Decisions – COA – March 8, 2016

 

Bonnie Jean (Hudson) Page v. William Lewis Hudson, Sr. – divorce/retirement benefits – Bonnie and William were divorced in 1991 after 21 years of marriage.  William had worked for the railroad.  The parties agreed that upon retirement, Bonnie would be entitled to the retirement as “she will otherwise be entitled as a result of being married and divorced from an employee of the railroad.” William retired from the Railroad in 2010 and got  Tier I benefits  which is the Railroad equivalent of Social Security. He also began receiving a Tier II Annuity and a Supplemental Annuity.  Bonnie did not get any of the Tier II benefits and she filed for contempt.  The chancellor interpreted the parties’ agreement as entitling Bonnie to only Tier I benefits. The COA affirms.

Adrian Moore v. State  Moore shot two people leaving a nightclub. One died. He was convicted of murder and aggravated assault. On appeal he argues that the judge should have declared a mistrial after the jurors indicated that they were deadlocked after deliberating for four hours. The court allowed the jurors to take a break that night and gave them a Sharplin instruction in the morning.  Nothing about this coerced the jurors into voting guilty. He also argues that the court erred in not allowing defense counsel to make a proffer by questioning a witness outside the presence of the jury.  The court finds this was not error since the attorney was allowed to state on the record what the testimony would have been,

However, none of these cases state that the trial court must allow the witness to testify in order to preserve the record. Rather, the supreme court has held that when a trial court does not permit counsel to present a witness’s testimony, he “must by some manner or means cause the record to show precisely what he intended to prove by the witness.” Bell v. State, 443 So. 2d 16, 20 (Miss. 1983). In Pennington v. State, 437 So. 2d 37, 39 (Miss. 1983), the supreme court concluded no reversible error had occurred because counsel was permitted to state “the purpose of the evidence” he sought to introduce.

 

Derrick Hunter v. State –discovery violation – Derrick Hunter was convicted of the murder of his longtime girlfriend, Temeria Ingram.  On appeal he argues sufficiency of the evidence.  He waived this issue because it must first be presented to the trial court via a motion for new trial and Hunter failed to do so. He also argues that the trial court erred in allowing the state to call two witnesses even though  the State failed to comply with discovery deadlines. As to this issue, Hunter was allowed to interview the witnesses.  Because he did not thereafter ask for a continuance or mistrial, he is barred from complaining.

Brian S. Booker v. Amy Turner Booker divorce based on drug use – The Bookers married in 2004. In January 2014, Brian filed a complaint for divorce and cited Amy’s habitual and excessive use of drugs as grounds for divorce.  In response, Amy filed a counterclaim for a divorce on the ground of habitual cruel and inhuman treatment.  The  chancellor dismissed the  complaint for divorce finding that the husband failed to prove that he was entitled to a divorce on the ground of habitual and excessive drug use. Amy had had a gastric bypass and then complications. She took drugs as a result.

Professor Deborah Bell in her treatise, cites Lawson for the proposition that “[h]abitual use of drugs as prescribed is not grounds for divorce even if the defendant becomes dependent on the drugs. But divorce may be granted when a spouse’s 4 initial, legitimate use of prescription drugs becomes misuse.” Deborah H. Bell, Bell on Mississippi Family Law § 4.02(7)(c) (2011). Thus, when we consider “excessive” we must include in the definition the “misuse” of prescription drugs.

Here the chancellor found that Amy’s drug use was not excessive. The COA affirms.

Mark Schlepphorst v. StateDUI – Schlepphorst was found guilty of common law DUI and reckless driving. On appeal he challenges the sufficiency of the evidence.   Schlepphorst drove through a Madison County Sheriff’s Department checkpoint without stopping and ignored the direction of the officers around 11:00 p.m. Deputies pursued him and pulled him over.  They  noticed that the smell of an intoxicating beverage was coming from Schelpphorst’s car and that Schlepphorst’s speech was slurred. Schlepphorst admitted that he had “a couple of glasses of wine” that evening.  When he stood outside the vehicle, he wobbled and exhibited a lack of muscle control.  He failed three field sobriety tests: the horizontal gaze nystagmus, the walk and turn, and the one-leg stand. A portable breath test was  positive for alcohol.  When they arrived at the sheriff’s department,  the Intoxylizer was out of order. Schlepphorst was offered a urine test, and he refused. The COA affirms his conviction.

pcrs affirmed: 

Patrick Fluker v. State

Kevin Brown v. State 

Earl Bates v. State

Antonio Scott v. State

Charles Edward Wilson v. State

 

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