Decisions – Miss.Ct. of App. – Oct. 14, 2014

Miss. Dep’t of Revenue v. Johnny Reb Aviation appeal of administrative agency – MDOR determined Johnny Reb Aviation LLC (Johnny Reb), an airplane dealership, was also chartering the airplanes it was offering for sale, which meant it had to pay a use tax. Johnny Reb disagreed and appealed to the chancery court.  The chancellor reversed the Department’s decision.  On appeal, the Court of APpeals reverses  finding that the chancellor’s job was to decide “if MDOR’s decision was supported by substantial evidence or was arbitrary and capricious. Because substantial evidence supported MDOR’s decision, it was clear error for the chancellor to vacate MDOR’s decision. We thus reverse and render, reinstating MDOR’s assessment.”

Leggett & Platt and Fidelity & Guaranty Inns. Co. v. Victor Brinkleyworkmen’s comp./sol –  Brinkley was operating a riveting machine at Leggett when he injured his  right thumb  on January 15, 2011. On January 30, 2013, Brinkley filed his petition to controvert.  In between those two dates, on October 20, 2011, Fidelity sent a Form B-31, Notice of Final Payment, to Brinkley for execution who failed to return it.  Fidelity sent another letter via certified mail on November 2, 2011.  When Brinkley again failed to return it,  Fidelity filed an unsigned Form B-31 on November 23, 2011, with the Commission.  Fidelity sent Brinkley a copy via certified mail, return receipt requested.  After Brinkley filed a petition to controvert,  Leggett and its insurer defended it on the grounds that the  one-year statute of limitations, M.C.A. Sect.  71-3-53,  barred the claim.  The Commission held that  limitations period begins upon the proper filing of the Form B-31 and that  Brinkley failed to receive actual notice of Leggett’s November 23, 2011 filing of the unsigned Form B-31, since the postal-service tracking notification stated that on December 5, 2011, the post office attempted delivery of the notice of the filing but without success. The Commission found that actual notice of final payment was not shown until January 27, 2012, when Leggett and Fidelity received in the mail a Form B-31 containing Brinkley’s signature. The Miss. Court of Appeals reverses.

In this case, the record reflects that Fidelity provided Brinkley notice on December  5, 2011, via certified mail that the Form B-31 notice of final payment had been filed with the Commission. Similar to Nowell, 2003 WL 21043110, at *1, the notice in the instant case delivered via certified mail on December 5, 2011, met the statutory requirements under section 71-3-37. As in Carter, 234 Miss. at 566, 107 So. 2d at 120, the record herein reflects that Brinkley received ample opportunity to sign the form before it was filed, but he failed to respond within a reasonable time after receipt of the Form B-31. We further acknowledge that the record reflects Brinkley’s admission to receiving the Form B-31 notice of final payment three months before he signed and returned the form to Fidelity.

Leggett, par. 27 (emphasis added).

Robert McGuire v. State –  murder –  On December 3, 2011, McGuire knocked on his neighbor’s door and asked him to call 911 because he had just shot his girlfriend.  McGuire was convicted of the murder of Lynda Tate even after the jury heard testimony that the shooting was an accident that happened when he was holding the gun, leaned in to give McGuire a kiss, and she shooed him away.  Crime lab scientist Felecia Richardson testified that the gun did not have a hair trigger. On appeal, McGuire  argued that it was error to introduce the 911 call where the neighbor states that McGuire just told him he killed his girlfriend. The operator asks if he said how he had done it and the neighbor states that he did not hear shots, “he’s probably been beating her up.  The Court rejects this argument. “McGuire made a timely and contemporaneous objection as to hearsay, yet he failed to object to the relevance or the unfair prejudicial nature of the statement until after it was played for the jury. Because McGuire failed to timely and specifically object, we find no merit in this issue.”  McGure’s sufficiency and weight of the evidence issues are also rejected.

Antonio Wallace v. StateArmed robbery – Wallace was convicted of being part of an armed robbery that consisted of robbing the assistant manager of Sand Dollar Lifestyles in Ridgeland as she was leaving the store with the night deposit.  Wallace was dating an employee of the store and she texted him when the manager was leaving the store.  The actual robbery was accomplished by Demarcus Timmons.  Wallace’s brother  Reginald drove the getaway car.  While Timmons and Reginald testified that Wallace was mot involved in the crime, there was evidence that Wallace and his brother had Reginald had texted each other several times after the robbery and there was testimony that the three split a total of $8000.  On appeal, Wallace challenges the weight and sufficiency of the evidence.  He also argues that it was error for the court to rule that Wallace’s prior burglary conviction from 2007 because this had a chilling effect on his testimony.  “The supreme court has stated that in these situations, “the defendant is procedurally barred from arguing on appeal that such a ruling prevented his putting on a defense or had a ‘chilling effect’ on his right to testify if he fails to proffer his proposed testimony.” The Miss.Court of Appeals affirms.

The Court also affirms several pcr denials.  These are getting so plentiful I don’t have time to summarize each one.

Allen v. State

Randall v. State

Mohead v. State

Birmingham v. State

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