Decisions – Miss.Ct.App. – Jan. 27, 2015

Warren v. Statedefiicient indictment –  Warren was convicted of bringing contraband (xanax and lortab) into the Winston-Choctaw Regional Correctional Facility in Louisville, Mississippi.  She appeals arguing that the indictment was defective because it charged her with bringing in contraband but failed to identify the contraband.

Here, it is clear that the indictment failed to specify the nature of the controlled substance that Warren was alleged to have possessed. Although our caselaw on this issue primarily addresses possession and trafficking of controlled substances pursuant to Mississippi Code Annotated section 41-29-139 (Supp. 2014), we see no reason why this same reasoning should not extend to possession of a controlled substance in a correctional facility pursuant to section 47-5-198.

Thompson v. State –  suppression pursuant to Garrity v. New Jersey – Thompson a police officer in Meridian when he obtained a subpoena for AT&T records to find out if his wife was communicating with a man with whom she had had an affair.  Thompson was accused of having forged the signature of the detective and the municipal judge on the subpoena.  A grievance was filed and Thompson took a polygraph.  During the polygraph he admitted to the forgeries.  Thompson was indicted for wire fraud in violation of M.C.A. 97-19-83 and found guilty.  He was sentenced to five years  with four suspended, one year to be served on house arrest, and five years of supervised probation. On appeal he argues that his statements should have been suppressed because they were were used in violation of the Garrity [v. New Jersey 385 U.S. 493 (1967)]  rule in that he was compelled to answer questions or face termination, and promised that any statements he made would be used solely for administrative disciplinary purposes. The Court finds that Garrity was not implicated because at the hearing, various persons involved in the investigation denied threatening Thompson with termination of he did not cooperate. He also argued that the court prevented him from presenting his defense that what he did was merely a misdemeanor.  The Court rejects this argument as well.

C.H. Miles v. Brenda Miles –  contempt/impossibility of performance –  Carlos and Brenda were divorced in 2000.  Carlos was ordered to  place Brenda’s name on Carlos’s individual retirement account as a joint tenant with full rights of survivorship. In 2012, Brenda filed a motion for contempt alleging that Carlos had not done so. She asked that  Carlos be ordered to pay her $28,929.72, one-half of the of the total value of the account.  Both testified at the hearing that they were told by a bank officer that they could not add Brenda’s name to the account.  Years later Brenda checked on the account and found out that Carlos had withdrawn almost half of it. Brenda was awarded a judgment of $26,086.53 and $1,000 in attorney’s fees. Carlos appeals arguing that he was not guilty of contempt  due to impossibility of performance.  The Court agrees that the testimony was uncontradicted that Carlos was unable to place Brenda’s name on the account. The Court affirms the award of $26,086.53 to Brenda but reverses the finding of contempt and the award of attorneys fees.

Christi Knight v. State –  manslaughter – Christi Knight was charged with the murder of Chad Long, her daughter’s boyfriend, after the daughter accused Long of having beaten her.  She was convicted of manslaughter and sentenced to 20 years.  On appeal she argues only sufficiency of the evidence issues and loses.

Kendrick Smith v. State –  various issues procedurally barred – Smith was found guilty of armed robbery of a bank and aggravated assault on a law enforcement officer (for shooting an officer as he ran from the bank) and was  sentenced to forty years for armed robbery and thirty years for aggravated assault, to be served consecutively.  Smith argues on appeal that he should have been granted a mistrial after a juror was heard saying something about “pleading guilty” and was replaced by another juror. The Court finds that Smith failed to ask for a mistrial at the time and is barred from doing so on appeal. He also argues that he should have been given a mistrial after a sheriff’s department employee was seen taking photographs in the courtroom.  Smith argues  the jurors would have been intimidated.  “Here, the judge stated that taking pictures of the jury was “clearly inappropriate” but that the employee may not have been aware that such photography was prohibited. He further determined that the conduct did not warrant a mistrial. There is no evidence that the jury was intimidated by the photographer. Moreover, the judge was in the best position to determine the prejudicial effects of the employee’s conduct in the courtroom.”  He also has an issue with testimony that DNA found on a two dollar bill was consistent with Smith’s because of a discovery violation.  The Court holds this was not error because the judge instructed the jury to ignore the evidence.

