John Knight v. State of Mississippi – criminal defendant representing himself at trial – Knight was convicted of sexually abusing his 12-year-old stepdaughter. Knight decided on representing himself at trial and was allowed to do so after he was deemed competent following a competency hearing. On appeal, his appellate counsel argues that as the trial progressed it became clear that Knight was incapable of representing himself and that the trial The COA finds that “Knight cannot decide that he wants to represent himself and then, dissatisfied without the outcome, claim that the circuit court should have saved him from himself. We are not persuaded that the circuit court should have spontaneously declared a mistrial or forced Knight to step aside so Wallace could take over.” Knight also argues insufficiency of the evidence because the twelve year old testified to a birth date that made her ten years older. The COA finds that there was ample evidence that she was 12. Finally he objects to the admission of close up pictures of the 12 year old’s vagina. The COA affirms.
Darryl Metcalf a/k/a Peanut v. State of Mississippi – continuance to procure witness – Darryl Metcalf was found guilty of two counts of sexual battery, attempted sexual battery, and fondling involving a four-year-old. On appeal he argues that the trial court erred in refusing him a continuance to procure the attendance of witness Sarah Ward. Sarah Ward did the initial forensic interview and found that the child did not provide any information or statements to corroborate the suspicion that he may have been sexually abused. The COA finds no error. “Ward was not properly served with a subpoena; the defense was not diligent in its efforts to locate Ward; and Ward’s name was stricken from the witness list.” He next argues that the instructions constructively amended the indictment. For instance Count One charged Metcalf with sexually penetrating M.W. by inserting his penis into M.W.’s anal opening. The instruction, though, allowed the jury to convict Metcalf of sexual battery upon a finding that Metcalf inserted his “penis and/or object” into M.W.’s anal opening. First of all, Metcalf did not object and secondly, it matters not what M.W. was penetrated with. He also argues that his attorney was ineffective in failing to object to amending the indictment to correct the dates of the crime. The record, though, shows that his attorney did object. The COA affirms.
Johnny Jerome Edwards v. Nancy Jewel Pierce Edwards – summons ineffective for failing to specify place of hearing – Johnny and Nancy Edwards were divorced in December of 2013. The court awarded Johnny the marital home, and he was to refinance the mortgage within ninety days of the judgment, If unable, he was to sell it. Nancy afterwards filed a petition for contempt claiming that Johnny refused to sell the marital home and had defaulted on mortgage payments, The court found Johnny in contempt and ordered the home to be sold in 60 days. A fiat was filed on March 22, 2017, setting a review hearing for April 11. On April 11, 2017, another fiat was entered, re-setting the hearing for May 15, 2017. A Rule 81 summons was issued to Johnny Jerome Edward (not Edwards) on April 11, requesting that he appear on May 15, 2017. The proof of service that the summons was delivered to Hazel Harris, Johnny’s “daughter,” on April 19, 2017, at his place of residence and later mailed to the residence on April 27. Johnny was eventually fond in contempt and ordered to vacate the home. On appeal he argues that the summons was defective because it told him to appear at the “Oktibbeha County Courthouse at Columbus, Mississippi.” The Oktibbeha County Courthouse is in Starkville, Mississippi, not Columbus. The COA agrees that the summons was defective.
In this instance, the Rule 81 summons failed to specify the correct place for the
hearing. Reviewing the notice, Johnny would not have known whether to appear at the Oktibbeha County Courthouse in Starkville or the Lowndes County Courthouse in Columbus. Therefore, finding the notice was defective under Rule 81, we reverse the judgment and remand for further proceedings.
At 1:00 p.m. the COA will hear Mark Gibson HL&C – Laura Villa, LLC and C&C Sales, LLC v. Randy R. Shoemake and wife Georgia M. Shoemake
In 2004 Randy Shoemake entered into a contract to purchase real property and a mobile home located thereon. In 2010, C&C claimed that there was a mistake in the contract and that it should have been for 240 monthly installments rather than 120 monthly installments, and an interest rate of 11. 72% per annum should have been specified. Randy signed an amended contract but then stopped making payments after paying what was owed under the original contract. When the Shoemakes failed to pay the amount C&C considered due and owing, C&C foreclosed. The Shoemake’s filed to set aside the foreclosure. The chancellor ruled that the original contract did not contain a mutual mistake. The 2010 contract signed by Randy was not a reformed contract but a new one that required the signature of his wife Georgia since the property was homestead.
