The Mississippi Court of Appeals handed down six opinions today. There is a pair of direct criminal appeals, a pair of PCR decisions, a custody decision, and an adverse possession decision.
Burnette v. State, 2023-CP-01330-COA (Civil – PCR) Affirming summary dismissal of PCR motion, holding that it was time-barred. (9-0: St. Pe’ did not participate)
Moore v. State, 2024-CP-00150-COA (Civil – PCR) Affirming summary dismissal of a PCR motion, holding that it was time-barred and successive. (9-0: St. Pe’ did not participate)
Grimes v. State, 2023-KA-01254-COA (Criminal – Felony) Affirming conviction of manslaughter and sentence after remand for an evidentiary hearing on alleged juror misconduct, holding that the trial court did not err in finding that no conduct by a juror prejudiced the defendant. (8-0: Weddle and St. Pe’ did not participate)
Adams v. Adams, 2023-CA-01041-COA (Civil – Domestic Relations) Affirming the chancellor’s custody ruling in a divorce proceeding, holding that the chancellor did not err in applying the Albright factors and determining that it was in the children’s best interest to award sole physical custody to the mother. (9-0: St. Pe’ did not participate)
Robinson v. State, 2023-KA-00575-COA (Criminal – Felony) Affirming conviction of sexual battery, holding that in light of overwhelming evidence of guilt the defendant failed to show that his trial counsel was ineffective for introducing a recording between an officer and a witness. (7-2-0: Barnes concurred in part and in the result without writing; Wilson concurred in result only without writing; St. Pe’ did not participate)
Phillips v. Forrest County Industrial Park Commission, 2023-CA-01132-COA (Civil – Real Property) Affirming the chancellor’s finding that the Commission acquired title to two acres of land by adverse possession and dismissing counterclaims, holding that the Commission proved the elements of adverse possession and that as a result the appellants’ counterclaims for trespass, unlawful withholding possession, and unjust enrichment were properly dismissed. (6-3-0: Wilson and McDonald concurred in part and in the result without writing; Westbrooks concurred in result only without writing)
The Mississippi Court of Appeals handed down seven opinions today. It was a big day for real property and wills. There are also two criminal appeals, an MTCA personal injury case, and a PCR case.
Pham v. Miner, 2023-CA-00266-COA (Civil – Real Property) Reversing the chancellor’s decision in a dispute over ownership of a parcel, holding that the chancellor erred in finding that a deed was defective and subject to interpretation with parol evidence and further that the chancellor failed to make a specific ruling on the adverse possession claim. (9-0: Smith did not participate)
Estate of Forkner: Berry v. Forkner, 2023-CA-00707-COA (Civil – Wills, Trusts & Estates) Affirming in part and reversing in part the chancellor’s rulings related to the construction of a holographic will, holding that the chancellor did not err in admitting the will to probate, in finding that real property should pass by intestate succession, or in awarding personal property to one party, but reversing and remanding the issue of attorney’s fees for the chancellor’s failure to apply the McKee factors with supporting findings. (8-1-1: Westbrooks concurred in result only without writing; McDonald concurred in part and dissented in part without writing)
Lewis v. State, 2023-CP-01109-COA (Civil – PCR) Affirming summary denial of PRC motion, holding that it was time-barred without applicable exception. (9-0: Smith did not participate)
Booth v. State, 2023-KA-00906-COA (Criminal – Felony) Affirming conviction of second-degree murder, holding after review of Lindsey brief and the record that there are no arguable issues on appeal. (10-0)
Lucas v. State, 2023-KA-01015-COA (Criminal – Felony) Reversing conviction of malicious mischief, holding that malicious mischief is not a lesser-included offense of the indicted offense of burglary of a dwelling. (9-1-0: Lawrence concurred in part and in result without writing)
Smith v. Anderson, 2022-CA-00959-COA (Civil – Real Property) Affirming the chancellor’s decision in a dispute among cousins over 159 acres, holding that the chancellor did not err in dismissing a counterclaim of adverse possession or in “failing to address” affirmative defenses that were not pursued, and that an issue not raised in the chancery court was waived on appeal. (10-0)
Berry v. Jackson County, 2023-CA-00643-COA (Civil – Personal Injury) Affirming summary judgment in favor of the County in an MTCA suit stemming from a collision with a suspect who was fleeing law enforcement, holding that the plaintiff did not present evidence that the County acted in reckless disregard of her safety. (5-3-0: Wilson and McDonald concurred in part and in result without writing; Westbrooks concurred in result only without writing; Lawrence and Smith did not participate)
Other Orders
Hyland v. State, 2023-CA-00256-COA (denying rehearing)
Aldridge v. South Tippah County School District, 2023-CA-00418-COA (denying rehearing)
Estate of Johnson: Manners v. Estate of Johnson, 2023-CA-00823-COA (denying rehearing)
The Mississippi Court of Appeals handed down a bounty of twelve opinions yesterday. I noticed a stray opinion from Thursday, May 9 so that is also summarized below. With a total of thirteen opinions, there is a lot of ground covered.
