Tag: PCR

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 Court of Appeals Decisions of January 23, 2024

The Mississippi Court of Appeals handed down nine opinions on Tuesday. There is a workers’ comp case, a homeowner v. HOA dispute with a robust discussion of Robert’s Rules of Order, a personal injury appeal after an underwhelming verdict for the plaintiff with some significant discovery/evidentiary rulings, a tortious interference case stemming from a grocery wholesaler’s default on financial obligations, three direct criminal appeals, and a couple of PCR cases.

Kirby v. State, 2022-KA-00320-COA (Criminal – Felony)
Affirming conviction of first-degree murder and two counts of possession of a weapon by a felon, holding that the defendant failed to show that his trial counsel was ineffective, that the court did not abuse its discretion by limiting cross-examination of a rebuttal witness for the State, and that the verdict was supported by sufficient evidence.
(10-0)

Harris v. State, 2022-KA-00647-COA (Criminal – Felony)
Affirming conviction of touching a child for lustful purposes as an authority figure, holding that the circuit court did not commit reversible error by admitting a video recording of the defendant’s police interview after the detective had already testified about the interview, holding that the evidence was sufficient to support the verdict, and declining to address the ineffective-assistance-of-counsel claim on direct appeal.
(10-0)

Buena Vista Lakes Maintenance Ass’n, Inc. v. Jones, 2022-CA-01153-COA (Civil – HOA)
Reversing the chancery court’s decision in a homeowner v. HOA dispute over the interpretation of bylaws, holding that the bylaws were not ambiguous and that a two-thirds majority of eligible votes cast at the meeting was required as opposed to two-third majority of those eligible to vote and holding that the chancellor erred in finding that the HOA’s bad on rental properties was against public policy.
(10-0)

NOTE – Robert’s Rules of Order had a moment here.

Divinity v. Hinds Cty Sch. Dist., 2022-WC-01282-COA (Civil – Workers’ Comp)
Affirming the MWCC’s decision after a hearing on the merits, holding that there was substantial evidence to support the Commission’s finding that the claimant’s upper extremity complaints were not among the injuries she sustained in her work-related accident and that the Employer/Carrier was not required to pay for a spinal cord stimulator and certain prescriptions.
(9-0: Carlton did not participate)

NOTE – This was a pro se appeal and the procedural history was convoluted.

Boyett v. State, 2022-CP-01239-COA (Civil – PCR)
Affirming the circuit court’s denial of a motion for PCR, holding that the motion was time-barred.
(10-0)

Duncan v. State, 2023-CP-00406-COA (Civil – PCR)
Affirming denial of motion for PCR, holding that the circuit court did not err in finding the PCR motion moot because the petitioner had been released on parole.
(10-0)

Harris v. Ratcliff, 2022-CA-00596-COA (Civil – Personal Injury)
Affirming the trial court’s denial of the plaintiff’s motion for new trial or additur after the jury returned a verdict for the plaintiff in an amount significantly less than the plaintiff’s claimed medical expenses, holding that the trial court did not abuse its discretion in granting the defendant’s additional time to designate experts, in striking one of the plaintiff’s experts at trial after the expert began testifying based on notes that had not been disclosed (to the surprise of both sides), in denying the plaintiff’s request to substitute an expert for another expert who was in a coma where the plaintiff was prepared to use the expert’s video testimony at trial, or in excluding a DTI brain scan.
(7-2: Westbrooks and McDonald concurred in part and dissented in part; McCarty did not participate)

Edwards v. State, 2022-KA-00719-COA (Criminal – Felony)
Affirming conviction of attempted capital murder of a chancery court judge, holding that the trial court did not abuse its discretion by allowing testimony from two law enforcement officers regarding information they received during their investigation because it was offered for purposes other than to prove the truth of the matter asserted.
(9-1-0: Lawrence concurred in part and in the result without separate written opinion)

Silver Dollar Sales, Inc. v. Battah, 2022-CA-00476-COA (Civil – Torts)
Affirming the trial court’s grant of a directed verdict in favor of one defendant in a case stemming from a grocery wholesaler’s default on its debts to a financing company, holding that the plaintiff failed to prove that one defendant (another grocery wholesaler) committed tortious interference with business relations or that anything that defendant did proximately caused actual damages to the plaintiff.
(8-2: McDonald dissented, joined by Westbrooks)

