Tag: jury instructions

Mississippi Court of Appeals Decisions of January 30, 2024

The Mississippi Court of Appeals handed down four opinions today and three of them are at least a partial reversal. The lone affirmance was in an MTCA wrongful-death case stemming from a drowning. A PCR decision was affirmed in part and reversed in part, a post-divorce property division decision was reversed, and a police officer’s conviction of culpable-negligence manslaughter was reversed.

Malone v. State, 2022-CA-00281-COA (Civil – PCR)
Affirming in part and remanding in part the circuit court’s ruling in a PCR matter, holding that the circuit court did not err in rejecting the newly discovered evidence claim but holding that the circuit court erred by not addressing the ineffective assistance of counsel claim with specific findings or conclusions related to that claim.
(9-1-0: Westbrooks concurred in result only without writing)

Stephens v. City of Gulfport, 2022-CA-01008-COA (Civil – Wrongful Death)
Affirming summary judgment in favor of the city on an MTCA case stemming from a drowning, holding that Mississippi law does not “impose a duty on governmental entities to protect or warn against alleged dangerous conditions on property adjacent to property owned or operated by that governmental entity and not caused by the governmental entity” and that, in any event, the MTCA’s open and obvious defense applied to the river and barred the claim.
(9-1-0: Westbrooks concurred in result only without separate written opinion)

Thompson v. Thompson, 2022-CA-01014-COA (Civil – Domestic Relations)
Reversing the chancellor’s property division ruling, holding that the judgment was a final, appealable order and that the chancellor erred in failing to conduct a proper Ferguson analysis.
(10-0)

Fox v. State, 2022-KA-00988-COA (Criminal – Felony)
Reversing conviction of a police officer for culpable-negligence manslaughter against, holding that “[b]ased on the credible evidence presented at trial, no evidence establishes that Fox acted in a grossly negligent manner or that the victim’s death from minor abrasions was reasonably foreseeable under the circumstances,” that the verdict was against the overwhelming weight of the evidence (though this holding was relegated to a footnote) and holding that the circuit court abused its discretion by failing to give an accident or misfortune jury instruction.
(5-1-4: Wilson concurred in part and in the result without writing; Emfinger dissented, joined by Westbrooks, McDonald, and McCarty)

Other Orders

None

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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 January 16, 2024

The Mississippi Court of Appeals handed down eight opinions on Tuesday. The Court covered a lot of subject matter including trusts, unemployment benefits, workers’ comp, and several direct appeals of criminal convictions.

Rutland v. Regions Bank, 2022-CA-00720-COA (Civil – Wills, Trusts & Estates)
Affirming the circuit court’s grant of summary judgment in favor of a trustee who filed a dec action seeking a judgment that the trust did not have to pay funeral expenses, holding that the circuit court did not err in finding that the trust was irrevocable, was not terminated by a subsequent divorce, and that the contents of the trust should be disbursed to the children.
(10-0)

Black v. State, 2022-KA-01101-COA (Criminal – Felony)
Affirming conviction of capital murder based on robbery, holding that the circuit court did not err in rejecting the defendant’s manslaughter instruction, in sustaining the State’s objection to defense counsel calling a detective a “liar” during closing, or in not issuing a cautionary instruction regarding the written transcript of the defendant’s interview with law enforcement.
(8-1-1: McDonald concurred in part and in the result without writing; Westbrooks concurred in part and dissented in part without writing)

Coe Law Firm PLLC v. MDES, 2022-CC-01285-COA (Civil – State Boards & Agencies)
Affirming the circuit court’s order dismissing the employer’s appeal of the MDES Board of Review’s order upholding the ALJ’s grant of unemployment benefits, holding that the employer failed to show good cause for not appearing at the ALJ de novo hearing and that issues of misconduct by the employee were therefore moot.
(10-0)

Jones v. State, 2022-KA-01199-COA (Criminal – Felony)
Affirming conviction of attempted aggravated assault with a firearm enhancement, holding that the verdict was not against the overwhelming weight of the evidence.
(9-1-0: McCarty concurred in part and in the result without writing)

Simmons v. State, 2022-KA-01260-COA (Criminal – Felony)
Affirming conviction of receiving stolen property and first-degree murder, holding that the circuit did not err in denying the defendant’s motion for JNOV where the evidence was sufficient for both conviction and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

