Decisions – Miss.Ct. of App. – Dec. 2, 2014

Perriece Westbrook v. Toikus Westbrook, M.D. service of process – This was a med mal case centering on the June 30, 2010, birth of a still born.   The complaint was filed on December 16, 2011.  Summons was not issued until the day before the 120 days ran.  Just prior to the expiration of the 120 days, the lawyer hired a  professional process-serving company in Hattiesburg and told them that process needed to be served by Saturday, April 14. The company  ended up serving a person they believed was Toikus Westbrook in Memphis Tennessee on April 13.  It turned out, though, that the man served was Toikus’ father and Toikus filed a motion to dismiss for failure to serve process.  The trial court granted the motion finding that the defendant had not been served and there was not good cause to extend the time for service. The Miss. Court of Appeals affirms. In doing so, the Court stated, “While this Court may not have made the same decision as the trial court, we cannot say the trial court abused its discretion.”   The correct Dr. Westbrook was not served within 120 days.  And the plaintiff did not request additional time before the expiration of the 120 days.

Fred Harrell v. Stateself defense- evidence of prior threats – Harrell was convicted of aggravated assault after shooting at (and missing)  Leonard Davis after Harrell made suggestive remarks about Davis’ girlfriend.  On appeal, Harrell argues that it was error for the court to exclude a statement made by Davis just before the shooting to the effect that “I’m talking to you m—– f—–.”  The court holds that this was error but harmless since other witnesses testified about the threats.

Ryan McClendon v. State –  weight of the evidence – McClendon was convicted of the armed robbery of a woman who was getting into her car in Tupelo, Mississippi.  In running from the robbery, McClendon was almost run over by two women in another car who stopped and gave assistance top the victim.  The women in that car spotted McClendon later and called 911 whereupon McClendon was arrested. On appeal he argues that he received ineffective assistance of counsel because of his trial counsel’s failure to (1) request jury instructions on misidentification and impeachment of witnesses, and (2) object to the State’s leading questions.  The court finds that these issues are better left to post conviction. McClendon’s other issues involves the wright of the evidence.  The Court finds no error and affirms.

Christopher Shane Howell v. Equipment. Inc. –  negligent maintenance –  Howell was severely injured when the extended platform of the scissor lift on which he had been working fell several feet to the ground. He filed a negligence suit against the manufacturer of the lift as well as the company that did the maintenance.  He settled with the manufacturer.  In the case against the company that performed maintenance, the jury found for the defendant. “The basis of the Howells’ complaint against Equipment Inc. was the lack of a weightcapacity decal indicating the maximum weight limit for the platform extension (250 pounds). They contended that Boykin should have noted the decal was missing when he came out for the service call and informed Bates Drywall that the lift was unsafe for use. They also argued that “C-channels” on the platform were bent, indicating another potential safety issue.” On appeal Howell argues that the court should have granted a jnov.  He also takes issues with the court’s instructions on superceding cause and an employer’s duty to an employee.

Peggy Trull v. Riverboat Casinopremises liability –  Trull tripped over an allegedly  buckled mat and fell while exiting the Riverwalk Casino in Vicksburg, Mississippi. The casino moved for summary judgment based on surveillance video that showed the mat was not buckled but was lying flat and that Trull actually tripped near the threshold itself.  Trull responded by arguing  that the threshold created a dangerous condition. The trial court granted summary judgment and the Miss.Ct. of Appeals affirms.

Jeremy Moseley v. Tiffany Moseley Smithpost divorce contempt/hold harmless provision – In their property-settlement agreement, Jeremy was required to hold his ex-wife, Tiffiny,  harmless for any debt associated with their 1998 Chevy Camaro which Moseley got to keep. Instead he had the  car debt discharged in bankruptcy which prompted the  bank to go after Smith, who was ordered to pay the remaining debt plus interest.  She then filed for contempt which the chancellor granted and ordered Jeremy to pay $36,036.18—the amount Smith had to pay the bank, plus attorney’s fees and expenses to make her whole.  Jeremy argued that the hold-harmless provision was no longer enforceable by the time Smith filed her contempt action because of the bankruptcy and the statute of limitations.  The Court of Appeals affirms.

