Decisions – Miss.S.Ct. -Aug. 14, 2014

Armster Lacking v. State – This is a denial from a petition requesting permission to file a pcr motion in the trial court. (denied because of the SOL),  Justice  Dickinson dissents joined by Justice Kitchens and King.   Lacking was indicted for forcible kidnapping.  The jury, though, was instructed that it could find Lacking guilty of kidnapping by force or trick.  The prosecution argued solely that  this was a kidnapping by trick.  Justice Dickinson writes that this was a violation of Lacking’s fundamental right to be indicted by a grand jury and, therefore, the Court should grant the petition. 

Broome v. General MotorsSOL for Magnuson-Moss Act claims filed in Miss. – The Broomes purchased a 2010 Chevy Equinox from a dealer in 2010. It had a three-year or 36,000 mile warranty. The car had various defects which could never be fixed by the dealership. In December 2011, the Broomes filed suit in state court alleging breach of warranties under the Magnuson-Moss Act. GM moved to dismiss on the SOL since it had been over 18 months since the Broomes accepted delivery and the most analagous statute in the state was the Motor Vehicle Warranty Enforcement Act which has an SOL that suit must be brought either one year after the expiration of the express warranty or 18 months after the delivery of the vehicle. The Court on appeal holds that the MVWEA and the UCC are both similar to Magnuson Moss and other courts have consistently held that their state’s UCC is the most analogous statute. It has a six year SOL. This Court, like those of other states, holds the same and finds that the Broome’s lawsuit was subject to a six-year SOL.

State v. Hattie HawkinsSufficiency of indictment for simple assault – Hawkins was a nursing assistant. A patient became injured while in her care. Hawkins had lifted the patient by herself when she knew that two people were required to lift the patient. She then left her unattended in a lift/sling whereupon the patient fell out and was injured. Hawkins was indicted for simple assault of a vulnerable person. The trial court dismissed the indictment finding that it did not comport with 97-3-7(1).

HATTIE M. HAWKINS on or about the 23rd day of June, 2010 . . . commit[ed] the offense of Simple Assault of a Vulnerable Person in that Hattie M. Hawkins, while employed as a Certified Nursing Assistant at Heritage House Nursing Center, did willfully, negligently[,] and feloniously inflict pain and/or injury upon Deserie S. Edwards, a vulnerable person as defined by §

43-47-5(n), in that Deserie S. Edwards was a resident of Heritage House Nursing Center; to wit: Hattie M. Hawkins, while knowingly engaged in improper lifting procedures, being aware that the victim required two persons to be moved from her bed, acted alone in knowingly placing the victim in a lift/sling improperly, and then allowed the victim to fall from the lift/sling to the floor by leaving the victim unattended causing multiple serious injuries, and then failed to inform appropriate staff or seek out medical treatment for the injuries inflicted upon Deserie S. Edwards. This act being in violation of § 97-3-7(1), Miss. Code Ann. (1972, as amended), contrary to the statute in such cases made and provided, and against the peace and dignity of the State of

Mississippi.

Hawkins takes exception with the word negligently used in the indictment. The State responds that the indictment was brought under subsection ii of the statute – “negligently causes bodily injury to another with a deadly weapon or any other means likely to produce death or bodily harm.” The indictment does not track the language of the statute and is inartfully drawn since it is not clear whether it charges under subsection (i) or (ii). However, when read as a whole, it is clear that she was charged with negligently injuring a vulnerable adult. There was sufficient information in the indictment whereby Hawkins could adequately prepare a defense. The Court therefore reverses the trial court’s dismissal of the indictment.

Ashmore v. Miss. Public Broadcastingappeal from dismissal for wilfull discovery violations – David and Debra Ashmore sued MPB for injuries they suffered in an auto accident with an employee of MPBS. David sought damages for injuries to his knees, back, neck, and upper arms. Debra sought loss of consortium and for reimbursement of nursing care services to David. The defense moved to dismiss based on a pattern of lying. In his first two responses to interrogatories, David denied any previous injuries to the body parts he was seeking recompense for. In h is second supp. response, he admitted he had had heart surgery and kidney stone surgery but no back or leg injuries. During his depo., he admitted to previous back injuries, surgery on his right knee, and injuring his left leg a month prior to the accident. He denied having had surgery on his left knee. DAvid insisted that he was diabled solely because of the car wreck. But on his SSDI application, he reported a number of conditions including injuries as a result of “multiple vehicle injuries”, etc. As for Debra’s claim for taking care of her husband, she was seeking similar damages in an unrelated nursing home case involving her father. The defendants also had a medical report revealing that David had had left knee surgery prior to the accident. The trial court dismissed the case based on the defendants’ repeatedly giving false answers and failing to disclose relevant information. On appeal, the Miss.S.Ct. affirms.

Tommie Lee Jones v. State – The Court had granted cert. in this case in February but now decides thet cert. was improvidently granted. Justice Dickinson joined by Kitchens, King and Coleman, writes to express his displeasure.

The jury that convicted Tommie Lee Jones was not instructed on all the elements of the crime. According to the Court of Appeals, the trial judge committed error. But, finding the error was harmless, the Court of Appeals affirmed the conviction. Recognizing that the Court of Appeals’ decision on this important point of law was error, six justices on this Court voted to grant certiorari review. Now, in a stunning about-face, five justices have decided simply to dismiss Jones’s petition for certiorari without further comment. I oppose this order.

There are two reasons for my opposition. First, I believe a majority of the justices on this Court, including myself, hold the view that the circuit judge committed no error at all. We should say so and explain why. Second, in light of the cases discussed below, the majority’s refusal to issue an opinion explaining the true reason for affirming Jones’s conviction will surely leave the trial bench, the bar, and the Court of Appeals bewildered and understandably confused about the controlling law on instructing a jury as to all elements of the crime charged.

One thought on “Decisions – Miss.S.Ct. -Aug. 14, 2014

  1. Does anyone understand why the Court in Ashmore says that the four factors from Pierce don’t have to be considered, then considers them anyway? I don’t see how the trial court would’ve had to be reversed even if the factors had to be considered – the MSSC could consider them on appeal, then chide the bench for not doing it on the record (like they did in White v. White).

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