Decisions – Miss.Ct. of App. – Sept. 23, 2014

Newell v. Stateexpert testimony (Hayne overreaching) – James Newell had been married to his wife Diane for two weeks when he began to suspect that she was cheating on him which was made easier by the fact that he lived in Alabama (but worked in Columbus, Mississippi) while she lived in Columbus.   One day  Newell called Diane’s cell phone and left two voicemail messages – the first threatening to  shoot Diane and her boyfriend Tony, the second recanting that threat.  Later that evening, though, Newell drove from  Alabama to a bar in Lowndes County, Mississippi, in order to confirm that Diane was cheating on him with Tony before he went through with the divorce.  When Newell arrived at the bar, he saw Diane’s truck in the parking lot, but Diane was not there.  Newell saw Adrian Boyette, whom he did not know, standing near Diane’s truck. And he saw Boyette’s friend, Jason Colby Hollis, standing nearby.  Newell asked Boyette if he knew Diane.    Boyette replied no.  Newell pointed toward Hollis and asked who he was. Boyette responded that Hollis was his friend and warned  Newell not to mess with Hollis. Harsh words were exchanged between Newell and Boyette, and Newell turned around and walked back toward his own truck followed by Boyette who began shouting and beating on the truck as Newell got into it.  Newell testified that Boyette stated that he was going to “[mess] [Newell] up!” At some point, Boyette shut the truck door on Newell’s leg.  Once Newell got the door closed, Boyette continued beating on the truck and yelling “I’m fixing to get you — [mess] up your world. I’m fixing to — get [yourself] out of that truck.” At this point, Newell began backing up the truck. But,  Newell testified,  he still feared for his life because: [Boyette] come around there, come around and grabbed on the door, like opening the door, like he was either — from the look in his eyes, he was either going to — you know, he was going to try to open that door, just stand there beat — hitting on me when I was sitting in the door, or he was trying to snatch me out of the truck. Then, Newell pushed on the door from the inside, and Boyette backed up just enough for Newell to step out of the truck. Next, according to Newell, “[Boyette] said ‘I’m fixing to cut you up,'” and “when he grabbed at his pocket, that’s when [Newell] reached under the . . . seat of the truck, pulled the pistol out, and shot him.”  Newell then jumped back into his truck and fled to his home in Alabama. Although Boyette never displayed a knife or any other weapon, a pocket knife later was found in his pocket. Boyette died from the gunshot.  The first trial was reversed on appeal for failure to give an instruction under the castle doctrine. Newell v. State, 49 So. 3d 66, 74 (Miss. 2010).  This time the case is reversed because the state had Dr. Steven Hayne testify that Boyette’s wounds were consistent with him having been in a “guarded position.” 

Prior to testifying about Boyette’s position at the time of the shooting, Dr. Hayne offered no facts or evidence to support his contention that Boyette’s singular gunshot wound was consistent with being in a guarded position. The State argues that Hollis testified that he saw Boyette step back with his hands in the air. However, on cross-examination, Hollis stated that the did not see Boyette prior to the shooting; he only looked after he heard the gunshot.  As the supreme court warned against in Parvin, 113 So. 3d at 1247 (¶14), Dr. Hayne testified to a “mere possibility.” Dr. Hayne even noted that there were other possibilities as well, stating that Boyette’s arm could have been “raised, . . . behind, . . . or markedly forward.” Dr. Hayne’s testimony regarding Boyette’s “guarded position” does not rise above mere speculation, to meet the requirements of Rule 702. Because a substantial right of Newell’s was affected, we reverse the conviction and remand the case for a new trial consistent with this opinion. We decline to address the merits of the other issues raised.