I gleaned the facts from the chancellor’s opinion (contained in the Record Excerpts) since it was much easier to read than either of the briefs.
William Randle, Jr. a/k/a Booman and The Democratic Executive Committee of the City of Okolona, Mississippi v. Tommie James Ivy, Sr. – election contest – In 2017, Okalona held an election for city marshall. There were three candidates. William Randle Jr. and Tommie James Ivy Sr. received the highest number of votes and were in the runoff. In the runoff, Randle was certified the winner with 522 votes. Ivy received 521 votes. Ivy contested the election. The Democratic party denied relief and Ivy petitioned for judicial review. At the hearing , Ivy questioned the legality of eleven affidavit ballots from five different wards. The special tribunal determined that nine votes were illegal and two were legal. The new count was Ivy 518 votes and Randle 516 votes. Randle appealed arguing that the special tribunal should have ordered a special “primary” election and not simply a special election. The Court finds that the special tribunal held that Ivy was the winner of the primary and, thus, a general election was required. However, it agrees with Randle that he should not have been excluded from running in the general election.
In the Matter of the Determination of Wrongful Death Heirs of Jeff Underhill, Deceased: Joe Alexander v. Matthew Bryan DeForest – wrongful death determination/ service of process/rights of adopted child – Jeff and Jenny Lee Underhill had a son Mathew in 1977. They divorced and Underhill voluntarily terminated his parental rights to allow Jenny Lee’s new husband Steven Wayne DeForest to adopt six-year-old Matthew. In 2015 Underhill was in a trucking accident in Greene County, Mississippi, and died. Deforest filed a wrongful death lawsuit and a petition to determine wrongful death beneficiaries. One of Underhill’s brothers, Joe Alexander, responded to the chancery action. The chancellor found that Matthew was Underhill’s sole heir. Alexander appealed. He argues that of process on him via certified mail was insufficient. There was also, however, summons by publication. The MSSC finds no error. “We hold that in the instant case, the Rule 4 summons was sufficient, as the instant matter to determine wrongful death beneficiaries is not one of a determination of heirship as contemplated by Rule 81.” Alexander next argues that Matthews right to inherit was foreclosed by the Michigan adoption. In Mississippi, Matthew is a wrongful death beneficiary even though Michigan law would have declared that the adoption meant that he wasn’t a wrongful death beneficiary of his natural father. Finally, Alexander argues that Mississippi did not have subject matter jurisdiction to determine Underhill’s heirs since he did not live here and had no property here. “We agree that the chancery court did not have subject matter jurisdiction to determine Underhill’s heirs at law; however, the chancery court did not determine Underhill’s heirs at law. Because of the pending wrongful death action, the chancery court did have subject matter jurisdiction to determine Underhill’s statutory wrongful death beneficiaries, and chancery court did exactly that.”
Randy Binning v. State of Mississippi – writ of prohibition to a court in another state – Williams Gaming sold a defective Keno machines that produced greater-than-normal payables due to a coding error. Binning was a professional gambler. He learned of the particular combinations of denominations and units to wager in order to increase his odds of winning. In April 2013, Binning won money on defective Keno machines in both Tunica, Mississippi, and Joliet, Illinois. Later that same month, law-enforcement officers in Arizona, seized more than $400,000 from Binning, a large portion of which Binning had won at Mississippi casinos. He was indicted in both Illinois and Mississippi but the charges in both states were dismissed. WMS and Arizona filed a civil forfeiture action. Binning then filed an ex parte motion for extraordinary writ in the Circuit Court of Tunica County based on the Full Faith and Credit Clause. He asked the court to issue an extraordinary writ “explaining to the Superior Court of Arizona, Coconino County, that the Mississippi Gaming Act provides the sole jurisdiction and remedies in this matter.” The circuit court denied relief. On appeal, the MSSC agrees with the circuit court that Binning failed to provide sufficient authority that a court in Mississippi may issue a writ of prohibition to a court outside of the state.