Kayla Mize v. Royce Jarrell Mizemodification of custody – The Mizes were married on October 27, 2007, several months after having a son, Christopher.  They divorced in 2011 and agreed to  joint legal and physical custody of the three-year-old.  Three months later  Jarrell moved to modify custody claiming  Kayla was using illegal drugs and living with a man outside of wedlock. An emergency hearing was had.  Kayla had been kicked out of her father’s house  so the court awarded custody temporarily to Jarrell.  A GAL was appointed.  Kayle passed a drug test and moved in with her mother so the GAL recommended the emergency order be lifted. By the time the second day of the hearing on the motion occurred, Kayla had married her boyfriend and was living with him in a three bedroom house. Jarrell also remarried. The Court awarded custody to Jarrell and ordered Kayla to pay support. The court reverses and renders finding that “[t]here was no evidence presented as to how Kayla’s living situation since the original divorce decree adversely affected Christopher, much less any evidence of harm or danger.”

Trevor Hoskins v. State – Hoskins was found guilty of  domestic aggravated assault and sentenced to twenty years. Apparently he got into an argument with his girlfriend about her past boyfriends, ordered her out of the car and when she refused, he hit her, dragged her out of the car, beat her down to the ground, kicked her, and bit her and tried to gouge her eyes out. On appeal he argues that the jury should not have been shown eleven photos of her injuries as well as some other issues.  The Court affirms his conviction which relieves me of any obligation to warn all of womankind about Mr. Hoskins.  Hoskins has another twenty year sentence in a second case of aggravated domestic assault which is currently on appeal.  MDOC shows that he is doing 40 years.

Ethan Smith v. State –  lesser included – Smith was found guilty of murder when he shot some other guy while they were all partying at a friend’s house (ok, some people just don’t need to drink). On appeal he argues that the court should have granted an instruction on culpable-negligence manslaughter. In finding no error, the Court writes:

In viewing the evidence in the light most favorable to Smith, there is no evidence to support a culpable-negligence-manslaughter instruction. There was no evidence of horseplay. No one pointed the gun at anyone anytime prior to the shooting. There is nothing to indicate the gun misfired or was shot by accident. Smith threatened Midkiff that if he did not leave, he was going to shoot him. Midkiff did not leave, so Smith put the gun to Midkiff’s head and shot him. Smith proceeded to call 911 and told dispatch that his friend had shot himself in the head. Because we find no evidence of culpable negligence, this issue is without merit.

He next argues that he should have been given an instruction on excusable homicide by accident and misfortune.  The Court dispenses with this issue along the same lines as it did the first issue.  Smith finally argues sufficiency of the evidence which, as it does most of the time, fails.

Baptist Memorial Hospital v. Dr. C. Jake Lambert –  employment contract/impossibility of performance – In 2004, Dr. Lambert signed an employment agreement with Baptist Health Services  to provide cardio-thoracic-surgery services to the hospital in Oxford, Mississippi.  “Almost immediately after Dr. Lambert’s employment began, the Hospital began to receive complaints from staff and patients about Dr. Lambert’s angry and abusive behavior. They reported his demeaning attitude, insecurity and hesitancy in decision making, hand shaking, freezing up during surgery, and anger toward patients and their families.”  Dr. Lambert  agreed to be referred to the Mississippi Professional Health Program (“MPHP”) which referred him to Dr. Edward Anderson at Pine Grove Recovery Center in Hattiesburg.  There he was diagnosed with OCD and determined to be unfit to practice surgery at that time.  The Hospital fired him and he sued. Baptist filed a counterclaim.  The circuit court found that the Hospital was entitled to fire Dr. Lambert and granted summary judgment.  Lambert v. Baptist Mem’l Hosp.-N. Miss. Inc., 67 So. 3d 799 (Miss. Ct. App. 2011). Baptist then pursued its counterclaim that Dr. Lambert had breached the contract of employment.  The court granted summary judgment for Dr. Lambert finding impossibility of performance.  Baptist appeals arguing that Dr. Lambert failed to raise this affirmative defense in his answer. The Court affirms.

While our research provides no caselaw regarding whether the doctrine of impossibility is an affirmative defense, it appears it would fall under the “any other matter constituting an avoidance or affirmative defense” portion of Rule 8(c). It is important to note that, while Baptist is correct that Dr. Lambert failed to plead section 261 as an affirmative defense in his answer to Baptist’s counterclaim, Dr. Lambert did plead section 261 in his response to Baptist’s motion to reconsider the denial of its two summary judgment motions. And, when impossibility was pled, the fact that Dr. Lambert was unable to perform his personal-services contract due to his medical diagnosis should have come as no surprise to Baptist.

PCRs

Hence David Davis v. State

Jessie Earl White v. State

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