Decisions – Miss.S.Ct. – May 29, 2014

Shaw v. State:

Today the Mississippi Supreme Court decided that cert. was improvidently granted in Brett Shaw after it heard argument in the case May 13. Shaw was convicted of aggravated assault and malicious mischief and sentenced to serve 10  years. It all started at a party in an apartment in Richland.  Brett Shaw was in the parking lot outside the apartment with two other guys when one of those guys, Alex Gill, threw an empty beer bottle into the bushes.  Shaun Killingsworth told him to pick it up.  Shaw told Killingsworth that Gill was only 17 years old and to leave him alone. Later Shaw and Killingsworth got into it again in the apartment but they were separated before any blows were thrown and Shaw was escorted off the premises.  Even later, two people told Killingsworth that Shaw was jumping up and down on Killingsworth’s car.  In the ensuing altercation, Shaw bit part of Killingsworth’s ear off.   

On appeal Shaw raised the following issues: 1) the trial court erred by denying his motion for a directed verdict and his motion for a JNOV because he was acting in self-defense; (2) the trial court erred by allowing the State to call witnesses, including expert witnesses, in violation of discovery rules; (3) the prosecutor misconstrued the evidence and prejudiced the jury; (4) a mistrial should have been granted based on juror misconduct and an improper line of questioning; (5) teeth are not a mechanism likely to produce death or serious bodily harm; (6) the trial court erred in denying two “words of provocation” jury instructions; and (7) cumulative error.

The Court of Appeals affirmed.  The cert. petition raised the issue of whether teeth  are a mechanism likely to produce death or serious bodily injury.  Shaw argues that Killingsworth had pushed Shaw against the car and was holding him there.  Shaw could not get away.  At some point, in an effort to get Killingsworth off of him,  Shaw bit Killingsworth’s ear and  Killingsworth responded by moving away.  It was Killingsworth’s trying to force Shaw off of him that caused the portion of the ear to be bitten off.   Given this, “there was insufficient evidence . . . including the number of times bitten and the degree of force used by Shaw’s teeth to consider Shaw’s teeth a means likely to cause serious bodily injury as a matter of law.”  

 

Heflin v. Merrill
The Court granted cert. in Heflin v. Merrill decided by the Ct. of Appeals on Oct. 13, 2013.  This is a car wreck case where the Heflins were hit from behind by a car driven by Merrill.   Merrill was driving a Mercedes SUV owned by Frank Ciuffetelli.  The Heflins’ truck was covered by a UM policy with Nationwide. The Heflins sued  Merrill (later Merrill’s estate after Merrill died from unrelated causes), Nationwide and Ciuffetelli for negligent entrustment (Ciuffetelli was later dropped). Mrs. Heflin claimed that as a result of the accident she suffered from TMJ which cost her $40,00 so far and would cost another $100,000 in the future.  After a trial, the jur awarded a verdict of $32,500. 

 Prior to trial, the court granted Nationwide’s motion in limine whereby Nationwide’s name and the existence of the UM policy would not be revealed to the jury but that Nationwide’s attorney would still be allowed to participate in the trial.    (The Heflins and Nationwide had already stipulated that Nationwide would pay any judgment  in excess of Merrill’s insurance coverage up to the Nationwide policy limits of $600,000). On appeal, the Heflins urged this as error.  The Court of Appeals disagreed.   The Heflins also argued that the trial court erred in excluding Mr. Heflin’s testimony about the speed of Merrill’s vehicle at the time they were hit.   Mr. Heflin testified that they were hit “real hard” but was not allowed to testify regarding his estimate of Merrill’s speed. The Court of Appeals held that this issue was not error inasmuch as the Heflins did not proffer what Mr. Heflin would have said about the speed.  Finally, the Heflins argued that the court erred in excluding statements made by Merrill to Mr. Heflin right after the accident to the effect that he had not seen the Heflins because he was speeding into the southbound lane.  The court upheld an objection to the testimony on the grounds that since Merrill was dead and the defendant had admitted liability it would only serve to inflame the jury. On appeal the Court of Appeals held that this was not error.  Although not hearsay (since it was an admission of a party opponent), the court was within its discretion to exclude it because the speaker was deceased and could not be cross examined and liability was not an issue.     

The Heflins filed a petition for cert. which was granted. 

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