The Mississippi Court of Appeals handed down six opinions today. All are criminal law or criminal law adjacent, however there is one case discussing the form of the jury’s verdict that is more broadly applicable.
McDonald v. State, 2022-KA-01073-COA (Criminal – Felony) Affirming conviction of possession of a firearm by a felon, holding that the verdict was not against the overwhelming weight of the evidence. (8-2-0: Westbrooks and McDonald concurred in result only without separate written opinion)
Wilson v. State, 2023-CA-00070-COA (Civil – PCR) Affirming denial of motion for PCR, holding that the motion was untimely and that the petitioner failed to establish an exception to the time bar. (9-1-0: McDonald concurred in result only without writing)
Lathan v. State, 2022-KA-00927-COA (Criminal – Felony) Affirming a juvenile’s conviction of second-degree murder and 40-year sentence, holding that the court did not err by accepting a verdict form that did not conform to the instructions but that nonetheless conveyed the jury’s intent in a reasonably clear manner and did not err in sentencing the juvenile because neither Jones nor Miller applied. (10-0)
NOTE – Here is the Court’s explanation of the verdict form:
The Court also noted that the defendant did not object and that the jury was polled and that all agreed with the verdict.
PRACTICE POINT – This decision is worth reading for its succinct discussion on the form of the verdict issue. It packs a lot into two pages and may come in handy for your next big verdict form dispute.
Haley v. Brewer, 2023-SA-00571-COA (Civil – State Boards and Agencies) Affirming the trial court’s denial of an inmate’s suit protesting a facility transfer, holding that the inmate had no protected liberty interest in his housing assignment within MDOC. (10-0)
Spralls v. State, 2023-KA-00347-COA (Criminal – Felony) Affirming conviction of burglary of an automobile, holding that a review of counsel’s Lindsey brief and an independent review of the record that there was no reversible error. (10-0)
Turnage v. State, 2023-KA-00432-COA (Criminal – Felony) Affirming conviction of possession of a controlled substance, holding that the trial court did not err in denying the defendant’s motion to suppress because there was substantial evidence that the police had probable cause to search his vehicle under the plain view exception or in finding the automobile exception allowed for a complete search of his truck. (8-2-0: McDonald concurred in part and in the result without writing; Westbrooks concurred in result only without writing)
Other Orders
Hunter v. State, 2022-CP-01269-COA (dismissing untimely pro se motion for rehearing)
Gleason v. State, 2023-CP-00357-COA (denying rehearing)
Anderson v. Grabmiller, 2023-CA-00593-COA (dismissing appellee’s motion to strike appellant’s reply brief as moot after appellee’s notice of withdrawal and denying appellant’s motion for attorney’s fees and expenses)
Wilson v. State, 2023-CP-01050-COA (denying State’s motion to dsimiss and denying pro se appellant’s motion to preclude the State from filing a responsive brief)
[Edited to correct the year in the title. I am behind, but I am not a whole year behind.]
I was about snowed under last week so I am trying to catch up here a bit. The Mississippi Court of Appeals handed down four opinions on February 6 and another nine on February 13.
February 6, 2024
Porter v. State, 2023-CP-00091-COA (Civil – Other) Vacating the trial court’s denial of a request to be reclassified as a non-habitual offender, holding that the petitioner was not a habitual offender but that his claims were filed in the wrong county so the case was remanded with instructions for the trial court to transfer to the appropriate county. (9-0: Smith did not participate)
Gilmore v. State, 2023-CP-00527-COA (Civil – PCR) Affirming denial of PCR motion, holding that the trial court did not err in finding that the motion was time-barred and not subject to any of the exceptions. (9-0: Emfinger did not participate)
Ellis v. Turner-Johnson Dodge, Inc., 2022-CA-01126-COA (Civil – Contract) Affirming the county court’s order compelling arbitration, holding that there was a valid, binding arbitration agreement and that the dispute was within the scope of the agreement. (7-2: Westbrooks and McDonald dissented; Smith did not participate)
Practice Point – Cite the record early and often in your briefs:
Moates v. State, 2022-KA-01062-COA (Criminal – Felony) Affirming conviction of first degree murder, burglary of a dwelling under circumstances likely to terrorize, and simple domestic violence, holding that the trial court did not err in denying a motion to sever the first-degree murder charge, that the trial court did not abuse its discretion in admitting evidence of prior bad acts, that the evidence was sufficient to support the simple domestic violence conviction, and that retroactive misjoinder argument was moot. (10-0)
Practice Point – This is a good reminder that “prejudice” is not the test under Rule 403.
