Decisions – Miss.S.Ct. – Feb. 6, 2015

Hill v. StateConflict; role of advisory counsel – Hill was convicted of possessing a weapon on educational property (MSU). The Court reversed finding that the trial court erred when it refused to allow Hill’s court-appointed lawyer to withdraw and required her to stay on as advisory counsel. The conflict arose thusly: Hill’s possession of an antique firearm was revealed to law enforcement by a confidental informant. Not surprisingly, the CI was Hill’s roommate. However, the trial court ruled that the identity of the informant was not to be revealed to Hill. At some point though, Hill’s attorney Stephanie Mallette learned of the identity of the informant. Because her duty to her client required her to reveal this information to Hill but her duty to the Court required her not to disclose this information, Mallette moved to withdraw. The conflict was all the greater when the Court ordered Mallette that she could not advise Hill to move for a mistrial. The Miss.S.Ct. held that requiring Mallette to stay on as Hill’s attorney in an advisory capacity but then ordering her not to give Hill any advice was error.

Baymeadow, LLC v. The City of Ridgeland – The City of Ridgeland denied Baymeadow’s proposed repair plan to cure 1478 code violations. “We hold that the Board did not adequately state its rationale for denying the proposed plans.” THe Court remanded for the City to either issue the permit or make factual findings in support of its denial.

Short v. Shortescalation clauses and modification – The Shorts divorced in 2007. They agreed that Andy would pay child support of $50,000 per year until the child started kindergarten. After that he would pay 15% of his adjusted gross income but never less than $36,000. In 2011 Kathleen filed for contempt for failure to make child support payments. Andy moved to change custody and to modify child support alleging that his income was greatly reduced. The chancellor appeared to find that the agreement’s stating that child support would never be less than $36,000 a year payments meant that it could not be modified. Andy appealed and lost again in the Court of Appeals. The Miss.S.Ct granted cert. It first found that there was nothing wrong about the escalation clause and it was specific enough to be enforceable. There are four factors set forth in Tedford v. Dempsey, 437 So.2d 410 (Miss. 1983). That is 1) the escalation clause should be tied to the inflation rate, 2) the noncustodial parent’s increase or decrease in income, 3) the child’s expenses, and 4) the custodial parent’s separate income. To the extent that Bruce v. Bruce, 687 So.2d 1199, 1202 (Miss. 1996), held that escalation clauses must be tied to all four factors, it is overruled. While the agreement reached by the Shorts was binding, it can still be modified where a material change in circumstances warrants modification. Here, the chancellor’s finding that there was no material change warranting modification was based on the chancellor’s incorrect calculation of Andy’s yearly income. The case is therefore reversed so that the chancellor can reconsider whether there is a material change of circumstances.

Ferguson v. State – Ferguson was convicted of aggravated assault. For some unknown reason he beat the crap out of a friend. He stabbed her in the head and face three times and when the knife broke he beat her with various household objects. Ferguson did not deny the assault, he just insisted he didn’t use a knife or a blowdryer, etc. He raises three issues: 1) failure to grant a jnov (rarely a winner); 2) refusing an instruction that would have told the jury that Ferguson was competent to testify on his own behalf and that his testimony should be viewed like any other witness; and 3) that the judge erred in refusing to allow Ferguson to adduce evidence that a smoking pipe was found in the girl’s apartment. Not surprisingly, all three issues were rejected.

Keller v. State – Keller was sentenced to death for the robbery of murder of a woman manning the counter of a convenience store on the coast. He took the money and headed to a crack house. The Miss. S.Ct. rejected all of Keller’s issues which were: Whether repeated violations of the order granting full recordation of all proceedings deprived Keller of a fair trial; whether repeated exclusion of Keller from critical stage proceedings violated his right to be present; whether amending the indictment ex parte action when Keller was unrepresented and without notice was prosecutorial misconduct; whether payment of excess compensation to State’s witness Terry Ann Muffi and her nontestifying traveling companion was prosecutorial misconduct; whether exclusion of Keller from off-record voir dire was unconstitutional and prejudicial; whether the trial court improperly limited defense voir dire elating to juror understanding of the sentencing process; whether the trial court improperly removed prospective jurors qualified to serve under Witherspoon; whether the court erred by seating Juror 5 who failed to reveal material information during voir dire; whether the trial court erred in failing to suppress the final statement elicited from the defendant; Whether the trial court erroneously applied controlling “fruit of the poisonous tree” jurisprudence in not suppressing Keller’s third statement to police; whether the trial court’s conclusions of law in the Remand Opinion concerning coercion and its effect on Keller’s third statement to police are contrary to controlling law and unsupported by the record; whether Keller’s invocation of his right to silence during questioning in the ER was not honored by police; whether the Miranda warning and waiver obtained prior to the third statement were insufficient and invalid; whether prosecutorial misconduct and erroneous rulings caused the jury to receive inadmissible information during the guilt phase of the trial; whether the trial court erred in denying Keller’s Rule 404(b) motion to exclude concerning alleged vehicle thefts for which Keller was separately indicted; whether the trial court erred in allowing the jury to read along with a transcript while they were listening to the audio recording of Keller’s statement; whether the trial court erred in admitting prejudicially gruesome photographs; whether the State committed prosecutorial misconduct by adducing and arguing improper victim impact evidence; whether much of Dr. Paul McGarry’s testimony was also outside the scope of his expertise; whether the prosecution’s reference in its opening statement to multiple “statements” given by Keller violated the trial court’s suppression order; whether the guilty verdict was flawed by improper instructions and premature and insufficient deliberation; whether the trial court erred in denying Keller’s requested lesser included instructions; whether the jury engaged in premature deliberations as to guilt prior to conclusion of the evidence or receipt of instructions, and followed that with an absence of meaningful deliberation at the time the case was consigned to them; whether the trial court erroneously permitted the state to present improper matters to the jury during the penalty phase and precluded Keller from responding to the state’s evidence at that phase; whether the jury received inadmissible evidence concerning four prior non-violent felony convictions; whether the victim impact testimony offered by the State went beyond the limited scope permitted by law, and requires reversal of the sentence as a consequence; whether the trial court compounded the prejudice created by admission of this improper evidence by erroneously limiting Keller’s ability to refute inferences of non-statutory aggravating factors; whether the trial court erred in the instructions to the jury at the sentencing phase; whether the trial court’s sentencing instruction improperly permitted the jury to consider aggravating factors that were not supported by law and/or the facts; whether the trial court erroneously refused Keller’s requested sentencing phase instructions; whether matters conducted off-record in the sentencing phase were a violation of Keller’s rights; whether the trial judge erred in handling the off-record receipt of a jury note indicating premature sentencing deliberation by at least one juror when evidence was still being received, and similarly failed to make a contemporaneous record of two additional jury notes received during sentencing deliberation; whether the failure to include aggravating circumstances in the indictment renders the sentence unconstitutional; whether the scienter provisions of the sentencing statute are unconstitutional; whether duplicative use of the robbery which was relied upon to render the homicide capital murder as a statutory aggravating factor making Keller eligible for the death penalty and weighing against mitigation at sentencing violates the Constitution; Whether the execution of Keller pursuant to the sentence in this matter will violate Baze v. Rees; whether the death sentence in this matter is disproportionate; whether the cumulative effect of the errors in this trial court mandates reversal of either the verdict of guilt or the sentence of death.

And if you made it through all of that, you might be interested in this article about how ridiculous it is to think a justice system could fairly determine who deserves society’s ultimate punishment. America is Terrible at Killing People Legally

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