Decisions – COA – Jan. 12, 2016

tephen Nolan v. StateDUI – Nolan was convicted of common law  DUI and tailgating in Madison County.  On appeal he argues that the evidence was insufficient, that the trial court improperly considered his refusal to submit to the Intoxilyzer 8000 test as evidence of guilt, and that  the tailgating statute is unconstitutionally vague.  The court finds the evidence sufficient, that the trier of fact may consider refusal as evidence and that the tailgating statute is not unconstitutionally vague and affirms.

Marvin Kyles v. State –  guilty plea challenge – Kyles pled guilty to aggravated assault on a law enforcement officer and then filed a motion to vacate his plea arguing that  his counsel was ineffective because his attorney failed to advise him of the violation of his constitutional right to a speedy trial before he entered a guilty plea to the charge  because over 295 days had passed from the time of his arrest to the date of his plea.  Anyone who knows anything about the right to a speedy trial in Mississippi can figure out that the COA affirms denial of the motion to vacate.

Franklin Collection Service, Inc. v. MESC and Angela Westbrookunemployment benefits –  Angelica Westbrook was fired as a debt collector with Franklin after her supervisor claimed that Westbrook told a debtor that a $15 processing fee was an interest charge – a statement that would violate the FDCPA and company policy. At the hearing on unemployment benefits,  Westbrook denied having made the statement and further stated that if she had she did not remember doing so. The ALJ found that Franklin failed to demonstrate misconduct.  The COA affirms.

Deloris Jackson v. Glendora Millsundue influence – When Elease Harris died in 2006, Jackson  charged Mills with having used undue influence to appropriate money from Harris and with having mismanaged her estate. The chancellor found that Mills converted the balance of the funds in Harris’s joint account for her personal use ordered Mills to pay Jackson her half of the balance remaining in the joint account at the time of Harris’s death but denied all other relief. Jackson appeals. the COA affirms.

Christopher Anderson v. State –  attempted auto burglary –  Anderson was convicted of attempted auto burglary and sentenced as an habitual to seven years without parole. He was arrested after having been seen trying to enter a truck  by punching the keypad on the keyless-entry feature (which was not activated). On appeal he argues sufficiency of the evidence. The COA affirms.

Shane Anderson v. James Ladneralienation of affections – Shane Anderson filed an alienation of affection lawsuit against James Ladner.  The question here is when does three-year statute of limitations  begin to run.  The trial court found that a claim for alienation of affection accrues “when the spouse ‘abandons the marital relationship’” and here the marital relationship was abandoned by May 27, 2010, when the parties filed their Joint Complaint for Divorce. This date is the latest on which the action could have accrued.  Anderson argued that he had had sex with his soon-to-be-ex wife after the divorce was filed and, thus, the claim did not accrue until later. The trial court dismissed the case finding the SOL had run. The COA reverses on the alienation of affection claim.

Upon review, we reverse and remand the chancellor’s decision granting summary judgment on the Shane’s alienation-of-affections claim, since questions of material fact exist as to when Angela’s affections were finally alienated, and hence to when the cause of action accrued. We, however, affirm the chancellor’s dismissal of Shane’s reckless-infliction-of-emotional distress claim.

Arvid Backstrom v.  Briar Hill Baptist Church – negligent hiring –  Al and  Amber Backstrom were members of Briar Hill Baptist Church in Florence, Mississippi. Al was being counseled by senior pastor Justin McLendon when he learned that Justin was sleeping with his wife Amber.  Justin resigned his position.  Al and Amber sued the Church.  The court granted summary judgment to the Church finding that it did not know that Justin was likely to engage in such conduct.  The Backstroms appeal.  The COA affirms. “After our review of the record and applicable caselaw, we find that Al failed to show evidence of any negligence by Briar Hill to raise a dispute of material fact as to negligent hiring, supervision, and retention.”

