Decisions – COA – May 26, 2015

Kimberly Sellers v. State –  DUI probable causeSellers was stopped at a drivers license checkpoint. She tested .088 on the  Intoxilizer test and was convicted.  On appeal, she argues that law enforcement lacked probable cause to prolong her detention.  The COA finds that she failed to argue this below and waived it.  It is also without merit.  “The DUI officer testified that he immediately noticed the smell of an intoxicating beverage that was ’emitting’ from the vehicle, and that Sellers was wearing a paper bracelet like the ones required by local establishments that serve alcohol. The odor of an alcoholic beverage is sufficient to establish reasonable suspicion for an investigatory stop.”

Southern Health Corp. of Houston v. Carol Crausby –  conspiracy to fire own employee – Crausby worked as an ER nurse at Trace Regional Hospital in Houston, Mississippi.  When l Dr. Victor Horn demanded that she be fired, she lost her job.  She sued and was awarded  $80,000 from the hospital on her claim that its administrators had conspired with Dr. Horn to tortiously interfere with her employment relationship with the hospital. The hospital argues that  it cannot be held liable for interfering with its own contract because tortious interference can occur only when the contract is “between another and a third person.” The COA agrees but refuses to grant relief on this issue because it was not raised below. It reverses and renders though on the sufficiency of the evidence. “Granted, the evidence was sufficient to prove that; but even if we accept Crausby’s theory of the case, at best it shows acquiescence to Dr. Horn’s demands. Was this an agreement to tortiously interfere with her employment?  We conclude that it was not.”

David Silvia v. State –   failure to conduct competency hearing – Silvia was convicted of killing his girlfriend of 17 years, Denise Barthelot.  Darlene’s daughter called the sheriff after she wasn’t ab;e to contact her mom for several days.  Deputy Thornhill eventually located Darlene’s body inside a large deep freezer in the kitchen. Her  body was covered with a comforter and packs of frozen food.  Prior to trial, Silvia asked for a competency hearing.  A psychologist was appointed and she found Silvia competent but no hearing was ever held.  The COA reverses.

In Sanders v. State, 9 So. 3d 1132, 1136 (¶16) (Miss. 2009), the Mississippi Supreme Court held that the “plain language” of Rule 9.06 requires “a competency hearing once a trial court orders a psychiatric evaluation to determine competency to stand trial.” The supreme court also recently held that “when a motion for a mental examination has been granted, such an examination must occur, and then a separate competency hearing must be conducted before trial begins.” Coleman v. State, 127 So. 3d 161, 166 (¶14) (Miss. 2013) (emphasis in original). The State contends that a competency hearing was not required because it did not have a reasonable ground to believe that Silvia was incompetent. However, the Coleman court stated that a trial court’s grant of an order for a mental examination is “conclusive of its having found reasonable ground to believe [the defendant] was entitled to a mental examination and a competency hearing, based on the plain and forthright language of Rule 9.06.” Id. at 168 (¶19).

Leslie Stingley v. Trinity Highway Products, et al. –  Guardrail case – Stingley was doing 65 mph on I-20 in Clinton when he passed out and hit the guardrail.  He ended up having one of his legs amputated below the knee.  He filed suit against the designers, testers, manufacturers of the “Regent C”  guardrail as well as the contractor and subcontractor who installed it.  Judge Gowan granted summary judgment to all of the defendants and Stingley appealed.  The COA affirms. “Upon review, we find the trial judge properly excluded certain expert testimony in this case. We further conclude that the remaining expert testimony is insufficient to establish a product-liability claim under Mississippi law. We further find no genuine issue of material fact exists as to the Singleys’ remaining claims on appeal.”

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