Decisions – Miss.S.Ct. – Oct. 22, 2015

Ward Gulfport Properties, LP and T. Gerard Gulfport LLC  v. Mississippi State Highway Commission   whether state’s use of  private property as wetland mitigation requires compensation – In 2007, the Mississippi State Highway Commission began the process of building a  highway from Interstate I0 to the port of Gulfport.   The highway was to go directly through much of the property of Ward Gulfport Properties, L.P. and T. Jerard Gulfport, L.L.C.   The Highway Commission applied for a permit with the Army Corps of Engineers  to fill wetlands in the Turkey Creek Watershed in the road bed of the connector road.  The Commission pledged  1,637.9 acres-approximately 1,300 of which are owned by Ward -as wetland mitigation. The Corps issued the permit.  According to the Appellants, as “soon as the Permit was issued, Ward lost all economically viable use of the land as it was pledged to MTC without any chance of outside development.”  The Wards filed suit for  inverse condemnation of the wetland mitigation property. Ward also filed suit in federal court against the Corps of Engineers  seeking to have the Permit invalidated.

The federal court vacated the permit in 2012 based on the Corps’ failure to appropriately evaluate the lands pledged by the Transportation Commission.  The Transportation Commission filed for summary judgment arguing the action should be dismissed because no taking occurred and because the federal court determined that the Corps, not the Transportation Commission caused any loss alleged by Ward.  Ward appealed.  The Miss.S.Ct. reverses the grant of summary judgment.

From the point the permit took effect, it was intended to be permanent. Taking the facts in the light most favorable to Ward, when MHC pledged the property as wetlands mitigation and ACE issued the permit, Ward could no longer make economically viable use of the property. It could not develop it; it could not obtain permits for development; it could not sell it.

Daniel Parrish v. State – DUI/marijuana impairment –   Parish was unfortunate enough to encounter driver’s license safety checkpoint while driving in Brandon.  According to the cops, when they approached Parish’s car,  “Parish ‘had a green leafy substance all over his pants and some ash and he was really nervous.’”  When asked if he had been drinking,  Parish said no but  admitted that he had smoked marijuana approximately twenty minutes prior to encountering the checkpoint. Parish consented to a search and a pipe with what appeared to \be marijuana in it was found in his backpack.  Field tests were administered and Parish’s blood was drawn.  It tested positive for marijuana.   At trial, Parish testified that he had smoked prior to driving but insisted he was not too impaired to drive.  On appeal, Parish argued that the proof was insufficient to show impairment. While admitting that it has had scant opportunity to write on  the proof required to prove intoxication by marijuana, the Court affirms.

Viewing the evidence in the instant case in the light most favorable to the prosecution, and after reviewing the evidence presented in Weil and Beal, we find that the prosecution presented sufficient evidence that Parish was driving under the influence of marijuana. 8 Officer King testified that Parish approached the checkpoint at a “crawl.” Upon approaching Parish’s vehicle, Officer King also observed that Parish had dilated pupils, reddened eyes, and slurred speech. In addition, Parish exhibited eyelid and leg tremors while performing the Romberg test. Parish’s blood tests revealed the presence of active metabolites for marijuana, meaning he was still experiencing the pharmacological effects of the drug even after he was arrested. Finally, Parish admitted to smoking marijuana twenty minutes prior to encountering Officer King. This evidence, viewed in the light most favorable to the verdict, was sufficient to prove not only that Parish had ingested marijuana before driving, but that he was driving “in a state of intoxication that lessens a person’s normal ability for clarity and control.” Leuer, 744 So. 2d at 268 (Miss. 1999)).

Thomas Flynt v. Statemanslaughter – Flynt was convicted of manslaughter in the shooting of his adult daughter’s girlfriend.  The family had gotten together for Easter.  Flynt and his adult daughter argued so Flynt took his more recent family to his body shop.  The daughter and her girlfriend descended upon the body shop.  The girlfriend ends up getting shot in a struggle over a gun.  Flynt maintained he got the gun out after the girlfriend repeatedly attacked him. On appeal he raises weight and sufficiency issues which the Miss.S.Ct. finds unpersuasive and affirms.

Tyrone Burrell v. State – kidnapping –  “Tyrone Burrell was indicted for kidnapping. Burrell maintained that he merely tricked an elderly man into driving him to Memphis, but the jury found him guilty of kidnapping. The trial court sentenced Burrell to thirty years without parole. Burrell appeals.”   On appeal he argues that the judge did not follow the rules for selecting alternate jurors when he chose them by picking their names out pf a cup.  The Court finds this issue barred because Burrell did not object.   Burrell also challenges the weight of the evidence and the length of the sentence.  The Miss.S.Ct affirms.

The Court grants cert in two cases:

Markeith D. Fleming  v. State of Mississippi – The COA affirmed  letting a lay witness testify about tracking a cell phone’s use using cell phone towers.  This, Fleming argues, conflicts with this Court’s recent decision in Collins v. State, No. 2013-CT-00761-SCT, 2015 WL 4965886 (Miss.  2015), that such testimony requires an expert.

COA opinion

cert petition

Milton Trotter v. State – “Whether the Court erred by not holding an evidentiary hearing to determine whether the State breached the plea agreement and therefore Trotter should be released on parole or the guilty plea be set aside and a trial be held on the 1981 murder indictment. Whether These failures to grant relief resulted in a denial of fundamental fairness and due process of law and Trotter is denied his rights to a fair trial by a jury Whether the Court erred by not vacating the judgment of conviction or conditioning such action of release of the prisoner from custody with the Department of Corrections.”

COA opinion

cert petition

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