Other Orders

In the Matter of the Guardianship of B.P.: Michael P. v. Patrick Thomas and Jennifer Thomas, 2021-CA-01288-COA (denying rehearing)

Tubwell v. FV-1, Inc., 2021-CP-01345-COA (denying rehearing)

Washington v. State, 2021-KA-01384-COA (denying rehearing)

Ramsey v. State, 2022-CP-00103-COA (denying rehearing)

Prophet v. State, 2022-CA-00933-COA (denying rehearing)

Hall v. State, 2022-CP-01097-COA (denying rehearing)

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Mississippi Supreme Court Decisions of January 11, 2024

The Mississippi Supreme Court handed down four opinions and entered an impressive sixteen “other orders” today. The opinions are a direct criminal appeal, an ecclesiastical abstention case, a precedent-overruling PCR case, and a contract case deciding whether a post-mediation agreement was enforceable. Among the sixteen other orders is an order amending Rule 54 of the Mississippi Rules of Civil Procedure that civil practitioners should note.

Hawkins v. State, 2022-KA-01250-SCT (Criminal – Felony)
Affirming conviction of sexual battery, holding that there was sufficient evidence for a reasonable jury to find based on the totality of the circumstances that the defendant was in a position of trust or authority over the victim.
(9-0)

Melton v. Union Hill Missionary Baptist Church, 2022-CA-00737-SCT (Civil – Other)
Reversing and vacating the chancery court’s judgment in a dispute over whether a church had been removed its pastor, holding that the doctrine of ecclesiastical abstention put this question outside of the chancery court’s jurisdiction and that the well-meaning chancellor violated the Mississippi Constitution and the Establishment Clause when he personally moderated a congregational meeting to hold a second vote on the pastor and declared the church’s sanctuary a courtroom.
(9-0)

NOTE – The Court also had this to say about the congregational meeting:

Ronk v. State, 2021-DR-00269-SCT (Civil – PCR)
Affirming denial of motion for relief from judgment or for leave to file successive petition for PCR that included an ineffective assistance claim, overruling Grayson v. State to the extent it excepted ineffective-assistance-of-post-conviction-counsel claims from the UPCCRA’s bars in death-penalty cases, based on the recent Howell decision.
(6-3: Kitchens dissented, joined by King and Ishee)

Logan v. RedMed, LLC, 2022-CA-00669-SCT (Civil – Contract)
Reversing the trial court’s judgment enforcing a settlement following a mediation, holding that the proposed settlement agreement that resulted from the mediation lacked material terms required by Mississippi contract law.
(6-3: Chamberlin dissented, joined by Maxwell and Beam)

Other Orders

In Re: The Rules of Civil Procedure, 89-R-99001-SCT (amending Rule 54, effective January 18, 2024)

NOTE – Here is the amended text of Rule 54(d):

And here is the amended Advisory Committee Historical Note:

In Re: The Rules of Discipline for the Mississippi Bar, 89-R-99010-SCT (appointing or reappointing Hon. Eleanor Faye Peterson, Clarence Webster III, Jackye C. Bertucci, Hon. Mark A. Maples, Hon. Celeste E. Wilson, and Charles Elliott Winfield as complaint tribunal members for three-year terms from January 1, 2024, through December 31, 2026)

Flynt v. State, 2016-M-00862 (denying PCR motion, finding the motion frivolous, and warning that future frivolous filings might result in sanctions)

Williams v. State, 2016-M-01063 (denying PCR motion, finding the motion frivolous, and warning that future frivolous filings might result in sanctions)

Cavitt v. State, 2018-M-00197 (denying PCR motion, finding the motion frivolous, and warning that future frivolous filings might result in sanctions)

Ronk v. State, 2021-DR-00269-SCT (denying motion for relief from judgment or leave to file successive PCR petition)

Howard Industries, Inc. v. Hayes, 2021-CT-00694, consolidated with 2021-CT-00695 (granting appellee’s motion for attorney’s fees for additional services provided and denying rehearing)

Christian v. State, 2021-M-00807 (denying PCR motion, finding the motion frivolous, and warning that future frivolous filings might result in sanctions)

Priceline.com, LLC v. Fitch, 2021-CA-00868-SCT (denying rehearing)

Johnson v. Johnson, 2021-CT-01080-SCT (denying cert)

Ehrhardt v. State, 2021-CT-01143-SCT (denying cert)

