Decisions – COA – July 26, 2016

Jordy Devonte Johnson v. State of MississippiLindsey brief – Johnson was  convicted of statutory rape of a 12-year-old  and sentenced to 25  years with 20 to serve.  His appellate counsel filed a Lindsey brief. Johnson argued the indictment was defective.  The COA affirms.

Monica Harris v. The Town of Woodville –  sexual harassment under the MTCA – Harris is a probation officer.  She entered the Woodville police department to conduct a drug test on a probationer. The police chief and two officers were comenting on Harris’ big but and teh chief ended up slapping her on her butt.  She sued  for assault and battery, negligent and/or intentional infliction of emotional distress, common-law harassment, failure to properly train, failure to properly supervise, and conspiracy.  The trial court granted summary judgment finding that the chief’s actions were outside the scope of his employment.  (Apparently she settled her claims against the chief of police).

David Lyons  v. State of Mississippi – felony DUI – In June of 2012, Lyons was  pulled over after he was observed swerving.  The officer claimed he detected a  strong odor of alcohol and that  Lyons’s eyes were bloodshot and his speech was slurred. He was arrested for DUI and a search of his car revealed an unopened beer.  Back at police HQ, Lyons blew a a 0.140 and then a 0.132 on the Intoxilyzer 8000.  He was found guilty and because this was his third DUI, sentenced to 5 years without parole.  On appeal, Lyons claims that the circuit court erred in its use of court abstracts of Lyons’s prior DUI convictions. Lyons also asserts that the circuit court did not have jurisdiction over his case; the State committed misconduct regarding the court abstracts of his prior DUIs during trial; and he received ineffective assistance of counsel. The abstracts were certified.  Lyons nonetheless argues that they should not have been considered because he was not represented by counsel for those proceedings.  The COA affirms.

 

Tony Harris v. Michelle Porter – child support increase – In 1998, Harris was found to be the father of  Myrtis and ordered to pay  $150 per month in child support. In December 2013, Harris filed a petition to suspend his child-support payments and requested that he be paid child support because Myrtis had lived with him for six months. Michelle Porter counterclaimed  asserting that there had been a material change of circumstances, and asked for health insurance for Myrtis and an increase in child support, which she noted had not changed in fifteen years. Porter also asked that college expenses be awarded since Myrtis planned to go to Mississippi State University after she graduated from high school.  The court found that Harris need not pay support for t he months Myrtis lived with him but  ordered an increase in Harris’s child-support payments from $150 per month to $325 per month. The court ordered Harris to pay $1,250 each semester to contribute to the costs of Myrtis’s college tuition. The chancery court also ordered Harris to provide health insurance 2 for Myrtis, with each parent responsible for half of any uncovered medical expenses that may arise. Harris appealed and the COA affirms.

Ioc-Lula, Inc. v. Reuben Smartt – slip and fall – In July 2008, Smartt, a frequent visitor at the Isle of Capri,  entered the buffet area of the casino four minutes before the buffet closed at 10:30.  Between 10:30 and 11:30 casino employees clean and set up for lunch but any patron  who arrives before 10:30 is allowed to remain and finish eating.   While Smartt was eating, employees mopped the floor and set out various “wet floor” signs as they did so.  Smart ended up falling at the entrance to the buffet where there was no “wet floor”  sign.  He was taken to a local hospital and eventually had  surgery to his neck (cervical fusion of the C5 and C6).  Smartt sued.  The casino filed a motion for summary judgment  and a motion to dismiss  alleging that Smartt had made “willful, material misrepresentations through discovery about his prior medical history . . . in an attempt to conceal the truth[.]” The trial court denied the motions but  agreed that Smartt’s failure to disclose his prior injuries was in bad faith, and it issued Smartt a $1,000 sanction and ordered payment of fees associated with the filing of the motion. The court subsequently entered an order, clarifying its previous order and imposing additional sanctions, which limited Smartt’s damages “to medical, drug, and related expense, loss of wages, future medical expenses, and mental and emotional distress,” and excluding evidence of “wage-earning capacity and future earnings.” At the start of the trial, the trial court imposed an additional sanction, placing a $250,000 cap on noneconomic damages. The jury found for Smartt and awarded  $151,000 in compensatory damages and $100,000 in noneconomic damages. The Casino appealed and the COA affirms.

