Opinions – Miss.S.Ct. – Dec. 1, 2016

Gary Rolison, Martha Rolison, GM Lands, LLC and Rolison Tie and Timber Company, Inc. v. Edith Carolyn Fryar, Caleb Fryar, Pine Grove Trucking, Inc., Robert A. Fryar and Operators Investment Group, P.A. – settlement – In 2006, the Rolisons purchased ninety-seven acres of land that included a sawmill  from the Fryars. After the purchase, disputes arose between the Rolisons and the Fryars concerning ownership of certain equipment and materials located on the property. There were four lawsuits involving numerous parties. The cases were consolidated.  The parties agreed to mediate  and they eventually agreed to settle the lawsuits. The mediation settlement agreement provided that if the Fryars tendered $400,000 to the Rolisons, the Rolisons would convey the sawmill property to Caleb Fryar and execute a bill of sale for “all equipment and materials located on said property as is where is as of the date of this agreement on March 2, 2011.” A  week later, the Rolisons notified the Fryars of their belief that the parties had not reached a valid agreement because there had been no meeting of the minds. The  Fryars tendered a cashier’s check in the amount of $400,000 to the Rolisons along with proposed settlement documents. The Rolisons returned the check and document.The Fryars filed a motion to enforce the settlement agreement.  A bench trial was held in October 2011. Damages and attorneys fees was tried in 2015.  The circuit court found that the Rolisons had breached the settlement agreement, and the court entered a final judgment and awarded the Fryars $399,733.02 in damages, including lost profits and attorney fees. The Rolisons appealed arguing, among other things, that they never waived a jury trial on the issue of whether there was a breach of the settlement agreement.  The Miss.S.Ct. agrees that the Rolisons never filed a written jury trial waiver. “Therefore, the trial court erred by finding that they had waived the right to a jury trial.”  However, “[w]hen a party fails to demand a jury trial and proceeds to try the case to the bench, the party, having failed to exercise the jury trial right in a timely manner, forfeits the right to complain.”    The Miss.S.Ct. affirms.

Jelani N. Miles v. State of Mississippi – venue  in criminal cases – Miles was being tried in Yazoo City for shooting into a vehicle, aggravated assault with a deadly weapon, and murder. During the trial, one of the witnesses was murdered and the court ordered a mistrial.   The trial court then decided the case could not be tried in the county and  sua sponte ordered a change of venue despite well settled law that a defendant has a right to be tried in the venue where the crime occurred.  The defense filed an interlocutory appeal and the judge’s order changing venue is reversed.  By statute, only a defendant may move to change venue.

While we recognize the difficult situation faced bythe trial judge, this Court possesses no authority to amend statutes. The wisdom of, and need for, an exigent-circumstances exception to the criminal venue statute is squarely within the exclusive authority of the Legislature. We note, however, that when circumstances such as those before us todayoccur, circuit judges may offer some protection to the judicial process. As in this case, circuit judges may revoke the defendant’s bond while he awaits a new trial and also may sequester the jurors for their safety.

 

Jennifer Carter v. Josh Carter – custody/necessity of GAL – Josh and Jennifer  divorced in Rankin County in 2011, and Jennifer got custody of their one child Delaney.  In May 2012, Josh filed a complaint for modification which alleged a material change in circumstances that had adversely impacted Delaney.  It did not specify what the changes were.  an attorney was appointed to investigate and she determined that  Jennifer was living in a extremely dilapidated mobile home.  The chancellor found the home to  be “shocking,” “squalid,” and “dangerous.” The chancellor found a change in circumstances and gave Josh primary custody.  On appeal Jennifer argued that the court erred in not appointing a GAL.  Neither party ever asked the chancery court to appoint a guardian ad litem.  While the law requires a GAL be appointed where there are  allegations of abuse or neglect,  in this case Josh did not  expressly accuse Jennifer of neglecting Delaney.  The COA affirmed and the Miss.S.Ct. granted cert. and affirms. Because there were no charges of neglect or abuse as required under Mississippi Code Section 93-5-23, and because insufficient proof was adduced of abuse or neglect, the judgments of the Court of Appeals and the Rankin County Chancery Court are affirmed.

 

James L. Johnson, Jr.  v. State of Mississippi –   other bad acts evidence –  Johnson was convicted of  aggravated domestic violence.  He was accused of strangling  his ex-wife.  At trial the court allowed the state to introduce police reports related to Johnson’s prior bad acts (including two convictions)  and convictions for domestic violence involving four different women and spanning a thirteen-year time period.  The offense reports contained information that  Johnson engaged in other criminal conduct than just the four past bad acts.  the State proffered during the pretrial hearing.  The COA reverses because the “circuit court admitted the four offense reports without determining whether, under Rule 404(b) of the Mississippi Rules of Evidence, the State offered the additional offenses in the police reports for proper purposes.”  “Furthermore, the circuit court admitted the offense reports without scrutinizing whether, under Rule 403 of the Mississippi Rules of Evidence, the probative value of the additional allegations contained in the reports outweighed the prejudice to Johnson.” On cert. the Miss. S. Ct reverses the COA and reinstates Johnson’s conviction.  “Finding that the Court of Appeals erred in holding that the trial court did not consider the facts contained in offense reports, we reverse the judgment of the Court of Appeals and reinstate and affirm Johnson’s conviction.”

