Tag: jury instructions

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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Mississippi Court of Appeals Decisions of September 5

I was out of town last Tuesday, so I am circling back to last week’s decisions from the Mississippi Court of Appeals. The Court handed down three opinions on Tuesday. Two are direct criminal appeals and the other one is a child custody case.

Goode v. State, 2021-KA-01310-COA (Criminal – Felony)
Affirming conviction of murder and denial of post trial motions, holding that the trial court did not err in admitting photographs of the victim and his injuries or in denying the motion for directed verdict where there was testimony from three eyewitnesses and a medical examiner, that the verdict was not against the overwhelming weight of the evidence, and that the trial court did not err in refusing five of the defendant’s proposed jury instructions.
(8-2-0: Wilson and Emfinger concurred in part and in the result sub silentio)

NOTE – The first refused instructions was a peremptory instruction. The second was a definition of “reasonable doubt.” The third was a lesser-included instruction of heat-of-passion manslaughter which the trial court deemed forfeited when the defendant took the stand and denied shooting the victim. The fourth and fifth refused instructions were on eyewitness identifications which were properly refused because there were multiple eyewitnesses.

Urban v. Urban, 2022-CP-00195-COA (Civil – Custody)
Affirming judgment denying petition for modification of custody leaving the mother with full legal and physical custody, holding that the father received sufficient service for the Rule 59(e) motion which did not require a Rule 81 summons, that the chancellor did not err in finding that the mother showed a need to correct a clear legal error which the chancellor properly did, that claims of fraud by the mother and bias of the chancellor were procedurally barred, that there was no basis for the father’s claim that the chancellor admitted hearsay, that the equitable estoppel argument was procedurally barred, and that the issue of whether the chancellor should have adopted the GAL’s recommendations could not be addressed because the GAL report was not in the record on appeal.
(9-1: Barnes concurred in the result only sub silentio)

Kilcrease v. City of Tupelo, 2022-KM-00194-COA (Criminal – Misdemeanor)
Affirming the dismissal of an appeal from municipal court for lack of jurisdiction, holding that it lacked jurisdiction where the appellant failed to timely file an appearance bond to perfect her appeal to the county court.
(5-5: McDonald dissented, joined by Carlton, Greenlee, Westbrooks, and McCarty)

NOTE – The dissent first took issue with questions about whether the municipal court violated statutory and constitutional rights:

The dissent’s discussion of the timeliness of the appeal was interesting:

Other Orders

In the Matter of the Last Will and Testament of Mamie Elizabeth Pearson Bray, 2022-CA-00011-COA (denying rehearing)

Parker v. Canton Manor, 2022-WC-00206-COA (denying rehearing)

Applewhite v. State, 2022-KA-00290-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of August 29, 2023

The Mississippi Court of Appeals handed down six opinions today. Today was heavy on direct criminal appeals, with one reversal in part. There was also an appeal of summary judgment in a slip-and-fall case and a PCR case.

Gilbert v. State, 2021-KA-01265-COA (Criminal – Felony)
Affirming conviction of leaving the scene of an accident causing significant bodily injury, aggravated DUI, and DUI-related death of an unborn child, holding that the claim of ineffective assistance of counsel was without merit and that the prosecution did not improperly draw attention to the defendant’s exercise of his right to remain silent during closing arguments.
(10-0)

Landry v. Vallman McComb Mall, LLC, 2022-CA-00439-COA (Civil – Personal Injury)
Affirming summary judgment in favor of a fast food restaurant in a slip-and-fall case, holding that mopping and cleaning floors in a restaurant was a reasonable endeavor and was conducted in a reasonable manner, and that the an employee provided multiple warnings.
(9-1-0: McCarty concurred in part and in the result sub silentio.)

Lee v. State, 2022-KA-00078-COA (Criminal – Felony)
Affirming in part and reversing in part after the defendant was convicted of first degree murder, two counts of felon in possession of firearm, and tampering with physical evidence, holding (1) that the two counts of felon in possession should be merged into a single count and remanding for sentencing, (2) that excluding language from the tampering instruction that removed the element requiring intent was plain error, and (3) that retroactive misjoinder was inapplicable.
(9-1-0: Barnes concurred in part and in the result sub silentio.)

