Tag: Felony

Mississippi Court of Appeals Decisions of October 25, 2022

The Mississippi Court of Appeals handed down six opinions today. There are four criminal cases including one with an interesting issue that arose when only eleven jurors were polled about the verdict. There is also a termination of parental rights case and a PCR case.

Braziel v. State, 2021-KA-00603-COA (Criminal – Felony)
Affirming conviction of burglary upon receipt of a Lindsey brief and in the absence of a pro se brief, holding that there were no arguable issues on appeal.
(9-0: Judge Smith did not participate.)

C.P. v. Lowndes County Dept. of Child Protection Services, 2019-CA-01739-COA (Civil – Domestic Relations)
Affirming the chancery court’s decision terminating parental rights of both natural parents, holding that there was clear and convincing evidence supporting the termination and that reunification efforts were not required, that the GAL’s efforts were “suboptimal” but harmless because there was other sufficient evidence, that it was error to not inform the parents of their rights at the outset of the bearing but it was harmless since the parents were represented and exercised their rights, and that the court did not commit reversible error adopting CPS’s proposed order verbatim without specific findings of fact.
(6-4-0: Judge Wilson and Judge McCarty concurred in part and in the result without separate written opinion; Judge Westbrooks and Judge Lawrence concurred in the result only without separate written opinion.)

Maye v. State, 2020-KA-00100-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the trial court did not err by refusing a heat-of-passion manslaughter instruction where the defendant denied killing the victim and there was no evidence to support the instruction and holding that there was no error in admitting a gruesome photo that had probative value.
(6-3: Judge McDonald and Judge Lawrence concurred in part and in the result only without separate written opinion; Judge Westbrooks concurred in result only without separate written opinion.)

O’Quinn v. State, 2021-KA-00534-COA (Criminal – Felony)
Affirming conviction of armed robbery, holding that there was no merit to the defendant’s argument that his trial counsel was ineffective for failing to object to multiple instance of hearsay.
(9-1-0: Judge Westbrooks concurred in the result only without separate written opinion.)

ASIDE – The opinion provides a colorful description of events that unfolded in the parking lot immediately after the robbery. It reads like a scene from Raising Arizona, complete with a two-year-old in the getaway car. Here is a portion:

Price v. State, 2019-KA-01890-COA (Criminal – Felony)
Affirming conviction of first-degree murder, two counts of attempted first-degree murder, and possession of a firearm by a felony, holding that the conviction was supported by sufficient evidence and not against the overwhelming evidence, that the defendant could not complaint on appeal about the denial of a motion he opposed at trial, that ineffective assistance claims were denied without prejudice, that the defendant waived arguments that the trial judge should have recused, that there was no error in several jury-related issues including the trial court’s failure to poll all 12 jurors that was cured by retroactively polling the juror at an evidentiary hearing order by the Court of Appeals.
(7-3: Judge McDonald dissented, joined by Judge Westbrooks and joined as to Parts I and II by Judge McCarty. The dissent took issue with the notion that the trial court’s failure to poll all 12 jurors could be cured on remand by a supplemental hearing.)

Skinner v. State, 2021-CA-00080-COA (Civil – PCR)
Denying motion for rehearing, withdrawing original opinion, and substituting this modified opinion affirming the denial of a PCR motion, holding that the plaintiff was procedurally barred by res judicata and without merit and that the trial court did not abuse its discretion in refusing to consider evidence of a potential defense for the plaintiff’s 1994 conviction in sentencing him for his 2011 felony evasion.
(5-4: Judge McCarty concurred in part dissented in part; Judge McDonald dissented, joined by Chief Judge Barnes, and Judge Westbrooks, and joined in part by Judge McCarty. Judge Emfinger did not participate.)

Other Orders

Ford v. State, 2020-KA-00278-COA (dismissing untimely pro se motion for rehearing)
Garlington v. State, 2020-KA-00392-COA (denying rehearing)
Towns v. Panola County Board of Supervisors, 2020-CA-01364-COA (denying rehearing)
Skinner v. State, 2021-CA-00080-COA (denying rehearing)
Robinson v. State, 2021-CP-01215-COA (dismissing appeal as moot)

Hand Down List

Mississippi Court of Appeals Decisions of October 11, 2022

I did not post summaries last week because was out of town all week. I plan to do a post summarizing last week’s decisions at some point, but today is not that day because the Court of Appeals just handed down nine more opinions.

Today was a big day for Rule 4 and for workers’ comp, with two decisions for each of those subject areas. One of the workers’ comp decisions has a significant amount of analysis of the issue of whether the claimant overcame the presumption of no loss of wage-earning capacity. The other workers’ comp decision provides some clarity (and teeth) to the affirmative defense of intoxication. Additionally, we learned today that you should not white-out the defendant’s name on a summons after it is issued, write the name of the defendant to be served over the white-out, and then serve that altered summons on your defendant. There is also a divorce case dealing with child support, several criminal cases, and a lone PCR case.