Martin v. State, 2023-KA-00044-COA (Criminal – Felony) Affirming conviction of aggravated assault and armed robbery after a trial in absentia, holding that the verdicts were not against the overwhelming weight of the evidence. (10-0)
Tilley v. Gibbs, 2022-CA-01150-COA (Civil – Domestic Relations) Affirming judgment awarding physical custody of a child to the father, holding that the chancellor did not err in his Albright analysis and that substantial, credible evidence supported the custody determination. (10-0)
Hamer v. State, 023-CP-00701-COA (Civil – PCR) Affirming denial of relief and dismissal of PCR motion without an evidentiary hearing, holding that the PCR motion lacked sufficient support to warrant a evidentiary hearing. (8-2-0: Westbrooks and McDonald concurred in result only without writing)
McVay v. State, 2022-KA-00523-COA (Criminal – Felony) Affirming conviction of four counts of capital murder and one count of possession of a firearm by a felon, holding that the trial court did not commit plain error in admitting evidence of prior bad acts during cross-examination of the defendant and holding that the defendant’s trial counsel was not constitutionally ineffective for failing to object. (7-2-0: Wilson and Westbrooks concurred in result only without separate written opinion; Carlton did not participate)
Jackson v. State, 2022-KA-01143-COA (Criminal – Felony) Affirming conviction of first-degree murder and burglary and sentence to life without eligibility for early release, probation, or parole, holding that the indictment was not fatally defective; that there was no plain error in denying a motion to suppress the defendant’s statements to law enforcement where the defendant made a knowing, intelligent, and voluntary waiver of Miranda; that the trial court did not err in refusing the defendant’s proposed insanity defense and imperfect self-defense instructions; and that the verdicts were not against the overwhelming weight of the evidence. (8-2-0: Wilson and McCarty concurred in part and in the result without separate written opinion.)