Kathryn Schroeder Clark, with Power of Attorney for Helen Schroeder v. Lisa Younger Neese, Administratrix of the Estate of Harry L. Schroeder, Deceased – car wreck/ after settlement with one the car that hit them, wife sues deceased husband for his negligence (the Court denies rehearing but substitutes this opinion for the previous one) – Harry Schroeder had just pulled onto the highway when his car was hit by a log truck killing him. His wife Helen suffered serious injuries and filed suit against the log truck owner both for herself and as a wrongful death beneficiary. She ended up settling the case. She then sued Harry’s estate based on his failure to yield the right-of-way. Harry moved for summary judgment on the grounds that the characterization of how the accident happened was at odds with how Helen characterized it in the later suit – judicial estoppel. The circuit court agreed. On appeal the MSSC reversed. Clark v. Neese (“Clark I”), 131 So. 3d 556, 558 (Miss. 2013). On remand, Harry again moved for summary judgment, which the trial court granted on the basis of res judicata, accord and satisfaction, and contractual release. The trial court granted summary judgment again. The MSSC again reverses finding that res judicata did not apply because Harry was not in privity with the previous defendants. Nor did Helen’s settlement of the first case release Harry.
Edward A. Hyde and Pattie Hyde v. Linus Baxter Martin, III, M.D. and Rush Medical Foundation d/b/a Rush Foundation Hospital – medical malpractice/loss of chance – In 2014, 53 year old Edward went to the Rush Foundation Hospital ER with complaints of nausea, vomiting, and right-side numbness and weakness. A CT scan which according to the radiologist showed “[n]o acute intracranial abnormality” but no MRI was done and Edward was discharged. Twelve hours later, Edward returned to the hospital and an MRI revealed Edward had suffered an ischemic stroke. At this point is was too late to use the clot-buster drug tPA to restore blood flow. Edward remained in the hospital for five days and now cannot walk without a cane or walker. He filed suit against the hospital. The trial court granted summary judgment for the hospital after rejecting the opinions of Edward’s two medical experts because their opinions did not comport with the literature. “Specifically, the trial court rejected Dr. Kamal’s testimony, based on the Emberson study, that the overall odds of a better outcome for patients who receive tPA is 75 percent better than those who did not receive tPA.” Edward appealed. The MSSC reverses finding that the trial court erred when it excluded Edward’s experts.
The “50% threshold,” as the trial court dubbed our loss-of-chance standard, does not require a perfect result. Again, our law permits recovery based on a “reasonable probability of substantial improvement,” which we have defined as “a greater than fifty (50) percent chance of a better result than was in fact obtained.” White, 170 So. 3d at 508-09 (emphasis added). Thus, we find the trial court abused its discretion by applying to the Hydes’ expert testimony a higher standard than our law requires. To the extent Dr. Martin and the hospital challenge Dr. Kamal’s opinion on the reasonable probability that those who receive tPA substantially improve, we find this sets up a classic battle of the experts for the fact-finder to resolve, not a barrier to Dr. Kamal’s testimony. See White, at 509 (holding that the case “present[ed] nothing more than a classic example of a ‘battle of the experts,’” with the plaintiff offering expert testimony that “supported a reasonable probability of a substantially better outcome,” and the defendant offering “expert testimony that supported only a potential chance of a substantially better outcome”)
The Door Shop, Inc. v. Alcorn County Electric Power Association – ability of electric power association to collect for years-old underbilling – Over a several year period, the Alcorn County Electric Power Assoc. underbilled the Door Shop for electricity. When it discovered the error, it sought to recover the $25,658.58 difference via supplemental billing. The Door Shop refused to pay. ACE filed suit and was granted summary judgment. The Door Shop appealed arguing that the circuit court did not have jurisdiction, only the Miss. Public Service Commission did. By statute, though, the MPSC does not have jurisdiction over the rates charged by cooperative gas or electric power
associations to the members thereof as consumers. The MSSC affirms.
Jonsha Bell v. State of Mississippi – 95 year sentence for juvenile – Bell was 17 when he committed crimes for which he was later convicted of armed robbery, burglary and two counts of kidnapping. He filed a motion for post conviction relief asserting that his 95-year sentence is an illegal, life-without-parole sentence for a juvenile, non-homicide offender. The MSSC denies relief.
