Decisions – Miss.S.Ct. – May 18, 2017

Victoria Swanagan v. State of Mississippi – response to jury question –  Swanagan and Vincent Hill lived together.  One day Derrick Sims came by to pick up Vincent to go to work.  He heard arguing and Swanagan and Hill came out and Swanagan hit Hill on the back of the head. Both Swanagan and Hill got into Sims’ truck and continued arguing.  She bit him and they fell out of the truck whereupon Hill hit Swanagan on the head.  As Sims and Hill tried to get back into the truck, Swanagan had a pistol and started shooting. Hill was dead. Swanagan told Sims she would buy him a new window.  Swanagan was convicted of depraved heart murder. On appeal she argues weight and sufficiency of the evidence. She also argues that the trial court erred in reading instruction S-2 to the jury after they sent out a note asking for a definition of depraved heart murder. Swanagan agreed to reading S-2 to the jury but now argues that it had the effect of singling out the instruction.  The Court finds the issue procedurally barred. She also argues that her attorney was ineffective in  failing to request instructions on culpable negligence manslaughter and accident or misfortune and by agreeing to the trial court’s response to the jury’s question. The Court finds no merit in either argument and affirms.

Laterrence Lenoir  v. State of Mississippi – identification of suspect on surveillance video – Two men robbed a Dollar General in Brookhaven in 2013.  A surveillance camera captured one man looking inside the front door and then returning with a mask and another man in a mask.  At trial, the officer who investigated the case and two persons who knew Lenoir testified that the man on the video, which was played for the jury, was Lenoir.  On appeal Lenoir argues that it was error to allow them to do so.  The Court notes that it has not decided the issue but that the COA has in  Bennett v. State, 757 So. 2d 1074, 1076 (Miss. Ct. App. 2000).  The Court adopts the reasoning in Bennett wherein the COA stated “When there is a genuine issue of fact as to who is actually portrayed in a photograph or videotape, it is that sort of lay opinion evidence that can prove ‘helpful’ to the jury within the meaning of Mississippi Rule of Evidence 701.”

Jesse Frank Mouton v. State of Mississippi – alleged discovery violation – Mouton was indicted on four charges involving the sexual assault of a three-year-old boy who was often in the house where Mouton, his brother and the brother’s girlfriend lived because the girlfriend babysat the boy and his two-year-old sibling.  The assault was discovered when the three-year-old complained his butt was hurting and stated that Mouton “had been playing with his butt and weiner.” An examination revealed four injuries to his anus – one large abrasion and three tears.  He was convicted.  On appeal he argues that it was error to allow the sexual assault nurse examiner  to testify what the shapes of the injuries meant because that information had not been provided in discovery. Mouton objected at trial and the court found no discovery violation but did recess for the day to allow Mouton to question the witness. On appeal the Court finds no error.

After review, we find no abuse of discretion in the judge’s handling of the claimed discovery violation. Fromthe State’s discovery—which Mouton admitted receiving—it was clear Auge would testify that the anal tears depicted in the photographs and forensic reports were consistent with sexual assault. And the judge was thoughtful in her evidentiary analysis, crafting an approach that granted Mouton’s request for additional time to question Auge, and ultimately limiting the expert’s testimony to only external injuries.

Moulton also argues that there was prosecutorial misconduct and the giving of a Sharplin instruction.  The Court affirms.

American Optical Corporation v. Estate of Robert Lee Rankin, Sr., Jean Marie Howard Rankin, Jacquelyn Denise Rankin Anderson, and Robert Lee Rankin, Jr., Individually and on behalf of all the heirs at law of Robert Lee Rankin, Sr., Deceasedsilica – In 2013,  Rankin filed suit in Jefferson County Circuit Court against 21 companies, including American Optical, for damages associated with lung disease allegedly caused by exposure to respirable silica. American Optical was accused of manufacturing defective “personal respiratory equipment.” A jury awarded $14,000,000 in damages and a verdict of $6,300,000 was entered against American Optical.  American Optical appealed. The Miss.S.Ct. reverses and renders finding that the three-year statute of limitations had expired.  “[I]t is undisputed that Rankin began experiencing breathing problems in 2000. It also is undisputed that Rankin sought medical treatment for shortness of breath and had been diagnosed with exacerbation of COPD in 2007.”

The Court grants cert in two cases:

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, Deceased – a silica case (the link is to the COA opinion) – 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.”  According to Thus Blogged Anderson this involves an  “‘order of operations‘ issue: cap then apportion, or vice-versa? COA says latter.”   Mississippi Valley filed for cert.  arguing that

The majority’s rulings conflict with Mississippi precedent regarding survival damages, the expiration of the statute of limitations, liability to bystanders under the Mississippi Products Liability Act (“MPLA”), the insufficiency of product identification and causation evidence, and the extraordinary remedy of punitive damages. The order of application as to the apportionment statute and the $1,000,000 statutory cap on noneconomic damages is an issue of first impression for this Court, and the majority’s interpretations of the MPLA and punitive damages statute concern matters the Mississippi Legislature has deemed to be of broad importance to the public.

Miss. Valley Silica cert.


Monica Ashbrook Darby and Andrew Ross Darby v. Harold Combs, Karron Combs and Crystal Johanna Combs – custody – (the link is to the COA opinion). Addie, born in February 2013, is the child of Crystal Combs and Drew Darby.  A few months after she was born,  Monica (Drew’s mother) filed a petition for custody  or  visitation with Addie on the grounds her parents could not care for her. A GAL was appointed and substantiated abuse.  Crystal was arrested for drugs.  Crystals parents intervened. The chancellor awarded joint custody of Addie to both Monica and the Combses. Monica and Drew appealed. Monica asserts that joint custody is not an appropriate remedy between two nonparent third parties. The COA disagrees.  SHe also complains she got no holiday visitation.  The COA finds no problem with the trial court’s decison with regard to who has Addie when.  Finally, she argues that it was unfair to make her pay one-half of the GAL fees when she did not request a GAL. Again, the court finds no error.

Monica’s cert. petition argues that “the  Court of Appeals misunderstood, and therefore failed to address, an issue raised by Monica, specifically that the Chancellor lacked the authority to award joint custody as between nonparent third parties.”

Darby cert.

The Court also amends the Mississippi Rules of Evidence, the Justice Court Rules, the  Uniform Rules of Circuit and County Court Practice, and the Mississippi Rules of Appellate Procedure to conform to the new Mississippi Rules of Criminal Procedure.  The Mississippi Rules of Criminal Procedure are also amended.  All of these take effect July 1, 2017.

Mississippi Rules of Evidence 

      •  (tweaks a few Advisory Committee Notes so that they cite the correct new criminal rule)

    Justice Court Rules

        •  (eliminates the Justice Court criminal rules and rearranges the remaining)

      Uniform Rules of Circuit and County Court Practice

          •  (eliminates the criminal rules that had previously been in here)

        Mississippi Rules of Appellate Procedure

            • (tweaks so that cites to the Criminal Rules are correct)

          Mississippi Rules of Criminal Procedure

            •  (a few tweaks) these are effective July 1, 2017


          I missed the school funding argument yesterday. My father has been in and out of hospitals since late December and I just overlooked it.



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