Decisions – Miss.S.Ct. – August 20, 2015

In Re: Validation of Lauderdale County General Obligation Bonds –  “The Lauderdale County Chancery Court validated bonds to be issued by the Lauderdale County Board of Supervisors. Several objectors appeal, arguing a sufficient number of qualified electors objected such that an election on the bond issue was required. The Board cross-appeals, arguing that the chancellor erred in not requiring the objectors to post a supersedeas bond. Because the chancery court did not err in validating the bond, nor in denying the request for a supersedeas bond, this Court affirms.”

Tommiel Claiborne v. State –    murder/Lindsey brief – Claiborne was  convicted of murdering his wife by shooting her three times the day before the divorce hearing.  Three eyewitnesses testified at trial.  On appeal, his lawyer filed a Lindsey brief  certifying  that the record presented no arguable issues for appeal.  The Miss.S. Ct. agrees and finds that the issues raised by Claiborne himself  alleging violation of  discovery rules, that the eyewitnesses at trial contradicted their earlier statements to police, and that he was denied his right to a speedy trial are without merit.  His argument that he was provided ineffective assistance of counsel is “dismissed without prejudice to his ability to raise them in post-conviction proceedings.”

Scott Herman Bates v. State whether off-duty cops working security are considered to be law enforcement if you assault them –   Bates was convicted of simple assault on a law enforcement officer and sentenced to 5 years. The victim here, Sheriff’s Deputy James Cox, was working as a security officer at a Jackson restaurant (Reed Pierce’s) with the approval of his boss and in uniform. On the night of the altercation, last call had been announced and the wait staff was waiting around to divide up their tips. Bates was hanging around and the manager asked Cox to ask Bates to leave. Bates took exception with the request to leave. When two more security guards stepped up, Bates left the restaurant and the deputies followed him. In the parking lot,Bates kept threatening to beat Cox up and ruin his career. He then got in his truck and drove toward the guards making a sharp turn so that his truck would broadside them. He also fired his gun. Cox jumped into his marked vehicle and radioed for backup. Bates was arrested at a nearby house. Recovered from his truck was a .38 revolver and a spent shell casing. Bates was charged with agg. assault on a police officer. The state requested a lesser included instruction on simple assault. The jury convicted him of simple assault. On appeal he argues sufficiency of the evidence claiming that there was insufficient evidence that Cox was acting within the course and scope of his employment when Bates assaulted him because he was being paid by the restaurant. The COA affirmed.  The Miss.S.Ct. granted cert and also affirms.

We agree with the Court of Appeals. The State presented evidence that, while working as a private security guard, Deputy Cox was in full uniform and working at the private establishment with the approval of his sheriff. Miss. Code Ann. § 17-25-11 (Rev. 2010). “While Deputy Cox’s initial request that Bates leave was on behalf of Reed Pierce’s, Bates’s hostile reaction triggered Deputy Cox to switch into law-enforcement mode.”

Jairus Collins v. State –  murder/suppression of statement/police officer used as expert–  The Miss.S.Ct. took this case on cert. and reverses the COA which had affirmed.  Collins was convicted of the murder of Ebony Jenkins and sentenced to life without parole. Her body was found behind a Hattiesburg daycare.  A man who lived behind the daycare heard shots two nights before Jenkins’ body was found.  He testified that a man running from the scene was of medium build and wore a “hoodie-type sweater” that was “[e]ither blue or light gray or black.”  When shown a sweater the police found in the woods wrapped around the murder weapon, the witness testified he was “[p]retty positive.”  Collins’ friend identified the gun as one he had given to Collins to repair. Collins’ brother testified that Collins came to his apartment the night the shots were heard and that was wearing a gray hoodie  and appeared to be out of breath. Jenkins’s phone records revealed that the last call she received came from a phone owned by Collins’s father. Collins’s sister normally used the phone but that she allowed Collins to use the phone around the time of Jenkins’s murder. The cell phone records showed that Jenkins’ phone and Collins’ phone were in the same area at the time of the murder. Collins told police that Jenkins had called him and asked for a ride. He  arrived at Jenkins’s location to pick her up but could not find her.  The Court of Appeals affirms.