Practice Point – This is a handy citation to tuck away for one of those “I know its true by I can’t find a case that says so” situations:
Thompson v. State, 2023-CP-00218-COA (Civil – PCR) Affirming dismissal of the petitioner’s fourth and fifth PCR motions, holding that the circuit court did not err in finding them time-barred. (10-0)
Smith v. West, 2023-CA-00297-COA (Civil – Personal Injury) Affirming dismissal for failure to prosecute a personal injury case, holding that the trial court did not abuse its discretion after granting several continuances over nearly ten years since the action was commenced. (10-0)
Signaigo v. Grinstead, 2022-CA-01212-COA (Civil – Real Property) Affirming in part and reversing in part the chancellor’s rulings in an adverse possession action, affirming the finding that the plaintiff could not prove the ownership element but reversing the finding that title was vested in the defendant as a matter of law because that issue was beyond the scope of the motion for summary judgment. (8-2-0: Wilson and Westbrooks concurred in result only without writing)
McKenzie v. McKenzie, 2022-CA-01175-COA (Civil – Domestic Relations) Affirming the chancellor’s findings in a divorce proceeding, holding that the chancellor did not err in the equitable division of marital property, in determining the amount of child support, in determining the amount of alimony, or in denying the mother’s request for attorney’s fees. (9-0: Smith did not participate)
Carr v. State, 2022-KA-00491-COA (Criminal – Felony) Affirming conviction of first-degree murder, holding that the State did not commit prosecutorial misconduct during closing arguments such that the court was required to intervene on its own initiative. (10-0)
Pickens v. State, 2022-KA-00822-COA (Criminal – Felony) Affirming conviction of meth while in possession of a firearm, holding that after reviewing counsel’s Lindsey brief and independently reviewing the record that there were no errors warranting reversal. (10-0)
Hearn v. State, 2023-CP-00275-COA (Civil – PCR) Affirming dismissal of PCR motion, holding that the circuit court did not err in finding the motion time-barred and that no statutory exceptions applied. (9-0: Smith did not participate)
From May 9, 2024
Daniels v. State, 2022-KA-00705-COA (Criminal – Felony) Affirming in part and reversing in part after the the defendant was convicted of one count of manslaughter as a lesser-included offense of murder, three counts of aggravated assault, and one count of shooting into an occupied dwelling, holding that indictment’s error as to the count for murder was harmless so the conviction of the lesser-included offense of manslaughter was affirmed but holding that the indictment was legally insufficient as to aggravated assault counts and that the error was compounded by repetition in jury instructions and the State’s closing arguments. 4-1*-5: Westbrooks specially concurred, joined by McDonald, Lawrence and Smith (each of whom also joined the lead opinion); Emfinger concurred in part and dissented in part, joined by Barnes, Carlton, Wilson, and McCarty.)
Other Orders
Arnold v. State, 2021-KA-01426-COA (denying rehearing)
Rutland v. Regions Bank, 2022-CA-00720-COA (denying rehearing)
Malone v. State, 2022-CP-00958-COA (denying rehearing)
Boyett v. Cain, 2022-CP-00978-COA (denying rehearing)
EEECHO Inc. v. Mississippi Environmental Quality Permit Board, 2022-SA-01068-COA (denying rehearing)
Boyette v. State, 2022-CP-01239-COA (denying rehearing)
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)
The Mississippi Court of Appeals handed down eight opinions today. There are three direct criminal appeals today and one is a reversal. There is also a termination of parental rights case, an adverse possession case, a PERS appeal, and two PCR cases.
Johnson v. State, 2022-KA-00465-COA (Criminal – Felony) Affirming conviction of first-degree murder, holding that the circuit court did not err in refusing a lesser-included heat-of-passion instruction. (10-0)
Carroll v. State, 2021-CP-00959-COA (Civil – PCR) Affirming dismissal of motion requesting the circuit court to clarify a sentence, holding that the circuit court lacked jurisdiction to hear the claim because the plaintiff failed to exhaust his administrative remedies. (9-1-0: Emfinger concurred in result only without separate written opinion.)
Adams v. State, 021-CA-01116-COA (Civil – PCR) Affirming dismissal of PCR motion, holding that the plaintiff’s claim challenging the sufficiency of evidence was not a proper ground for PCR and that the plaintiff was not entitled to a circumstantial evidence instruction. (8-0: Westbrooks and Emfinger did not participate.)
Carter v. PERS, 2022-SA-00383-COA (Civil – State Boards & Agencies) Affirming decisions removing two-and-a-half years of service credit, holding that the doctrine of equitable estoppel did not bar the PERS from removing the service credits and that the decision was not arbitrary and capricious. (9-1-0: McDonald concurred in result only without separate written opinion.)
