Tag: Lesser-Included Offense

Mississippi Court of Appeals Decisions of March 26, 2024

The Mississippi Court of Appeals handed down three opinions on Tuesday. The case that stood out to me was Murphy v. William Carey University not because of the result but because of how the Court of Appeals discussed the Horton doctrine. The special concurrence pulled no punches.

Frazier v. State, 2022-KA-00896-COA (Criminal – Felony)
Affirming conviction of first-degree murder with firearm enhancement, holding that the circuit court did not err in denying a heat-of-passion manslaughter instruction and did not abuse its discretion in refusing to allow the defendant to read proffered testimony from the first trial that ended with a mistrial on the first-degree murder charge.
(10-0)

Murphy v. William Carey University, 2022-CA-00379-COA (Civil – Med Mal)
Reversing the trial court’s grant of summary judgment in a med mal case based on lack of pre-suit notice and the statute of limitations, holding that the defendant waived those defenses by failing to pursue them while actively participating in litigation.
(7-2: Lawrence specially concurred joined by McDonald, Smith, and Emfinger, and joined in part by Wilson and Westbrooks; Greenlee dissented, joined by Carlton)

NOTE – I find the discussion of the Horton doctrine fascinating. The majority opinion and the special concurrence threw some shade at the development of the Horton doctrine and how it has been applied. The majority opinion included this statement and footnote:


The special concurrence upped the ante and sharply criticized the state of the Horton doctrine. I read the special concurrence (carrying four votes and two “in part” votes) as a challenge to the Mississippi Supreme Court to clean up the Horton doctrine:

The special concurrence concluded with this:

I am not sure this is the best “test case” for the Horton doctrine based on the facts, but I will be watching for a cert petition.

The City of Pascagoula, Mississippi v. Cumbest, 2022-CA-00745-COA (Civil – State Boards & Agencies)
Reversing on direct appeal and reversing on cross-appeal in a case over whether private property was “menace” under Miss. Code Ann. section 21-19-11, holding that the circuit court erred in reversing the city council’s determination that the property was a “menace” and finding no abuse of discretion in the circuit court’s denial of the property owner’s decision denying the owner’s motion to compel production of documents.
(5-4: Westbrooks concurred in part and dissented in part without separate written opinion; McDonald concurred in part and dissented in part, joined by Wilson, Westbrooks, and McCarty; Lawrence did not participate)

NOTE – The concurrence took issue with the City making the “menace” determination based on the condition of the property before the hearing and not at the time of the hearing.

Other Orders

Friley v. State, 2021-KA-00791-COA (denying rehearing)

Smith v. Ford, 2022-CA-00255-COA (denying rehearing)

Burns v. BancorpSouth Bank, 2022-CA-00404-COA (denying rehearing)

Moore v. Mississippi Farm Bureau Casualty Insurance Company, 2022-CA-00555-COA (denying rehearing)

Edwards v. State, 2022-KA-00719-COA (recalling mandate and permitting pro se motion for rehearing to proceed)

Scales v. State, 2022-KA-00856-COA (denying rehearing)

Thompson v. Thompson, 2022-CA-01014-COA (dismissing motion for rehearing as untimely)

Hand Down Page

Mississippi Court of Appeals Decisions of February 14, 2023

The Mississippi Court of Appeals handed down ten opinions on this Valentine’s Day. These opinions cover a lot of territory including criminal, custody, personal injury, and PCR.

Clayton v. State, 2021-KA-00505-COA (Criminal – Felony)
Affirming conviction of two counts of first-degree murder, holding that the trial court did not err by refusing the defendant’s lesser-included instructions and that the evidence was sufficient to support the deliberate design element for both counts.
(10-0)

Kirk v. State, 2021-KA-00733-COA (Criminal – Felony)
Affirming conviction of aggravated assault, holding that the evidence was sufficient to support the conviction and that the verdict was not against the overwhelming weight of the evidence.
(10-0)

MIMG C Woodridge Sub LLC v. Course, 2021-CA-00535-COA (Civil – Other)
Affirming award for past and future pain and suffering against an apartment complex to a plaintiff whose apartment was burglarized by someone who used an office key, holding that the award of $450,000 in noneconomic damages ($250,000 for past; $200,000 for future) was not excessive based on the evidence.
(8-2: Wilson dissented, joined by Barnes)

NOTE – The jury also awarded $42,080 in economic damages for the stolen items medical bills for psychiatric care.

Hull v. State, 2022-CP-00088-COA (Civil – PCR)
Affirming denial the plaintiff’s PCR petition, holding that the plaintiff was properly sentenced, he was not denied effective assistance, and his motion to receive a copy of his record and transcript was moot.
(10-0)

Stevenson v. State, 2021-KA-00411-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that allowing the State’s forensic pathologist testify remotely violated the Confrontation Clause because there was no case-specific determination of necessity but that it was harmless error since there was other sufficient evidence to support the verdict.
(5-5-0: Wilson, Lawrence, Smith, and Emfinger concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only without separate written opinion)

McFarland v. State, 2021-CA-01311-COA (Civil – State Boards and Agencies)
Affirming in part and reversing/rendering in part the trial court’s rulings on a petition to correct eligibility for parole, holding that the trial court erred in treating the petition as a motion to modify the sentence and that the trial court had jurisdiction to consider the petition but also holding that the record supported a finding that the plaintiff was not eligible for parole.
(8-1-0: Emfinger concurred in part and in the result without separate written opinion)