 

Malcolm Jamal Husband  v. State of Mississippi –  castle instruction for victim – In November 2013, Husband and his 12 -year-old stepson were  visiting Husband’s elderly aunt and uncle, the McGowans, at their duplex apartment in Columbia, Mississippi. The McGowans were not home so Husband began talking to their neighbors, Phylicia Stokes and Forester Crenshaw, who were sitting outside on the shared porch. A dispute arose.  Husband and his setopson returned to their car.  Crenshaw walked to Stokes’s car and retrieved a .380-caliber handgun.   Crenshaw walked to Husband’s car, holding the gun at his side, and stood inside the open door of Husband’s car, not allowing Husband to leave.  Husband grabbed a gun from his car and pointed it at Crenshaw, who ran behind a neighbor’s car. Husband said he initially fired the gun in the air, but when Crenshaw began firing back, he fired at Crenshaw three to four times.  A bullet hit Crenshaw in his lower back but  Crenshaw continued to return fire.  Husband sped off.  Crenshaw was taken to a hospital where he died from the single bullet wound.  The court gave an instruction to the jury that was basically an instruction regarding the victim’s right to use force under the castle doctrine.  On appeal, he argues that this shifted the burden of proof.  Since Husband raised a different objection to the instruction at trial, the COA analyzes the issue for plain error and reverses finding that the giving of the instruction shifted the burden of proof in violation of Sandstrom v. Montana.

Matthew Ladner v. Zachry Construction and Zurich American Insurance Company –  workers comp. – In December 2006, Ladner injured his lower back while working for Zachry. He returned to work a few days after the incident, but continued to experience pain. In  May  2008, his doctor  concluded Ladner met his maximum medical  improvement and  assessed Ladner with a five-percent impairment to his body as a whole and issued permanent work restrictions.  Ladner continued to work for Zachry until he was laid off.  He then got a job at the Stennis Space Center. The Commission ruled that Ladner  failed to prove a loss of wage-earning capacity to sustain a claim for permanent-partial disability and failed to demonstrate his termination from Zachry and his period of unemployment were causally related to his on-the-job injury.  The COA reverses.

The substantial evidence demonstrated that Ladner proved a work-related injury, he suffered a loss of wage-earning capacity resulting in permanent-partial disability, and the injury related to his disability. Further, Zachry failed to rebut Ladner’s prima facie case of disability. For these reasons, we reverse the Commission’s order. We further render the case and reinstate the order of the AJ awarding Ladner $128.01 per week for 450 weeks and medical-treatment expenses.

 Jamie Carpenter v. State of Mississippi felony child abuse –    Carpenter was convicted of felony child abuse and sentenced to  twenty years after being charged for having caused severe injuries to her  13-month-old child. The case had a rather odd path to the COA.  She was sentenced on  May 24, 2012.   Two years later she filed a petition for postconviction relief and in September 2014, she filed a motion for a JNOV. In October  2014, the trial court granted Carpenter leave to file an out-of-time.  In December  2014, the trial court denied Carpenter’s motion for a JNOV and  Carpenter appeals raising sufficiency of the evidence issues, an issue regarding prosecutorial misconduct and and argument that the trial court erred in exlcuding several defense witnesses who would have testified that they had overheard Carpernter’s boyfriend state that he was sick of looking at the baby. The COA affirms.

James W. Bennett v. Mississippi State Department of Health, a Member of the Mississippi State Agencies Self-Insured Workers’ Compensation Trust – workers comp – Bennett works at the Mississippi Department of Health on Woodrow Wilson Drive in Jackson but has to travel between several other locations.   On June 12, 2012, Bennett drove his motorcycle to his first stop.  After having lunch out he drove home to switch  from his motorcycle to his jeep before returning to his office because it looked like rain.  He hit  a motorist he pulled out in front of him and was seriously injured.   The ALJ found that he was a traveling employee operating within the scope of his employment at the time of the accident.   The Commission reversed.  The COA affirms the Commission.  “We defer to the Commission’s conclusion that, under the facts and circumstances of this case, Bennett’s detour to his home to change from his motorcycle to his jeep was a distinct departure on a personal errand.”

 

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