Grimes v. State, 2022-KA-00143-COA (Criminal – Felony) Reversing denial of motion for new trial, holding that the defendant presented sufficient evidence of potential juror misconduct to warrant an investigative hearing, that the mutual combat manslaughter instruction was harmless error, and that the defendant’s arguments related to exclusion of evidence of the victim’s reputation in the community, hearsay in the autopsy report, medical testimony, exclusion of the victim’s toxicology report, and the scope of re-direct were not preserved for appeal. (10-0)
Stevenson v. State, 2022-KA-00284-COA (Criminal – Felony) Affirming conviction of capital murder, holding that the trial court did not abuse its discretion by excluding the defendant’s metal health records because the defendant did not properly assert an insanity defense. (10-0)
Walters v. Gates, 2021-CP-01350-COA (Civil – Real Property) Affirming dismissal of the complaint for lack of subject matter jurisdiction and entry of judgment for possession for defendants, holding that the circuit court properly held that the plaintiff’s claim to establish title by adverse possession and cancellation of a deed should have been brought in chancery court. (10-0)
Roach v. Phillips, 2022-CA-00159-COA (Civil – Adoption) Reversing termination of parental rights, holding that the chancellor failed to include a summary of the GAL’s qualifications, findings, and recommendations and reasoning for not following the GAL’s recommendations and remanding for further proceedings. (10-0)
Other Orders
Barfield v. State, 2021-KA-00660-COA (denying rehearing)
Bradley v. State, 2022-CP-00173-COA (denying rehearing)
The Mississippi Court of Appeals handed down six opinions today. Trial courts and appellees ran the table getting affirmed in all six cases. The opinions include resolution of appeals related to adverse possession, easements, custody, wrongful termination, PCR, and child support.
Jackson v. Mullins, 2021-CP-00495-COA (Civil – Torts) Affirming summary judgment dismissing a three-ring-circus claims filed by a divorcee against the chancery court master who presided over his divorce case, together with a Mississippi Bar employee and the chairman of the Bar’s Committee on Professional Responsibility who handled a bar complaint the plaintiff filed against the special master, and an MDHS employee, holding that the trial judge who granted summary judgment was not biased and that the special master and the Bar personnel were immune from suit. (10-0.)
Franco v. Ferrill, 2021-CA-00053-COA (Civil – Real Property/Adverse Possession) Affirming the chancellor’s rulings in a fact-intensive adverse possession suit, holding that the record supported the chancery court’s findings that (1) the plaintiffs adversely possessed the property, (2) the plaintiffs have proved a prescriptive easement to a lake, (3) the plaintiffs were entitled to $5,000 in damages for trespass and property damage, (4) the defendants must remove a fence of pay for fence removal, and (5) a trespass claim filed by one defendant should be denied. (Judge McCarty concurred in part and in the result, joined by Judge Lawrence.)
Stuckey v. Stuckey, 2020-CA-00848-COA (Civil – Custody) Affirming the chancellor’s decision modifying a custody agreement, holding that the record supported (1) the chancellor’s determination that there has been an adverse, material change in circumstances; (2) the chancellor’s weighing of the Albright factors to conclude that primary physical custody should be changed from the mother to the father; (3) the chancellor’s decision modification of child support; and (4) the chancellor’s order requiring the mother to undergo quarterly drug testing. (Judge McCarty concurred in part and in the result without separate written opinion. Judge Wilson concurred in the result only without separate written opinion.)
Leland School District v. Brown, 2021-CA-00157-COA (Civil – Contract/Wrongful Termination) Affirming on direct appeal and cross-appeal the chancellor’s ruling in a wrongful termination claim, holding (1) that the chancellor properly denied a motion to dismiss for lack of jurisdiction, (2) that the chancellor properly found that the school board’s decision upholding the plaintiff’s termination was not supported by substantial evidence and was arbitrary and capricious, and (3) that the chancellor did not err in denying attorney’s fees. (10-0.)
Brumfield v. State, 2020-CP-01271-COA (Civil – PCR) Affirming the circuit court’s denial of the plaintiff’s motion for PCR, holding that the plaintiff did not meet his burden in challenging the timeliness of his probation revocation hearing. (10-0.)