Colony Insurance Company v. First Specialty Insurance Corporation – voluntary payment doctrine – Accu-Fab employee Jerry Taylor was killed on 2014 in an explosion at a facility owned by Omega Protein Corp. in Moss Point. Omega was the named policyholder of two third-party insurance policies: ACE American Insurance Company provided a $1,000,000 primary commercial general liability policy with a $250,000 deductible. First Specialty Insurance Corporation also provided a $10,000,000 excess liability policy, which provided limits in excess of the underlying AAIC policy. Accu-Fab was the named policyholder of a third-party insurance policy issued by Colony: a primary liability policy $1,000,000 liability limit. The Colony Policy contained an “Additional Insured” provision, which designated “[a]ll persons or organizations as required by written contract with the Named Insured” as being insureds under the Colony Policy as well, subject to certain limitations and exclusions. Omega informed Colony that it expected to receive a personal injury claim and demanded that Accu-Fab and Colony “defend and fully indemnify [it] from any [such] claims.” In 2015, Colony filed a complaint for declaratory judgment in Jackson County, Mississippi. A wrongful death suit was filed that same year. Colony subsequently agreed to fund Omega’s defense, subject to a “full and complete” reservation of rights. At the settlement conference, Colony excluded First Specialty’s representative from the conference and agreed to pay its $1,000,000 policy limit in exchange for Omega’s release from the lawsuit. Colony then demanded that First Specialty reimburse the full amount Colony contributed to the Taylor settlement. When First Specialty refused, Colony filed an action seeking reimbursement. The district court found that Mississippi’s voluntary payment doctrine precluded Colony from recovery for payments made on behalf of a defendant that it did not insure and granted First Specialty’s motion for summary judgment. On appeal, the Fifth Circuit certified two questions to the MSSC.
1) Does an insurer act under “compulsion” if it takes the legal position that an
entity purporting to be its insured is not covered by its policy, but nonetheless
pays a settlement demand in good faith to avoid potentially greater liability that
could arise from a future coverage determination?
2) Does an insurer satisfy the “legal duty” standard if it makes a settlement
payment on behalf of a purported insured whose defense it has assumed in
good faith, but whose coverage under the policy has not been definitively
resolved, even if the insurer maintains that the purported insured is not actually
insured under the policy?
The MSSC answered the first question holding that an insurer is barred from seeking indemnity for a voluntary payment. In order to recover, the indemnitee must
prove that it both paid under compulsion and that it was legally liable to the person injured. It declines to answer the second question.
Major Lee v. State of Mississippi – prosecutorial misconduct/amending the indictment – Lee was found guilty of possession of cocaine with intent to sell. Lee was arrested after Columbus police officers attempted a traffic stop and Lee fled. When his car reached a dead end, Le got out and fled. He was caught and a bag of marijuana recovered from a fence that Lee had climbed during his flight. A smaller bag of cocaine was found on the ground next to the fence. On appeal Lee contends that prosecutorial misconduct requires a new trial. The misconduct alleged consisted on the prosecutor asking during voir dire whether anyone thought Lowndes County had a drug problem, asking the jury if it could follow a certain instruction and find Lee guilty, and making several comments directed at Lee’s exercise of his right to trail. The COA finds 4 of the 5 instances of alleged misconduct were not objected to. Notwithstanding the procedural bar, none of the instances were so inflammatory that the court needed to intervene. As for the instance where Lee objected – the question about whether the county had a drug problem – the judge told the state to move along and Lee did not ask the court to admonish the venire to ignore the question. Moreover, the evidence was overwhelming. Lee also challenges the state’s amending the indictment to charge his as an habitual only after the trial ended. The COA finds that the state had provided Lee’s counsel with a copy of the amendment prior to trial and Lee failed to object waiving any issue with the amendment.
We hold that GGA had continuing authority to assess the MMAWCG for at least three
years after it withdrew from the GGA. However, based on the plain language of section 71-3-163(1)(c), we hold that the assessment at issue in this appeal was invalid because the balance of the GGA’s guaranty fund never declined to the level at which the controlling statute authorizes the GGA to make additional assessments. Therefore, we reverse and render the judgment of the Commission upholding the assessment.
