Decisions – Miss.S.Ct. – Dec. 8, 2016

State of Mississippi, Ex Rel., Jim Hood, Attorney General v. Louisville Tire Center, Inc. d/b/a Fair Oil Company – dismissal for want of prosecution –  Just before Hurricane Katrina hit, a state of emergency was declared. After it was over, the AG’s office began investigating complaints of price gouging. M.C.A. Section 75-24-25.  The AG filed suit against Fair Oil but the trial court granted summary judgment for Fail Oil on the grounds the price gouging statute was unconstitutional. State ex rel. Hood v. Louisville Tire Center, Inc., 55 So. 3d 1068 (Miss. 2011). On appeal the Miss.S.Ct.  reversed  and remanded the case for the chancellor  to examine Fair Oil’s conduct in light of the statute’s language.  After remand, several years passed without activity in the case, and in July 2015, the chancery court granted Fair Oil’s motion to dismiss for want of prosecution pursuant to M.R.C.P.  41(b). The State appeals. The Miss.S.Ct. affirms.

James Douglas Willie  v. State of Mississippi –  supplemental instruction to jury – Willie was convicted of murdering seventy-four-year-old  Tom Schlender who was traveling from Nevada through Mississippi  to pick up his grandson at a Bible college in Pensacola, Florida.  His bullet-ridden body was found in his car  off of I-55 in Panola County.  A gun with ballistics matching the bullets from the crime scene was found in Willie’s possession.  Willie claimed he had purchased it two weeks previously on the streets of Memphis.  On appeal he claims it was error to allow the state’s expert to testify that the bullets from the crime scene came from the gun owned by Willie.  The expert should have been limited to saying that they were consistent with having been fired from that gun.   Willie’s attorney, though did not object so Willie also argues that his attorney was ineffective.  The Miss.S.Ct. finds no error.  He also argues that the court erred in responding to the jury’s question it sent out after  it began deliberating. The jury asked  “Sir, can we say he is guilty of having the gun without saying he is guilty of murder.” The trial judge responded by writing, “No.” Willie contends that the trial judge’s response equates to a peremptory  instruction if the jury found Willie guilty of a gun charge. He contends that the judge’s response to the jury’s question amounted to instructing the jury that no, it could not find Willie possessed the gun without also finding him guilty of murder.  The Court reverses on this issue (even though this argument was not advanced at trial) because  it “suggested to the jury that they must find Willie guilty of murder if they found him ‘guilty’ of possessing the gun” which  contradicted the correct instruction informing the jury it must find him guilty of the elements of deliberate design murder.

Robert W. Stratton, Sr. v. Jerry McKey – replevin –  Stratton filed a replevin seeking  possession of a vintage truck that he had left at McKey’s repair shop for approximately three years. The court ruled that Stratton’s possession of the truck was conditioned upon him paying McKey $880 for storage fees.  The COA affirms. Stratton filed a cert. petition arguing that McKey never filed a responsive pleading and, thus, there was nothing for the trial court to rely on to  condition Stratton’s possession of the truck on his paying McKey damages. The Miss.S.Ct. grants cert. and reverses. “McKey submitted nothing to the circuit court prior to the hearing advising that he was seeking damages, so nothing in the present case put Stratton on notice that McKey would be pursuing a claim for damages in the replevin action.”

Carolyn McAdams v. Sheriel F. Perkinsauthority of governmental entity to hire an attorney – The City of Greenwood held a general election in which two candidates sought the office of mayor: Carolyn McAdams, the incumbent, and Sheriel Perkins. McAdams won the election. Perkins filed an election contest and named McAdams, in her individual capacity, as the sole defendant.  McAdams hired Butler Snow, LLP, to represent her in the election contest.  The City attorney requested an AG’s  opinion asking if the City  could (1) reimburse the Mayor for legal fees and costs she has incurred to defend the state-action allegations in federal court; and (2) retain [counsel] . . . to represent the City’s interest in upholding the validity of the municipal election and the actions of its elections officials, going forward.”  The AG  advised the City that it could  employ a law firm to defend claims made against municipal officers acting in their official capacity, and/or after  it determined it had an interest in the election contest but could not reimburse the mayor for her personal attorney’s fees. The  Council then passed a resolution employing Butler Snow, LLP,  “to represent the City’s interest in upholding the validity of the municipal election and actions of its election officials.”   Perkins appealed to the circuit court by filing a Bill of Exceptions challenging the council’s resolution. The circuit court reversed the council’s decision to hire Butler Snow, finding the resolution to be beyond its scope or powers and in violation of the Mississippi Constitution. McAdams appealed.  The Miss.S.Ct. reverses. “We find that the plain language of Section 25-1-47 permits the council to hire legal representation even if no city officials are named as defendants in a lawsuit.”

