Decisions – Miss.S.Ct. – Jan. 8, 2015

Frederick Bell v. Statedeath penalty – Bell was found guilty of capital murder and sentenced to death in 1993.  His death sentence was later set aside because of Bell’s retardation. The trial court then sentenced Bell to life without parole based on The Legislature also enacted Section 99-19-107, which provided that where the death penalty is held to be unconstitutional, “the court having jurisdiction over a person previously sentenced to death shall cause such person to be brought before the court and the court shall sentence such person to imprisonment for life, and such person shall not be eligible for work release or parole.” Bell appealed arguing that in 1993, the capital murder statute only allowed for sentences of death or life (not life without parole) and that Sect. 99-19-107 does not apply because the death penalty has not been found to be unconstitutional.  The Miss.S.Ct. agrees.

We hold that Section 99-19-107 is inapplicable because the death penalty in its entirety has not been declared unconstitutional. As to Bell individually, however, his sentence of death is unconstitutional because he has been determined to be mentally retarded. Section 99-19-107 does not apply when an individual’s death sentence is rendered unconstitutional. That section would apply if, and only if, the United States Supreme Court or the Mississippi Supreme Court rendered a wholesale declaration that the death penalty as a sentence to anyone was unconstitutional. That has not happened, and Section 99-19-107 has never been called into play. With his death sentence being unconstitutional, Bell is entitled to a new sentence. Bell’s sentence is vacated, and we remand the case to the Circuit Court of Grenada County for Bell to be resentenced to life imprisonment.

Kendrick Cowart v. State –   armed robbery/sufficiency of brief on appeal  – Cowart was convicted of  armed robbery and conspiracy and acquitted of murder and manslaughter. The trial court sentenced him to fifty-three years. The charges arose out of the 2009 robbery of  Express Cash in Pike County.  DUring the course of the robbery, Peggy Carter was beaten. She was taken to a hospital but died from blunt force trauma on the next day.  Eight months later, Terrence London, Tecory Wade, and Kendrick Cowart were arrested.   London and Wade eventually confessed to the crime and implicated Cowart.  They took deals and testified against Cowart at trial.   Cowart argues that the trial court erred in admitting half of the statement he made to police.  The court suppressed the second half of his statement because Cowart invoked his right to counsel.  As for the first half, the court finds this issue procedurally barred.  “[T]the Court need not consider this issue because Cowart does not explain in his appellate briefs why his statement was not voluntary, knowing, and intelligent.”  Cowart also claims it was error to allow in four photographs of the victim.  This issue is found to be without merit.  He also complains about the sufficiency of the evidence.  Finally he arguies that  the sentence was excessive and was handed down as punishment for insisting on his right to a trial.  The Miss.S.Ct. affirms.

Tallahatchie Hospital v. Susan Edwards and the wrongful death beneficiaries of Myrtice Edwards presuit notice/ filing of lawsuit tolls the SOL –  Myrtice Edwards died at TGH in June  2007. Four months later (in Oct. 2007),  Edwards’ wrongful-death beneficiaries  provided a Notice of Claim to the Tallahatchie County Chancery Clerk and to the Tallahatchie County attorney. But Plaintiffs  did not provide notice to TGH’s chief executive officer (CEO), Bobby Joe Brunson, as required by Mississippi Code, Section 11-46-11(1)-(2). On June 2, 2008, Plaintiffs  TGH for medical malpractice.  TGH moved to dismiss the complaint, arguing that the Plaintiffs  failed to provide its CEO with presuit notice, and that the complaint was now barred by the one-year statute of limitations. The trial court denied finding substantial compliance.  TGH sought an interloc. appeal which was granted.  The Court reversed finding that substantial compliance was not sufficient. Tallahatchie Gen. Hosp. v. Howe, 49 So. 3d 86, 89 (Miss. 2010). The Court, however, declined to offer an “advisory opinion” on whether the statute of limitations had run  finding that that issue was ‘“premature and not ripe for appellate review.” Id. at 93.

