (Criminal – Felony)
Affirming conviction of capital murder and armed robbery, holding that the trial court’s comments to the jury that this was not a death penalty case was appropriate clarification of fact and did not prejudice the jury, that the defendant did not prove that the State’s loss of a video lineup was not bad faith, that there was no proof that inadmissible portions of video testimony were played to the jury and so it is presumed that the trial court’s order sustaining an objection to the inadmissible testimony was heeded, and that if admitting a handgun into evidence was error it was invited by the defendant who introduced it.
(7-3-0: Wilson, McCarty, and Emfinger concur in part and in the result without separate written opinion.)

Pace v. State, 2022-KA-00046-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the verdict was supported by sufficient evidence and was not against the overwhelming weight of the evidence, that the trial court erred in admitting photos without a proper foundation but the error was harmless, that the defendant waived the argument that the State made an improper comment during closing by not objecting, and that the trial court did not err in refusing the defendant’s self-defense instruction.
(7-2-0: Wilson and Greenlee concurred in part and in the result without separate written opinion, Smith did not participate.)

Brandon v. State, 2021-KA-01239-COA (Criminal – Felony)
Affirming conviction of possession of a firearm by a felon upon receipt of a Lindsey brief and a review of the record finding no arguable issues for appeal.
(10-0)

Lofton v. Lofton, 2021-CA-00035-COA (Civil – Real Property)
Affirming judgment in a fraudulent-transfer of real and personal property lawsuit that is tangential to a pending divorce action, holding that the chancery court did not abuse its discretion in determining that the UFTA supported a finding of fraud or in awarding the prevailing party attorney’s fees.
(9-1-0: Westbrooks concurred in the result only.)

NOTE – This is an interesting and fact-bound decision discussing the UFTA.

Mack v. State, 2021-CA-01060-COA (Civil – Other)
Affirming denial of expungement, holding that the trial court did not err in finding that the plaintiff’s conviction was related to his official duties as a police officer.
(10-0)

Clark v. Tippah County Dept. of Child Protection Services, 2021-CP-01209-COA (Civil – Custody)
Affirming judgment terminating parental rights, holding that the mother’s due process claims were procedurally barred and without merit and that the chancellor did not err in terminating parental rights.
(7-2-0: McDonald concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only; Greenlee did not participate.)

West Jasper Consolidated School District v. Rogers, 2021-CA-00171-COA (Civil – Contract)
Affirming chancery court’s judgment that the school district breached 16th section lease terms regarding rent adjustments, holding that the chancery court had subject matter jurisdiction, applied the correct standard of review, did not err in finding no material breach by appellees, did not err in overturning the county board’s ruling, and did not err in denying attorney’s fees to the appellant.
(10-0)

Other Orders

La Casa I, LLC v. Gottfried, 2021-CA-00347-COA (denying rehearing)

Belmer v. State, 2021-CP-00398-COA (denying rehearing)

Davis v. State, 2021-KA-00593-COA (denying rehearing)

Howard Industries, Inc. v. Hayes, 2021-WC-00694-COA (denying rehearing)

Meek v. Cheyenne Steel, Inc., 2021-WC-01219-COA (denying rehearing)

Hand Down List

Mississippi Supreme Court Decisions of February 2, 2023

The Mississippi Supreme Court handed down two opinions today. One is a consolidated appeal resolving a “circuit split” where two state circuit courts reached opposite conclusions on the same legal issue involving UM coverage for accidents caused by MTCA-immune tortfeasors. (Come for the holding, stay for the strong words about the Fifth Circuit’s earlier Erie-guess on this issue.) The other opinion involves the rights of a successor in title to a reciprocal easement.

Lee v. State Farm Mutual Automobile Insurance Company, 2021-CA-00882-SCT consolidated with State Farm Mutual Automobile Insurance Company v. Cooper, 2021-IA-01006-SCT (Civil – Contract)
Resolving a “circuit split” by holding that under the UM statutes (as amended in 2009) the UM carrier was required to provide UM coverage to plaintiffs for damages sustained in collisions with entities afforded immunity under MTCA, reversing summary judgment in one case and affirming the denial of summary judgment in the other case.
(7-0: Chief Justice Randolph and Justice Beam did not participate.)

Practice Point – The Supreme Court specifically addressed the limited precedential value of this decisions:

Note – The Supreme Court would like us to remember that the Fifth Circuit’s Erie-guesses are not binding precedent in Mississippi. McGlothin is a Fifth Circuit opinion from 2019 that the Mississippi Supreme Court did not exactly agree with:

So what does the Mississippi Supreme Court do?

You can read that approach (that involves the doctrine of in pari materia) in the opinion.