NOTE – Here is the jury instruction at issue:

Washington v. State, 2021-KA-01384-COA (Criminal – Felony)
Affirming convictions of first-degree murder and two counts of aggravated assault, holding that the trial court’s ruling on the defendant’s Batson challenges were not clearly erroneous or against the overwhelming weight of the evidence.
(8-1*-0: Westbrooks wrote a special concurrence, joined by McDonald and joined in part by McCarty; Smith did not participate. *McDonald and McCarty joined the majority opinion and the special concurrence.)

Ellison v. State, 2022-KA-00462-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that the verdict was not against the overwhelming evidence and that the trial court did not err by not removing a sleeping juror where the issue was not raised by trial counsel, and dismissing the ineffective assistance claim without prejudice.
(9-0: Smith did not participate.)

Hall v. State, 2022-CP-01097-COA (Civil – PCR)
Affirming the dismissal of a PCR motion, holding that the motions were filed outside of the three-year statute of limitations and the petitioner did not prove that a statutory exception applied.
(7-3*-0: Westbrooks wrote a special concurrence joined by McDonald, and joined in party by Barnes and McCarty; Barnes and McDonald concurred in part and in the result sub silentio. *McCarty authored the majority opinion and joined the special concurrence.)

Other Orders

Miller v. Board of Trustees of Second Baptist Church of Starkville, 2020-CA-01384-COA (denying rehearing)

Williamson v. State, 2021-KA-00830-COA (denying rehearing)

Durr v. State, 2021-KA-01109-COA (denying rehearing)

Herbert v. Herbert, 2021-CA-01291-COA (denying rehearing)

Beckworth v. Beckworth, 2022-CA-00048-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of August 22, 2023

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)

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Mississippi Supreme Court Decisions of August 17, 2023

The Mississippi Supreme Court handed down four opinions today. One is a direct criminal appeal and one was a real property case addressing the applicability of restrictive covenants after a foreclosure sale. Then there are two decisions on interlocutory appeals of summary judgment denials – a med mal/MTCA pre-suit notice case against a hospital and a construction zone MVA case against the road contractor and MDOT.

Stuart v. State, 2022-KA-00585-SCT (Criminal – Felony)
Affirming conviction of filming a person without her knowledge and with an expectation of privacy, holding that the defendant’s right to counsel was not violated when he had been through three public defenders and his request that a fourth lawyer be appointed his counsel days before trial and for continuance was denied where the fourth lawyer was appointed to serve as advisory counsel, and that the trial court did not err in denying the defendant’s accident instruction.
(9-0)

UMMC v. Aycock, 2022-IA-00030-SCT (Civil – Med Mal)
Affirming on interlocutory appeal the denial of the hospital’s motion for summary judgment arguing that the plaintiff did not serve proper pre-suit notice on the CEO, holding that the notice requirements are mandatory–but not jurisdictional–but that there was an issue of material fact as to whether the hospital waived, or is equitably estopped from asserting, lack of compliance based on its conduct after actually receiving notice though not through its CEO.
(8-1: Griffis concurred in part and dissented in part)

NOTE – Here is the Court’s summary of some of the facts relevant to waiver and equitable estoppel:

Loblolly Properties LLC v. Le Papillion Homeowner’s Ass’n, Inc., 2021-CT-00767-SCT (Civil – Real Property)
Affirming the chancery court and court of appeals in an action to collect HOA fees, holding that the developer who purchased properties through a nonjudicial foreclosure sale owed HOA fees where it purchased the properties with notice of the restrictive covenants and holding, specifically, that the foreclosure sale did not extinguish the HOA covenants.
(7-2: Coleman dissented, joined by Griffis)

Joe McGee Construction Company, Inc. v. Brown-Bowens, 2021-IA-01405-SCT (Civil – Wrongful Death)
Reversing the circuit court’s denial of summary judgment to a road construction contractor and to MDOT, holding that there was no competent summary judgment evidence to support that any breach of duty by the contractor or by MDOT proximately caused the crash where the contractor had installed all warning signs required by MDOT and where the decedent passed multiple signs warning of a road closure and crashed into a crane on a closed portion of the highway.
(7-2: Kitchens dissented, joined by King)

DISCLOSURE – I represented the road contractor appellant in this case.