MTD Products, Inc. v. Moore, 2023-WC-00199-COA (Civil – Workers’ Comp)
Affirming the MWCC’s award of PPD for 50 weeks for an upper-left extremity injury, holding that substantial evidence support the MWCC’s finding that the claimant sustained a 25% industrial loss of use that exceeded her 15% functional medical impairment where the claimant’s job duties had to be modified and she was reassigned to different tasks after her injury.
(10-0)

Vlasak v. State, 2022-CP-01211-COA (Criminal – Felony)
Dismissing appeal of the circuit court’s denial of a motion for reconsideration after denying the defendant’s motion to modify sentence that was filed after a guilty plea that was filed after the term of court ended, holding that that the circuit court correctly found that this was essentially a direct appeal after a guilty plea.
(10-0)

Gilmer v. State, 2022-KM-00257-COA (Criminal – Misdemeanor)
Affirming the circuit court’s decision affirming the county court’s order dismissing an appeal of a conviction in justice court of willfully discharging a firearm towards a dwelling and disturbing the peace, holding that there was no error in dismissing the appeal after the defendant failed to appear at his trial de novo.
(8-1-0: Wilson concurred in part and in the result without writing; Emfinger did not participate)

Other Orders

Smith v. State, 2020-KA-00774-COA (denying rehearing)

White v. State, 2021-KA-00818-COA (denying rehearing)

Hobby v. Ott, 2021-CA-01305-COA (denying rehearing)

Ndicu v. Gacheri, 2022-CA-00415-COA (denying rehearing)

Wheeler v. Miss. Limestone Corp., 2022-WC-00534-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of December 12, 2023

The Mississippi Court of Appeals handed down eight decisions on Tuesday that cover a lot of territory. There is something for just about everybody.

Read on down for a case that underscores the importance of keeping up with the weekly hand downs from the Mississippi Supreme Court and Mississippi Court of Appeals. (Subscribing to this blog probably doesn’t hurt you in that endeavor.)

Coogan v. Nationwide Prop. and Cas. Ins. Co., 2022-CA-01063-COA (Civil – Insurance)
Affirming partial summary judgment in policy holders’ suit against their auto liability carrier, holding that the carrier had an arguably reasonable basis to support its claims handling the circuit court did not err in finding that there was no genuine issue of material fact on the bad faith punitive damages claim or the Veasley damages claim.
(6-2-1: McCarty concurred in part and in the result without writing, Westbrooks concurred in result only without writing, McDonald dissented without writing, Lawrence did not participate)

Forrest v. State, 2022-KA-00844-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the verdict was not against the overwhelming weight of the evidence and that the court did not admit inadmissible hearsay or irrelevant evidence, and dismissing the ineffective assistance of counsel claim without prejudice.
(10-0)

Hills v. Manns, 2022-CA-00774-COA (Civil – Domestic Relations)
Affirming modification of visitation schedule, holding that the chancellor did not err in not dismissing the mother’s petition on the basis of res judicata, not awarding him attorney’s fees, or in awarding the mother final decision-making authority.
(10-0)

Strong v. Acara Solutions, Inc., 2022-CA-01240-COA (Civil – Personal Injury)
Reversing the trial court’s dismissal of a personal injury lawsuit on judicial estoppel grounds, holding that the case should be remanded to allow the circuit court to apply the test from a recent Mississippi Supreme Court decision that was handed down after the circuit court’s ruling.
(10-0)

PRACTICE POINT – This case illustrates the importance of keeping up with decisions handed down weekly by Mississippi’s appellate courts. (By extension, this case illustrates why you and all of your friends should subscribe to the Mississippi Appeals Blog – I covered the Saunders decision here when it was handed down.)

PRACTICE POINT (continued): Though the Mississippi Supreme Court’s decision in Saunders was handed down after the summary judgment order was entered, the Supreme Court’s decision in Jones, infra, with its special concurrence, was handed down before the summary judgment proceedings. So the precedential special concurrence in Jones that controlled this case was in force during the summary judgment proceedings. This case serves as a good reminder that special concurrences that garner a majority of the court have the force of precedent. (Another shameless plug: I covered the Jones decision here when it was handed down and specifically discussed the precedential value of the special concurrence.)

