Decisions – Miss.S.Ct. – September 17, 2015

Hanco Corporation v. Patricia Goldman et al waiver of defense of workers comp. as exclusive remedy – Wayne Kelly and two others were killed while working to construct a cross dock distribution facility.  They were connecting sewer lines  when the trench caved in.  Kelly’s family  sued several defendants including  Hanco Corporation which was the general contractor for the project and American Air Specialists of Mississippi, the subcontractor that had leased the services of Kelly and his coworkers from Landrum Professional Employer Services, Inc.   Hanco moved  summary judgment which the court denied and Hanco filed an interlocutory appeal.  The Miss.S.Ct.  affirms finding that while  Workers’ Compensation Act provides the exclusive remedy to claimants seeking compensation for on-the-job injuries,  Hanco waived its exclusive remedy affirmative defense.

In the present case, the Kellys filed their complaint on November 8, 2010. Hanco filed its answer and defenses on December 22, 2010, in which it claimed the Workers’ Compensation Act constituted an exclusive remedy. Hanco did not raise the exclusivity provision again until it filed a motion for summary judgment on March 1, 2013. The record reflects that Hanco actively participated in litigating the merits of the case. Hanco filed 9 motions to join various motions of codefendants. Hanco designated experts it planned to call at trial. Additionally, as did the defendant physician in Grimes, Hanco actively participated in numerous depositions. Grimes, 982 So. 2d at 371.

Brian Holliman v. Statehearsay by victim –  Holliman was found guilty of murdering his wife after he claimed to have found her dead in her bedroom from a shotgun wound.   He had been tried once before but the Miss.S.Ct., ordered a new trial in  Holliman v. State, 79 So. 3d 496 (Miss. 2011).   Holliman gave several statements, the first that he heard the shot and ran and found her in the bedroom. Later he told law enforcement that he accidentally shot her when they were fussing over something and she grabbed the barrel of the gun.   Holliman complains that the court erred in  instructing  the jury that malice aforethought could be formed “but for an instance before the fatal act.”  First of all, his counsel did not object and this is not the same instruction found defective in WIndham.  The Court also finds that the DAs argument that  “people intend the natural consequences of their act” did not shift the burden of proof. Holliman argues that the court erred in allowing hearsay statements made by the victim that she was leaving The trial court overruled Holliman’s objection to Katie’s testimony that, when Laura was taking clothes from her closet and packing them in her car on the night of that fight, Laura said she was leaving, she had told someone that her husband locked her in a closet during a fight,  and that she had discussed with one witness that she wanted a divorce. The COurt finds that the trial court did not abuse its discretion in allowing this evidence in. The Court also finds that the trial court did not err in admitting Holliman’s statements to law enforcement. The Court also rejects his challenge to the indictment because it had some language in it that was blacked out.

Michael Gardner v. State –  penalties for drug offense – Michael Gardner was tried and convicted of possession of more than thirty grams but less than one kilogram of marijuana, with intent to distribute. The trial judge sentenced him to ten years without parole  as an enhanced habitual offender. Gardner appeals, arguing that “a penalty for [his] convicted offense no longer appeared” in the relevant drug statutes when he was sentenced.

Gardner argues—and he is correct—that Section 41-29-139(b), as amended, no longer contains a penalty for a subsequent offender who possesses more than thirty grams but less than one kilogram of marijuana with intent to distribute. As such, Gardner argues that “there 5 is no sentence available at law to sentence [him] under as the sentencing provision for nonfirst time offenders who possessed more than thirty (30) grams but less than one (1) kilogram of marijuana in violation of § 41-29-139(a) was omitted by the legislature in H.B. 585,” and that his sentence should therefore be vacated.

We disagree. The enhancement statute—which was left unchanged by the amendments—provides that a subsequent offender may be imprisoned for up to twice what is “otherwise authorized.” See Miss. Code Ann. § 41-29-147 (Rev. 2013). And what is “otherwise authorized” refers to what Gardner would have received for the amount of drugs at issue here if he was a first-time offender; which is up to five years. See Miss. Code Ann. § 41-29-139(b)(2) (Supp. 2014).

Caleb Carrothers v. State discovery in death  penalty pcrs – This is an interlocutory appeal in a death penalty case where attorneys for Carrothers are working on filing a post conviction petition.   Carrothers attorneys had asked the circuit court for an order allowing then access to his youth court record.  The state requested that it also be allowed the records. Carrothers filed an interlocutory appeal which was granted and the Court holds that the state is not entitled to the records.  “[MRAP]  22 clearly provides that ‘[d]iscovery and compulsory process may be allowed the petitioner.’ Id. (emphasis added). It equally is apparent that the rule lacks a similar provision allowing the State to compel discovery or receive reciprocal discovery from the petitioner.”

The court grants cert. in Matthew Burnham v. Dana Burnham – the link is to the COA opinion).  Matthew challenged the child support award because the chancellor based it on his ability to earn more. Here’s the cert. petition.

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