We find neither reason creates a barrier to Smith’s contempt action. First, the only debt discharged in the bankruptcy was Moseley’s debt to the bank. The discharge order did not cover Moseley’s separate debt to Smith, arising out of the hold-harmless provision in the divorce judgment, as Moseley neither listed this debt on his bankruptcy schedules nor otherwise notified Smith he had filed bankruptcy. Second, Smith’s contempt action was timely. Smith’s action sought enforcement of a provision of the property-settlement agreement, which by operation of statute became a part of the chancery court’s final judgment of divorce. Because her action was “founded on [a] judgment . . . rendered by [a] court of record in this state,” the seven-year statute of limitations applied. And because Smith filed for contempt within seven years of learning that the bank was pursuing her for the remaining debt on the Camaro, her contempt complaint was not barred by the statute of

Brandy Nicole WIlliams v. Stateexclusion of codefendant’s exculpatory statement/aiding and abetting instruction – Williams was convicted of capital murder and sentenced to lwop in the death of George County Sheriff Garry Welford who was killed when a pickup truck ran over him.  Williams’ boyfriend Chris Baxter was due in court for sentencing after pleading guilty to possession of meth.  When he didn’t  appear, a warrant was issued.  Eventually, a police chase ensued and Williams’ and Baxter’s truck ran over a deputy.  The court reverses on two issues. The first was over the trial court’s exclusion of a statement made by Baxter.  Law enforcement did not know who was driving.  Baxter  at first said he was driving.  He then said that Williams was driving but that they switched seats prior to the accident.  He also said that Williams wanted him to stop but he refused.

To determine whether Baxter’s statement to law enforcement should have been admitted pursuant to Rule 804(b)(3), we must determine whether that statement meets all of the requirements of that rule. First, Baxter was unavailable as a witness pursuant to Rule 804(a)(1), because he invoked his Fifth Amendment right not to testify. Jacobs v. State, 870 So. 2d 1202, 1208 (¶13) (Miss. 2004). Second, Baxter’s statement to law enforcement was contrary to his own interest. Absent coercion or threat, of which there is no evidence, no person would have admitted to the murder had they not actually killed someone. Third, the statement tended to subject him to criminal liability. Baxter’s admission that he was driving the truck at the time Sheriff Welford was run over could and did subject him to a capital murder conviction. Fourth, a reasonable person in Baxter’s situation would not have made such a statement unless he believed it to be true, as Baxter faced life without parole based on his conviction. Finally, there is corroborating evidence to indicate the trustworthiness of the statement. Baxter admitted to driving the vehicle at the time of Sheriff Welford’s death, and a witness put Baxter behind the wheel of the truck, as did DNA evidence.  The court has held that the sufficiency of the corroboration must be assessed in light of the importance of the evidence and the offeror’s fundamental constitutional right to present evidence, and such corroboration, as required by Rule 804(b)(3), does not have to be absolute. Lacy, 700 So. 2d at 607 (¶15).

In applying this test, it is obvious that the statement should have been admitted. Baxter admitted to driving the truck at the time it ran over Sheriff Welford, and specifically stated that Williams was not driving. Baxter was situated to commit the crime. He acknowledged that he had taken methamphetamine and was running from law enforcement. Baxter admitted he was driving when the investigators questioned him the day after Sheriff Welford was killed. Finally, there was independent corroborating evidence: DNA placed Baxter behind the wheel at some point, and a witness testified that a male was behind the wheel just after Sheriff Welford was struck.

The Court also finds that it was error to give this instruction:

The Court instructs the Jury that it is not necessary that an unlawful act of the  Defendant be the sole cause of death. Responsibility attaches if the act of the Defendant contributed to the death. If you believe the Defendant committed an unlawful act or aided and abetted another in committing an unlawful act that contributed to the death of Garry Welford, then the Defendant is not relieved of responsibility by the fact that other causes may have also contributed to his death.

“The aiding and abetting instructions adequately explained the source of Williams’s liability. By adding an instruction on contributing causes of death, the court needlessly created a risk that the jury would convict unless the defense could prove that the initial flight was not a contributing cause of the death. Our supreme court has reversed convictions where jury instructions have shifted the burden of proof to the defendant.”

PCR appeals affirmed

Bobby Eugene Epps v. State

Jomorris Thornton v. State

John Joseph Dedeaux v. State

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