Barefield v. Barefield, 2022-CA-00834-COA (Civil – Torts-Other)
Affirming the chancellor’s order requiring the former member/owner of an investment company to pay a forensic accountant’s fee for services during litigation among all members/owners, holding that the exert was court-appointed and the chancellor had discretion to order the party whose actions necessitated the lawsuit to pay the fees.
(8-2-0: McCarty concurred in part and in result without writing; Wilson concurred in result only without writing)

Henderson v. State, 2022-KA-00661-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the evidence was sufficient to support the conviction and the verdict was not against the overwhelming weight of the evidence.
(10-0)

Nichols v. State, 2022-KA-00202-COA (Criminal – Felony)
Reversing conviction of first-degree murder and remanding for new trial, holding that the circuit court erred by failing to instruct the jury on the “castle doctrine,” while also holding that the evidence to support the conviction was legally sufficient so the remedy was a new trial.
(10-0)

Miss. Dept. of Human Servs. v. Johnson, 2022-SA-00605-COA (Civil – Domestic Relations)
Affirming the chancellor’s decision voiding a 2002 paternity and child-support order was void for insufficient service of process, holding that in light of MDHS’s admission that failed to effect proper service under Rule 81(d) MDHS’s arguments under the doctrine of laches, judicial estoppel, unjust enrichment, and public policy failed.
(6-4: Greenlee dissented, joined by Wilson, Lawrence, and Emfinger)

Other Orders

Gillen v. Gillen, 2021-CA-00837-COA (granting motion for appellate attorneys’ fees)

Moore v. State, 2022-KA-00327-COA (granting appearance as counsel, but denying motion to substitute and motion to file supplemental brief)

Diming v. State, 2022-KA-00412-COA (recalling mandate and granting motion for time to file motion for rehearing)

Russell v. State, 2022-KA-00447-COA (recalling mandate and granting motion for time to file motion for rehearing)

Greater Hamilton Grove Baptist Church v. Hamilton Grove Missionary Baptist Church, 2022-CA-00518-COA (denying rehearing)

Rehabilitation Centers, Inc. v. Williams, 2023-WC-00453-COA (denying motion for reconsideration)

Mitchell v. State, 2023-TS-00764-COA (granting motion to proceed out-of-time)

Robinson v. State, 2023-TS-00935-COA (dismissing untimely appeal)

Britton v. State, 2023-TS-01060-COA (dismissing untimely appeal)

Rutherford v. State, 2023-TS-01066-COA (dismissing appeal for lack of appealable judgment)

Rutherford v. State, 2023-TS-01069-COA (dismissing appeal for lack of appealable judgment)

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Mississippi Supreme Court Decisions of November 30, 2023

The Mississippi Supreme Court handed down three opinions today. There is a case addressing a county’s decisions regarding license and tax exception, an appeal of the denial of a petition for a certificate of rehabilitation to regain the right to possess firearms, and a direct criminal appeal that resulted in a 5-4 decision.

Stokes v. Jackson Sales & Storage Company, 2022-CA-00371-SCT (Civil -Other)
Affirming in part and reversing in part the circuit court’s rulings in a licensing and tax dispute, holding the company’s license is and has been valid since issuance, the license is subject to renewal, the County forfeited its right to taxes during the years it had granted an exemption, and the County had discretion to grant (or not grant) the exemption.
(9-0)

Francis v. State, 2022-CA-00964-SCT (Civil – Other)
Affirming the circuit court’s denial of a petition for a certificate of rehabilitation to restore the right to possess a firearm after felony conviction, holding that the denial of a certificate of rehabilitation is an appealable order, but that the circuit court did not abuse its discretion in denying the certificate and that no hearing was required.
(9-0)

Gunn v. State, 2022-KA-00807-SCT (Criminal – Felony)
Affirming conviction of first degree murder, attempted murder, aggravated assault, and shooting into a dwelling, holding that the trial court did not err by granting a jury instruction allowing an inference of deliberate design and that the verdict was not contrary to the weight of the evidence.
(5-4: Coleman dissented, joined by Kitchens, King, and Ishee)

Note – Here is what the majority said about the jury instruction at issue:

