Decisions – COA – Aug. 23, 2016

Tremain Whittaker v. State of Mississippi right to appeal –   Whittaker was convicted of statutory rape, sexual battery, and gratification of lust in September 2012.  “Whittaker was not informed by the trial court on the record at sentencing of his right to appeal within thirty days of the entry of judgment or that if he was indigent he could be appointed an attorney for appeal. A direct appeal was never taken.”  Eleven months after he was sentenced, he filed a request for an out-of-time appeal.  Judge Weill denied it.  He appeals.  The COA reverses and remands for for a hearing on whether

Whittaker is entitled to an out-of-time appeal, with particular consideration of whether Whittaker was aware of his potential right to court-appointed appellate counsel. If the circuit court grants Whittaker’s motion for an out-of-time appeal and the State does not appeal that ruling, Whittaker may file a direct appeal of his underlying convictions. Sellers, 52 So. 3d at 430 (¶13). If the circuit court denies Whittaker’s motion for an out-of-time appeal, he would be entitled to appeal the circuit court’s decision with the necessary record.

Willie Ed Smith v. State of Mississippi – burden of proof for necessity defense –  Smith was convicted of  of unlawful possession of a firearm by a felon and sentenced as an habitual to  ten years. Smith’s friend Jason Parker was suicidal after his girlfriend threw him out.  He drove to Smith’s house and picked him up.   Parker had an unloaded  .380 in his car.  They decided to sell it at a pawn shop.  Since Parker did not have any identification,  Smith sold the gun. Law enforcement looking through the pawn receipts recognized Smith as a felon and arrested him. At trial he mounted a necessity defense.  He was convicted and on appeal he argues that  the trial court erred in refusing a jury instruction placing the burden on the State to disprove Smith’s defense of necessity beyond a reasonable doubt. The COA affirms.

Emma Bell and John Bell v. Certain Underwriters at Lloyd’s London, Subscribing to Policy Number – TCN034699, Southgroup Insurance and Financial Services, LLC and TAPCO Underwriters, Inc. –  insurance coverage/building – The Bells made a claim for property damage on their insurer after a  barn on their  land in Port Gibson collapsed  in high winds. The insurer claimed that the barn was not covered under the policy and moved for summary judgment.   The COA affirms.  “In this case, the circuit court correctly concluded that the plain language of the policy covered only the smaller steel building, not the barn.”  The case also includes the issue of what makes a final judgment.  The court granted summary judgment for two of the defendants and later certified the judgment pursuant to M.R.C.P. 54(b).

Justine Lynn Nations  v. State of Mississippi –  grand larceny – Nations was charged with grand larceny after the person for whom she was hired as a caretaker noticed some items missing from her house and Nations pawned them.  She was convicted and sentenced to 10 years as an habitual. “On appeal, Nations argues that the trial court erred by: (1) allowing the State to amend the indictment to include her habitual offender status; (2) allowing the State to amend the indictment to remove or alter the descriptions of items allegedly stolen; (3) permitting the State to aggregate the value of the allegedly stolen items; and (4) sentencing her to ten years’ imprisonment. Nations also argues that the State violated her rights by offering plea deals that exceeded the statutory maximum sentence at the time of her conviction.”  The COA affirms.

LaDonna Ware v. Adams County Mississippi, By and Through Its Board of Supervisors, and Adams County Sheriff Charles R. Mayfield Jr., in his Official Capacity –  Ware was visiting her husband in prison when she claims one of the gates closed on her.  SHe filed a premises liability case. The trial court granted summary judgment for the defendants. The COA affirms finding that Ware had no evidence that the defendants knew the gate was malfunctioning.  And none of the defendants’ actions amounted to reckless disregard.

Ellis Turnage v. Ellis Christopher Brooks, a Minor, and Alex Jarrett Brooks, a Minor, by Mary Brooks, Mother and Adult Next Friend paternity/child support – “Ellis Turnage and Mary Brooks had two sons out of wedlock, born in 1989 and 1994. In 2009, Brooks sued to establish paternity and secure support for the children. In June 2014, the chancery court entered an order requiring Turnage to pay child support and college expenses of the children. On appeal, Turnage contends that the chancery court should have dismissed the support claim as a sanction for what he alleges was perjury during Brooks’s deposition. He also contends that college expenses should not have been awarded because he had no viable relationship with the children, and that he should have been given various credits against his support obligations. We find no error and affirm.”

K.T., by and through her Natural Parents and Guardians, Michael Toepfer and Jennifer Toepfer v. Klein Road Church of God – premises liability  – Four-year-old K.T. was attending a 4-H meeting at  Klein Road Church of God when she fell off a swing while her mother was pushing her.  Her parents sued the church.  The circuit court granted summary judgment in favor of the Church and K.T. appealed. The COA affirms. Since the church was merely allowing the 4-H club to use its facilities, K.T. was a licensee and the church violated no duty to her.