Other Orders
Gilbert v. State, 2021-KA-01265-COA (denying rehearing)
Kilcrease v. City of Tupelo, 2022-KM-00194-COA (denying rehearing)
Williams v. Bryant, 2022-CA-00630-COA (Civil – Wills, Trusts & Estates) Affirming the chancellor’s decision in a will contest, holding that the chancellor did not err in determining that there was a confidential relationship but that the evidence did not show abuse or suspicious circumstances or active involvement in procurement or execution of the will that would create a presumption of undue influence. (9-1-0: McDonald concurred in part and in the result without separate written opinion)
Allen v. State, 2022-KA-00935-COA (Criminal – Felony) Affirming conviction of capital murder, holding that the trial court did not err in refusing to instruct the jury on the defendant’s alternative defense theory of heat-of-passion manslaughter. (10-0)
Netherland v. State, 2022-CP-01236-COA (Civil – PCR) Affirming the circuit court’s denial of a PCR motion, holding that the circuit court did not err in finding that the petitioner’s Fourth, Fifth, and Fourteenth Amendment rights were not violated when law enforcement recorded the petitioner selling drugs to an informant and that there was no merit to the ineffective-assistance-of-counsel claim. (10-0)
Brooks v. State, 2022-KA-01016-COA (Criminal – Felony) Affirming conviction of burglary of a dwelling, simple assault domestic violence, and possession of a firearm by a felon, holding that the conviction for possession of a firearm was not against the overwhelming weight of the evidence. (8-2-0: Barnes and Westbrooks concurred in part and in the result without writing)
EEECHO Inc. v. Mississippi Dept. Env’t Quality Permit Bd, 2022-SA-01068-COA (Civil – State Boards and Agencies) Affirming the chancery court’s decision affirming MDEQ’s Permit Board’s decision to issue water quality certifications, holding that the Permit Board did not err by not making factual findings regarding the possible storage of explosive ammunition, that the Permit Board’s failure to issue a revise public notice was not arbitrary or capricious, that the Permit Board’s decision that the subject property was preferable to the alternative project sites, and that the Permit Board’s failure to conduct an environmental justice review. (8-2: McDonald dissented, joined by Westbrooks; Westbrooks dissented without writing)
Smith v. Smith, 2022-CA-00183-COA (Civil – Domestic Relations) Affirming in part and reversing in part the chancery court’s child custody and division or martial estate decisions, holding that the chancellor did not err or abuse his discretion in awarding custody to the father or in his visitation ruling, but that the chancellor erred by classifying one of the father’s businesses as separate property. (10-0)
Wade v. State, 2022-CA-00370-COA (Civil – PCR) Affirming the trial court’s denial of a PCR motion, holding that the trial court’s decision that the plea was voluntary and intelligent notwithstanding the petitioner’s low intellectual ability, that there was no merit to the ineffective-assistance-of-counsel claim, and that Miller did not apply because the felony convictions did not mandate life imprisonment. (6-4-0: Emfinger concurred in part and in the result without writing; Carlton, Westbrooks, and McDonald concurred in result only without writing)
Hunter v. State, 2022-CP-01269-COA (Civil – PCR) Affirming denial of PCR motion, holding that the circuit court did not err in denying the motion as untimely. (10-0)
Clarksdale Pub. Utilities Comm’ v. Miss. Dept. of Emp’t Sec., 2022-CC-01085-COA (Civil – State Boards & Agencies) Affirming the circuit court’s decision affirming MDES Review Board’s decision approving unemployment benefits, holding that MDES was not collaterally estopped from making the benefits decision as a result of MDEC and CPOC having different standards and definitions of misconduct, that the ALJ did not err in refusing the admit 900 pages of exhibits that the employer offered for lack of foundation, and that there was sufficient evidence in the record to support the ALJ’s findings. (3-2-3: Westbrooks and McCarty concurred in part and in the result without writing; Wilson concurred in the result only without writing; Greenlee concurred in part and dissented in part without writing; Carlton concurred in part and dissented in part, joined by Greenlee and Lawrence; Barnesn did not participate)
Other Orders
Bradshaw v. Bradshaw, 2017-CT-01731-COA (granting motion to seal file on appeal)
Odom v. State, 2021-KA-00676-COA (denying rehearing)
Harrison v. Harrison, 2022-CA-00274-COA (denying rehearing)
Litton v. Litton, 2022-CA-00712-COA (denying rehearing)
Johnson v. Drake, 2022-CA-00818-COA (denying rehearing)
Forrest v. State, 2022-KA-00844-COA (granting pro se letter motion to recall mandate)
Patel v. State, 2022-CA-00985-COA (denying rehearing)
Fox v. State, 2022-KA-00988-COA (granting motion to expedite mandate)