And here is the dissent’s conclusion:

Other Orders

Miller v. Board of Trustees of Second Baptist Church of Starkville, 2020-CT-01384-SCT (denying cert)

Kirk v. Newton, 2021-CT-00684-SCT (denying cert)

Durr v. State, 2021-CT-01109-SCT (granting cert)

Parker v. Canton Manor, 2022-CT-00206-SCT (denied cert)

Francis v. State, 2022-CA-00964-SCT (denying motion to dismiss appeal)

Wilson v. State, 2023-M-00633 (denying application for leave to file PCR motion, finding that the filing is frivolous, and warning that future frivolous filings may result in sanctions)

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Mississippi Court of Appeals Decisions of November 14, 2023

The Mississippi Court of Appeals handed down seven opinions today. They cover custody, personal injury, felonies, and PCR. One of the personal injury cases stems from an injury sustained during a “TikTok challenge” in a classroom.

Croom v. State, 2022-KA-00598-COA (Criminal – Felony)
Affirming conviction of burglary of a dwelling and conspiracy to commit burglary of a dwelling, holding that the trial court did not err by refusing to instruct the jury on the lesser-included offense of trespass and that the evidence was sufficient to support the conviction of conspiracy.
(9-1-0: Westbrooks concurred in result only without separate written opinion)

Snyder v. Estate of Cockrell, 2022-CA-00597-COA (Civil – Torts)
Affirming summary judgment in a negligence case a man filed against his grandfather’s estate after a child caused the grandfather’s golf cart to run into the plaintiff, holding that in the plaintiff could not prove a breach of duty where there was only speculation about the grandfather’s conduct after he finished operating the golf cart.
(8-2-0: McDonald concurred in part and in result without written opinion; Westbrooks concurred in result only with separate written opinion)

Johnson v. State, 2022-CP-01186-COA (Civil – PCR)
Affirming denial of PCR motion, holding that the petitioner failed to present evidence other than his bare assertions that his plea was involuntary and that the trial court did not abuse its discretion in not granting the petitioner an evidentiary hearing.
(10-0)

Scott v. Le, 2022-CA-00887-COA (Civil – Custody)
Affirming the chancellor’s custody award, holding that the chancellor’s finding that there was a material change in circumstances and the chancellor’s application of the Albright factors to to deny the mother’s request for sole physical custody and grant the father’s request for sole physical custody was supported by substantial evidence.
(10-0)

Taylor v. State, 2022-KA-01042-COA (Criminal – Felony)
Affirming conviction of attempted murder and two counts of possession of a controlled substance, holding that evidence of prior arrests did not constitute evidence of prior bad acts under Rule 404(a) because it was offered as the foundation of a witness’s identification of the defendant and that would have been otherwise admissible under the exception in 404(b), that it passed the 403 balancing and, even if it was not admissible, it would have been harmless error.
(9-1-0: Westbrooks concurred in part and in the result without writing)

Brown v. State, 2022-KA-00446-COA (Criminal – Felony)
Affirming conviction of first-degree murder and shooting into a vehicle, holding that the evidence was sufficient to support the convictions, that the defendant waived the issue of the judge’s refusal of a second-degree murder instruction when trial counsel did not object and agreed with the judge’s decision, and there was no merit to the claim that a clinical and forensic psychological expert was pressured into proceeding with an independent psychological examination without all of the records he had requested.
(10-0)

Bumpous v. Tishomingo County School District, 2022-CA-01010-COA (Civil – Personal Injury)
Affirming summary judgment in favor of the school district in a negligent supervision after a student was injured in a class room after falling victim to a “TikTok challenge,” holding that that the injury was not reasonable foreseeable and there was no genuine issue of material fact that would warrant reversal of the summary judgment.
(6-2-2: Westbrooks and McDonald concurred in part and in the result without written opinion; McCarty dissented, joined by Carlton, and joined in part by Westbrooks and McDonald)

Other Orders

Smith v. State, 2026-KA-01946-COA (denying pro se motion to recall mandate and allow untimely motion for rehearing)

Hall v. State, 2022-CP-01097-COA (recalling mandate and allowing appellant’s timely pro se motion for rehearing to proceed on the merits)