Foster v. Kotsakosattorneys fees for attorney fired from case involving minor- this involves attorneys fees in a guardianship for a minor involved in a car accident.   The minor’s father, Paul Kotsakos, entered into an attorneys fees contract with Jay Foster.   Foster did not open a guardianship and, therefore, the contract was not approved by a chancellor.  Five months later Kotsakos fired Foster. At that point, Foster had done very little work on the case.  The child’s medical bills were $24,416 and the insured had only $25,000 in coverage.   Kotsakos hired Billy Miller who negotiated the medical bills down leaving some $10,000 for the child.   At a hearing to determine attorneys fees, the chancellor awarded Miller one-third of the amount received by the child and Foster $500 on a quantum meruit basis.   Foster appeals arguing that his contract should be upheld even though it was never approved by a chancellor.  The Court of Appeals affirms finding that even though the chancellor did not reference the McKee factors, “it appears that he fairly apportioned the limited fees between the attorneys based upon their respective work ion the case.”

Roberts v. Lopezcustody – Liza Lopez and  David Roberts had a child in 2009.  (They were never married; in fact, Liza met David when she sought out his services for a divorce; he told her he’d rather date her than represent her).  Shortly after the child was born,  Liza, upset with David over his relationship with another woman, drove her car into the other woman’s car. She was charged with felony assault but pleaded guilty to a reduced charge.  A few months later David files for custody.  Liza moves back in and everything is fine.  A few months later she moves back out.  You know the drill. Eventually they separate for good and the court awards joint custody.  David appeals and since he’s a lawyer, he claims there are all sorts of errors.  For example, he claims that Liza failed to serve her complaint within 120 days  Liza is unrepresented and doesn’t file a brief.  The Court affirms the award of joint custody.

Scurlock v. Statepcr from guilty plea – Scurlock pleaded guilty to rape of a minor in 2000.  He got 8 years’ imprisonment and 22 years of post-release supervision. In 2013, he filed a pcr petition arguing that “(1) the State failed to introduce testimony from the witness who certified the documents used to prove prior convictions; (2) the circuit court erroneously imposed a habitual-offender enhancement to his sentence, and (3) the State failed to provide evidence of the alleged victim’s age. The circuit court denied the motion on the grounds that it was time-barred by the applicable statute of limitations and had no merit.”  The circuit court finds the pcr is out of time.  The Court of Appeals agrees.

Bowdry v. State another pcr from guilty plea –  Bowdry was charged by criminal information with possessing more than two grams of cocaine, as a habitual.  He  entered a guilty plea and was sentenced to sixteen years.  He then filed a pcr motion alleging that  it was plain error for the trial court to allow the criminal information to be amended to charge him as an habitual after the guilty plea was entered. The circuit court denied relief  finding that the criminal information originally charged Bowdry as a habitual offender and that the amendment was used only to correct a date and clerical errors.  The Court of Appeals affirms.

Ratliff v. State –  DNA Report; state calling rape victim “baby” –  – Ratliff  was convicted of sexual battery and sentenced to thirty years based on his having impregnated his niece (the baby was stillborn but DNA identified Ratliff as t he father). The Office of Indigent Appeals  filed a Lindsey brief certifying to this Court that there were no issues to appeal.  Ratliff filed a pro se brief arguing 1) the  State engaged in prosecutorial misconduct;  (2)  the trial court erred in failing to grant a continuance or a mistrial based on an amended DNA analysis that was excluded by the trial court; and (3) that he received ineffective assistance of appellate counsel.

Prior to trial, the state had a  DNA report showing that the chance that Ratliff was not the father was 658,604 to 1.  Right before trial, the report was amended to show odds of 1,422,586 to 1. The Court excluded the amended report.  “Ratliff then requested a continuance, asserting that the second amended report contained errors that raised questions about the adequacy of the testing procedures and policies”  “and that his expert needed time to review the second amended report.”  In support,  Ratliff’s DNA expert testified outside the presence of the jury that the amended report contained the correct paternity index values but incorrectly multiplied them.  She testified that  this error raised questions about the adequacy of the technical-review procedures at the lab.  However,  did not dispute the accuracy of the three DNA profiles. The trial court denied Ratliff’s motion for a mistrial.  The Court finds that this was not error.  Nor was it prosecutorial misconduct for the state to refer to the victim as “baby”.  During the State’s examination of the niece, the prosecutor said: “Would you just point to him, baby,” and “[T.M.,] how old are you, baby?” Ratliff’s trial counsel was granted a sidebar where he requested that the trial court instruct the State to refrain from using terms of endearment. The defense objected and the state only used the term one more time.