Jordan v. State, 2021-KA-01421-COA (Criminal – Felony)
Affirming conviction of sexual battery of the defendant’s minor stepdaughter, holding that the trial court did not err in allowing a sexual assault nurse examiner was not reversible error, that the trial court did not err in admitting “nanny cam” video into evidence, that trial counsel’s lack of hearsay objection to a letter did not affect the outcome, and that the evidence was sufficient to support the verdict.
(8-1-0: Wilson concurred in part and in the result without separate written opinion; Judge Smith did not participate)

Rye v. State, 2021-CA-00477-COA (Civil – PCR)
Reversing denial of motion for PCR, holding that the trial court erred in denying the motion on the basis that the guilty plea prevented the plaintiff from asserting that newly discovered evidence existed that could prove his innocence.
(10-0)

Denham v. Lafayette County Department of CPS, 2021-CA-00871-COA (Civil – Custody)
Affirming judgment terminating a mother’s parental rights, holding that the chancellor’s ruling was based on substantial credible evidence and that there was no merit to her arguments regarding her attorney’s performance or the GAL’s report and testimony.
(5-2-2: Emfinger concurred in part and in the result without separate written opinion; Carlton concurred in result only without separate written opinion; McCarty concurred in part and dissented in part, joined by Westbrooks; Greenlee did not participate)

Haynes v. Beckward, 2019-CA-01508-COA (Civil – Personal Injury)
Affirming in part and reversing in part the trial court judgment’s after a car wreck trial, holding that the trial court did not abuse its discretion in excluding the defendant-driver’s testimony that he saw three other cars pass his trailer before the accident without incident or in denying a mistrial after the plaintiff testified about the defendant’s insurance company during cross, but holding that the trial court abused its discretion in denying the motion for remittitur where the awards for future medical expenses and future lost wages exceeded the competent evidence on those elements.
(6-1-3: Westbrooks concurred in part and dissented in part without separate written opinion; Lawrence concurred in part and dissented in part with separate written opinion, joined by Westbrooks and McCarty, and in part by McDonald.)

DISCLOSURE – I was not trial counsel, but I represent the appellants in this appeal.

Other Orders

Smith v. State, 2020-KA-00775-COA (granting motion for authorization to proceed out of time)

Blagodirova v. Schrock, 2020-CA-01162-COA (denying rehearing)

Bowman v. State, 2020-KA-01371-COA (denying rehearing)

Dampier v. State, 2021-KA-00280-COA (denying rehearing)

O’Quinn v. State, 2021-KA-00534-COA (denying motion for permission to proceed out of time)

Keys v. Rehabilitation, Inc., 2021-CA-01338-COA (denying rehearing)

Young v. State, 2022-CP-00141-COA (denying rehearing)

Johnson v. State, 2022-CP-01186-COA (sua sponta allowing appeal to proceed as timely)

Boyett v. State, 2022-TA-01239-COA (sua sponte suspending appeal deadline to allow untimely appeal to proceed on the merits)

Silas v. State, 2022-TS-01265-COA (dismissing appeal for lack of jurisdiction)

Hand Down List

Mississippi Court of Appeals Decisions of September 13, 2022

The Mississippi Court of Appeals handed down five opinions today. These cases include two criminal convictions, medical malpractice, legal malpractice, and civil asset forfeiture.

Rowell v. State, 2021-KA-00793-COA (Criminal – Felony)
Affirming conviction of felony eluding after a high-speed chase, holding that the trial court did not err by refusing to instruct the jury on a lesser-included offense of failure to stop because no rational juror could have found the defendant not guilty of felony eluding but guilty of the lesser-included offense, that that the conviction was supported by sufficient evidence was not against the overwhelming weight of the evidence, and that the argument that testimony from revocation hearing should not have been admitted was procedurally barred.
(9-1-0: Judge Westbrooks concurred in result only without separate written opinion)

NOTE – I love it when an opinion comes right out with a roadmap like this one:

Having that lens through which to read the rest of the opinion saves the reader from spending a few pages feeling like he or she is trying to solve a mystery. I think this applies to brief writing as well and I do not always do this well.

Gardner v. Jackson, 2020-CA-01313-COA (Civil – Medical Malpractice)
Affirming a directed verdict in favor of a doctor in a medical malpractice case, holding that the circuit court did not err in granting the directed verdict based on the plaintiff’s failure to properly establish the national standard of care through expert testimony.
(9-0: Judge Emfinger did not participate)

Sims v. State, 2021-KA-00682-COA (Criminal – Felony)
Affirming conviction of capital murder, holding that the conviction was supported by sufficient evidence and the verdict was not against the overwhelming evidence and holding that the circuit court did not err in admitting an autopsy photo because there was probative value in showing the cause of death.
(10-0)

McGilberry v. Ross, 2021-CP-01076-COA (Civil – Legal Malpractice)
Affirming summary judgment dismissing a legal malpractice suit, holding that the plaintiff failed to produce any proof that the defendant breached the standard of care or her duty of loyalty and holding that the pro se appellant failed to cite authority or credible evidence to support her remaining claims.
(9-1-0: Judge Wilson concurred in result only without separate written opinion)

$153,340.00 v. State, 2020-CA-01409-COA (Civil – Other)
Affirming judgement of civil asset forfeiture, holding that the evidence supported forfeiture because the respondent provided no evidence that the money belonged to him other than his own testimony which lacked credibility, that the forfeiture was not an “excessive fine,” and that the evidence that the respondent met a drug-courier profile was sufficient to support the forfeiture.
(5-2-2: Judge McCarty concurred in part and in the result without separate written opinion; Judge Wilson concurred in the result only without separate written opinion; Judge McDonald dissented without separate written opinion; Judge Westbrooks dissented, joined by Judge McDonald and joined in part by Judge McCarty; Judge Emfinger did not participate.)

Other Orders

Prowell v. Nationstar Mortgage LLC, 2021-CA-00055-COA (denying rehearing)

Hand Down List