Kelvin Jordan  v. State of Mississippi – Jordan was convicted of capital murder in the killing of Tony Roberts, a good samaritan who gave Jordan and his cousin (persons unknown to him)  a ride.  They repaid him by killing him with his two-year-old son in the car.   Jordan got the death penalty.  His appeal was affirmed. And his first petition for post conviction relief was denied. He now files a second petition raising various issues of ineffective assistance. The Mississippi Supreme Court denies relief.

Marshall Fisher v. Michael Drankus – parole –  In 1987 Michael Drankus  was convicted of  capital murder, robbery, and residential burglary and sentenced to life imprisonment for  capital murder,  five years for the robbery and five years for the  residential burglary.  He was released on parole on January 5, 2001, but was revoked on March 21, 2006 for various violations including operating a motor vehicle while intoxicated and resisting law enforcement.  Drankus was  released on parole a second time on May 31, 2007, but was returned on June 6, 2012 for parole violations including assault on a law enforcement officer, felony battery and public intoxication.

On August 25, 2014, Drankus filed a  grievance with  MDOC’s Administrative Remedy Program (“ARP”) arguing that  he should be issued a parole case plan and be eligible for “presumptive parole” due to statutory provisions passed in House Bill 585.  MDOC argued that  he is ineligible to receive a parole case plan since he was sentenced in 1987, more than twenty-eight years prior to the effective date of HB 585 and the law is not retroactive.

Drankus appealed the decision to the Circuit Court of Sunflower County, Mississippi, which  partially granted Drankus’ request for relief holding that Drankus  is entitled to receive a case plan pursuant to Miss. Code Ann. §47-7-3.1. MDOC appealed. The Miss.S.Ct. reverses.

Here, we find MDOC’s interpretation of Section 47-7-3.1 to be reasonable and not inconsistent with the language of the statute and ascertainable legislative intent. As MDOC points out, Section 47-7-3.1 contains operative mandates which indicate that the section’s parole-case-plan directive was intended to apply prospectively. Subsection (2) says MDOC shall complete a case plan for all inmates within ninety days of an inmate’s admission. Miss. Code Ann. § 47-7-3.1(2). And paragraph (a) in subsection (3) says a caseworker shall notify the inmate of his parole eligibility date within ninety days of the inmate’s admission. Miss. Code Ann. § 47-7-3.1(3)(a). None of these provisions can be met in Drankus’s case, since he was admitted into MDOC’s custody in 1987.

 

The Court grants cert in Zachary Cozart  v. State of Mississippi  (the link is to the COA decision). – Zachary Cozart was tried for the  capital murder of his girlfriend’s  twenty-one-month-old child. The jury found him guilty of manslaughter and the court sentenced him to thirty years with fifteen suspended and ten years of post-release supervision.  Cozart argues that (1) he was erroneously sentenced pursuant to Mississippi Code Annotated section 97-3-25(2)(b) (Rev. 2014), which provides a maximum sentence of thirty years for the homicide of a child under the age of eighteen years by a person over the age of twenty-one years, rather than pursuant to Mississippi Code Annotated section 97-3- 25(1) (Rev. 2014), which provides a twenty-year sentence for manslaughter; (2) the verdict is against the sufficiency and overwhelming weight of the evidence; and (3) he received ineffective assistance of counsel. The COA affirms. Cozart’s trial counsel asked for and got a  lesser-included-offense jury instruction  which echoed the elements found in section 97-3-25(2), altered his indictment and subjected him to a harsher penalty and that crime did not exist when the child was killed. The COA finds that Cozart waived this issue when his attorney requested the erroneous instruction and that this was trial strategy and  affirms. Cozart filed a petition for cert. on the first issue arguing that its application here violated the rule against ex parte application of the law.

cozart-cert-petition

 

And the Court amends the filing form for the  Uniform Procedures for Data Collection Matters in Circuit, Chancery and County Courts. Order here.

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