Decisions – Miss.S.Ct. – Jan. 28, 2016

Tabitha Prayer v. GreenwoodLeflore Hospitalmed mal/Tort Claims Act – In September  2008, fifty-four-year-old Jones Toy went to Greenwood Leflore Hospital to have the tip of his right index finger amputated because it was gangrenous.  Toy was suffering from cardiomyopathy and end stage renal failure and did not survive the surgery after he suffered from a lack of oxygen. His family sued. After a bench trial (Tort Claims ACT), the trial court found for the Hospital. The family appealed and the Miss.S.Ct. affirms.

  This is a case in which, as many do, the record contains conflicting credible evidence, with evidence supporting each party’s theories. In this case, the trial court was tasked with determining the weight and credibility of the evidence and resolving the conflicting evidence.

 

Shunbrica Roby v. State  – aiding and abetting instruction – In October 2012,  Roby drove to West Point to “bust the windows” out of her boyfriend Marcus Payne’s car because he had been cheating on her.  Roby was using a hammer to accomplish this.  Payne came out and they got into a struggle and Roby’s cousins joined in.  Payne ended up stabbed and died at a hospital.  Roby was found guilty of  deliberate design murder.  On appeal. the Miss.S.Ct. reverses based on the giving of a faulty  instruction.  The instruction told the jury that it could convict Roby “if you find from the evidence in this case beyond a reasonable doubt that the Defendant, Shunbrica Roby, together with Natisha Roby and/or Latwanna Roby, acted with a common design in committing an assault upon Marcus Payne and a homicide was committed by one of them while engaged in that assault, then all are criminally liable for that homicide, and each are equally guilty under the laws of the State of Mississippi.”

This was wrong because in order for Roby to be guilty

it was necessary that the joint enterprise and conspiracy should cover not only a design or purpose to commit the robbery or larceny, but should extend to and include the common purpose and agreement to resist arrest with great violence, or kill the deceased or other person who interfered with or attempted to apprehend them. If they had only the common purpose of committing larceny, and the killing of the deceased by Walton was “merely the result of the situation in which he found himself, and proceeded from the impulse of the moment, without any previous concert,” the appellant would not be guilty of the murder.

Where there is an assault committed by several people and there is no evidence of a conspiracy or common design,  the evidence must be sufficient to show either that accused struck the fatal blow or aided and abetted therein.

Lester Moore v. State  – felony shoplifting – Moore was convicted of felony shoplifting after taking more than $500 worth of wallets from a Biloxi Dillards.  Between the date of the crime and the date of the trial, the law changed so that felony shoplifting required a minimum of $1000 worth of merchandise.  On appeal, Moore argues that he should have been entitled to take advantage of the change in the law and had the jury instructed that a felony required $1000 worth of merchandise.  The Court disagrees.  He also argues that the officer who apprehended him should not have been allowed to testify as to the value of the wallets.  The Court agrees but finds any error harmless since a representative of Dillards also testify as to the wallets’ worth.

Verenzo Green v. State double jeopardy – Green was a convicted felon.  During an inventory search of his car, law enforcement found three firearms in the trunk.  He was found guilty  of three counts of being a felon in possession of a firearm and one count of trafficking a firearm.  The COA affirmed.  The Miss.S.Ct. granted cert. to decide whether it was appropriate to treat the possession of three firearms as three separate violations of the law forbidding felons to possess firearms.  Green, however, did not object at trial.   The Court notes that there is no binding authority which would settle the double jeopardy issue and given Green’s failure to raise the issue at trial, the Court refuses to apply a plain error analysis affirming both the COA and Green’s conviction.

For the foregoing reasons, we agree with the Court of Appeals’ majority opinion that while “certain instances permit our [appellate c]ourt[s] to address the issue of double jeopardy as plain error, to do so using plain error in this specific instance would be inappropriate.” Green v. State, 2015 WL 233614, *4 (¶14). Therefore, we affirm both the judgment of the Adams County Circuit Court and the Court of Appeals judgment affirming it.

 

 

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