Carnley v. State, 2021-KA-00438-COA (Criminal – Felony)
Affirming conviction of rape, declining to reverse based on the exclusion of the victim’s prior inconsistent statement because no proffer was made and holding there was no error in the admission of expert testimony, that the defendant’s trial counsel was not ineffective, that the jury was properly instructed to continue its deliberation in lieu of a Sharplin instruction, and that the trial court did not commit cumulative error.
(9-1-0: Judge Wilson concurred in part and in the result without separate written opinion)

Wharton v. State, 2021-CA-00136-COA (Civil – Other/Civil Procedure)
Reversing a default judgment on a civil asset forfeiture petition, holding that the State failed to “strictly” comply with the Rule 4 requirements for service by publication, that the respondent did not waive the defense of insufficiency of service of process by failing to plead it in his answer because the answer was filed after the entry of default, and that the case should be remanded to give the State an opportunity to show good cause for failing to serve process before the statute of limitations expired.
(8-1-0: Judge Wilson concurred in part and in the result without separate written opinion and Judge Emfinger did not participate.)

NOTE 1– There is a lot of civil and appellate procedure in this opinion (Miss. R. Civ. P. 4, 55; Miss. R. App. P. 2, 31). The appellate procedure ruling was interesting because the appellant missed his briefing deadline, but the Court of Appeals held that he should have been afforded 14 days to correct this “deficiency” and since he filed two days late he was within that window. This is interesting, but not a maneuver I plan to attempt.

Note 2 – I also want to point out this holding that although it is a fact-bound holding, these are facts one could find oneself bound up in.

Howard Industries v. Hayes, 2021-WC-00694-COA (Civil – Workers’ Comp)
Affirming the MWCC on direct appeal and cross appeal, holding that there was substantial evidence to support the Commission’s award of sanctions against the Employer’s counsel for attempting to mislead the Commission, the Commission’s finding that the claimant had overcome the presumption of no loss of wage-earning capacity and awarding permanent disability benefits for her 2007 injury, and the Commission’s award of 38% industrial loss of use of her right upper extremity for her 2015 injury.
(5-4: Judge Wilson concurred in part and dissented in part (on the sanction issue), joined by Judge Greenlee, Judge McCarty, and Judge Smith. Judge Emfinger did not participate.)

Meek v. Cheyenne Steel, Inc., 2021-WC-01219-COA (Civil – Workers’ Comp)
Affirming the MWCC’s finding that the claimant was not entitled to benefits based upon the affirmative defense of intoxication, holding that the Employer’s payment of benefits did not estop the Employer from asserting the intoxication defense that was pleaded in the answer and that the very presence of marijuana in the claimant’s system raised the presumption of intoxication.
(10-0)

PRACTICE POINT – This case seems to answer a question that has lingered since the MWCA was amended to add the intoxication defense about what the effect of a positive drug test that does not give any indication of the degree of intoxication. In this case, the Court of Appeals decisively that any amount of intoxication triggers the presumption. A claimant can still seek to overcome that presumption, but based on the Meek decision a claimant cannot overcome the presumption by pointing to a lack of proof of the level of marijuana in the claimant’s system.

Ponder v. Ponder, 2020-CA-01196-COA (Civil – Domestic Relations)
Affirming in part and reversing in part in a divorce case, holding that the chancellor did not err or abuse his discretion in awarding child support retroactive to a date prior to the filing of the petition for modification but holding that there was no legal basis for an award of attorney’s fees against the father for failing to comply with an agreed order.
(9-1-0: Judge McDonald concurred in part and in the result without separate written opinion.)

Villareal v. State, 2021-CP-00440-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the defendant’s sentence was not illegal.
(9-0: Judge Lawrence did not participate.)

Carruthers v. State, 2021-KA-00654-COA (Criminal – Felony)
Affirming conviction of meth trafficking as subsequent offender in possession of a firearm near a church and possession of firearm by felon, holding that the defendant did not receive ineffective assistance of counsel for alleged failures to object at various points in the trial or for alleged failure to investigate or for alleged failure to stipulate to a prior felony to keep evidence of the prior felony.
(7-2-0: Judge McCarty concurred in part and in the result without separate written opinion; Judge McDonald concurred in the result only without separate written opinion.)

Arrington v. Anderson, 2021-CA-00233-COA (Civil – Personal Injury)
Affirming dismissal of two identical negligence lawsuits, holding that a summons that was altered after issuance to change the name of the party to be summonsed to the defendant’s name and then served on the defendant was not valid service of process, that since process was not served the statute of limitations had expired the first lawsuit, and that the second lawsuit was not a “refiling” of the first since it was filed while the first suit was still pending.
(8-2-0: Judge Wilson and Judge McDonald concurred in result only without separate written opinion.)