“The trial judge entered his order of dismissal on March 4, 2011. On March 5, 2011, [Plaintiffs] served a Notice of Claim on TGH’s CEO, and TGH denied [Plaintiffs’]  claims via letter on March 18, 2011.”  On March 23, 2011, Plaintiffs filed a  second complaint.  TGH moved to dismiss the second complaint with prejudice, arguing that, because of the lack of presuit notice within one year. The trial court denied the motion and the Miss.S.Ct. granted TGH’s interloc. appeal.  “[T]he sole issue in this case is whether the one-year statute of limitations was tolled on June 2, 2008, when [Plaintiffs]  filed her first complaint, despite not having given TGH proper presuit notice.”  The Court previously held that it did in  Price v. Clark, 21 So. 3d 509 (Miss. 2009). Because the filing of the first lawsuit tolled the statute of limitations,  the second suit, wherein presuit notice was properly filed, was not subject to dismissal based on the SOL.  (Which all goes to show that it pays to not wait until the last minute to serve notice and the complaint).

The Hotboxxx, LLC v. The City of Gulfport –  standing and zoning –  In 2009, The Hotboxxx, LLC  filed a business privilege license application with the City of Gulfport for the operation of an adult entertainment retailer. At the time, the owner,  Artz,  had signed a lease for commercial office space located on Pass Road and  had generated a business plan.  Artz was told his application had been forwarded to the city attorney. On December 1,  he got a letter from the City that it was placing a moratorium in privilege license applications  in preparation for new regulations concerning adult businesses.  In 2010, ,  the city passed new  zoning regulations restricting the areas of town in which adult businesses could be located. This  prevented Hotboxxx from opening its adult business at the location where it had obtained a lease.

A few months later, filed a complaint in Harrison County Chancery Court claiming that the ordinance was unconstitutional. The City  removed the case to federal court which  dismissed the case without prejudice, finding that, under the federal standing requirements, Hotboxxx’s claim was “speculative and hypothetical” because it was undisputed that the application was not
complete. In 2011,  Hotboxxx filed a new complaint in Harrison County Chancery Court, citing the same issues presented in the first suit. Gulfport then filed a Motion to Dismiss. “The chancery court issued Findings of Fact and Conclusions of Law. First, it stated that the application was incomplete,  as determined by the district court. Second, under res judicata, it determined the instant case was different from the one originally filed, ‘but all the material issues that this Court must
address have already been addressed by the Federal District Court.'”  Hotboxxx filed for reconsideration arguing that  the issue of a valid application was contested and not subject to summary judgment, res judicata did not apply, Hotboxxx has standing, and even despite res judicata, Hotboxxx is not barred from pleading a new federal civil rights claim. Teh chancellor agreed and held a bifurcated so that it could first decide the issue of whether  Hotboxxx had submitted a valid privilege license
application.  At the conclusion, the court held that  Exhibit 4 was the privilege application submitted to the city, and it was incomplete. Hotboxxx appealed. The Miss.S.Ct. affirms. “Dismissal without prejudice by the federal district court did not  preclude the instant case from being brought in chancery court. The chancellor’s finding that the privilege license application was invalid was not clearly erroneous; therefore, the Court upholds the chancellor’s finding. Even under the colorable interest standard, the invalid license application and subsequent void lease do not give Hotboxxx a colorable interest to challenge
the constitutionality of the ordinance. Thus, we affirm the chancery court’s holding that Hotboxxx does not have standing to challenge the constitutionality of the ordinance.”

3 thoughts on “Decisions – Miss.S.Ct. – Jan. 8, 2015

  1. Bell seems like a big deal. I’m sure Coleman was happy to stick a knife in stare decisis, but I don’t think I disagree on this case.

    Is Bell retroactive – can Ron Chris Foster seek a new sentence?

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