Sherman E. Billie, Sr.  v. State of Mississippivoluntariness of confession – Billie was convicted of sexual battery and sentenced to fifteen years. – Twenty eight year old Sherman Billie was convicted of sexual battery of his 14-year-old stepnephew (I think). On appeal he argues that the court should have suppressed his statements because he had taken 4 sleeping pills right before his arrest.  Billie testified that the officer told Billie that if he provided a written confession, his bond would be reduced so Billie  “free[-wrote] whatever 4 [came] to mind because [he] just wanted to go home.”  The COA affirms finding that the trial court weighed the evidence at a hearing on voluntariness and its decision was not an abuse of discretion.

Henry Harvey  and Lillie May Moore Harvey  v. Federal National Mortgage Association – eviction after foreclosure – The Harveys defaulted  on their loan and Fannie Mae foreclosed.  When the Harveys wouldn’t budge, Fannie Mae sued to evict them.  The Harveys argued that the foreclosure wasn’t lawful.  The trial court told them that they were not in the proper court for that and gave them ten days to move.  The Harveys appeal pro se and lose.

In the Matter of the Last Will and Testament of Johanna Massingale, Deceased: Haruhiko Murakami v. Janice M. Young, Jennifer M. Eakes and Justin Massingale – will  kit will – Johanna died in October 3, 2012. She had only siblings.   Johanna’s friend, Murakami, filed a petition to probate Johanna’s last will and testament. The  consisted of nine pages.  “The first eight pages of the will came from a will kit that Johanna downloaded from the Internet. The sixth page of the submitted will contained Johanna’s signature, and the seventh page contained the signatures of the three individuals who witnessed Johanna’s will. The eighth page again provided the signatures of Johanna and the three attesting witnesses, as well as the signature of a notary public.”  The issue here is the ninth page.  The ninth page was labeled  “Details of Johanna Massingale’s [W]ishes of [H]er Last Will and Testament. ” It named named Murakami the sole beneficiary of Johanna’s estate and he was to pass Johanna’s estate and personal belongings to her  niece, Lauren Eakes, either at Murakami’s death or whenever he deemed fit. If  Murakami died before Johanna, Johanna’s sister, Janice, was to be  executor and was to  pass everything  to her niece, Lauren, etc., etc., etc.  (all I can say is that dying must be a real problem in this family).   Etc.   Johanna and Murakami signed the ninth page, but the page contained no attesting witness signatures.

 After concluding that the ninth page constituted a separate document from the first eight pages of the will, the chancellor next found that the first eight pages of the will failed to incorporate the ninth page by reference. In addition, the chancellor stated that Johanna failed to sign the ninth page in the presence of the witnesses who attested the first eight pages and that the page included no other attesting witness signatures. Furthermore, the chancellor determined that Johanna never acknowledged or published the ninth page as her will or as part of her will.

The court granted summary judgment disallowing the ninth page to be considered and determined that, for the time being, the will was the eight pages from the will kit.  Lots of guidance here on holograph wills, codicils, general boring (but important if you’re writing a will)  stuff.

Mississippi Valley Silica Company, Inc. v. Dorothy Barnett, Individually and as Wrongful Death Beneficiary of Howard Barnett, Deceased, and on Behalf of All Wrongful Death Beneficiaries of Howard Barnett, Deceasedsilica – From about 1960 to 1970, Howard Barnett worked for Mississippi Steel and Iron Company.  His work was some 40 feet from the sandblasting also occurring at MSIC.  Howard developed silicosis and died.  He filed suit before his death.  A jury awarded his widow  $1,095,000 plus interest and attorneys fees of  $212,312.50 (because punitives). Valley raises some standing issues on appeal as well as the fact of an inconsistent verdict. The COA finds the latter issue waived.  Valley also raises a SOL issue which the COA finds presented a factual issue for the jury.  The COA reverses the attorneys fee award and remands for the trial court “to determine and award reasonable attorneys’ fees based on findings of fact and conclusions of law related.”

Thus Blogged Anderson  tweets “the big news in the silica case is IMHO the ‘order of operations‘ issue: cap then apportion, or vice-versa? COA says latter.”  He’s the expert. I have no idea what he’s talking about.

Xavier Larry  v. State of Mississippiconfrontation – Larry was convicted of burglary of a dwelling and to 25 years with five years suspended and five years of postrelease supervision.  The same afternoon a house was burglarized, he was found in possession of several of the stolen items.  He raised a Batson issue, sufficiency of the evidence issue and that his attorney was ineffective for failing to request a circumstantial evidence instruction.  He also argued that his right to confront the witnesses against him because a law enforcement officer testified that Larry co-defendant. who did not testify, stated that Xavier Larry burglarized the house.  The COA finds the issue procedurally barred because Larry’s attorney failed to object (although even Larry himself knew this was wrong) and harmless in light of the evidence against Larry.

Vincent N. Creppel   v. State of Mississippi – pro se pcr appeal affirmed


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