Tag: Confrontation Clause

Mississippi Supreme Court Decisions of January 18, 2024

The Mississippi Supreme Court handed down four opinions on Thursday, January 18. Of the four, there were three direct criminal appeals and the fourth was an appeal in a money dispute between a county and a school district.

Douglas v. State, 2022-KA-00859-SCT (Criminal – Felony)
Affirming conviction of sale of cocaine and life sentence as habitual offender, holding that the defendant waived defective indictment argument by failing to object in the trial court, that the argument that his indictment was improper because his name was incorrect was barred and without merit, that the defendant was not denied the right to represent himself because he never asked to, that the judge did not err by not recusing sua sponte, that witness credibility was for the jury to determine, that the defendant’s Fourth Amendment arguments were barred and without merit, that there was no merit to the defendant’s chain-of-custody argument, that there was no merit to the defendant’s Brady claim, that the defendant’s arguments about the amount of the controlled substance were without merit, that the defendant’s Confrontation Clause argument was barred and without merit, that the verdict was not against the overwhelming weight of the evidence, that the defendant’s argument that his right to a public trial was not violated where the jury deliberated and returned a verdict after business hours, and that the ineffective-assistance-of-counsel claim was without merit.
(9-0)

Davis v. State, 2022-KA-00696-SCT, consolidated with Jackson v. State, 2022-KA-00731-SCT (Criminal – Felony)
Affirming convictions of two counts of first-degree murder but vacating a portion of the sentences, holding that the firearm-enhancement portion of the sentences was prohibited because a greater minimum sentence (life sentence) was otherwise provided for, but holding that under the plain error doctrine there was no evidence the defendants did not receive a fair trial by an impartial jury where the Batson challenge procedure was not followed to determine if the race-neutral reason was pretextual, that the verdict supported by sufficient evidence and was not against the overwhelming weight of the evidence, that the trial court did not err in denying one defendant’s motion to server, and the cumulative errors doctrine did not require reversal.
(6-3: Kitchens dissented, joined by King and Ishee; King dissented, joined by Kitchens and Ishee)

Clarke County, Mississippi v. Quitman School District, 2022-CA-00471-SCT (Civil – Other)
Reversing on direct appeal and on cross appeal in a case about whether a school district was entitled to funds recovered by a county from the bankruptcy proceedings of a delinquent taxpayer, holding that the statutory scheme for funding public schools does not entitle school districts to receive delinquent taxes recovered years later in bankruptcy proceedings that are outside of the statutory scheme so the chancellor erred in awarding the school district a portion of the funds.
(9-0)

Stewart v. State, 2022-KA-00107-SCT (Criminal – Felony)
Affirming conviction of sexual battery, holding that in the context of the COVID-19 global pandemic the trial court was within its discretion to have the defendant attend a pretrial, tender-years hearing virtually; that the verdict was supported by sufficient evidence; that issues related to jury instructions were barred for failure to object and there was no plain error; and that the trial court did not err in sustaining the State’s objection to certain lines of questions while defense counsel was cross-examining witnesses.
(6-3: Kitchens concurred in result only, joined by King and Ishee)

Other Orders

In Re: State Intervention Courts Advisory Committee, 89-R-99039-SCT (approving the designation of Katharine Surkin, Director of the Administrative Office of the Courts, of Justice Robert P. Chamberlin as Chair of the State Intervention Courts Advisory Committee and the following as members through December 31, 2024: Judge Michael M. Taylor, Judge Winston L. Kidd, Judge Robert Helfrich, Judge Charles E. Webster, Judge Kathy King Jackson, Judge Randi P. Mueller, Representative Angela Cockerham, Nathan Blevins Deputy Commissioner of Community Corrections, MDOC, Mark Smith, Executive Director, State Veterans Affairs Board, Andrea Sanders, Commissioner, Miss. Department of Child Protection Services, and Consuelo Walley, Coordinator, Jones County Drug Ct, 18th Judicial Circuit, and further designating the following alternate members who may attend and vote in the absence of an appointed committee member: Judge Mary “Betsy” Cotton, Judge Mike Dickinson, and Judge Walt Brown.

Cochran v. State, 2014-M-00090 (denying “Request for Post-Conviction Forensic, DNA, and Handwriting Testing,” finding that the filing was frivolous, and warning that future frivolous filings may be sanctioned)

Trest v. State, 2021-CT-00968-SCT (denying cert)

Jackson Pub. Sch. Dist. v. Jackson Federation of Teachers and PSRPS, 2022-CA-00464-SCT (denying cert)

Brent v. MDHS, 2022-CT-00529-SCT (granting cert)

In Re: Administrative Orders of the Supreme Court of Mississippi, 2024-AD-00001-SCT (directing the disbursement of $215,281.86 in civil legal assistance funds among the MS Center for Legal Services, MS Volunteer Lawyers Project, and North MS Rural Legal Services.

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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 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)

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Mississippi Supreme Court Decisions of December 15, 2022

The Mississippi Supreme Court handed down two opinions today. One is a criminal case dealing with a Confrontation Clause violation and the other is a judicial estoppel case that reversed the trial court because of an intervening decisions with a special concurrence that garnered a majority of the Court. The Supreme Court also granted cert in a slip-and-fall case that I had not summarized because the decision from the Court of Appeals was handed down back in June on a Thursday instead of Tuesday so it escaped my notice.

