Decisions – COA – March 17, 2015

Abdulhkirn Borou v. State –   no PCR from nonadjudication –  In 2009,  Abdulhkim Borou was charged with three counts of sale of pseudoephedrine over the amounts allowed by law.  In exchange for a guilty plea, the state  dismissed two of the charges and Borou got  five years of nonadjudicated probation and a fine.  The charge was later expunged after Borou was released form probation.  In 2014, he filed a motion for post-conviction relief.  “The trial court dismissed his motion, stating it had no jurisdiction because Borou was no longer serving his sentence. We find, however, that the court lacked jurisdiction since “nonadjudication” of guilt resulting in dismissal of charges is not a “conviction” or “sentence” within the purview  of the Mississippi Uniform Post-Conviction Relief Act. Therefore, Borou lacks standing to make any claims under Mississippi Code Annotated section 99-39-5 (Supp. 2014). The judgment of the trial court is affirmed.”

Billy Wheater v. State –  pay restitution or go back to jail – Billy Wheater was convicted of aggravated assault ion 2000.   He was sentenced to twenty years in the custody of MDOC, with six months to serve, and nineteen years and six months of post-release supervision (PRS). “He was also ordered to pay $6,025.33 in restitution. After he was released in 2001, Wheater was ordered to pay monthly installments toward his restitution as a condition of his PRS. Ten years later, the circuit court found that Wheater had only paid $800 of his restitution and had willingly failed to make scheduled 2 payments, despite assistance from the court. Accordingly, his PRS was revoked. Aggrieved, Wheater now appeals. Finding no error, we affirm.

Rodney Mitchell v. Stateproof of  amount necessary for felony shoplifting – Mitchell was convicted of felony shoplifting. He was sentenced to ten years, with two years suspended and eight years to serve in the custody of  MDOC.  On appeal he claims that the proof was not sufficient to prove the $500 minimum for felony shoplifting.  Mitchell was pulled over because there was an arrest warrant out for his passenger.  A search of the trunk revealed merchandise for which Mitchell had no explanation.  The items matched up with merchandise missing from Wal Mart.  A video tape of the store showed Mitchell putting items in a cart and not paying for them.   At trial, Wal Mart’s asset protection manager testified that the store’s surveillance tapes showed Mitchell placing $413.44 worth of items into his shopping cart.  The Court points out that the manager pointed out to other items that were seen in the cart and found in Mitchell’s trunk.  It’s just that the video did not capture him putting those items in the cart.  Those items totaled  $106.39 which “would bring the total of the identified items from the surveillance tapes to $519.83.”  The COA affirms.

Lorenzo Hull v. State –  proof for habitual offender status – Hull was convicted of the depraved heart murder of his girlfriend Angela Andrews.  Hull and Angela had gotten into a fight the night before. When Hull woke up,Angela was  unresponsive and hot, with red eyes and mucus coming from her mouth and nose.  Andrews died later that day at UMMC from blunt force trauma.   Hull told investigators that he and Angela had gotten into a fight and she ran out of the front door,  missed a step, and fell down the front porch stairs, hitting her head on concrete stepping stones.

 Hull claims the trial court erred by permitting the State’s expert witness in forensic pathology to give speculative testimony, refusing to redact the victim’s death certificate to remove prejudicial hearsay, refusing two jury instructions, and sentencing him as a habitual offender. Hull also argues the weight and sufficiency of the evidence were inadequate to support the verdict. This Court affirms Hull’s conviction but vacates his habitual-offender status because the State failed to offer competent evidence that Hull was a habitual offender. We remand the case to the Warren County Circuit Court for resentencing of Hull as a nonhabitual offender.

“At the sentencing hearing, the State orally represented that it had certified copies of sentencing orders for Hull’s two prior convictions for sale of a controlled substance in 1993 and possession of cocaine in 2002. However, the State did not introduce these documents into evidence or make them a part of the record. Additionally, Hull did not object to being sentenced as a habitual offender at the hearing. The trial court proceeded to sentence Hull as a habitual offender.”  The COA holds that it was plain error for the State to fail to get the evidence of the priors into the record.

James Harris v. State PCRs after trial and appeal must first be filed in the Miss.S.Ct. – After he was found guilty and lost his appeal, Harris filed a second pcr in the trial court.  The trial court dismissed it as time barred.  The COA affirms but on the basis that Harris had to first get permission from the Mississippi Supreme Court to file in the trial court inasmuch as he was not filing a pcr from a guilty plea.

Thomas Chapman v. Coca Cola Bottling Co. –  bad faith workers comp. –  Thomas was a route salesman for Coke.  In 2001, he injured his back while building a display at a Bay Springs store.  He had previously injured his back while at work in 1991 and had been in a roll over accident in 2000.  Thomas was prescribed steroid injections, muscle relaxers and physical therapy.   When Thomas returned to work, he was placed on light duty but when he still needed assistance from co workers, he eventually left Coke.  Coke approved some of Thomas’ medical expenses.  However, Thomas’ doctors at Occupational and Rehabilitative Associates determined that his injuries were preexisting from the roll over, Coke stopped paying.  In 2002, Thomas filed a petition to controvert.  The ALJ ruled the injury was compensable and awarded past due compensation for temporary total disability from June 6, 2001, to March 15, 2002.  The Commission affirmed and the parties settled.  In 2008, Thomas filed a bad faith denial of workers comp. benefits.  The trial court granted summary judgment for the defendants.  The COA affirms.