Collins argued that the court should have suppressed his statements. Collins was picked and read his Miranda rights.  At first Collins waived his rights,  He then said  he would “rather speak to a lawyer.” Questioning stopped. After five minutes, Collins knocked on the door. When the detective  opened the door, Collins began speaking to him. The detective told him “I’ll be more than happy to talk to you, but I can’t right now” but  “if you want to talk[,] man, I’ll sit right here and listen.”  Collins then asked how long they could keep him there.   The detective  responded, “right now like I said, we can’t do nothing because you said you wanted your lawyer.”  They conversation ensued in the same vein until the detective finally told Collins that is he wanted to talk, he’d have to sign another Miranda form.   On appeal,  Collins argues that the  detective’s  failure to re-advise him of his Miranda rights and obtain a new waiver required Collins’ statements be suppressed. The Court of Appeals finds that the refusal to suppress was not an abuse of discretion.  ‘[A]fter  invoking his right to counsel, Collins initiated a new contact with police officers and then freely and voluntarily provided a statement to the officers. 

On cert. the Miss.S.Ct. finds that while Collins “talked first,”  “the inquiry of whether he “initiated” conversation does not end there.”

In its brief for the Court of Appeals, the State completelymisrepresented Collins’s statement in order to make the argument that Collins’s contact with police was “initiation” for purposes of Edwards. In its brief, the State represented that Collins’s first contact with police was “I going to tell ya’ll everything . . . I don’t need a lawyer, don’t need a lawyer.” In actuality, he reiterated his invocation of his right to counsel in his initial contact with police, stating “hey (inaudible) everything (inaudible) but, I can just call and get my lawyer, he can be present, I going to tell ya’ll everything, . . . I don’t need a lawyer, don’t need a lawyer . . . .” Furthermore, this Court has reviewed the video, and the ellipses in the transcript are actually inaudible statements by Collins, thus the transcript should read: “hey (inaudible) everything (inaudible) but, I can just call and get my lawyer, he can be present, I going to tell ya’ll everything, (inaudible) I don’t need a lawyer, don’t need a lawyer (inaudible).” The State has shown no context for the “I don’t need a lawyer statement,” which seems of import given that, practically in the same breath, Collins reiterated that he wanted his lawyer present for anyinterrogation by police. After this statement, Collins began asking how long things would take, indicating that he needed to call his employer, and indicating his concern about his job. Not only does the transcript reflect this, but Detective Scott also specifically testified that Collins’s initial contact with police after his invocation of his right to counsel was to inquire as to how long things would take.

The Miss.S.Ct. also reverses on the trial court’s allowing a police officer to testify about the location of the cell phone pings of Collins’ and Jenkins’ cell phone without having first been qualified as an expert.  The COA  found  that the detective did not provide expert testimony.

Thus, while the technology underlying cell identification is not extremely difficult to understand, utilizing cell identification to locate a person does require specialized knowledge regarding such technology – namely, knowledge regarding the various antennas on cell sites and the cell site coverage range and how those interact to determine the entire area in which a cell phone user might have been located while making a cell phone call. Illustrating that cell identification requires specialized knowledge are the facts that Detective Sims had to take a sixteen-hour course on how to use cellular technology in law enforcement and that he used specialized software acquired at this course to determine the locations of Collins and Jenkins on the night of Jenkins’s murder.

Cert grants:  (the links take you to the COA opinion)

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.

Khambraya Stanley et al v. Scott Petroleum –  premises liability – the plaintiffs were at a gas station  standing between the walk-up window and a set of vending shelves containing drinks for purchase. A car at the nearby intersection was malfunctioning and the driver drove it into the gas station where it  entered the gas-station parking lot traveling at approximately forty-five miles per hour, knocked over some shelves which his Stanley.   Stanley sued the gas station arguing “that patrons standing at the walk-up window were not protected from vehicles in or around the gas-station parking lot. Stanley states Scott Petroleum acknowledged the potentially dangerous condition by erecting concrete bollards around the store, gas pumps, and power pole, as well as including a warning sign stating: “Caution! Be safe and alert. Watch out for moving vehicles.” Stanley further argues that concrete bollards should have been placed around the walk-up window for the protection of Scott Petroleum’s customers.”  The trial court granted summary judgment and  the Miss.Court of Appeals affirms finding that Stanley did nothing to distinguish her case from the line of cases that hold “that there is  no duty owed by a convenience store owner, to persons inside the store, to erect barriers in order to prevent vehicles from driving through the store’s plate glass window.”

The Court states, “We note the Mississippi Supreme Court’s recent decision in a similar premises liability case in which it reversed and remanded to reinstate the jury verdict for the plaintiff. Cheeks v. AutoZone Inc., 2013-CA-00401-SCT, 2014 WL 4748099 (Miss. 2014).”   “This case is distinguishable in that Stanley did not produce evidence to create a genuine issue of fact as was produced in Cheeks. Stanley did not produce evidence of similar accidents. Nor did she offer any expert testimony, conduct depositions, or obtain any affidavits in support of her position.


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