Saunders v. NCAA, 2020-CA-01146-SCT (Civil – Torts)
Reversing the trial court’s dismissal of claims based on judicial estoppel, holding that the plaintiff had no duty to disclose claims for declaratory relief during his Chapter 7 bankruptcy and that the dismissal of the money damages claim was in error per an intervening special concurrence that held that judicial estoppel should not be presumed and is, rather, a fact-specific inquiry that must include how the bankruptcy could dealt with the omission.
(7-2: Justice Coleman concurred in part and dissented in part; Justice Griffis concurred in part and dissented in part)

PRACTICE POINT – Regular readers might recall a discussion about the special concurrence referenced in today’s decision. The case is Jones v. Alcorn State University, 337 So. 3d 1062 (Miss. 2022) and Justice Maxwell’s special concurrence in that case was joined by four other justices. I wondered aloud about the precedential effect of a five-justice special concurrence and then later passed along the answer. In Saunders, the Mississippi Supreme Court reversed the trial court based upon the holding of the special concurrence in Jones.

Willis v. State, 2021-KA-00734-SCT (Criminal – Felony)
Affirming conviction of first degree murder, holding that the trial court violated the defendant’s rights under the Confrontation Clause by not allowing cross-examination of the lead investigator about prior inconsistent statements but that the error was harmless, that the trial court did not err in denying the defendant’s self-defense instruction, and that the conviction was supported by sufficient evidence.
(6-3-0: Justice Beam concurred in part and in the result, joined by Chief Justice Randolph and Justice Maxwell)

NOTE – For some reason it jumped out that both Kitchens’s majority opinion and Beam’s concurrence utilized the superior (per Strunk & White) “-s’s” to make Williams’s name possessive.

Other Orders

In Re: Rules of Discipline for the Mississippi Bar, 89-R-99010-SCT (appointing Hon. Mark A. Maples as a member of the Complaint Tribunal)

In Re: Tavares Reed, 2017-M-01391 (denying application for leave to proceed in the trial court, finding it frivolous, and restricting the petitioner from filing further applications in forma pauperis)

Moffett v. State, 2018-DR-00276-SCT (denying rehearing and/or reconsideration)

Thomas v. Boyd Biloxi LLC, 2021-CT-00265-SCT (granting cert)
NOTE – I did not recall this case from June. I looked back and realized it escaped my notice because it was an an off-cycle hand-down from the Court of Appeals on Thursday, June 2. The plaintiff slipped and fell on a pool deck after exiting a hot tub. A 5-1-4 Court of Appeals affirmed summary judgment dismissing the case, holding that the evidence did not satisfy the standard to defeat summary judgment and that the trial court did not err in denying part of the plaintiff’s 56(f) request.

Hand Down List

Mississippi Court of Appeals Decisions of November 29, 2022

The Mississippi Court of Appeals returned from Thanksgiving break with five opinions. Two cases are medical malpractice cases (one an appeal of summary judgment for lack of expert testimony and the other an appeal of a denied motion to compel arbitration). Two are criminal cases, and the other case is a custody case with cross motions for modification and a motion for contempt.

Davis v. State, 2021-KA-00908-COA (Criminal – Felony)
Affirming conviction of first-degree, deliberate design murder, holding that the trial court did not abuse its discretion in limiting the defense’s cross-examination of a detective to exclude testimony about other investigations and noting that the Confrontation Clause does not open the door to irrelevant testimony on cross-examination.
(10-0)

Mixon v. Berry, 2021-CA-00494-COA (Civil – Medical Malpractice)
Affirming summary judgment in favor of a doctor in a med mal case for lack of medical expert testimony, holding that summary judgment was proper because the plaintiff failed to produce sworn expert testimony to establish the applicable standard of care, breach, and proximate cause, and that the trial court did not err in not granting a 56(f) continuance that was not requested or in denying the motion for reconsideration.
(10-0)

Practice Point – Here is some useful black-letter law from this opinion:

Turnage v. State, 2021-KA-01229-COA (Criminal – Felony)
Affirming conviction of a high school teacher of two counts of sexual battery of a student, holding that there were no issues warranting reversal after reviewing appellate counsel’s Lindsey brief and independently reviewing the record.
(10-0)

Lamy v. Lamy, 2021-CA-00770-COA (Civil – Custody)
Affirming in part and reversing in part the chancery court’s rulings on competing complaints for modification and a motion for contempt, holding that the chancellor did not err in admitting evidence used by the GAL and attached to her report, did not err in classifying one agreed custody order as temporary but did err by interpreting that order as awarding sole physical custody to the mother, and did not err in not finding the mother in contempt.
(5-1-4: Judge McDonald concurred in part and in the result without separate written opinion; Chief Judge Barnes, Judge Westbrooks, and Judge McCarty concurred in part and in dissent in part without separate written opinion; Judge Wilson concurred in part and dissented in part, joined by Chief Judge Barnes, Judge Westbrooks, and Judge McCarty, and joined in part by Judge McDonald.)

Note – In response to the motion for contempt, the mother pleaded COVID in her explanation of why she kept the children during the father’s period of custody. The dissent didn’t buy the excuse:

Durant Healthcare, LLC v. Garrette, 2021-CA-00823-COA (Civil – Contract)
Affirming denial of a motion to compel arbitration in a wrongful death case, holding that the evidence in the record supported the trial court’s finding that the resident lacked the mental capacity to sign the nursing home’s arbitration agreement on the date of admission, that the resident’s daughter did not have authority to sign as his agent, and that the proof was sufficiently clear to affirm the trial court’s denial of the facility’s request for arbitration-related discovery.
(7-3: Judge Carlton dissented, joined by Judge Wilson and Judge Lawrence.)

Other Orders

Turner & Associates P.L.L.C. v. Estate of Watkins, 2021-CA-00258-COA (denying rehearing)

Hand Down List