Daniels v. State, 2021-KA-01067-COA (Criminal – Felony)
Affirming conviction of two counts of armed robbery, two counts and aggravated assault, one count of house burglary, and one count of grand larceny, holding that the circuit court did not err in telling the jury panel that the defendant was charged as a habitual offender or in denying the defendant’s motion for a mistrial and holding that there was no abuse of discretion in admitting evidence about the defendant’s apprehension, arrest, and felony charges that immediately followed the activities for which he was convicted in this trial.
(8-2-0: Judge Wilson and Judge Emfinger concurred in the result without separate written opinion.)

Other Orders

Short v. State, 2021-KA-00499-COA (denying rehearing)
Daniels v. Family Dollar Stores of Mississippi, Inc., 2021-CA-00781-COA (denying rehearing)
Watkins v. State, 2021-CP-01301-COA (granting appellant’s pro se motion for leave to file an out-of-time brief)
Young v. State, 2022-CP-00141-COA (denying State’s motion to dismiss appeal)

Hand Down List

Mississippi Court of Appeals Decisions of May 31, 2022

The Mississippi Court of Appeals handed down five opinions today. Topics include the fate of a living trust that included a languishing cattle farm, unemployment benefits, alleged bolstering of the testimony of a minor who was the victim of sexual battery, alleged MDEQ violations by a lessee, and a PCR motion.

Stapp v. Stapp, 2020-CA-01282-COA (Civil – Wills, Trusts, and Estates)
Affirming the chancery court’s rulings in an action asking the court to divide the corpus of a living trust or, in the alternative, to make a distribution to the beneficiaries, holding that the chancellor did not err in (1) requiring that all the farm equipment be auctioned because the beneficiaries were not able to run the farm at issue and the farm had not been profitable since their father’s death, (2) requiring $50,000 to be maintained in an account for unforeseen expenses since real property remained in the trust, (3) not requiring one beneficiary to reimburse the trust for rent and utilities during her occupancy of the farmhouse in the trust and allowing her to live there indefinitely, or (4) not requiring one beneficiary to reimburse the trust for funds she received from cattle sales and not requiring the trust to reimburse the other beneficiary for expenses allegedly incurred for management of the cattle.
(Judge McCarty dissented, arguing that since the documents creating the trusts were not in the record, the trial court modified two trusts without having the terms of the trust or knowing the settlor’s intent.)

Mitchell v. Mississippi Department of Employment Security, 2021-CC-00794-COA (Civil – State Boards and Agencies/MDES)
Affirming the denial of unemployment benefits, holding that there was substantial evidence to support the ALJ’s determination that the claimant’s work-search requirement was not satisfied and declining to review other arguments that were not supported by citations to any authority.
(Judge Westbrooks concurred in part and in the result without separate written opinion.)

Note – I understand why appellate courts often handle arguments not supported by citations to authority by stating that they are waived, but then analyzing them anyway and explaining that they are meritless. In this case, it was refreshing to see the Court of Appeals simply hold that the arguments were waived and leave it at that.

Trotter v. State, 2020-CA-00094-COA (Civil – PCR)
Affirming the circuit court’s denial of the plaintiff’s PCR motion, holding that the circuit court did not err in finding that the plaintiff failed to prove his ineffective assistance of counsel claim and that the circuit court did not abuse its discretion in denying the plaintiff’s request to be resentenced to life without the possibility of parole.
(Judge Wilson concurred in part and in the result without separate written opinion; Judge McCarty concurred in result only without separate written opinion.)

Blocton v. State, 2021-KA-00197-COA (Criminal – Felony/Sexual Battery)
Affirming a conviction of sexual battery of a small child, holding (1) the circuit court did not abuse its discretion in allowing the victim’s foster mother, the forensic interviewer, and an investigator to testify about what the victim disclosed to them over the defendant’s argument that this testimony improperly bolstered the victim’s testimony and (2) the circuit court did not commit plain error in allowing the investigator to testify and that there was no merit to the defendant’s claim that his lawyer rendered constitutionally ineffective assistance.
(Judge McCarty concurred in part and in the result without separate written opinion. Judge Smith did not participate.)

Biloxi Dock & Ice, LLC v. Back Bay Fuel and Ice, LLC,  2021-CA-00701-COA (Civil – Contract/Lease)
Affirming the circuit court’s decision upholding the county court’s findings in a case arising out of a lease dispute, holding that the county court, as fact-finder, had sufficient evidence to conclude that the purchaser/landowner failed to establish that the lessee had violated MDEQ regulations that would render the lessee in default of the lease.
(All participating judges concurred.)

NOTE – A lessor in this case was named Lesso. Lesso was sometimes referred to as Lessor in the opinion. Had Lesso been the lessee we could have met calamity.

Other Orders

Lambes v. Lambes, 2020-CA-00095-COA (denying rehearing)

Hand Down List