Harvey v. State, 2023-CT-00157-COA (recalling mandate sua sponte)
Clark v. State, 2023-TS-01116-COA (granting motion to proceed out of time)
Odom v. State, 2023-TS-01165-COA (granting public defender’s motion withdraw, to substitute counsel, and respond to order to show cause)
Winn Dixie Stores v. Little, 2023-WC-01177-COA (granting motion to dismiss appeal as interlocutory)
Holifiend v. State, 2023-TS-01320-COA (granting motion to proceed out of time)
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)
The Mississippi Court of Appeals handed down eight opinions on Tuesday. The Court covered a lot of subject matter including trusts, unemployment benefits, workers’ comp, and several direct appeals of criminal convictions.
Rutland v. Regions Bank, 2022-CA-00720-COA (Civil – Wills, Trusts & Estates) Affirming the circuit court’s grant of summary judgment in favor of a trustee who filed a dec action seeking a judgment that the trust did not have to pay funeral expenses, holding that the circuit court did not err in finding that the trust was irrevocable, was not terminated by a subsequent divorce, and that the contents of the trust should be disbursed to the children. (10-0)
Black v. State, 2022-KA-01101-COA (Criminal – Felony) Affirming conviction of capital murder based on robbery, holding that the circuit court did not err in rejecting the defendant’s manslaughter instruction, in sustaining the State’s objection to defense counsel calling a detective a “liar” during closing, or in not issuing a cautionary instruction regarding the written transcript of the defendant’s interview with law enforcement. (8-1-1: McDonald concurred in part and in the result without writing; Westbrooks concurred in part and dissented in part without writing)
Coe Law Firm PLLC v. MDES, 2022-CC-01285-COA (Civil – State Boards & Agencies) Affirming the circuit court’s order dismissing the employer’s appeal of the MDES Board of Review’s order upholding the ALJ’s grant of unemployment benefits, holding that the employer failed to show good cause for not appearing at the ALJ de novo hearing and that issues of misconduct by the employee were therefore moot. (10-0)
Jones v. State, 2022-KA-01199-COA (Criminal – Felony) Affirming conviction of attempted aggravated assault with a firearm enhancement, holding that the verdict was not against the overwhelming weight of the evidence. (9-1-0: McCarty concurred in part and in the result without writing)
Simmons v. State, 2022-KA-01260-COA (Criminal – Felony) Affirming conviction of receiving stolen property and first-degree murder, holding that the circuit did not err in denying the defendant’s motion for JNOV where the evidence was sufficient for both conviction and that the verdict was not against the overwhelming weight of the evidence. (10-0)
MTD Products, Inc. v. Moore, 2023-WC-00199-COA (Civil – Workers’ Comp) Affirming the MWCC’s award of PPD for 50 weeks for an upper-left extremity injury, holding that substantial evidence support the MWCC’s finding that the claimant sustained a 25% industrial loss of use that exceeded her 15% functional medical impairment where the claimant’s job duties had to be modified and she was reassigned to different tasks after her injury. (10-0)
Vlasak v. State, 2022-CP-01211-COA (Criminal – Felony) Dismissing appeal of the circuit court’s denial of a motion for reconsideration after denying the defendant’s motion to modify sentence that was filed after a guilty plea that was filed after the term of court ended, holding that that the circuit court correctly found that this was essentially a direct appeal after a guilty plea. (10-0)
Gilmer v. State, 2022-KM-00257-COA (Criminal – Misdemeanor) Affirming the circuit court’s decision affirming the county court’s order dismissing an appeal of a conviction in justice court of willfully discharging a firearm towards a dwelling and disturbing the peace, holding that there was no error in dismissing the appeal after the defendant failed to appear at his trial de novo. (8-1-0: Wilson concurred in part and in the result without writing; Emfinger did not participate)
Other Orders
Smith v. State, 2020-KA-00774-COA (denying rehearing)
White v. State, 2021-KA-00818-COA (denying rehearing)
Hobby v. Ott, 2021-CA-01305-COA (denying rehearing)
Ndicu v. Gacheri, 2022-CA-00415-COA (denying rehearing)
Wheeler v. Miss. Limestone Corp., 2022-WC-00534-COA (denying rehearing)
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)
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)
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)
The Mississippi Court of Appeals handed down six opinions today. We have a couple of state boards and agencies decisions, one dealing with recall of a police officer’s certification and the other with a termination of a teacher and suspension of license. There is a real property case involving a church and the invocation of the “ecclesiastical abstention doctrine,” a direct criminal appeal, and two PCR cases.
