Tag: Lindsey brief

Mississippi Supreme Court Decisions of March 14, 2024

The Mississippi Supreme Court handed down four opinions last week. Three were appeals of criminal convictions and the fourth opinion was an interesting tort case discussing a party’s duties to an opposing party during voir dire.

Jackson v. State, 2023-KA-00273-SCT (Criminal – Felony)
Affirming conviction of sexual battery and sentence to life imprisonment, holding that there was no error after reviewing counsel’s Lindsey brief and the record.
(9-0)

City of Picayune v. Landry Lewis Germany Architects, P.A., 2022-CA-00909-SCT (Civil – Torts – MTCA)
Reversing a judgment against the City based on a claim that the City failed to volunteer information about a juror during voir dire in a civil trial to which the City was a party, holding: “A party litigant has no duty to party opposite to personally intervene during a trial to prevent a fraud on the court by a potential juror.”
(9-0)

Exson v. State, 2022-KA-01089-SCT (Criminal – Felony)
Affirming conviction of burglary of a dwelling, grand larceny, and first degree arson, holding that the issue of whether the State proved its evidence of the value element of the larceny statute was procedurally barred for failure to raise it in a post-trial motion and that the issue of whether the jury instructions were proper was procedurally barred and that there was no plain error.
(9-0)

Marbley v. State, 2022-KA-01280-SCT (Criminal – Felony)
Affirming conviction of aggravated domestic violence, holding that there were no issues warranting appellate review after reviewing counsel’s Lindsey brief and the record.
(9-0)

Other Orders

In Re: Commission on Continuing Legal Education, 89-R-99011-SCT (denying petition of the Commission to amend Rule 3 of the Rules and Regulations for Mandatory Continuing Legal Education)

Ndicu v. Gacheri, 2022-CT-00416-SCT (denying cert)

Wheeler v. Mississippi Limestone Corp., 2022-CT-00534-SCT (denying cert)

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Mississippi Court of Appeals Decisions of February 7, 2023

The ever-prolific Mississippi Court of Appeals handed down nine opinions today. There is a mix of criminal, domestic, and civil cases with a unifying theme of appellees running the table.

Edwards v. State, 2021-KM-01348-COA (Criminal – Misdemeanor)
Affirming conviction of first-offense DUI, holding that there was probable cause for the traffic stop and that law enforcement was not required to inform the defendant of his right to an independent and alternative BAC test.
(10-0)

Harrison v. Howard, 2021-CA-00697-COA (Civil – Domestic Relations)
Affirming judgment of contempt for failure to comply with agreed order of modification of child custody and support, holding that the father waived improper service, that the agreed modification order was voidable but not void and he failed to timely appeal it, and that he waived the issue of termination of the mother’s child support obligation by not timely objecting or appealing.
(7-3-0: Wilson, McCarty, and Emfinger concurred in part and in the result without separate written opinion.)

Washington v. State, 2021-KA-01041-COA (Criminal – Felony)
Affirming conviction of capital murder and armed robbery, holding that the trial court’s comments to the jury that this was not a death penalty case was appropriate clarification of fact and did not prejudice the jury, that the defendant did not prove that the State’s loss of a video lineup was not bad faith, that there was no proof that inadmissible portions of video testimony were played to the jury and so it is presumed that the trial court’s order sustaining an objection to the inadmissible testimony was heeded, and that if admitting a handgun into evidence was error it was invited by the defendant who introduced it.
(7-3-0: Wilson, McCarty, and Emfinger concur in part and in the result without separate written opinion.)

Pace v. State, 2022-KA-00046-COA (Criminal – Felony)
Affirming conviction of first-degree murder, holding that the verdict was supported by sufficient evidence and was not against the overwhelming weight of the evidence, that the trial court erred in admitting photos without a proper foundation but the error was harmless, that the defendant waived the argument that the State made an improper comment during closing by not objecting, and that the trial court did not err in refusing the defendant’s self-defense instruction.
(7-2-0: Wilson and Greenlee concurred in part and in the result without separate written opinion, Smith did not participate.)

Brandon v. State, 2021-KA-01239-COA (Criminal – Felony)
Affirming conviction of possession of a firearm by a felon upon receipt of a Lindsey brief and a review of the record finding no arguable issues for appeal.
(10-0)

Lofton v. Lofton, 2021-CA-00035-COA (Civil – Real Property)
Affirming judgment in a fraudulent-transfer of real and personal property lawsuit that is tangential to a pending divorce action, holding that the chancery court did not abuse its discretion in determining that the UFTA supported a finding of fraud or in awarding the prevailing party attorney’s fees.
(9-1-0: Westbrooks concurred in the result only.)