Pearson v. Eubanks, 2022-CT-00011-SCT (granting cert)

Brown v. State, 2022-CT-00069-SCT (denying cert)

Roosa v. Roosa, 2022-CT-00128-SCT (denying cert)

Tarvin v. State, 2022-M-00260 (denying PCR motion, finding the motion frivolous, and warning that future frivolous filings might result in sanctions)

The Mississippi Bar v. Russell, 2023-BD-00843-SCT (granting petition to transfer lawyer to disability inactive status)

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Mississippi Supreme Court Decisions of December 7, 2023

The Mississippi Supreme Court handed down one opinion on Thursday. It was a 5-4 split over whether the petitioner who was sentenced to mandatory life without parole as a minor before Miller had a statutory right to be resentenced by a jury.

Dampier v. State, 2021-CT-00280-SCT (Civil – PCR)
Affirming sentence of life without parole after the trial could conducted a hearing and considered the Miller factors, holding that there was no statutory right to be resentenced by a jury under section 99-19-101(1) under the facts of this case.
(5-4: Coleman dissented, joined by Kitchens, King, and Ishee)

NOTE – The majority provided some procedural clarification:

The dissent took issue with the fact that a jury had never weighed the applicable statutory aggravating and mitigating factors:

Other Orders

Manning v. State, 95-DP-00066-SCT (holding State’s motion to lift stay of execution, set execution date, and dismissing second successive PCR motion in abeyance until the Court rules on the petitioner’s motion for leave to file successive petition for PCR)

Galloway v. State, 2013-DR-01796 (denying motion to stay mandate pending cert; denying rehearing)

Parisie v. State, 2017-M-00685 (denying application for leave to proceed in the trial court pro se, finding the filing was frivolous, and waning that future frivolous filings could result in sanctions)

S.F. v. Lamar Cnty. Dept. of Child Protection Servs., 2021-CA-00466-SCT (denying rehearing)

Lewis v. State, 2021-CT-00472-SCT (denying cert)

Renfroe v. Parker, 2021-CT-01048-SCT (denying cert)

Herbert v. Herbert, 2021-CT-01291-SCT (dismissing cert petition)

Tran v. State, 2022-CT-00094-SCT (denying cert)

Wells v. State, 2022-CT-00157-SCT (denying cert)

Z.E.F. v. Lamar Cnty. Dept. of Child Protection Servs., 2022-CA-00695-SCT (denying rehearing)

Sanders v. Reeves, 2022-CT-01059-SCT (denying cert)

Madakasira v. Irby, 2023-M-00604-SCT (denying petition for interlocutory appeal)

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Mississippi Court of Appeals Decisions of November 28, 2023

The Mississippi Court of Appeals handed down five opinions today. There are two domestic cases (custody and divorce), an appeal of summary judgment, a real property/arbitration case, and a PCR case.

Scott v. Boudreau, 2022-CA-00961-COA (Civil – Custody)
Affirming judgment modifying custody and awarding the father custody, holding that the chancery court did not abuse its discretion in analyzing the Albright factors and awarding custody to the father which required relocating the children.
(8-1-1: Wilson concurred in part and in the result without writing, McDonald concurred in part and dissented in part without writing)

Malone v. State, 2022-CP-00958-COA (Civil – PCR)
Affirming denial of a PCR motion, holding that the petitioner entered his guilty plea voluntarily and the circuit court did not err on the issue of competency where the circuit court made an on-the-record determination of competency and that the petitioner’s attorney’s performance was not deficient.
(7-3-0: Wilson, Westbrooks, and McCarty concurred in part and in the result without writing)

MDL Community Development, LLC v. Dillon, 2022-CA-00802-COA (Civil – Real Property)
Affirming the chancellor’s decision withdrawing an order and reiterating a prior order compelling arbitration, holding that the chancellor had subject matter jurisdiction over the land-contract dispute and retaind jurisdiction to enforce an arbitration decision, if any.
(10-0)

Cannon v. Cannon, 2022-CA-00410-COA (Civil – Domestic Relations)
Affirming in part and reversing in part the chancellor’s grant of divorce and related matters, holding the chancellor did not err in granting divorce on the ground of cruel and inhuman treatment or in finding that the proceeds from the sale of the ex-wife’s separate home were converted to marital property, but holding that the chancellor erred in determining that the ex-husband’s real estate business was separate non-martial property.
(9-1-0: Emfinger concurred in part and in the result without writing)