McGee v. State, 2023-KA-00083-COA (remanding to the circuit court for forty-five days for a hearing consistent with Mississippi Rule of Appellate Procedure 6(c)(2) and an order)

Patton v. State, 2023-TS-00618-COA (allowing timely appeal to proceed on the Court’s own motion)

Crump v. State, 2023-TS-00795-COA (allowing timely appeal to proceed on the Court’s own motion)

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Mississippi Court of Appeals Decisions of October 10, 2023

The Mississippi Court of Appeals handed down nine opinions today. All but three are direct criminal appeals. Of the six direct criminal appeals, two are reversals. On the non-criminal side of the ledger are an MDES case, a custody decision, and a tangled web of a case stemming from the sale of a log house.

Crutchfield v. State, 2022-KA-00815-COA (Criminal – Felony)
Affirming conviction of first degree murder and felon in possession of a firearm, holding that the verdict was supported by sufficient evidence and that it was not against the overwhelming weight of the evidence.
(10-0)

Hoffman v. MDES, 2022-CC-00948-COA (Civil – State Boards & Agencies)
Affirming denial of a claim for unemployment benefits based on the COVID-19 pandemic, holding that substantial evidence supported the finding that bank statements alone did not provide sufficient evidence of self-employment income, that the claimant’s right to a fair hearing was not violated, and that the claimant was required to repay an overpayment amount.

(8-1-0: Wilson concurred in part and in the result without separate written opinion.)

Jackson v. State, 2022-KA-00009-COA (Criminal – Felony)
Reversing murder conviction, holding that the evidence was insufficient to support the conviction where the State’s case rested entirely on circumstantial evidence of motive and proximity.
(6-1-3: Wilson concurred in part and in the result without written opinion; Westbrooks concurred in part and dissented in part without written opinion; Emfinger dissented, joined by Greenlee)

NOTE – Here is the heart of the Court’s reasoning:

Rodgers v. State, 2022-KA-00179-COA (Civil – Felony)
Affirming conviction of possession of meth but reversing conviction of conspiracy to sell meth, holding that there was insufficient evidence of the conspiracy count because the alleged co-conspirator was not aware of the alleged conspiracy.
(7-1-0: McDonald concurred in part and in result without written opinion; Westbrooks and Emfinger did not participate.)

White v. State, 2022-KA-00607-COA (Criminal – Felony)
Affirming conviction or armed robbery, holding that the trial court did not err in admitting the defendant’s admissions of guilt during his interrogation because the admission was freely and voluntarily made and because the probative value was not substantially outweighed by the danger of unfair prejudice.
(10-0)

Young v. Niblett, 2022-CA-00294-COA (Civil – Custody)
Affirming the chancellor’s decision modifying custody and awarding sole physical custody to the father, holding that the evidence supported the chancellor’s determination that there was a material change in circumstances and holding that the chancellor’s failure to include a summary of the GAL’s qualifications along with the summary of the GAL’s recommendations was not reversible error.
(10-0)

Britt v. Orrison,  2022-CP-00165-COA (Civil – Other)
Affirming in part and reversing in part the chancery court’s dismissal of a petition for contempt, holding that the Court lacked jurisdiction to consider the issue of the appellant’s request for costs stemming from a prior appeal and that the chancellor did not abuse his discretion in denying a motion to recuse, but that the chancellor erred in dismissing the petition for contempt with respect to the sale of a log house.
(8-1-0: Wilson concurred in result only without written opinion; Lawrence did not participate.)

NOTE – There is a lot of procedural background and litigation background in this opinion that I have not delved into.

Kirkland v. State, 2022-KA-00851-COA (Criminal – Felony)
Affirming conviction of nine counts of touching a child for lustful purposes, holding that the circuit court did not err in denying a motion to sever and hold three different trials for each of the three victims and or in finding no discovery violation when the State did not tell the defense that one of the victims had her disclosure date tattooed on her wrist.
(8-1-0: McCarty concurred in part and in the result without written opinion; Smith did not participate.)

Bolton v. State, 2022-KA-01118-COA (Criminal – Felony)
Affirming conviction of business burglary, holding that the trial court did not err in denying the defendant’s request for a larceny instruction and that there was no error in denying the motion for new trial because the verdict was not against the overwhelming weight of the evidence.
(9-1: McDonald dissented without written opinion.)

