Decisions – Miss.Ct. of App. – Oct. 21, 2014

In the Interests of Joey: Sharon Smith v. Coahoma County Department of Human Services –  custody of sexually abused child – Sharon Smith had two boys, Joey, 4 and his 11 year old brother.  In March, 2012, DHS received a call that Joey was being sexually abused by his brother (their sister would eventually testify that she had seen the older boy performing sex on the younger).  DHS created an initial safety plan (ISP) that required that the boys not be left alone unsupervised and the family was to go to counseling.  When DHS heard that Sharon had violated the ISP, it moved for an emergency order in youth court which granted DHS’s motion and gave DHS  physical and legal custody of Joey.  The court placed Joey with his great-aunt.  In May, DHS filed a petition to adjudicate Joey as a sexually abused child.   After a  permanency hearing in  March  2013,  the court awarded full legal and physical custody of Joey to Mary Jo. The court stated that it would retain jurisdiction for any further actions regarding Joey and released DHS from any monitoring responsibilities. Sharon appeals claiming  there was insufficient evidence to adjudicate Joey as a neglected child and that the youth court should have reunited her with her son instead of granting Mary Jo legal and physical custody.  She also complained that after Mary Jo asked to look at Joey’s medical records, the court discussed the request with  the GAL.   “Sharon claims that, based on the GAL’s participation, the court should have appointed another attorney for Joey.” The Court of Appeals affirms.

Eddie McCoy v. Statepossession/suppression – Eddie McCoy was convicted of possession of cocaine with the intent to distribute and sentenced to life as an habitual after  officers found 2.7 grams of cocaine, small plastic bags, scales, a gun,and brass knuckles in his girlfriend’s apartment. On appeal he claims that the evidence is insufficient.  He also challenges the search. The search came about after cops received a tip from a confidential informant that drugs were being sold out of a certain apartment in Hattiesburg.  Officers went to the apartment for a “knock and talk” whereby they  knock on the door and  request to interview the resident. Officers knocked and McCoy’s girlfriend, Chante Robinson, who lived there with her mother,  answered the door.  While the officers were talking with Chante, McCoy walked into the living room. Officers noticed McCoy had his hands shoved into his pockets.   When the officers asked if McCoy would speak to them too, McCoy darted to the bathroom and tried to shut the door. Fearing McCoy was either retrieving a weapon or destroying evidence, the officers ran into the bathroom. They found McCoy hovered over a trash can and escorted him outside of the apartment to wait with another officer. Chante and her mother gave permission to search the apartment and officers find the contraband.

The problem with McCoy’s fourth amendment issue, the Court explains, is that at the suppression hearing, he denied living at the apartment.  “Thus, he failed to show he had a legitimate expectation of privacy in the apartment. Additionally, we find the search was justified for two other independent reasons—exigent circumstances and consent. So the drug evidence was properly admitted.”

Sammy Ray v. Mississippi Department of Public Safety –  termination from state employment/ due process – Ray was fired for writing and then voiding four warning tickets. He claims this was a practice he learned during MDPS training and that almost all troopers do it. MDPS claims this was the writing of “ghost tickets” done merely to bolster the officer’s work performance.  The Court of Appeals issues an en banc opinion reversing the dismissal.

Upon review, we agree that Ray was terminated for conduct other than that with which he was charged and that his due-process rights were violated. The Department has conceded that it has no other proof of the specific charged offenses, and we further find there is no substantial evidence to support the EAB’s ruling. See LaCour v. Claiborne Cnty. Sch. Dist., 119 So. 3d 1128, 1132 (¶20) (Miss. Ct. App. 2013) (An administrative agency’s decision will not be disturbed “unless the order . . . is not supported by substantial evidence[.]”). Accordingly, we reverse the circuit court’s decision, upholding Ray’s termination, and remand for further proceedings consistent with this opinion.

Rodwell v. Chrisman –  procedure on appeal –  Rodwell filed suit against  Chrisman after Chrisman foreclosed on Rodwell following a business dispute and default on a loan.  The Court granted summary judgment for Chrisman. The Miss.Court of Appeals dismisses the appeal finding that the notice of appeal was not timely filed. The motion for summary judgment was filed September 13, 2012.   Rodwell filed a motion to reconsider.  It was denied and a final judgment was entered on January 28, 2013.  On February 28, 2013, Rodwell filed a notice of appeal.   “Our review of the record reflects Rodwell indeed filed his notice of appeal thirty-one days after the trial court denied his motion for reconsideration,
and therefore, Rodwell filed an untimely notice of appeal.”

Jonathan Keen v. Stateconstructive amendment to indictment – Keen was convicted of capital murder and sentenced to life without parole.  Keen was charged with the beating death of Kerry Prisock, a handyman who lived in his van which he parked at the reservoir at night.  He did this because he needed $400 to pay his drug dealer, Willie Myers.  Myers drove Keen to the van and then followed the van while Keen drove it to a dirt road off of I-55 south in Jackson to abandon the van with Prisock’s body inside.  Myers then drove Keen to New Orleans.  Keen was indicted for capital murder with the underlying offense being robbery. He was also indicted for motor vehicle theft.  Prior to trial, the state dismissed the charge of motor vehicle theft and used the motor vehicle theft as the robbery.  On appeal, Keen argues that in doing so, the state constructively amended the indictment and that he was prejudiced because his defense to the capital murder was that he did not steal any money.  The Court of Appeals finds no error noting first that the robbery in the capital murder indictment was not further fefined so as to specify cash or a vehicle.

We agree with the State that section 99-17-20 does not require the personal property  that is the subject of the robbery to be identified in a capital-murder indictment containing robbery as the predicate felony. The State’s decision to dismiss the separate count involving theft of the van, and its explanation that it was proceeding under the theory that the van was the object of the robbery, did not amend or alter the indictment in any way. That Keen  initially believed that the State’s theory of the case was that he had robbed Prisock of Prisock’s cash, and not his van, changes nothing. Nothing prevented Keen from seeking through discovery the identity of the item taken in the robbery. Moreover, the evidence established that Keen robbed Prisock of several items, including Prisock’s cash, clothes, beer, and van, any one of which would have been sufficient to constitute robbery.

As for the sufficiency of the indictment, where the underlying offense is burglary, the indictment must specify the object of the burglary but the same is not true for robbery.

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