Kelley v. Zitzelberger, 2021-CA-00119-COA (Civil – Domestic Relations/Child Support/Visitation) Affirming the chancellor’s decisions pertaining to child support and visitation modifications, holding that (1) the chancellor did not abuse his discretion in denying the father’s request for child support reduction or in refusing to enforce the parties’ oral agreement to reduce child support, (2) the chancellor’s decision that the father was not entitled to have voluntary payments for extracurricular activities credited to his child support arrearage was not clearly erroneous, and (3) the chancellor’s decision modifying visitation was not manifestly wrong or clearly erroneous. The Court of Appeals also denied the mother’s motion for fees and damages under Miss. R. App. 38. (Judge Emfinger concurred in part and in the result without separate written opinion.)
Other Orders
Mingo v. McComb School District, 2020-CA-00022-COA (denying rehearing) Butler v. State, 2020-KA-00806-COA (denying rehearing)
The Mississippi Court of Appeals dropped eight nine opinions today and there is a lot to sort through. Two divorce cases (one involving equitable distribution of a marital residence and the other a life estate via constructive trust for a mother-in-law), a PCR case, a workers’ comp case involving medical causation, an adverse possession/tax sale case, a personal injury via falling through a roof case, an appeal of an estate case dismissed for lack of final order, and two criminal cases. One of the criminal cases is the second “should the indictment for attempt have alleged an overt act” case we have gotten in a row and it sees a dissenting Judge Westbrooks align herself with Justice Coleman’s dissent last week.
I am always balancing the desire to post these summaries quickly and the need to get back to paying work with the desire to provide a reasonably polished [free] product. Due to the number of cases and the fact that I have to leave the office a little early to coach a little league baseball game, there is extra weight on the “speed” side of the balance today. Thanks, Management
Archie v. Archie, 2020-CA-01370-COA (Civil – Domestic Relations/Equitable Distribution/Marital Residence) Affirming the chancellor’s modification of a final judgment of divorce as to equitable distribution of the marital residence, holding that there was no error in the chancellor ordering the ex-wife to sell the paid-off martial home in order to satisfy the ex-wife’s obligation to pay her ex-husband his share of the equity where the ex-wife had been unable to secure a loan on the paid-off house, even though the ex-husband had not pleaded a request for an order requiring the ex-wife to sell the residence. The court repeatedly noted that the chancellor had broad discretion to “fashion an equitable remedy” and held that the chancellor’s remedy here was appropriate. (Judge Wilson concurred in part and the in the result without separate written opinion.)
Bevalaque v. State, 2021-CP-00150-COA (Civil – PCR) Affirming dismissal of a pro se plaintiff’s third PCR motion, holding that the motion was time-barred and successive-writ barred and that no exceptions applied. (All judges concurred.)
Bowdry v. City of Tupelo, 2021-WC-00390-COA (Civil – Workers’ Compensation/Medical Causation) Affirming the MWCC’s finding that the claimant’s neck claim was not related to his compensable work-injury, holding that the Commission’s finding that the claimant failed to prove causation was supported by substantial evidence. (All judges concurred.)
PRACTICE POINT: The Court of Appeals noted that on appeal they do not review the AJ’s findings, but the Commission’s findings and did not address the claimant’s arguments about the AJ’s findings:
This is because the Commission does not function as an appellate court reviewing the AJs’ findings. This is because the Commission, not the AJ, is the ultimate trier and finder of fact for workers’ comp claims. See, e.g., Hugh Dancy Co. Inc. v. Mooneyham, 68 So. 3d 76 (Miss. Ct. App. 2011)
Anderson v. Jackson, 2019-CA-01773-COA (Civil – Real Property/Adverse Possession/Unclean Hands/Tax Sale) Reversing the chancellor’s findings granting title of real property to one party (Levon) based on findings that Levon had obtained title by adverse possession or by tax sale and that the opposing party (Rosie) had unclean hands, holding that the chancellor erred in granting title to Levon because he failed to prove the elements of adverse possession by clear and convincing evidence, that the tax sale was void due to flawed notice of redemption, and that the doctrine of unclean hands was erroneously applied to bar Rosie’s challenge because Rosie’s conduct was related to a forty-year-old estate case, not the transaction at issue. (All judges concurred.)