Other Orders

Gussio v. Gussio, 2020-CA-00785-COA (denying motion for appellate attorney’s fees)

Manley v. Manley, 2021-CA-00700-COA (denying rehearing)

Knight v. State, 2021-CP-01192-COA (denying rehearing)

Prather v. State, 2021-KA-01416-COA (denying rehearing)

Brown v. State, 2022-CP-00069-COA (denying rehearing)

Brandi’s Hope Community Services, LLC v. Walters, 2022-CA-00188-COA (denying rehearing)

Keller v. State, 2023-TS-00901-COA (granting time to respond to show cause notice)

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Mississippi Court of Appeals Decisions of September 26, 2023

The Mississippi Court of Appeals handed down nine opinions today. There is something for everyone: tort, real property, divorce, direct criminal appeals, and PCR. Due to volume of paying work and COA output I had to move quickly to get these out, so I expect a higher-than-normal rate of typos.

Odom v. State, 2021-KA-00676-COA (Criminal – Felony)
Affirming conviction of murder, holding that computer printouts of GPS and location data from Google were not properly authenticated and should not have been admitted but that the error was harmless, that the trial court did not abuse its discretion in admitting photos of a vehicle over an authentication objection, that the trial court did not err in excluding paint-transfer evidence and crime lab documents for lack of authenticity, and holding that the conviction was supported by sufficient evidence.
(7-3: Wilson dissented without written opinion; Westbrooks dissented, joined in part by McDonald)

Practice Point – On the authenticity of Google satellite images, the Court noted that the images themselves were not hearsay, but that computer-generated data included on the photos required authentication:

Robb v. McLaughlin, 2021-CA-00672-COA (Civil – Personal Injury)
Affirming a judgment after jury trial in a negligence/infliction of emotional distress/invasion of privacy/defamation/libel case stemming from the defendant posting a false ad for prostitution online with the plaintiff’s phone number, holding that the defendant’s due process rights were not violated, the proceedings were properly bifurcated into compensatory and punitive phases, the plaintiff was not required to produced expert medical testimony on her intentional infliction of emotional distress claim, the damages were not speculative, and the jury instructions were appropriate.
(9-1-0: Wilson concurred in part and in the result without written opinion.)

Practice Point– I have cited the 5th Circuit’s Krieser decisions for the proposition that settlement as to one defendant does not affect apportionment at trial–a proposition that can cut either way. It is nice to have a Mississippi Court of Appeals decision to cite (citing Krieser) for this proposition.

Alexander v. State, 2022-CA-00397-COA (Civil – PCR)
Affirming denial of PCR motion that argued ineffective assistance of counsel, holding that the circuit court’s decision was not clearly erroneous, legally in error, or an abuse of discretion.
(9-1-0: Westbrooks concurred in result only without written opinion)

Bradshaw v. State, 2022-KA-00469-COA (Criminal – Felony)
Affirming conviction of sexual battery, holding that the indictment was not overly broad to the point it failed to provide sufficient notice under a plain error analysis or on the merits, that there was no violation of the right to speedy trial, and that the trial court did not abuse its discretion in allowing testimony of prior bad acts because it complied with Rule 404(b).
(9-0: Emfinger did not participate.)

Smith v. State, 2022-KA-00664-COA (Criminal – Felony)
Affirming conviction of sexual battery of a child, holding that the trial court did not abuse its discretion by denying the defendant’s motion for continuance because the State’s discovery violations did not result in manifest injustice, that the trial court did not commit plain error by severing the codefendant’s case without a proper motion, and that the lack of error precluded reversal for cumulative error.
(10-0)

Titus v. Stelzer, 2022-CA-01079-COA (Civil – Real Property)
Affirming the chancellor’s order in a suit to set aside a quitclaim deed and to confirm and quiet title, holding that the chancellor did not err in setting aside the quitclaim deed and confirming title through a prior conveyance.
(9-1-0: McCarty concurred in part and in the result without written opinion.)

