Decisions – Miss.S.Ct. – April 24, 2014

Burch v. Illinois Central RR – aka “why you need to file that motion to substitute in a timely manner” – Harold Burch worked for Illinois Central RR.  He died in 2006 after being diagnosed with asbestosis and lung cancer. In 2009, his widow Francis filed a wrongful death suit against ICRR.  She died in 2011,   ICRR filed a suggestion of death but   the plaintiff’s attorneys did not file a motion to substitute within 90 days as required by MRCP 25.  ICRR moved to dismiss.  Plaintiff’s counsel did not respond for five months and only after being ordered to by the court.   The case was dismissed without prejudice in September 2012.  The next day, Harold’s children filed a new lawsuit.  ICRR moved to dismiss based on the SOL.   The plaintiffs argued that the SOL was tolled while the first suit was pending.  The trial court and the Miss.S.Ct. disagreed. The latter writes that where a case is  dismissed for failure to prosecute, the SOL is not tolled while that lawsuit is pending.  Here, the lawsuit was dismissed for failure to substitute.  While the period for substitution may be extended after the expiration of their 90-day period where the failure to act was the result of excusable neglect, Francis’s attorneys did not attempt to show good cause for failing to substitute. 

Darnell v. Darnell –  While Carla and William were in the process of divorcing, their young son exhibited behaviors that might have been consistent with sex abuse.  DHS investigated and found nothing. Carla nonetheless obtained an expert and pursued sole custody based on t he alleged abuse.  The chancellor found that Carla was pursuing baseless claims of abuse and awarded William full custody.  The Miss.S.Ct. reverses and remands for the chancellor to take into account in his findings of fact and conclusions of law some of the child’s statements which were not admitted at trial. The incidents that occasioned the child abuse investigation started when the five year old was seen with his hands between the legs of the female daycare student sitting next to him and he explained he was just tickling her. He was also reported to be “very touchy” with other children and getting into a lot of trouble.  He was later overheard telling another girl that he was going to “eat her privates.”  The chancellor excluded these and other statements on the grounds that they were hearsay.  The Court rules that at least two of them were not admitted for the truth of the matter but merely for showing that the statements were made and, thus, were not hearsay, and should have been admitted.  The third statement does have potential nonhearsay value but its probative value is outweighed by its prejudicial effect and was properly excluded.  (Jane’s note – the hearsay rules are typically not as important when it is the judge and not a jury hearing the evidence). Carla also raises the chancellor’s exclusion of her expert witness on child abuse who disagreed with DHS. Here the chancellor found that the expert relied on too much inadmissible hearsay.  While, ordinarily, an expert may rely on nonadmissible information, where, as here, the trial court finds that the expert relied on too much of such information, the Miss.S.Ct. will not find that that ruling is an abuse of discretion. Since the Court is reversing the case, the chancellor may revisit his ruling on the admissibility of the expert’s testimony. Carla also argues that the chancellor should be reversed for not explaining why he disagreed with the GAL.  While the chancellor here did not do so, he did his own evaluation of the Albright factors that was thorough and he agreed with the GAL on eight of the factors.  SO while it was not reversible error for the chancellor to not explain why his result differed from that of the GAL, the better practice is to make those disagreements explicit.   

Moffett v. State –  Moffett was convicted of killing and the “savage sexual assault” on a five-year-old child and sentenced to death.  Here he has filed a motion for post conviction relief based on the alleged ineffective assistance of his attorneys at trial and on appeal.  The court finds the issues unavailing and denies any relief including a hearing. 

Ervin v. State – Ervin was convicted of armed robbery and felon in possession after the armed robbery of the Healthy Body Store.   The store was robbed in September 2010.  A man walked into the store and asked for a product.  He then walked up and down the aisles and returned to the counter where he held a gun at the  sole clerk, Martha Duffy.  SHe gave him money and called 900 after he left the store.   Police canvassed the area and went to a house where a woman who opened the door said that a man fitting the description of the robber  had knocked on her door and asked for  “Gary” who was not there.  The police were led to another house where they encountered Michael Ervin aka Ray Ray.  He told police that his brother Charles had been at the house just 30 minutes previously.   Michael accompanied police to the station where he allegedly told the police that Charles went by the name “Ray Ray.”  Meanwhile, Duffy picked Charles’ photo out of lineup.  She was allowed to view Michael through a one-way mirror but stated that he was not the robber.  

At trial the defense attempted to cross examine the officer who interviewed Michael about Michael’s rather sordid past in which he had used multiple identities including his brother’s  in an effort to show that Michael had robbed the store and pinned it on his brother.  The state objected and the trial court sustained the objection. On appeal the Miss.S.Ct reverses on the limitation of the cross-examination of the officer who interviewed Michael.  While the court will not reverse an evidentiary ruling unless it effects a substantial right of a party, here this cross-examination was part of Charles’ theory of defense and its exclusion was reversible error.

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