As a housekeeping note, I have started writing “sub silentio” instead of “without separate written opinion” to indicate concurrences and dissents without separate written opinions. I am not aware of that phrase being used in that specific manner, but I think it gets the point across. This may not seem like a big deal, and it really isn’t, but the frequency with which I have been typing “without separate written opinion” has become a thief of joy for this humble blogger of case summaries.
Walters v. Board on Law Enforcement Officer Standards and Training, 2022-SA-00378-COA (Civil – State Boards and Agencies) Affirming the chancery court’s decision affirming Board’s decision to recall a police officer’s processional certification, holding that the Board’s decision was not arbitrary and capricious, did not violate the former officer’s constitutional rights, and were supported by substantial evidence including evidence of unnecessary force, violations of department policies, and racist text messages. (10-0)
NOTE– The Court also granted in part a motion from the Board to unseal the case file.
Pickle v. State, 2022-CP-00929-COA (Civil – PCR) Affirming the circuit court’s decision denying a motion to vacate a sentence for capital murder while committing criminal rape from 1978, holding that the petitioner was not illegally sentenced and that he was not entitled to a Miller resentencing hearing. (8-2-0: Emfinger concurred in part and in the result sub silentio; Lawrence concurred in the result only sub silentio.)
Greater New Hamilton Grove Baptist Church v. Hamilton Grove Missionary Baptist Church, 2022-CA-00518-COA (Civil – Real Property) Affirming the chancellor’s ruling that a deed purporting to convey real property owned by a church was invalid because it was not authorized by a resolution under section 79-11-31(1), holding that the chancellor was not deprived of subject matter jurisdiction under the “ecclesiastical abstention doctrine,” that the “minutes rule” was not applicable because a church is not a public board, and the chancellor did not abuse her discretion in granting the plaintiff leave to file an amended complaint. (10-0)
NOTE – I thought the Court’s summary of its decision on the ecclesiastical abstention doctrine was interesting:
Badger v. State, 2022-CP-00831-COA (Civil – PCR) Affirming denial of the petitioner’s third motion for PCR twelve years after pleading guilty, holding that the circuit court did not err in finding that the motion was time-barred and did not meet any statutory exception under the UPCCRA or any fundamental rights exception that was in effect at that time. (8-2-0: Westbrooks concurred in result only sub silentio.)