Gregg v. State, 2022-KA-00485-COA (Criminal – Felony)
Affirming conviction of possession of amphetamine and marijuana, holding that the sole issue on appeal–ineffective assistance of counsel–should be dismissed without prejudice because the record was insufficient to address the issue on direct appeal.
(10-0)

Patel v. State, 2022-CA-00985-COA (Civil – PCR)
Affirming denial of motion to withdraw and vacate a prior admission of guilt in a pretrial intervention after the petitioner learned that even with dismissal and expungement he was not eligible for lawful permanent residence status under the INA, holding that the circuit court properly dismissed the motion for lack of jurisdiction.
(9-0: Emfinger did not participate.)

Gussio v. Gussio, 2020-CA-00785-COA (Civil – Domestic Relations)
Affirming the chancellor’s judgment in a divorce case granting the mother a divorce and granting her physical and legal custody of the children, holding that the chancellor did not err in the amount of child support awarded, in not imputing income to the mother, in awarding alimony, by denying the father’s motion in limine to exclude evidence of the mother’s attorney’s fees, in awarding attorney’s fees, or in denying motion to alter or amend the judgment and consider new evidence.
(5-5: Wilson concurred in part and dissented in part, joined by Greenlee, Lawrence, Smith, and Emfinger.)

NOTE – Judge Wilson’s partial dissent agreed with the rulings on child support and alimony, but asserted that the award of attorneys’ fees should not be affirmed because the record and the chancellor’s findings on attorneys’ fees were insufficient. I am putting this one on my cert watchlist.

Other Orders

Lynn v. State, 2021-KA-00968-COA (denying rehearing)

Culver v. Culver, 2021-CA-01108-COA (denying rehearing)

Stevenson v. State, 2021-KA-01286-COA (recalling mandate)

Lestrick v. State, 2021-CP-01409-COA (denying motion for additional time to file motion for rehearing)

Covin v. Covin, 2022-COA-00019-COA (denying motion for appellate attorney’s fees)

Amos v. State, 2022-KA-00171-COA (denying motion for enlargement of time to file motion for rehearing)

Pickle v. State, 2022-CP-00929-COA (recalling mandate)

Rehabilitation Centers, Inc. v. Williams, 2023-WC-00453-COA (granting motion to dismiss consolidated appeals as interlocutory)

Miller v. State, 2023-TS-00812-COA (allowing appeal to proceed as timely)

Gardner v. State, 2023-TS-00903-COA (granting motion to consolidate)

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Mississippi Supreme Court Decisions of September 21, 2023

The Mississippi Supreme Court handed down four opinions today. There is an estates case, a domestic relations case, and a direct criminal appeal. However, the main stage act is a decision on the constitutionality of HB 1020 (and part of that decision was unanimous).

In Re The Estate of Herbert Bernard Ivison, Jr.: Malouf & Malouf, PLLC v. The Estate of Herbert Bernard Ivison, Jr., 2022-CA-00837-SCT (Civil – Wills, Trusts & Estates)
Reversing the chancellor’s ruling that a law firm’s probated claim against a state was barred by statute, holding that the law firm had no reason to pursue further additional legal actions to secure payment of its claim after timely probating the claim.
(8-0: Griffis did not participate.)

West v. West, 2020-CA-01206-SCT consolidated with 2022-CA-00147, 2002-IA-01158, 2008-CA-01700, 2009-CA-01877, 2010-CA-00316 (Civil – Domestic Relations)
Reversed on direct appeal and cross appeal, holding that the chancellor erred in his priority-of-liens analysis and remanding for a determination of whether capital stock certificates conspicuously noted bylaws restrictions, holding that the chancellor erred in failing to address a retroactive child support claim, and holding that because one party engaged in claim-splitting the chancellor’s decision in the consolidated case was reversed with orders to dismiss the case and reinstate a 2008 judgment, writs of garnishment, and writs of execution.
(8-0: Beam did not participate.)

NOTE – This is a 44-page opinion with a lot going on. Be advised that my summary is even broader than usual.

Jenkins v. State, 2022-KA-00754-SCT (Criminal – Felony)
Affirming conviction of DUI (third offense), holding that the trial court did not err in granting a jury instruction that the State was not required to prove that alcohol impaired the defendant’s ability to drive or level of impairment and did not err in refusing the defendant’s instruction on the defendant’s theory of the case where most of the language of that instruction was incorporated into another instruction.
(5-1*-3: Maxwell specially concurred, joined by four justices from the majority: Coleman, Beam, Chamberlin, and Griffis; Kitchens dissented, joined by King.)

