Decisions – Miss.S.Ct. – Aug. 7, 2014

<>Downey v. Staterare reversal finding confession should have been suppressed – 64-year-old Nancy Downey was arrested on burglary and arson charges. When questioned after her arrest, Downey told the deputy that she had an attorney who worked for Trustmark. The deputy asked if she wanted to talk to him and she replied “I could use him.” The deputy asked her how he represented her and she said that he had represented her in a wreck. The deputy then asked whether she wanted to talk no or wait for the lawyer and she said “I’ll talk with you.” The trial court denied the motion to suppress and the Court of Appeals found no error. The Miss.S.Ct. granted cert. and found that when Downey said she had an attorney and referenced him by name, further questioning was limited to questions about the identity of the attorney.

We find that, when Downey stated that she had an attorney and “could use him,” all interrogation was required to cease except questioning for the purpose of clarifying the request for counsel. Here, the officer represented to Downey that her attorney could not be brought to the jail “right this minute.” The officer’s comments to Downey attempted to link her participation in the interrogation to the process of setting bail and suggested that her talking to the officer was a prerequisite to that process. Further, the standard in providing counsel does not depend on the expediency with which a law enforcement officer may secure counsel for the accused. Any subsequent conversation cannot exceed the bounds of clarifying the accused person’s request. The officer in this case overstepped the limits of proper clarification by emphasizing the amount of time and difficulty that would be involved in obtaining counsel for Downey. Additionally, the officer’s persistence infringed on Downey’s right to cease the interrogation because she expressed no desire to continue speaking to the officer. It was only after the officer told Downey that her attorney could not get there “right this minute” that she acquiesced in talking with the officer. Even then, the officer did not reiterate that Downey had a right for her counsel to be present during the continued conversation. Because we find that, under the facts of this case, Downey invoked her right to counsel and that the officer improperly continued questioning her, we conclude that Downey’s Fifth Amendment rights to an attorney and against self incrimination were violated.

At that point, it was the state’s duty to prove that Downey validly waived her Miranda rights which the state did not do.

Pearson’s Fireworks v. City of Hattiesburgannexation, zoning – Pearson’s Fireworks leased land for the purpose of selling fireoworks at July 4th and Christmas (exasperating local dog owners). The land was annexed by Hattiesburg in 2007. Prior to the annexation, Hattiesburg had an ordinance prohibiting the sale of fireworks. When Hattiesburg notified Pearson’s that it could no longer sell fireworks on the land, Pearson’s filed suit. The trial court granted summary judgment for the City. Pearson’s appeals. It first argues that the annexation was invalid due to lack of notice in that it did not comply with MCA Sect. 21-13-11 which requires the city to publish notice of passed ordinances. The City argues this statite applies only to general ordinances, not annexation ordinances. The Court agrees with the City. Pearson’s then argues that actual notice rather than constructive notice should be given to “known or easily identifiable property owners.” The Court does not buy this argument either. “Because requiring actual notice to all persons who have some economic interest in annexation proceedings is almost limitless in its application, and because this Court has held that the notice provisions contained in the statutes at issue are in lieu of personal service, this issue is without merit.” Pearson’s argues that the grandfathering provision in the City’s zoning code and/or the preexisting use doctrine override the fireworks ordinance. In deciding against Pearson’s on this issue, teh Court cites a United States Dt. Court case – Meramac Specialty Co. v. the City of Southaven, 2000 WL 33907912 (N.D. 2000), which held that the pre-existing use doctrine does not apply to fireworks sales on newly annexed property. Finally, Pearson’s argues that this was a compensable taking and the City should have to pay. The Court disagrees with this as well citing Meremac II, 234 F.3d at 29.

Miss. Dept. of Revenue v. Mississippi Power – The beginning of this opinion states: “This case involves a statutory sales- and use-tax exemption for “pollution control equipment,” an administrative regulation interpreting that exemption, and the application of the statutory exemption and administrative regulation to four low-nitrous-oxide (NOx) burners purchased by Mississippi Power and installed at its Plant Watson and Plant Daniel facilities. The Mississippi Department of Revenue (MDOR) audited Mississippi Power Company and assessed $251,184.93 in use taxes attributed to Mississippi Power’s purchase and installation of low-NOx burners. After unsuccessfully pursuing administrative remedies, Mississippi Power appealed to the Chancery Court of Harrison County, Mississippi. The chancery court reversed and granted summary judgment in favor of Mississippi Power. Aggrieved, the MDOR appeals.” The Miss.S.Ct affirms.

Fishbelt Feeds v. Miss. Dept. of Revenue – Another tax case. Again, I quote from the beginning of the opinion: “In this case of first impression, this Court must determine whether money a corporation receives as prepayment for future services is subject to franchise taxation during the year in which it is received. The Mississippi Department of Revenue (“MDOR”) assessed additional franchise tax against Fishbelt Feeds, Inc. (“Fishbelt”) for its failure to include a “deferred revenue” account, which represented money it had received through prepaid contracts, in its franchise tax base. Fishbelt appealed MDOR’s order to the Sunflower County Chancery Court, and the chancellor granted summary judgment to MDOR. On appeal to this Court, Fishbelt argues that the chancery court erred in granting summary judgment to MDOR and should have conducted a full evidentiary hearing on the issues presented. Fishbelt also argues that its “deferred revenue” account is excepted from franchise taxation. Finding no error, we affirm the chancery court’s award of summary judgment to MDOR.” The Court affirms.

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