Laqunn Gary  v. State of Mississippi – right to a suppression hearing – Gary was charged with murder in the death of  seventeen-year-old Vizavian Trent Darby who was found lying in the grass in Jackson  with a gunshot wound to his head.  Gary was taken in for questioning and he confessed to the shooting and led police to the guns. Before his trial, Gary moved to suppress his written statement and confession.  One of the detectives who took Gary’s statement was dead (Eric Smith was killed when questioning a suspect in an unrelated case).  The other officer, Detective Wilder, insisted she was suffering from PTSD from Smith’s shooting and moved to quash the subpoena commanding her to testify.  The Court deemed Wilder unavailable, took some testimony regarding the age of Gary (someone couldn’t just get a birth certificate, really?) and then denied the motion to suppress.  (Do judges in other states make such bad rulings? I mean, today we have Miles and this).  On appeal Gary, who was convicted of capital murder,  complains he didn’t get a suppression hearing. The Miss. Supreme Court does the only thing it can do and remands the case for a hearing on voluntariness of the confession since everyone knows it  is the state’s burden to prove beyond a reasonable doubt that a confession is knowing and voluntary and once the defendant raises an issue, the court has to have a hearing.  The state puts on a witness to make out a prima facie case.  Then, if the defendant testifies, the state has to call everyone involved in taking the statement.

 Arvin Dale Rochell v. State of Mississippi – parole eligibility – Rochell pleaded guilty to murder and arson in 1992.  Rochell filed a pcr motion claiming that he was eligible for a parole plan due to a change in the law.  The trial judge denied Rochell’s petition, finding that Section 47-7-3.1 “contemplates inmates sentenced after July 1, 2014,” as it provides that the MDOC shall complete a case plan for all inmates “within ninety (90) days of admission.” Rochell appeals arguing  that “Section 47-7-18(1) makes release mandatory upon certain findings”  and that  “all offenders eligible for parole pursuant to [Section ] 47-7-3 are now subject to the parole release procedures in [Section] 47-7-18, as a matter of statutory law notwithstanding when convicted.”   The Miss.S.Ct. affirms finding that . “[A statute] will not be construed as retroactive unless the words admit of no other construction or meaning, and there is a plain declaration in the act that it is.”

 Douglas Howard Walters v. State of Mississippi Walters was convicted of grand larceny in connection with a bunch of stuff stolen from property belonging to a construction company.   Robert Nelson drove to his company’s property in Brandon and noticed the gate was open and the padlock cut.  A guy  named Arnold Bailey was in the back  using a forklift to carry a concrete hopper.  The forklift had been rented by Walters.   Nelson noticed that about 150 pieces of heavy-duty steel scaffolding, along with some other materials, were missing from his property.  Nelson found out that some of it had been sold by Walters as scrap to General Recycling in Flowood.  Walters and Bailey were indicted. At trial Walters defense was that the scaffolding he sold was from his house that had burned down.  On appeal he argues that it was error to allow the jury to be instructed that the value of the materials had to be at least $500 and not $1000 since the statute was amended after he was arrested and before trial.  The Court notes that he did not object at trial and, besides, the controlling statute is the one in effect when the crime was committed. He also argues that the court erred in quashing the subpoena for Bailey who was being tried separately after Walters’ trial. At a hearing on the motion to quash, Bailey’s attorney told the court that Bailey would invoke his Fifth Amendment right to be silent.

In this case, the trial court did not abuse its discretion in accepting Bailey’s invocation of his Fifth-Amendment privilege and quashing his subpoena. Walters and Bailey were charged as codefendants in the same indictment, and at the time Bailey received the subpoena, he still was awaiting trial. On the advice of counsel, Bailey invoked his privilege as to all questions Walters would have asked him. At the hearing on the motion to quash prior to Walters’s second trail, Walters did not proffer any specific questions he intended to ask Bailey. And, based on the evidence in the record, the trial court reasonably concluded that any relevant questions Walters sought to ask Bailey would tend to incriminate him.

 

The Court also amends the Appellate E-Filing Administrative Procedures finding that they” should be amended to require a certificate of service, consistent with Section 3(G) of the Administrative Procedures for Mississippi Electronic Courts, and to include a citation rule.”

In Re: Appellate E-filing Administrative Procedures

 

 

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