It is clear from the context that the term “baby” was not used in a calculated way to  influence the jury; instead, the term was used as an attempt to elicit testimony from a reluctant witness testifying about a difficult and sensitive subject matter. Although we could conceive of a situation in which a prosecutor’s use of a term of endearment in reference to a victim could rise to such a level as to constitute misconduct, considering the context in which the term was used here, we find its use was not inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury. Accordingly, this issue is without merit.

Body v. State –  constructive possession of gun for felon in possession – Body was convicted of felon in possession and sentenced to eight years. He appeals on sufficiency of the evidence.  At trial the investigator testified he responded to a call about a disturbance.   When he got to the scene, he heard a gunshot but could not see who fired it.  He did see a black male with a white t shirt and a backpack running away.  A search ensued and Body was found sitting on the ground behind some shrubs.  He was wearing a white t shirt.  Nearby was a backpack containing a handgun.  He could only identify Body by his t shirt.  Body had his friend Justin Evans testified that Body arrived after the disturbance but before the gunshot and when they heard the gunshot, they ran.  The Court of Appeals affirms. “Investigator Williams testified that he saw the backpack in close proximity to Body, or within arm’s length. Investigator Williams also testified that he found a gun inside the backpack found near Body.”
Strong v. North Miss. Center for Higher Educational Advancementwrongful termination/McArn does not apply to employee whose contract not renewed – Strong was employed as a project specialist at the N.Miss. Center for Higher Educational Advancement.   Strong claims that he expressed to his supervisor that  Warren Stamps was misappropriating money.   A few weeks later, Strong got a letter telling him his contract would not be renewed once it expired at the end of the month.  He sued both NMCHEA and Stamps.  The court dismissed the case and the Miss.S.Ct. affirms finding that McArn does not apply because he had no right to employment beyond the year’s contract. “Moreover, Strong has not proved that Stamps engaged in illegal activity, or that the Center’s decision to not offer him a new contract was a direct result of his complaint about Stamps. Further, Strong’s allegation that he was fired is false, as an employee whose contract term expires without being renewed is not fired.”

Gateway United Methodist Church of Gulfport v. Miss. Trans. Comm’n  eminent domain –  the suit involves the acquisition of .12 acres of land along a sight flare for the improvement of an intersection at United States Highway 49 near Lymon.   Before trial, the court granted MTC’s motion in limine to preclude any testimony on damages to the remainder of the property based upon restrictions of access along the sight flare. The court awarded the Church  $46,450. The Church appeals. The Miss. Court of Appeals affirms finding that “a landowner is not entitled to compensation under the Mississippi Constitution for diminution of access where the action taken by the State constitutes a reasonable exercise of
police power and where the landowner is left with reasonable access.”

Mitchum v. State –  sexual battery/ hearsay – Mitchum was convicted of sexual battery and gratification of lust involving his four year old half-sister Alice and sentenced to thirty years.  ON appeal he argues sufficiency of the evidence and error in admission of hearsay. Mitchum regularly slept on his mother’s couch,  He eventually admitted that Alice had slept with him on the couch when she was scared and that he had masturbated while sleeping on the couch. Alice told her mother that Mitchum had touched her.  At trial, Alice testified for Mitchum and denied he had touched her but on cross  she remembered telling the prosecutor  that Mitchum had touched her “down below.”  The Court of Appeals finds no problem with the sufficiency of the evidence.  As far as Alice’s out-of-court statements, they were admissible as statement to a medical provider for teh purpose of seeking treatment.

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