Jarrell v. Coastal Ear, Nose & Throat, Head and Neck Surgery Association, PLLC, 2022-CA-00910-COA (Civil – Other)
Affirming the trial court’s grant of summary judgment dismissing a former employee’s wrongful discharge claim, holding that the circuit court did not err in striking parts of the plaintiff’s affidavit that contained hearsay, lacked foundation, and were speculative statements, and that the plaintiff did not establish that the whistleblower exception to at-will employment could apply here.
(8-2-0: McDonald and McCarty concurred in part and in the result without writing)

Other Orders

Rawlings v. Rawlings, 2022-CA-00919-COA (denying motion for appellate attorney’s fees)

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Mississippi Supreme Court Decisions of November 16, 2023

The Mississippi Supreme Court handed down four opinions today. There is a lengthy personal jurisdiction case, a direct criminal appeal, a circuit vs. chancery jurisdiction dispute, and a death-penalty PCR decision.

K&C Logistics, LLC v. Old Dominion Freight Line, Inc., 2022-CA-00939-SCT (Civil – Other)
Affirming judgment of the circuit court finding no personal jurisdiction in a negligence case stemming from a car wreck in Arizona, holding that the Mississippi Business Corporation Act did not confer personal jurisdiction by virtue of the foreign corporation being registered to do business in Mississippi and that the defendant did not waive the personal jurisdiction defense when its attorneys entered appearances that did not expressly reserve the right to assert the personal jurisdiction defense.
(9-0)

Practice Point – This decision has a lengthy discussion of personal jurisdiction that is worth your time to read. On the waiver issue, the Court clarified persistent confusion over “special appearances” as follows:

Lollis v. State, 2022-KA-00711-SCT (Criminal – Felony)
Affirming conviction of murder and conspiracy to commit murder, holding that the evidence was sufficient to support the verdict on both counts.
(9-0)

Riverhills Capital Corporation v. At Home Care, Inc., 2022-IA-00568-SCT (Civil – Contract)
Affirming the circuit court’s denial of a motion to transfer a breach of contract, fraud, and quite title claim to chancery court, holding that the plaintiffs had sufficiently pleaded legal claims the circuit court did not err in denying the request to transfer to chancery court even if it is a “close call” and if the legal claims were ultimately found to be without merit.
(9-0)

Note – The Supreme Court said this about circuit court jurisdiction:

Bennett v. State, 2021-CA-01313-SCT (Civil – Death Penalty – PCR)
Affirming the denial of a PCR petition, holding that Cronic did not apply and there was no per se ineffective assistance, that the trial court’s refusal to allow the petitioner to depose two proffered witnesses did not affect the outcome of the trial, and that the petitioner failed to show ineffective assistance of counsel.
(9-0)

Other Orders

Smith v. State, 2021-CT-01003-SCT (granting cert)

Dawson v. Burgs, 2021-CT-01038-SCT (denying cert)

Baker v. State, 2021-CT-01277-SCT (denying cert)

McFarland v. State, 2021-CT-01311-SCT (denying cert)

Fagan v. Faulkner, 2022-CT-00130-SCT (granting cert)

The Mississippi Bar v. Hessler, 2023-BD-00057-SCT (granting emergency motion to clarify opinion to clarify that Hessler is authorized to continue practicing law in Mississippi while his one-year-and-a-day suspension remains in deferred status) *The “motion to clarify” is a handy item to keep in one’s tool belt. It was used here to get a result that had a significant impact on the movant.

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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 Supreme Court Decisions of November 2 and November 9, 2023

I too have noticed that I have been falling behind in summarizing weekly decisions. The Mississippi Supreme Court was pretty quite these last two weeks, so I have combined them into one post. Read to the end for a significant PCR decision.