Joseph Donovan v. Latham & Burwelllegal malpratice – Joseph Donovan sued Todd Burwell and Latham & Burwell PLLC  alleging that Burwell committed malpractice while representing Donovan in related matters before the Mississippi State Tax Commission IRS. The circuit court granted summary judgment because it determined that the statute of limitations had run on any malpractice claim related to the Tax Commission proceeding and that no malpractice could be shown with respect to the IRS proceeding.  The COA affirms as to the IRS proceeding but reverses and remands with regard to the Tax Commission representation.

Deldrick Carroll v. State –  Carroll was charged with robbing at gunpoint his fellow dice players.  Carroll skipped his trial and was tried in absentia.  On appeal he argues that it was error to try him in his absence. He also argues that it was error to allow the state to amend the indictment at a pretrial hearing five days before trial to charge him as an habitual.  Finally, he argues that the state violated his right to counsel when, after drawing up a warrant for Carroll’s arrest, the state recorded a phone call between Carroll and his victim wherein Carroll admitted to the robbery. “The record reflects that Carroll was not in custody when he received Patterson’s (the victim) phone call, and the indictment had not yet been served. Like Pierre [in Pierre v. State, 607 So. 2d 43, 51-52 (Miss. 1992)], Carroll did not make his inculpatory statement “in response to custodial interrogation or any police action designed to elicit a response.” The COA affirms.

Loren Ross v. Statefelony DUI/confrontation – Ross was convicted of felony DUI.  The sole issue is  whether Ross’s right to confront witnesses  was violated because his blood-analysis results were authenticated and testified to at trial by David Lockley, a forensic scientist from the Crime Lab who did not conduct the actual testing of Ross’s blood sample but was the “technical reviewer and administrator reviewer on [the] case” and was involved in the production of the report. The COA, following Miss.S.Ct. cases holds that it does not.  In so doing, the COA notes that in one of the Miss.S.Ct. cases,  Grim v State, 102 So. 3d 1073, 1080-81 (Miss. 2012), the federal district court just granted habeas on this very issue.  But that case is on appeal to the 5th Circuit and, besides, the COA follows the Miss.S.Ct.

Jeycob England v. State –  confrontation – England was convicted of manslaughter after he ran over a man in the Target parking lot after that man had dared to wave at his girlfriend in the Electric Cowboy. He argues that his right to confront witnesses against him was violated because the person who testified about the autopsy report was not the person who conducted the autopsy. The COA finds no error. “Dr. LeVaughn, however, reviewed Dr. Shaker’s preliminary report, along with other records and photographs, in creating his own final report.”  England filed a pro se brief alleging he received an illegal sentence because the max for killing someone while operating a vehicle drunk is ten years.  England,  though, was tried for manslaughter. The COA affirms.

Clarence Anderson v. State 404(b) evidence –  Anderson was convicted of of possession of controlled substance with intent to distribute with an enhanced penalty under MCA Sect.  41-29-147  and as a habitual offender.  He was also convicted for possession of a firearm as a convicted felon. He argues on appeal that the court should not have admitted evidence of two guns found in the house when law enforcement searched it pursuant to a warrant after a confidential informant told police there was drugs in the house.  The COA finds no error because guns, money, scales can all evidence drug sales. He also alleges ineffective assistance of counsel.  The COA affirms.

Robert Coleman v. Beverly Coleman –  divorce/marital home – The Colemans divorced in 2002.  Beverly was granted “exclusive use and possession of the marital residence” until their child reached the age of majority and was to pay the mortgage.  The court’s judgment gave no instruction as to what would occur when the child reached 21.  In 2013, the child turned 21 and  filed a petition with the court and asked for exclusive ownership of the home. Following a hearing on the partition, the chancellor granted title to Beverly. Beverly was instructed to pay Robert $34,103.70. This amount constitutes half of the equity in the home at the time of the divorce adjusted for the increased value of the home.  Robert appeals.  The COA affirms.

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