TransMontaigne Operating Company, L.P. v. Loresco I, LLC, 2021-CA-00980-SCT (Civil – Real Property)
Affirming the chancellor’s denial of the plaintiff’s request for declaratory and injunctive relief, holding that the express language of a reciprocal easement was specific and clear and allowed the successor in title to the easement to full use of the easement per its terms and did not limit the successor to the scope of actual use by the predecessor in title.
(7-2: Justice Griffis dissented, joined by Justice King.)

Other Orders

In Re: The Rules of Civil Procedure, 89-R-99001-SCT (granting motion to amend Miss. R. Civ. P. 45 – *An order amending Rule 45 was also on the hand down list last week. The link to the order on the hand down page last week is no longer active, but you can see a copy of the PDF that was handed down last week on my post from last week. I quickly compared the two and didn’t immediately see any differences except the date that the amendment will go into effect based on the date the orders were entered.)

In Re: Advisory Committee on Rules, 89-R-99016-SCT (appointing County Judge Carol Jones Russell of Forrest Countyas a member of the Supreme Court of Mississippi Advisory Committee on Rules on the nomination by the Mississippi Conference of County Court Judges)

Fannings v. State, 2015-M-01061 (denying petition for application for leave to proceed in the trial court, finding the petition frivolous, and warning against further frivolous filings)

Cook v. State, 2017-M-00455 (denying motion for PCR, finding the filing frivolous, and restricting the plaintiff from further filings in forma pauperis)

Moffett v. State, 2021-CT-00622-SCT (denying cert)

Billie v. State, 2022-M-00416 (denying petition for application for leave to proceed in the trial court, finding the petition frivolous, and warning against further frivolous filings)

Hand Down List

Mississippi Court of Appeals Decisions of January 31, 2023

The Mississippi Court of Appeals handed down three opinions today. Two affirm felony convictions and one is a PCR dismissal. One of the criminal cases contains a robust Confrontation Clause discussion between the majority and the dissent.

Williams v. State, 2022-KA-00100-COA (Criminal – Felony)
Affirming conviction for armed robbery, holding that there was no reversible error in admitting testimony from a detective that was not objected to and that neither the failure to object to that or defense counsel’s cross-examination of the detective constituted ineffective assistance.
(7-3-0: Judge Wilson, Judge McCarty, and Judge Emfinger concurred in part and in the result without separate written opinion)

McConn v. State, 2021-CP-00431-COA (Civil – PCR)
Affirming denial of PCR motion asserting ineffective assistance, holding that the trial court did not err in summarily dismissing the motion that was supported only by the movant’s affidavit and an immaterial affidavit and was contradicted by the record.
(9-1-0: Judge Westbrooks concurred in part and in the result without separate written opinion)

Pitts v. State, 2021-KA-00740-COA (Criminal – Felony)
Affirming conviction of sexual battery of his minor daughter, holding that placing a screen between the child and the defendant during the child’s testimony did not violate the Confrontation Clause or the Due Process Clause where the defendant was able to observe the child via camera during the entirety of her testimony; the trial court did not err in excluding the testimony of the defendant’s expert witnesses where their disclosure was untimely or in allowing the testimony under the tender-years exception; and there was no cumulative error.
(6-1-2: Judge McDonald concurred in part and in the result without separate written opinion; Judge Wilson dissented, joined by Judge Westbrooks and joined in part by Judge McDonald. Judge Emfinger did not participate.)

NOTE – The dissent argued that the use of the screen was a violation of the Confrontation Clause:

Other Orders

Burns v. State, 2021-KA-00310-COA (denying rehearing)

Wilson v. State, 2021-KA-00608-COA (denying rehearing)

Loblolly Properties, LLC v. Le Papillon Homeowner’s Association Inc., 2021-CA-00767-COA (denying rehearing)

Hand Down List

Mississippi Supreme Court Decisions of January 26, 2023

The Mississippi Supreme Court handed down just one opinion today, but it was a significant decision in the PCR arena. Of great interest to civil practitioners, the Supreme Court also amended Rule 37 and Rule 45 of the Mississippi Rules of Civil Procedure. The amendments to Rule 45 should make life easier, especially for paralegals and the circuit clerks’ offices.

Howell v. State, 2020-CA-00868-SCT (Civil – PCR)
Affirming denial of a motion for PCR, overruling Rowland and holding that the plaintiff could not overcome the statute of limitations bar by asserting a fundamental-rights exception and holding that the petition otherwise lacked merit.
(7-3: Justice Kitchens dissented, joined by Justice King and Justice Ishee)

NOTE – Here is the language overruling Rowland:

ANOTHER NOTE – When both the majority and dissent cite Newell v. State you know its a classic, Mississippi separation of powers throw-down.