NOTE – This is an interesting and fact-bound decision discussing the UFTA.

Mack v. State, 2021-CA-01060-COA (Civil – Other)
Affirming denial of expungement, holding that the trial court did not err in finding that the plaintiff’s conviction was related to his official duties as a police officer.
(10-0)

Clark v. Tippah County Dept. of Child Protection Services, 2021-CP-01209-COA (Civil – Custody)
Affirming judgment terminating parental rights, holding that the mother’s due process claims were procedurally barred and without merit and that the chancellor did not err in terminating parental rights.
(7-2-0: McDonald concurred in part and in the result without separate written opinion; Westbrooks concurred in the result only; Greenlee did not participate.)

West Jasper Consolidated School District v. Rogers, 2021-CA-00171-COA (Civil – Contract)
Affirming chancery court’s judgment that the school district breached 16th section lease terms regarding rent adjustments, holding that the chancery court had subject matter jurisdiction, applied the correct standard of review, did not err in finding no material breach by appellees, did not err in overturning the county board’s ruling, and did not err in denying attorney’s fees to the appellant.
(10-0)

Other Orders

La Casa I, LLC v. Gottfried, 2021-CA-00347-COA (denying rehearing)

Belmer v. State, 2021-CP-00398-COA (denying rehearing)

Davis v. State, 2021-KA-00593-COA (denying rehearing)

Howard Industries, Inc. v. Hayes, 2021-WC-00694-COA (denying rehearing)

Meek v. Cheyenne Steel, Inc., 2021-WC-01219-COA (denying rehearing)

Hand Down List

Mississippi Court of Appeals Decisions of November 8, 2022

The Mississippi Court of Appeals covered a lot of territory in six opinions handed down today. They areas covered include divorce, criminal issues, MTCA police-protection immunity, third-party liability for work injuries, criminal, and one PCR case for good measure.

King v. State, 2021-CA-01145-COA (Civil – PCR)
Affirming the circuit court’s denial of a PCR motion, holding that there was no merit to the claim that his guilty plea was not voluntary or to his ineffective assistance claim.
(9-0: Judge Emfinger did not participate)

Owens v. State, 2021-KA-01256-COA (Criminal – Felony)
Affirming conviction of being a felon in possession of a firearm after receiving a Lindsey brief, receiving no pro se brief, and reviewing the record and concluding no issue warranted reversal.
(9-0: Judge Smith did not participate)

Blount v. State, 2021-KA-00204-COA (Criminal – Felony)
Affirming conviction of possession of meth after a jury trial in absentia, holding that the trial court did not abuse its discretion in denying the defendant’s request for a continuance after concluding that the defendant waived his right to be present at trial.
(7-1-2: Judge Wilson concurred in part and in the result without separate written opinion; Judge McDonald concurred in the result only without separate written opinion; Judge McCarty dissented, joined in part by Judge McDonald.)

Practice Point – Don’t possess meth and then miss your trial date. As Bob Dylan reminds us, “To live outside the law, you just be honest.”

Alves-Hunter v. Hunter, 2021-CA-00644-COA (Civil – Domestic Relations)
Affirming decisions in a divorce proceeding, holding that the chancellor did not commit reversible error in awarding the father standard visitation with their child, dividing the martial estate, or denial of attorneys fees after a contempt finding.
(10-0)

Tennesen v. City of Hattiesburg, 2021-CA-00137-COA (Civil – State Boards and Agencies/MTCA)
Affirming judgment for the defendants in a personal injury case brought under the MTCA stemming from a police chase, holding that the circuit court did not err in finding that the police officer did not act with reckless disregard and that the City was entitled to police-protection immunity.

Mayberry v. Cottonport Hardwoods, 2021-CA-00246-COA (Civil – Workers’ Comp)
Reversing summary judgment in favor of a defendant in a third-party lawsuit arising from a workers’ comp injury, holding that the defendant at issue was not an “up the line” contractor but instead was the owner of the project and was therefore a third-party not entitled to exclusive remedy immunity.
(6-4: Judge Carlton dissented, joined by Judge Greenlee, Judge McCarty, and Judge Smith.)

Practice Point – This is a fact-intensive opinion. It does not appear to disturb the general rule that “up the line” contractors are entitled to MWCA immunity as long as they are true contractors.

Other Orders

Moffett v. State, 2021-KA-00622-COA (denying rehearing)

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Mississippi Court of Appeals Decisions of October 25, 2022

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

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

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

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

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

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

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

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

Other Orders

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

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