Decisions – Miss.Ct. of App. – July 29, 2014

Priutt v. Pruitt Allocation of PERS account in divorce – In this divorce, the chancellor awarded the wife one-third of the husband’s PERS retirement account which he calculated to be a monthly payment of $500 or one-third of the retirement check and $92,000 from the account. The Ct. of Appeals reversed. For one thing, the chancellor’s calculation of the PERS account was based in his going outside the record and obtaining a PERS handbook and using the amount of the husband’s monthly payment to calculate the present value of the PERS account. Furthermore, the husband cannot exercise an option to pay his wife a lump sum figure from the PERS account. A QDRO (qualified domestic relations order) is permissible in the context of a retirement account governed by ERISA but not one set up for state employees.

Luster v. State – Carlos “Moe” Wright was shot to death in his home. A neighbor heard the shots and saw two men, neither of whom he could identify, running through Wright’s backyard. Based on information provided by Wright’s friend, police arrested James Luster who claimed he was in Louisiana at the time of the murder. Luster’s girlfriend, though, had overheard Luster stating that he killed someone named Moe. Two people who accompanied Luster in the car when he proposed to “hit a lick” also testified that they drove with Luster to Moe’s house where Luster knocked on the door, talked to Luster, then shot him. On appeal Luster raises sufficiency of the evidence. He loses this issue. He also raises ineffective assistance in that his trial attorney did not object to the fact that instruction S-1 did not conform to the indictment. Nor did his attorney ask for an instruction advising the jury how to weigh the testimony of an accomplice. The court passes on ruling on ineffectiveness (holding that it is a claim better suited for a pcr). It then evaluates those issues for plain error. The indictment charged Luster and two others (the guys in the car) with acting in concert to kill Moe. The instruction stated that Luster, “either by himself or acting in concert with another or pothers.” The court held that this did not amount to plain error. . . .”

Cochran v. State – This is a PCR that was argued in April. Cochran pleaded guilty to murder and got the only sentence he could get: life. The victim was his wife Donna. The couple, married for twenty-five years, had been fighting about financial stuff and on August 11, 2010, their arguing reached the point where, according to Cochran’s brief, Donna threw a hammer at Michael (which missed him), he grabbed a pistol from a drawer and told Donna to “just shoot him.” Donna got the gun and threw it at Michael. Michael picked up the gun and shot Donna twice, killing her. A month after he was indicted for murder, Michael pleaded guilty and was sentenced to life. Two years later, represented by new counsel, he filed a motion for post conviction relief claiming that his trial counsel was ineffective in failing to make sure that Cochran was competent and not under a mental disability that would affect his ability to make a knowing and voluntary plea and that the trial court abused its discretion in allowing the plea. The Court of Appeals affirms.

Banks v. Tom Carey, M.D. et al. Tangela Banks experienced placental abruption when she was 26 weeks pregnant. She had an emergecny c-section at UMMC. Her baby lived but suffered from severe oxygen deprivation with attendant physical and mental disabilities. She sued her OB-GYN, his partnership, and Natchez Hospital (where she first sought emergency care). She settled with Natchez Hospital. The jury returned a verdict on behalf of the other defendants. The Banks filed a motion for a JNOV arguing that comments made by a spectator improperly influenced the jury. The spectator was a doctor who had been a partner the partnership sued by banks. At one point he stated to another spectator that he intended to return after lunch and listen to the rest of the bullshit. Counsel immediately reported this remark to the judge who admonished the doctor. The doctor spectator had also approached a juror and told her that Dr. Carey was a good man or that he had worked with Dr. Carey. The juror reported this to the judge who questioned her on the record and determined she was not “contaminated”. . She denied having heard the remark that the doctor made about the case being bullshit. As it turned out, that juror ended up being an alternate. The Ct of Appeals finds that Banks has not overcome the presumption of jury impartiality and affirms.

Rodrigue v. Rodrigue – In this divorce, Deidi appeals the court’s division of the assets and the alimony. The Court affirms in part and reverses in part. The judge ordered that the marital home be sold but that Deidi should live there until it was sold with Mitch making the mortgage payments. Deidi argue that this was wrong because Mitch’s house payments would be tax deductible but that Deidi would have to report these payments as taxable income. The Court reverses this part of the order because the chancellor failed to consider the order’s impact on the estimated amount of taxes the parties would have to pay. The Court also reverses the chancellor’s allocation of the retirement accounts since the chancellor at first stated that they would each get half but then awarded Deidi $4,620 less than Mitch. As for alimony, the Court ordered Mitch pay off Deidi’s car note (with a balance of $13,562) and this would be appropriate lump sum alimony. The Court of Appeals finds this grossly unjust and reverses. As for Deidi’s claims that the chancellor should not have discontinued Mitch’s payments for one child’s private school, the chancellor can revisit this on remand.

Baxter v. State – In April 2010, Baxter pleaded guilty to two counts of manufacture and possession of a controlled substance. He skipped his sentencing hearing a few months later. A bench warrant was issued. When Baxter’s girlfriend was spotted in her truck with what appeared to be a passenger hiding in the seat next to her, a deputy pulled in behind her and the truck sped off. Other deputies joined the chase. Eventually the truck turned around, struck the sheriff (who later died from his injuries) and left the scene. No one could tell who was driving the truck. The next day both Baxter and his girlfriend were found hiding in a trailer. Baxter signed a Miranda waiver and admitted to being the driver and having “nudged” a deputy. Baxter was charged with capital murder but was considered too mentally challenged to qualify for the death penalty. Among the issues: 1) whether evidence of the pursuit should have been suppressed because of a lack of probable cause to make a traffic stop; 2) whether Baxter knowingly waived his Miranda rights given his mental deficits; 3) whether the indictment should have been dismissed because the girlfriend gave allegedly false testimony before the grand jury; 4) whether the venire should have been quashed because of statements made by prospective jurors during voir dire; 5) whether it was error to introduce Baxter’s April 2010 guilty plea; and 6) and whether a mistrial should have been ordered when the prosecution made a Caldwell argument (that an appellate court would review their decision), etc. The Court of Appeals affirms.

Lindley v. State – Lindley was convicted of simple domestic violence and sentenced to six months with five suspended. Martha Lindley and her daughter were having an argument. Martha’s ex-husband Mark heard the argument and came into the room when he heard their daughter threaten her mother. Mark sat on the couch and laughed at his daughter who crawled on his lap and asked why he didn’t love her. At that point Mark stood up and threw his twenty-year-old daughter across the room. On appeal he argued that the evidence was insufficient. The Court affirms the conviction but agrees with Mark that the fine of $1000 was double the amount allowed by statute. The fine is reversed and remanded for resentencing.

4 thoughts on “Decisions – Miss.Ct. of App. – July 29, 2014

  1. poth·er (pr)
    n.
    1. A commotion; a disturbance.
    2. A state of nervous activity; a fuss.
    3. A cloud of smoke or dust that chokes or smothers.
    v. poth·ered, poth·er·ing, poth·ers
    v.tr.
    To make confused; trouble; worry.
    v.intr.
    To be overly concerned with trifles; fuss.

  2. It’s ERISA of course, but ERIS is too true & too funny – “chaos, strife & discord” are what I typically experience when researching an ERISA issue.

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