Benjamin W. Allen III v. State of Mississippi – embezzlement – Allen was the president of Downtown Jackson Partners, a group formed to promote downtown Jackson businesses. He was indicted for eight counts of embezzlement and convicted on a single count that involved the payment by DJP of Ben Allen’s wife’s cell phone plan. Allen would reimburse DJP for the payment. The evidence, though, showed that DJP approved of the method whereby it would pay for the cell phone usage and be reimbursed by Allen. The COA reverses and renders finding insufficient evidence of embezzlement. If anything, the case is evidence that Robert Shuler Smith is completely unfit to serve as Hinds County’s District Attorney. Not that more evidence was needed.
Franklin Land Associates, LLC v. S.L. Sethi – land contract/ return of escrow – In 2010 Franklin and Sethi entered into a contract whereby Franklin purchased 60 acres in Madison County for a high end shopping center. Eventually, they agreed that Franklin would deposit $160,000 in escrow. The earnest money was refundable during the inspection period if Franklin terminated the agreement because of 1) the default by seller, 2) the condition of the title was not satisfactory, or 3) Franklin did not receive all governmental approvals needed. Franklin ended up terminating the agreement claiming he did not receive all the governmental approvals needed and he demanded the earnest money be returned. The court found that Franklin was not entitled to have the $160,000 returned. The COA affirms finding that Franklin terminated the agreement before the government made a decision on the applications.
Mary Alice Stubbs v. James Lee Stubbs – retirement funds in divorce – The Stubbs married in 1978. In 1996, Mary was awarded a divorce due to desertion. James was ordered to pay $400 a month child support, to provide health insurance, and pay attorneys fees. In 2017, Mary filed a petition to allocate retirement funds. The chancellor dismissed the petition. On appeal, the COA affirms. While retirement funds earned during the marriage are marital property, if a party does not assert a right to them, the party may be estopped from later claiming them. Here Mary waited 21 years. Therefore, the chancellor did not err in dismissing her petition.
J.P. and N.P. v. L.S. and M.S. – termination of parental rights – JP and NP were married and had two children, a girl in 2010 and a boy in 2012. NP had a meth addiction. Her first son (born before the two to her marriage with JP) was born with meth in his system according to a hair follicle test. NP’s mother PA adopted that child. When JP and NP’s first child was born, JP’s work history was unstable. NP worked some as a nail technician but her mother PS provided substantial support. In May of 2013 the boy was burned when JP used acetone to build up a fire in the fireplace. The child did not get medical care until the next day when PS took him to the doctor. In October of 2013 NP was arrested for shoplifting. In December of 2013, NP and JP separated and NP began using meth again. They got back together in 2014 and stayed with friends and in motels. NP took unauthorized advances from her grandmother’s credit card for over $13,000. At trial NP admitted she had a gambling problem. Eventually NP’s meth problem got so bad that she signed guardianship papers letting L.S. (NP’s first cousin) and M.S. have guardianship over the children. That same night, JP was severely burned at a friend’s bonfire. The children’s hair was tested and showed dangerous levels of meth in their systems. At that point, LS and MS began neglect proceedings and sought to adopt the children. The court terminated the parents’ rights and approved the adoption. The COA affirms.
Terrence Shannon v. State of Mississippi – voir dire – Shannon was convicted of first degree murder and felon in possession. Shannon was outside his house with two others. He was drinking beer and rolling cigarettes. Sam Isabell rode by on his bike and Shannon accused him of stealing his rolling papers. Isabell denied having done so. Shannon went inside and grabbed a gun and shot Isabell in the head. On appeal Shannon claims that the trial court did not properly conduct voir dire. The COA observes that Shannon did not object at any time. As for the rulings the court made with regard to the selection of jurors, the COA cannot find any manifest error. Shannon claims that the court erred in letting eyewitness Ricardo Roman testify because Roman could not identify Shannon as present in the courtroom. Again, Shannon did not object. ButRoman testified that he had gone blind in one eye since the shooting and that he could recognize Shannon at the time he shot Isabell. The COA affirms.
Kevin B. McCall v. Cynthia C. McCall – child support contempt/modification – The McCalls divorced in 2014 after 13 years of marriage. Kevin agreed to pay $3,500 a month child support along with a lump sum payment of $100,000 due in May 2014. In June 2014 Cynthia filed a petition for contempt claiming that Kevin was in arrears by failing to make the lump sum payment. At a hearing in April of 2015, Kevin agreed he was in arrears on the $100,000 and $21,955 behind on the monthly payments. In March of 2016, Kevin filed a petition for modification on the grounds that he lost ownership of a Texas sawmill. The chancellor denied the motion and found Kevin in contempt. On appeal the COA affirms.