In Re: The Rules of Civil Procedure, 89-R-99001-SCT
Amending Rule 37 and Rule 45 of the Mississippi Rules of Civil Procedure. Both amendments will impact civil practice and need to be studied and accounted for once they take effect. The big news from my perspective is that the amended Rule 45 provides a mechanism for attorneys to issue subpoenas in their cases not unlike the federal court rule. See the text of the amended rule and comment below for the details.

Here is the En Banc Order with the amended Rule 37 attached:

700_6149651Download

Here is the same for Rule 45:

700_6151791Download

Other Orders

Butler v. State, 2020-CT-00806-SCT (dismissing cert that had previously been granted)

Nelson v. State, 2020-M-01417 (denying application for leave to proceed in the trial court, finding it frivolous, and restricting the petitioner from filing further PCR petitions in forma pauperis)

Camphor v. State, 2021-CT-00048-SCT (denying cert)

Fisher v. State, 2021-KA-00828-SCT (denying rehearing)

Anderson v. State, 2022-M-00582 (denying motion for PCR, finding it frivolous, and warning against future frivolous filings)

In Re: Administrative Orders of the Supreme Court of Mississippi, 2023-AD-00001-SCT (directing the disbursement of $148,438.33 in civil legal assistance funds among the MS Center for Legal Services, MS Volunteer Lawyers Project, and North MS Rural Legal Services)

Hand Down List

Mississippi Court of Appeals Decisions of January 24, 2023

The Court of Appeals handed down six opinions today. Three criminal cases and three PCR cases. I don’t anticipate any of the PCR cases today drawing the sort of attention the Hathorn case drew last week.

Wells v. State, 2021-KA-00747-COA (Civil – Felony)
Affirming conviction for sale of meth, holding that testimony from a confidential informant about the defendant’s past drug selling activity was elicited by defense counsel on cross and not purposeful elicited by the DA and that it was not error to refuse the defendant’s preferred instruction on weighing confidential informant testimony.
(10-0)

Note – Pithy introductory paragraphs like this could put me out of business:

Thomas v. State, 2021-CP-00060-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the sentence was not illegal, that there was a sufficient factual basis for the kidnapping plea, that the retroactive competency hearing was adequate and proper, and that there was no error in finding the plaintiff competent.
(7-3-0: Judge Wilson, Judge Smith, and Judge Emfinger concurred in part and in the judgment without separate written opinion)

Green v. State, 2021-CP-01299-COA (Civil – PCR)
Affirming dismissal of PCR motion, holding that the claims were barred by the doctrine of res judicata and the three-year statement of limitations, and the motion was an impermissible successive motion.
(9-0: Judge Lawrence did not participate)

Bradley v. State, 2022-CP-00173-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the motion was both successive and time-barred.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion)

Melendez v. State, 2021-KA-00775-COA (Criminal – Felony)
Affirming conviction of second-degree murder and aggravated assault, holding that the evidence was sufficient to support the verdict, dismissing the ineffective assistance claim without prejudice, and holding that the trial court did not abuse its discretion in giving a flight instruction.
(10-0)

Alford v. State, 2022-KA-00025-COA (Criminal – Felony)
Affirming conviction of trafficking meth with intent to distribute and possession of marijuana with intent to distribute, holding that the evidence was sufficient to support the verdict and that the verdict was not against the overwhelming weight of the evidence.
(5-5-0: Judge Wilson, Judge McDonald, Judge Lawrence, and Judge McCarty concurred in part and in the result; Judge Westbrooks concurred in the result only without separate written opinion.)

Other Orders

Nguyen v. Bui, 2021-CP-00548-COA (granting appellee’s motion for appellate attorney’s fees) (don’t get excited, they were contractual fees)

Wallace v. State, 2021-CP-01149-COA (recalling mandate and accepting pro se motion for rehearing as timely)

Hendrix v. State, 2022-TS-01217-COA (dismissing appeal for want of appealable judgment)

Hand Down List

Mississippi Supreme Court Decisions of January 19, 2023

The Mississippi Supreme Court handed down two opinions today and both are reversals. One is an appeal of a property tax valuation and the other is an appeal of a chancellor’s decision disqualifying an attorney under Rule 4.2 of the Mississippi Rules of Professional Conduct due to the attorney’s prior representation of a partnership in a lawsuit involving one of the partners.

