Decisions -Miss. S.Ct. – Nov. 19, 2015

Wellness, Inc. v. Pearl River County Hospital  –  arbitration – Wellness is a company that provides “modular-type rooms that are typically installed in existing hospitals to make them more aesthetically pleasing, increase patient satisfaction and increase patient safety among other things.”   Wellness and PRCH entered into an agreement to retrofit twelve rooms in the Hospital with Wellness’ patented room system.   According to Wellness, when new Board Members were appointed to the hospital in 2012 they stopped work on the contract and sued Wellness for fraud, conspiracy, breach of contract, etc.   In October 2014, Wellness moved to compel mediation and arbitration. The Hospital denied that there was any agreement to arbitrate, because there was no agreement at all with Wellness.  The Hospital claims that Wellness defrauded it and  “caused the Hospital to receive overpayments from Medicare totaling at least $2.9 million, all of which will have to be repaid to the federal government.”  The lower court denied the motion to arbitrate.  Wellness appealed. The Miss.S.Ct. affirmed finding that

the Court cannot enforce an arbitration clause from a contract that is not sufficiently spread upon a Board’s minutes. The duty belonged to Wellness to ensure that sufficient terms and liabilities of the Wellness Agreement were spread upon the minutes of the Board of Trustees before asking the courts to enforce that Agreement. Wellness failed to fulfill that responsibility. Accordingly, the Circuit Court of Pearl River County did not err in denying Wellness’s Motion to Compel Mediation and (if Necessary) Arbitration and to Stay Proceedings.

 

Casey Burgess v. State  – rape of spouse – Burgess was convicted of three counts of sexual battery against his wife.  The day after their twelfth anniversary, Burgess left S.B. and the couple’s three daughters to go on a week-long drug and alcohol induced “binge.”  When he came home he brutally raped his wife.  On appeal he argues that the trial court improperly amended the indictment by adding the element of force to the jury instructions.  The court finds that this was not error.  He was charged with sexual battery.  Once his defense was consent because they were married, the state had a duty to prove force.  He next argues that the court erred in limiting his ability to voir dire the jurors on biblical definitions of unnatural sex.  The Miss.S.Ct. finds that the trial court did not abuse its discretion.  He also claims that the court erred in not allowing him to adduce evidence of the type of sex the two had engaged in prior to the alleged rape.

Before such specific incidences are admissible, Rule 412(c) requires the defendant to submit a written motion no later than fifteen days before trial, complete with a written narrative of the offer of proof. Burgess failed to submit the motion or the narrative of proof. 16 It is proper to prevent impeachment of a victim of a sexual offense when the defendant failed to follow the notice and disclosure procedure of Rule 412(c). See Cage v. State, 149 So. 3d 1038, 1045-46 (Miss. 2014); Aguilar v. State, 955 So. 2d 386, 393 (Miss. Ct. App. 2006). As such, the trial court did not abuse its discretion in refusing to allow Burgess to question the victim about specific instances of past sexual conduct when Burgess failed to follow the notice and disclosure procedure required by Rule 412(b) and (c).6.

He also raises issues that it was error to give a flight instruction, sufficiency of the evidence and that it was error to allow hearsay  letters regarding victim impact into evidence at sentencing.  The Miss.S.Ct, affirms.

Michael Anderson v. State – flight instruction –  Anderson was convicted of deliberate design murder.   He had entered a convenience store in Jackson and made some comment to some women in a car outside. A man who was with the women, Drystle Sanders,  got upset about it and when Anderson came out of the store, he struck Anderson in the head.  Somehow Anderson got a gun and shot Drystle several times.  Another witness testified that  Anderson started shooting at him.  The COA affirmed and the Miss.S.Ct. granted cert based to decide whether it was appropriate to grant a flight instruction based on the fact that Anderson left the scene.  Anderson argued that it was error to give a flight instruction in a self defense case.  The Miss.S.Ct. also affirms. “Because no evidence was introduced to support that Anderson’s flight was caused by something other than consciousness of guilt, e.g., to avoid retaliation, the trial court did not err.”

The Court grants cert in Preston Overton v. State – Overton was found guilty of possession of cocaine and felon in possession of a firearm.  He consented to a search of his house after detectives knocked on the door to follow up on a tip that the house was the site of illegal drug activity.  On the eve of trial, Overton provided the state the names of two new witnesses.  The state objected on the grounds that they were not timely disclosed and the  court excluded them.  On appeal, Overton alleges this was error and that his trial counsel was ineffective in failing to timely disclose the names of the witnesses.  The COA affirms.  “The record does not affirmatively demonstrate that counsel was ineffective; therefore, we affirm without prejudice to Overton’s right to raise this issue in post-conviction-relief proceedings.”   Overton filed a cert petition on the exclusion of his two witnesses.  

 

The Court adopts rules governing  the limited practice of law by law students. 

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