Enricko Hollis v. State of Mississippi – Lindsey brief/lustful touching of a child – Hollis was convicted of touching a child for lustful purposes. Hollis appealed, and his appellate counsel filed a brief pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005), asserting that she could find no issues to appeal. Hollis did not file a pro se brief even though given the opportunity to do so. The COA affirms.
Cortez Watts v. State of Mississippi – A Batson reversal – Derek Phillips and Barry McCray were robbed by a woman they met at a casino and her partner in crime, Cortez Watts. Watts was found guilty of a number of crimes including attempted armed robbery. On appeal he argues that the trial court erred in denying him a peremptory challenge. During jury selection Watts struck three potential jurors who were white, the state made a Batson challenge. The trial court found a prima facie case since Watts struck the only white people who had been empaneled. Watts offered his reasons and the trial court allowed all of the strikes except for one to Juror No. 3. Watts stated that he struck No. 3 because he was a banker and probably knew a lot of people in the community. The COA finds that this was error because the reason offered by Watts was race-neutral and the State failed to meet its burden that the reason was pretextual.
At 1:30 p.m. on Monday, January 28, 2019, the MSSC with hear the case of Elijah Arrington, III, v. the Mississippi State Board of Dental Examiners.
Arrington had a dental practice at the corner of Northside and North State in Jackson (“Fondren Dental”). The Mississippi State Board of Dental Examiners received some 29 complaints regarding Arrington’s practice and after a hearing on 5 of those found that Arrington was guilty of unprofessional conduct including fraud. The Board revoked his license. Arrington appealed to the Chancery Court pursuant to MCA Sect. 73-9-65 but his appeal was dismissed because although Arrington was personally served with the revocation notice on July 24, 2017, he did not file a notice of appeal until August 24, 2017 – 31 days later (the statute requires the appeal be taken within 30 days). When he did not perfect the appeal by either 1) filing a bond with two sureties approved by the president of the Board or depositing or 2) depositing $100.00 with the clerk of the chancery court, the Board moved to dismiss the appeal. Arrington then filed a bond on September 1, 2017. The Chancery Court granted the Board’s motion to dismiss. Arrington appealed arguing that Sect. 73-9-65 does not require that the appeal be perfected within 30 days.
In the Matter of the Estate of John M. Kaye, Deceased: John Morgan Kaye Jr., Executor v. Patricia M. Kaye – undue influence – Jack and Pat married in 1987 and remained married until Jack’s death in 2012. Both had children from previous marriages. Jack had two sons, John and William Samuel Kaye, as well as a daughter, Louise Harlan Kaye.
In 2006, Jack created a will in which he left John, John’s three sons, and
Pat each one-fifth of his estate. Jack also devised Pat their marital home with all furnishings. In his will, Jack stated that he did not split the estate with William or Louise because William is independently wealthy and Louise, who is mentally handicapped, has a trust. On the same day Jack created the will, he executed a Power of Attorney appointing Pat as his attorney in fact. In 2008, Jack created a joint account with Pat that included rights of survivorship and later authorized UBS to transfer all assets from his solo account to the joint account. This authorization gave Pat the right to make decisions and jointly access the funds. . After Jack’s death in 2012, his will was admitted to probate, and it was discovered that minimal funds remained in the UBS account. John brought an action against Pat claiming wrongful conversion and asked the court to deny her her fifth of the estate and the marital home. He also requested that the court require Pat to return the joint account to the amount of $1,210,371.91. The court denied John’s requested relief. The COA affirms.
Owen Scarbrough v. State of Mississippi – sexual battery – Scarbrough was convicted of one count of fondling and two counts of sexual battery of his step-granddaughter. The abuse was discovered when 17-year-old Mary gave her mother a note claiming that her stepgrandfather had fondled her since she was 14. On appeal Scarbrough challenges the weight and sufficiency of the evidence.