Mississippi Hub, LLC v. Baldwin, 2021-CA-00935-SCT (Civil – State Boards and Agencies)
Reversing summary judgment that found an appeal of a property tax valuation was untimely, holding that the appeal was timely and that there were genuine issues of material fact as to the value of the underground natural gas facility at issue.
(8-1-0: Chief Justice Randolph concurred in result only without separate written opinion)

Pettis v. Simrall, 2021-IA-01253-SCT (Civil – Contract)
Reversing the chancellor’s decision disqualifying counsel under Rule 4.2 of the Rules of Professional Conduct because of an alleged conflict of interest, holding that no attorney-client relationship between an attorney and a partner in a general partnership can be implied from an attorney’s representation of the general partnership and that a chancellor may not preemptively disqualify an attorney for practices and proceedings that were not before the court.
(9-0)

Other Orders

Chism v. State, 2018-M-01436 (denying application for leave to file motion for PCR, finding that the filing was frivolous, and warning against future frivolous filings)

Parker v. Ross, 2020-CT-01055-SCT (granting cert)

Roberson v. State, 2022-CT-01208-SCT (denying cert)

Skinner v. State, 2021-CT-00080-SCT (denying cert)

Sel Business Services, LLC v. Lord, 2021-CT-00368-SCT (granting cert)

Terpening v. F.L. Crane & Sons, Inc., 2021-CT-00544-SCT (denying cert)

Longo v. City of Waveland, 2021-CA-00735-SCT (denying rehearing)

Lewis v. State, 2021-CT-00736-SCT (denying cert)

Hand Down List

Mississippi Court of Appeals Decisions of January 17, 2023

The Mississippi Court of Appeals handed down seven opinions today. There are several criminal cases, a reversal of summary judgment in a slip and fall case, an arbitration denial, and several PCR cases.

Jones v. State, 2021-KA-01263-COA (Criminal – Felony)
Affirming conviction of capital murder, holding the trial court did not err in denying a mistrial after a prospective juror mentioned the defendant’s past wrongdoing, that the verdict was based on sufficient evidence and not against the weight of the evidence, and that the ineffective assistance of counsel claim could not be appropriately addressed on direct appeal and denying the issue without prejudice.
(10-0)

Creel v. State, 2021-CP-00977-COA (Civil – PCR)
Affirming dismissal of a motion for PCR, holding that the plaintiff was properly sentenced under the statute in place at the time of his offenses and that his guilty pleas were entered knowingly, intelligently, and voluntarily.
(9-0: Judge Emfinger did not participate)

Smith v. State, 2021-CA-01259-COA (Civil – PCR)
Affirming the denial of a motion for PCR without evidentiary hearing, holding that the plaintiff’s guilty pleas were knowingly, intelligently, and voluntarily given, and that the trial court did not err in ruling without an evidentiary hearing.
(9-0: Judge Smith did not participate)

Anderson v. State, 2021-KA-01340-COA (Criminal – Felony)
Affirming conviction of burglary, holding that the trial court did not commit reversible error by admitting evidence of crimes in other counties under Rule 404(b) and that there was no merit to the ineffective assistance of counsel claims based on lack of objections to hearsay.
(9-1-0: Judge McCarty concurred in part and in the result without separate written opinion)

Hathorne v. State, 2021-CA-00306-COA (Civil – PCR)
Affirming denial of a motion for PCR, holding that the indictment was defective for failing to charge a crime but that the claim was procedurally barred.
(2-4-4: Judge Wilson and Judge Emfinger concurred in part and in the result without separate written opinion; Judge Lawrence and Judge Smith concurred in the result only; Judge McCarty dissented, joined by Judge Carlton, Judge Westbrooks, and Judge McDonald)

Brooks v. Jeffreys, 2021-CA-01113-COA (Civil – Personal Injury)
Reversing summary judgment in favor of a defendant in a slip and fall case, holding that there were genuine issues of material fact as to whether the cleaning company breached the duty of care where the plaintiff slipped and fell on the floor of her residence that was actively being mopped when she slipped.
(9-1: Judge Greenlee concurred in part and dissented in part without separate written opinion)

NOTE – Because the plaintiff slipped and fell in her own residence that was being cleaned by the defendant, the Court of Appeals analyzed this is a general negligence action and not a premises liability case.

Liberty National Life Insurance Company v. Hancock, 2021-CA-00605-COA (Civil – Contract)
Affirming denial of a motion to compel arbitration, holding that where a life insurance policy was voluntarily entered into, cancelled, and then reinstated via forgery of the insured’s signature, the arbitration agreement in the policy was not enforceable.
(6-4: Judge Emfinger dissented, joined by Chief Judge Barnes, Judge Wilson, and Judge Greenlee)

Other Orders

$153,340.00 v. State, 2020-CA-01409-COA (denying rehearing)

Hand Down List