PRACTICE POINT – I think this is a useful, pithy statement to support motions for summary judgment when the arguments on causation are speculative:

Other Orders

In Re: Local Rules, 89-R-99015-SCT (approving amendment to local rule filed by Judge Irving in the 22nd Circuit Court District)

Rhea v. Career General Agency, Inc., 2021-CT-00580-SCT (granting cert)

Liberty Nat’l Life Ins. Co. v. Hancock, 2021-CT-00605-SCT (denying cert)

The Board of Supervisors for Lowndes County, Mississippi v. Lowndes County School Dist., 2021-CA-00999-SCT (denying rehearing)

Wagner v. Andreacchio, 2021-IA-01199-SCT (denying rehearing)

Bradley v. State, 2022-CT-00173-SCT (denying cert)

MS Concrete v. Harris, 2022-CT-01095-SCT (denying cert)

Howell v. State, 2023-DR-00455-SCT (remanding motion for appointment of counsel for representation of indigent capital petitioner)

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Mississippi Court of Appeals Decisions of June 13, 2023

I was out of town for a wedding anniversary trip on Tuesday, and then I have been playing catch-up at the office to recover from said trip, so my summaries are delayed this week. First up is Tuesday’s offering from Mississippi Court of Appeals. The COA handed down five opinions this week: a termination of parental rights case, an emancipation case, two direct criminal appeals, and an attempted appeal of a MDOC decision.

Rogers v. Kresse, 2021-CA-00914-COA (Civil – Custody)
Affirming termination of parental rights, holding that the chancery court did not err in finding that the natural mother had abandoned her children and that the father had not abused his discretion with regard to visitation by disallowing it, and that reunification was not in the children’s best interest.
(7-2-0: McDonald concurred in part in and the result without separate written opinion; Westbrooks concurred in result only without separate written opinion.)

Talley v. Talley, 2022-CA-00005-COA (Civil – Domestic Relations)
Affirming the chancellor’s judgment in an emancipation proceeding initiated by a father with a counter-petition for contempt for failure to pay filed by the mother, holding that the chancellor did not err by finding that the children were emancipated while not modifying the life insurance provision of the divorce agreement, finding the father in contempt for failing to pay his portion of certain expenses, and awarding the mother attorney’s fees.
(9-0: Barnes did not participate.)

Allen v. State, 2022-KA-00331-COA (Criminal – Felony)
Affirming conviction of selling fentanyl and trafficking and possession of controlled substances while possessing a firearm, holding that the circuit court did not err in admitting text messages into evidence on authentication, relevance, or hearsay grounds.
(7-3-0: Wilson concurred in part and in the result without separate written opinion; Westbrooks and McDonald concurred in result only without separate written opinion.)

Wallace v. State, 2022-KA-00332-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the trial court did not err in denying the defendant’s request for a heat-of-passion manslaughter instruction or by allowing testimony related to injuries the victim suffered a week before her death.
(9-0: Smith did not participate.)

NOTE– I love it when opinions cut to the chase. Introductions like this would just about put me out of business around here:

Knight v. State, 2021-CP-01192-COA (Civil – State Boards & Agencies)
Dismissing an appeal for lack of jurisdiction, holding that the appeal of a purported PCR motion was untimely and because it was actually a petition seeking judicial review of an MDOC decision it was a civil appeal for which the Court could not suspend the rules to allow an untimely appeal.
(10-0)

Other Orders

McKenzie v. State, 2012-KA-00471-COA (dismissing untimely motion for rehearing)

Thomas v. State, 2021-CP-00060-COA (denying rehearing)

Pace v. State, 2022-KA-00046-COA (denying rehearing)

Jones v. State, 2023-TS-00325-COA (dismissing appeal as untimely)

Bates v. State, 2023-TS-00356-COA (allowing appeal to proceed as timely based on well-taken pro se show-cause response)

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