Since accusations of “unclean hands” get thrown around in litigation on occasion, I thought this summary of the equitable doctrine of unclean hands is a useful refresher:
NOTE – As always, but only more so here, if this case applies to your practice you need to read it yourself. There are many details in this forty-page opinion that I have not even attempted to tease apart.
Herron v. Herron, 2021-CA-00090-COA (Civil – Domestic Relations/Constructive Trust/Property Valuation) Affirming the chancellor’s findings in a divorce action granting a life estate via constructive trust in a home on the marital property to the ex-wife’s mother in assigning value to property awarded to the ex-husband, holding that there was clear and convincing proof that the house was intended to be owned by the mother in a life estate and that there was substantial credible evidence supporting the chancellor’s valuations of the personal property in question. (All judges concurred.)
Gillespie v. Lamey, 2021-CA-00076-COA (Civil – Personal Injury/Summary Judgment/Duty to Warn) Affirming summary judgment in favor of a defendant dismissing the plaintiff’s claim for personal injuries sustained when the plaintiff fell through a roof while working on a skylight on the defendant’s property, holding that (1) the plaintiff presented no evidence that the defendant failed to warn the plaintiff of any dangerous condition of which the defendant had actual or constructive knowledge and (2) the allegedly dangerous condition was “intimately connected” to the work he was hired to do. (Judge Smith did not participate, all other judges concurred.)
Smith v. Richmond, 2020-CP-01064-COA (Civil – Wills, Trusts, and Estates/Civil Procedure) Dismissing the appeal, holding that the pro se appellant’s attempted appeal of the chancery court’s denial of a Rule 60(b) motion to set aside an interim order, a motion to recuse, and a “motion to change jurisdiction” must be dismissed because each of these motions was an interlocutory order not appealable as of right. (All judges concurred.)
Wayne v. State, 2021-KA-00084-COA (Criminal – Felony/Rebuttal Evidence/Sufficiency and Weight of Evidence) Affirming murder conviction, holding that there was no error (1) in allowing the State to recall a State’s witness and introduce and play the defendant’s recorded statement in rebuttal because the recorded statement contradicted the defendant’s trial testimony, (2) in introducing the defendant’s entire statement because it was proper impeachment evidence, or (3) in denying the defendant’s post-trial motion because the evidence was sufficient to support the conviction and that the conviction was not against the weight of the evidence. (All judges concurred.)
Beale v. State, 2020-KA-00614-COA (Criminal – Felony/Overt Act) Affirming conviction two counts of attempted murder of two police officers, holding (1) an indictment for the crime of attempted murder does not require the description of an overt act, (2) that two jury instructions did not constitute a constructive amendment to the indictment, and (3) testimony from an officer about what a witness told him at the crime scene was not hearsay because they were not offered to prove the truth of the matter asserted but to explain the next steps in the course of his investigation. (Judge Westbrooks dissented, joined in part by Judge McDonald. Judge McDonald concurred in part and dissented in part without separate written opinion. Judge Emfinger concurred in part and in the result without separate written opinion. Judge Wilson concurred in result only without separate written opinion. All other judges concurred.)
NOTE – We have gotten an “is the indictment missing an alleged overt act” case in back-to-back hand-down days. In her dissent, Judge Westbrooks’s argues that she is taking a position consistent with the position that Justice Coleman took just last week in Brady v. State (my post here) (opinion link here).
Other Opinions
Durrant Inc. v. Lee County, Mississippi, 2019-CA-01826-COA (denying motion for rehearing) Bell v. State, 2020-CT-00592-COA (denying motion for rehearing)
Mississippi Appeals Blog 