November 2, 2023

Lamy v. Lamy, 2021-CT-00770-SCT (dismissing cert on the Court’s own motion)

Estate of Bell v. Estate of Bell, 2021-CT-00789-SCT (denying cert)

Everett v. State, 2021-CT-01385-SCT (denying cert)

November 9, 2023

Hathorne v. State, 2021-CT-00306-SCT (Civil – PCR)
Reversing the circuit court’s denial of PCR motion and the decision of the court of appeals affirming the denial, holding that the indictment was defective, that the challenge to the substantive sufficiency of the indictment could not be waived and thus was not procedurally barred, and therefore reversing the conviction and sentence and rendered judgment dismissing the indictment.
(8-0: Randolph did not participate)

NOTE – This case is a big deal. Here is now the Supreme Court wrapped up its opinion:

Other Orders

Godbolt v. State, 2020-DP-00440-SCT (denying motion to make oral arguments)

McCollum v. State, 2021-KA-01276-SCT (denying rehearing)

McDowell v. State, 2021-CT-01381-SCT (granting cert)

Powers v. State, 2023-DR-00895-SCT (denying the State’s Motion to Strike Stephen Elliot Powers’s First Supplement to Successor Petition for Post-Conviction Relief and the State’s Motion to Strike Powers’s Motion for Access to Jurors and Disclosure of Documents)

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Hand Down Page for November 9, 2023

Mississippi Supreme Court Decisions of October 5, 2023

The Mississippi Supreme Court handed down two opinions today, but do not be deceived by that stat. One of the opinions is a 100+ page decision in a death-penalty PCR case. The other is an appeal of denial a motion to compel arbitration. There is also a linked attorney-discipline case.

Galloway v. State, 2013-DR-01796-SCT (Criminal – Death Penalty – Post Conviction)
Denying motion for leave to proceed in the trial court with PCR petition, holding that (1) the petitioner failed to overcome the presumption that what trial counsel did and did not present as mitigating evidence such as the petitioner’s “true-life story” and mental health issues during the penalty phase might be considered sound trial strategy instead of ineffective assistance; (2) there was no merit to the petitioner’s claim of ineffective assistance during jury selection where counsel used no Batson challenges and an all-white jury was seated or that counsel was otherwise ineffective in voir dire; (3) there was no merit to the petitioner’s claim of ineffective assistance during guilt-innocence phase for not investigating or challenging lack of investigating/challenging the medical examiner’s testimony, in limiting the review of Defense expert’s forensic expert or failing to consult with/prepare him, in failing to assert a Miss. R. Evid. 702 pretrial challenge to the medical examiner’s testimony, or failing to object to the medical examiner’s testimony as outside the scope of the disclosed testimony; (4) there was no merit to the claim that the State corrupted the truth-seeking function of the trial by suppressing material impeachment evidence or presenting false and misleading evidence; (5) the death verdict was not unconstitutionally coerced from a holdout juror; (6) a juror’s exposure to medical coverage showing the victim violated constitutional rights; (7) a juror’s false statement during voir dire that he had not previously served on a criminal jury did not give rise to an inference of prejudice; (8) the petitioner did not show that he was prejudiced when he was placed the defendant in an electronic restraint; (9) death by lethal injection would not violate the petitioner’s rights under the Eighth Amendment or Fourteenth Amendment; and (10) there was no aggregation of errors mandating a reversal.
(9-0)

PriorityOne Bank v. Folkes, 2022-CA-00429-SCT (Civil – Contract)
Affirming denial of motion to compel arbitration, holding that the bank waived the right to arbitration by substantially participating in the litigation and did not file a motion to compel arbitration until after an amended complaint was filed.
(7-2: Griffis dissented, joined by Beam)

PRACTICE POINT – The Supreme Court’s decision appears to hinge on the fact that the amended complained did not add a new cause of action (which was in dispute). This was enough to affirm the denial of the motion to compel arbitration, but the Supreme Court made it clear the plaintiff was bound by her representation that no new claim was asserted:

Other Orders

Jarvis v. State, 2021-M-01196 (denying application for leave to proceed in the trial court, finding the filing frivolous, and warning that future frivolous filings could result in sanctions)

The Mississippi Bar v. Hessler, 2023-BD-00057-SCT (suspending an attorney from the practice of law for one year and one day, with the suspension deferred retroactively to June 22, 2022)

Wakefield v. State, 2021-CT-00187-SCT (denying cert)

Buchanan v. Hope Federal Credit Union, 2021-CT-00218-SCT (denying cert)

In Re: Resignation of Emily Bonds Davey f/k/a Emily Sides Bonds From The Practice of Law in Mississippi, 2023-BD-00963 (granting leave under Rule 11(b) of the Rules of Discipline for the Mississippi State Bar to resign in good standing from the practice of law in Mississippi)

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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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