Langley v. Miss. State Board of Education, 2022-SA-01024-COA (Civil – State Board and Agencies) Affirming the BOE’s decision upholding a teacher’s termination for violations of the BOE’s standards of conduct, suspending her license for five years, and placing conditions on reinstatement, holding that the Commission’s decision as upheld by the Board and the chancery court was supported by substantial evidence and was not arbitrary or capricious, the Commission was authorized to suspect her license, and she was afforded due process at her hearing. (10-0)
West v. State, 2022-KA-00432-COA (Criminal – Felony) Affirming conviction of sexual battery and gratification of lust, both while in position of trust and authority, holding that the defendant’s sufficiency of the evidence argument was procedurally barred because it was not raised before the circuit court and that the circuit court did not commit plain error in not sua sponte declaring a mistrial. (5-3-2: Barnes, McDonald, and Emfinger concurred in part and in the result sub silentio; Greenlee concurred in part and dissented in part sub silentio; Westbrooks concurred in part and dissented in part, joined by McDonald and Greenlee in part)
Other Orders
Wakefield v. State, 2021-KA-00187-COA (denying rehearing)
Estate of Bell v. Estate of Bell, 2021-CA-00789-COA (denying rehearing)
Anderson v. State, 2021-KA-01340-COA (denying rehearing)
McDowell v. State, 2021-CA-01381-COA (denying rehearing)
Everett v. State, 2021-CP-01415-COA (denying rehearing)
The Mississippi Supreme Court handed down two opinions in direct criminal appeals today. One involved the adequacy of the indictment and sentencing as a habitual offender. The other raised issues of weight and sufficiency of evidence, the trial court’s failure to rule on an objection during trial, closing argument, and the racial composition of the jury. One ended in a reversal and the other an affirmance.
Young v. State, 2021-KA-00940-SCT (Criminal – Felony) Reversing sentence as a habitual offender, holding that the indictment failed to comply with Rule 14.1(b)(1) but defendant waived the issue of defective indictment by failing to object to it in the trial court but also holding that the evidence was insufficient to support the habitual offender sentence and remanding for resentencing. (9-0)
Redd v. State, 2022-KA-00175-SCT (Criminal – Felony) Affirming conviction of aggravated assault causing bodily injury, holding that the verdict was supported by sufficient evidence and not against the overwhelming weight of it, that the defendant waived his objection to testimony by failing to request corrective action from the trial court, that the State was entitled to draw inferences from facts in the record during closing, and that the issue of the racial composition of the jury was procedurally barred and without merit because the defendant did not object to the racial composition and the record was silent about the composition. (9-0)
Other Orders
In Re: Mississippi Rules of Appellate Procedure, 89-R-99027-SCT (amending Miss. R. App. P.)
Parker v. Ross, 2020-CT-01055-SCT (denying motion for costs)
Yarborough v. Singing River Health Systems, 2021-CT-00668-SCT (denying cert)
The Banking Group, Inc. v. Southern Bancorp Bank, 2021-CT-01077-SCT (denying cert)
I was out of the office all day yesterday for a deposition in Gulfport (photographic evidence, infra), so I am late posting yesterday’s decisions. There were two opinions from the Mississippi Court of Appeals yesterday. One is a direct criminal appeal of a guilty verdict that was reached after the original verdict was reversed and remanded for retrial. The other is a civil expungement case with some interesting procedural history.
Beasley v. State, 2021-KA-00948-COA (Criminal – Felony) Affirming conviction of one count of capital murder and two counts of second-degree murder, holding that the verdict was supported by sufficient evidence, that the verdict was not against the overwhelming weight of the evidence, and that the Weathersby rule did not apply so trial counsel was not deficient for failing to request an instruction or directed verdict on that basis. (9-1-0: McCarty concurred in part and in the result without separate written opinion.)
NOTE – This was the defendant’s second trial and the jury reached the same result: guilty of one count of capital murder and two counts of second-degree murder. The judgment on the first verdict was reversed because the Court of Appeals held that the trial court committed reversible error when it denied the defendant’s request for a circumstantial evidence jury instruction.
Tran v. State, 2022-CP-00094-COA (Civil – Other) Affirming denial of petition for expungement, holding that the trial court correctly ruled that the petitioner was not eligible for expungement because five years had not elapsed since the petitioner completed the terms and conditions of his sentence. (7-3: Wilson, Lawrence, and Emfinger concurred in result only without separate written opinion.)
NOTE – The second footnote in this opinion caught my eye. The petitioner filed a PCR motion in 2010 which was dismissed because he was no longer incarcerated. The COA affirmed that dismissal. The Mississippi Supreme Court overruled later overruled that decision of the COA. In yesterday’s opinion, the COA had this to say about it:
Other Order
Pitts v. State, 2021-KA-00740-COA (denying rehearing)
Mississippi Appeals Blog 