Laquita Burgess v. McKinley Williamson – contempt – Laquita Burgess and McKinley Williamson had a daughter, Elizabeth, in 1999. Up until 2015, they had an extra-judicial custody and support arrangement. In 2015, Williamson petitioned the court to determine custody and support. The court awarded physical custody to Williamson, visitation to Burgess, and joint legal custody. The court also ordered Burgess to pay child support to Williamson. One year later, Williamson filed a petition for contempt alleging that Burgess was behind on child support. Burgess answered and sought a modification of the child support. The chancery court denied Burgess’s motion to dismiss and found her in contempt for failing to pay child support. On appeal, Burgess argued that the chancery court lacked jurisdiction and erred in setting child support. The COA affirms.
Richard Parker v. State of Mississippi – Lindsey brief – Richard Parker was discovered hunting on someone else’s property without permission. WHen a game warden responded to a report of trespass, he found a rifle in Parker’s truck. Parker was a convicted felon and was charged and convicted of unlawful possession of a firearm by a convicted felon. On appeal his appointed appellate counsel filed a Lindsey brief, certifying that he has thoroughly searched the record and found “no arguable issues” for appeal. Lindsey v. State, 939 So. 2d 743, 748 (¶18) (Miss. 2005).” After an independent and thorough review of the record”, the COA agrees and affirms.
James C. Graham v. State of Mississippi – sexual battery – thirteen-year-old Betty
told her school bus driver that her father, James Graham, had sexually abused her the night before by coming to her bedroom and forcing her to perform oral sex on him. The jury found Graham not guilty of sexual battery, but it convicted him of gratification of lust. On appeal he argues that the trial court erred in admitting four separate statements made by Betty after the incident without holding a hearing to determine whether she was of tender years. He also claims he received ineffective assistance of counsel at trial. The COA affirms.
Louis Edward Bourgeois v. City of Bay St. Louis Civil Service Commission– civil service firing – The City of Bay St. Louis fired Louis Bourgeois after he asked a police officer to run a license plate number for him. Bourgeois claimed that a vehicle had been following him and that he feared it related to his job as a fire inspector. As it turned out that the man who owned the vehicle was dating Bourgeois’s former girlfriend. The City’s civil
service commission affirmed Bourgeois’s firing, and the circuit court affirmed the
commission. The COA affirms.
Darren Lee Wharton v. State of Mississippi – Miller resentencing – Wharton was 17 in 1994 when he robbed a Harrison County convenience store and shot and killed the clerk. The state sought the death penalty but the jury settled for life without parole. He was granted a resentencing pursuant to Miller v. Alabama which held unconstitutional the giving of an automatic life sentence to juveniles (but did not necessarily prohibit such a sentence). The trial court heard testimony and resentenced Wharton to life without parole. On appeal the court finds that Wharton was entitled to a jury trial on sentencing because in 1994 MCA Sect. 99-19-101 required a jury decide the sentence.
James Christopher Skinner v. State of Mississippi – right to hearing on PCR – Skinner was convicted in 2011 of felony evasion of police. This crime has a maximum penalty of 5 years but Skinner was sentenced to life without parole because he had priors of attempted armed carjacking and aggravated assault in 1994 when he was fifteen years old, and possessing less than two grams of cocaine in 2006, when he was almost twenty-eight years old. Pursuant to MCA Sect. 99-19-83, the sentence for a felony conviction must be enhanced to life-without-parole if the defendant has previously served at least one year in a penal institution for two separate felony convictions, and at least one of those prior felonies was a violent crime. His conviction and sentence were affirmed on direct appeal but after he filed a pcr challenging the sentence, the MSSC granted him leave to file his motion in the trial court. Two months later the trial court dismissed the motion without requiring the state to respond are holding a hearing. The court held that the issue of whether his sentence was constitutional was barred by res judicata and that there was no law allowing the sentence to take into consideration mitigating circumstances. The COA reverses and remands finding that the supreme court’s order granting the petitioner permission to proceed [is] a finding of a prima facie case. The court should request that the State respond to the motion. Then, the court must examine the record and determine whether an evidentiary hearing is required. Since the trial court here dismissed Skinner’s PCR motion before the State filed an answer and before discovery, the case must be reversed.
At 10:00 the COA will hear three appeals by the Manufacturers Assoc. Workers’ Compensation against the Mississippi Workers Compensation Group Guaranty.
The Appellants are employers’ groups that had first chose to self insure for workers compensation but later decided to purchase insurance but were still levied assessments by the Mississippi Workers’ Compensation Commission and the Mississippi Workers’ Compensation Group Self-Insurer Guaranty Association. They are challenging those assessments.