NOTE – Justice Maxwell’s concurrence garnered four other votes giving it precedential effect. That special concurrence held that “an instruction like S-8’s potential to confuse weight heavily against giving it in Section (1)(a) common law DUI cases.” The concurrence also noted that even if this instruction was given in error, it would have been harmless due to the overwhelming evidence of guilt.

Here is the text of the instruction at issue:

Saunders v. State, 2023-CA-00584-SCT (Civil – Unconstitutional Statute)
Affirming in part and reversing in part in the HB 1020 case, holding (1) the creation of the CCID inferior court is Section 4 of HB 1020 is constitutional but (2) Section 1’s creation of four “temporary special circuit judges” to be appointed by the Chief Justice to “almost-four-year-terms” violates the Mississippi Constitution’s requirement that circuit judges be elected.
(6-2: Kitchens dissented as to the constitutionality of CCID inferior court, joined by King; Kitchens and King concurred as to the unconstitutionality of appointing the temporary judges; Randolph did not participate)

NOTE – Here is the crux of the reasoning behind the unanimous holding that the appointment process in HB 1020 is unconstitutional:

Other Orders

Moore v. State, 2021-M-00111 (denying application for leave to proceed in the trial court, finding the filing frivolous, and warning that future frivolous filings may result in sanctions)

Hull v. State, 2022-CT-00088-SCT (denying cert)

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Mississippi Court of Appeals Decisions of September 19, 2023

The Mississippi Court of Appeals handed down four opinions today. There are two direct criminal appeals (including a reversal on sufficiency-of-the-evidence grounds), an appeal of summary judgment in an MTCA negligence claim, and claim by a constable for wrongful removal.

Love v. State, 2021-KA-01014-COA (Criminal – Felony)
Affirming in part and reversing in part after the defendant was convicted of capital murder, aggravated assault, and armed robbery x3, holding that the trial court did not err in denying motion to sever, in denying motion for mistrial after brief exposure of wrist restraints to the jury venire, or in refusing a Milano instruction; that the indictment for capital murder was legally sufficient and the jury instruction on that count not erroneous; and that the defendant was not placed in double jeopardy, but that the evidence was not legally sufficient to support the armed robbery conviction.
(10-0)

J&A Excavation, Inc. v. City of Ellisville, 2022-CA-00533-COA (Civil – Other) consolidated with J&A Excavation, Inc. v. Jones County, 2022-CA-00547-COA (Civil – Other)
Reversing the circuit court’s decision that affirmed the Board of Aldermen and Board of Supervisors, holding that the decisions were not supported by substantial evidence and were arbitrary and capricious where the plaintiff’s low bid on a public construction contract was rejected and the next-lowest bid was accepted with no record evidence regarding qualifications, reputation, or capabilities of the bidder selected.
(10-0)

Bailey v. Jefferson County Board of Supervisors, 2022-CP-00950-COA (Civil – Other)
Reversing the circuit court’s decision affirming the Board of Supervisors’ decision to removal a constable, holding that there was not substantial evidence to support the removal, rendering judgment in favor of the constable, and remanding for a determination of damages.
(8-1: Emfinger dissented without separate written opinion.)

Moore v. Jackson Public School System, 2022-CA-00595-COA (Civil – Personal Injury)
Reversing summary judgment dismissing a negligence claim under the MTCA, holding that the circuit court erred by granting summary judgment on other grounds where the actual motion was based only on “broad legal arguments” that did not challenge the sufficiency of the plaintiff’s evidence.
(6-3: Carlton dissented, joined by Greenlee, Westbrooks, and McDonald)

Others Orders

Carroll v. State, 2021-CP-00959-COA (denying rehearing)

Ehrhardt v. State, 2021-KA-01143-COA (denying rehearing)

Jordan v. State, 2021-KA-01421-COA (denying rehearing)

In the Matter of the Estate of Roosa v. Roosa, 2022-CA-00128-COA (denying rehearing)

Rhodes v. RL Stratton Properties LLC, 2022-CA-00338-COA (denying rehearing)

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