Cynthia Easterling v. Rhett Russell –  basic contract stuff –  In 2002 Cynthia and her brother Rhett formed Meliotus LLC to purchase real estate.  In 2009 they discussed dissolving it.   In 2013, Cynthia sent Rhett a settlement offer.  Rhett treated the offer as a contract, accepted it, and even though he did not hear back from Cynthia, prepared deeds as per the terms of the offer and filed them.  Cynthia sued claiming there was no binding contract.   The trial court granted Rhett’s motion for summary judgment finding that Cynthia’s letter was an offer to Rhett that she considered a binding proposal.

Maggie Melvin  v. Cleveland Nursing Homenursing home negligence/instructions – Melvin sued Cleveland Nursing Home for the death of  her husband who entered the home on August 28, 2008 and, suffering from a sacral decubitus ulcer, left the home on October 4, 2008,  for the Bolivar Medical Center where he died.  A jury found for the nursing home.  On appeal, Melvin takes issue with the following instructions given the jury.

The Court instructs the jury that nursing homes are not guarantors of the success of any care provided to a resident of a nursing home. Unless the nursing home breached the standard of care, a nursing home is not liable for the occurrence of an undesirable result to a resident at the nursing home. A nursing home is only required to provide a resident with that degree of care, skill[,] and diligence which would be practiced in the same or similar circumstances by a minimally competent and reasonably prudent nursing home. Therefore, unless the Plaintiff has proved by a preponderance of the evidence that Defendant breached this standard, you must return a verdict in favor of the Defendant.

In order to prevail in this action, the Plaintiff must establish by a preponderance of the evidence and by expert testimony all of the following four elements: 1. The standard of acceptable nursing home care; 2. Cleveland Nursing and Rehabilitation Center deviated from that standard when providing care and treatment to Jimmy Lee Melvin; 3. Jimmy Lee Melvin suffered damages; and 4. Cleveland Nursing and Rehabilitation Center’s deviation from the applicable standard of care was the proximate cause of Jimmy Lee Melvin’s damages. Expert testimony is required to establish each of these elements. If the Plaintiff establishes each of these elements with expert testimony by a preponderance of the evidence, then your verdict shall be for the Plaintiff. However, if you believe the Plaintiff has failed to show any one of the above elements by a preponderance of the evidence in this case, then your verdict shall be for the Defendant.

Melvin claims that the instructions deal with medical procedures performed by doctors and don’t relate to the care provided by nursing homes. The COA finds nothing wrong with the instructions and affirms.

Agnes Lockhart v. Stirling Properties –  slip and fall dismissed for discovery violations – Agnes slipped and fell in a puddle of water while leaving her place of employment, Trustmark Bank.  SHe sued  the owner of the building and Malone Roofing which had recently serviced the roof.  Malone filed discovery requests in November 2011.   WHen no response was forthcoming, Malone wrote to Lockhart’s attorney.  Eventually, Malone filed a motion to compel and Lockhart served her responses the day before the hearing.  At the hearing in September 2012,  Malone pointed out deficiencies in the responses and the court ordered the parties to work it out.  The next month Lockhart supplemented her responses which included 4 pages of medical records from Baptist Hospital. She also signed a medical authorization for Malone to get her medical records. When Malone got the records, it discovered that Lockhart had failed to reveal a number of preexisting injuries.  Malone felt the answers were still not sufficient and filed a motion to dismiss on this basis as well as the failure to disclose the preexisting injuries.  The trial court granted the motion to dismiss based on Lockhart’s failure to answer discover in a timely manner or truthfully.

First, Lockhart was asked both by Malone and Stirling to identify any doctors who treated her after her accident. She failed to disclose that she had been treated by Dr. Massie Headley at Baptist Medical Clinic, Northtown branch, prior to her fall, on the date of her fall, and for several weeks after her fall. Second, Malone requested information regarding any medical problems Lockhart suffered prior to her accident. Lockhart stated she suffered from high cholesterol and had  been prescribed Crestor. In one response to Stirling’s interrogatories, Lockhart stated she had not received “any treatment or visited any medical providers for any shoulder problems or any condition that is involved with this incident” in the ten years preceding the accident. Lockhart failed to disclose that she had suffered “bilateral shoulder and bicep pain” as recently as May 29, 2008, a few months prior to her accident. Medical records indicate Lockhart went back to the doctor on June 5, 2008, with severe pain in her shoulders, but stated the pain in her right shoulder and arm was worse than the pain she was experiencing in her left shoulder and arm. Medical records from the day of her accident indicated she hurt her left shoulder and left hip. Third, Malone asked for a list of medications Lockhart had been taking within twenty-four hours of the accident. Lockhart stated the only medication she had been taking at the time of her accident was Crestor. However, Lockhart failed to disclose that at the time of the accident, she had been taking Lexapro for anxiety. Fourth, Lockhart failed to disclose in her supplementation to interrogatories that she had been suffering from anxiety and had been prescribed medication to treat this condition since at least 2004.

Justice Irving dissents joined by Justices Griffis and James.

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