Decisions – Miss.S.Ct. – June 15, 2017

Tunica County Democratic Executive Committee v. Craig Jones and William Pegram election contest –  The Tunica County Democratic Executive Committee decided that Craig Jones was not  qualified to run for the position of county supervisor.  Jones appealed and the court found that Jones was qualified to be a candidate, overruled the decision of the TCDEC, and directed that Jones’s name be placed on the primary ballot. The TCDEC appealed to the Miss.S.Ct. but failed to perfect the appeal. The primary election was held on August 4, 2015, without Jones on the ballot. McKinley Daley won that primary.  On October 12, 2015, Jones filed a petition to vacate the primary election and set a special election.  In an order filed Nov. 2, the court vacated the election of Daley as the Democratic nominee and ordered a special election to be held on a date set by the governor.  The next day the general election was held between Daley and independent candidate William Pegram.  Pegram won. Because the Democratic primary had been vacated by the circuit court order, the Board of Supervisors refused to seat Pegram, and instead appointed Daley as interim board member for Beat Five. Neither the TCDEC nor Daley filed an election challenge to the general election.  The TCDEC then requested on November 19, 2015, that Governor Phil Bryant set a special election. Governor Bryant refused to do so.  The TDEC filed an emergency  motion for clarification and stay which Jones opposed arguing that Pegram needed to be joined.  The court found  that Pegram was the duly elected supervisor and the Daley should be removed.  The TDEC appeals.

The trial court had no authority to order a special election under Section 23-15-961.
Nor does this Court have the authority to order a special election, given that no election contest has been filed, and the original appeal under Section 23-15-961 was not prosecuted. This Court vacates the November 2, 2015, and February 18, 2016, orders and we note that the uncontested election results currently stand.

Clayton Frank Gutierrez v. Trisha Gutierrez – division of marital property – Trish and Clay filed for divorce after 22 years of marriage.  The case was reversed and remanded on appeal for issues dealing with the division of marital property and alimony.  The chancellor  revised his opinion.  Clay appeals. The Mississippi Supreme Court affirm.s

Mississippi Commission on Judicial Performance v. Judge Gay Polk-Payton –  judicial performance – The Commission on Judicial Performance was asking for a public reprimand for Justice  Court Judge Gay Pol-Payton for posting.  The case was argued Tuesday.  Today the Court rules that it “finds that no violation of the Mississippi Code of Judicial Conduct by the respondent, Forrest County Justice Court Judge Gay Polk-Payton, has been proven by clear and convincing evidence, and that these proceedings therefore should be, and they hereby are, dismissed with prejudice. The Commission shall bear the costs.”  (There’s no opinion).

Timothy Nelson Evans  v. State of Mississippi – death penalty – In 2009, Wenda Holling allowed Timothy Evans, a man she had once dated, to live with her.  When she got tired of paying for his alcohol (he was an alcoholic), they argued and on Jan. 2, 2010, he strangled her to death, took her body to a remote place, and began using her credit cards to pay for his alcohol and other needs.

He was eventually tried, convicted, and sentenced to death. On appeal he raises nine issues.  The first is whether the court erred in not conducting a competency hearing after Evans’ attorneys filed a motion for a competency evaluation and the court ordered that Evans be evaluated for competence to stand trial.  (Evans filed numerous pro se motions including one to terminate his attorneys mid-appeal).  He also raises issues having to do with the court’s not allowing counsel to voir dire jurors on whether their experiences with alcohol would affect their ability to consider evidence of Evans’ alcoholism, the inadvertent seating of a juror that the defense had stricken peremptorily, the fact that the jurors could not follow instructions (one of them approached and spoke to defense counsel against instructions; that juror was excused), etc. The Court affirms.

Richard Gerald Jordan v. State of Mississippi – death penalty – Jordan claims the State’s intent to use midazolam in its lethal injection protocol violates Mississippi Code Section 99-19-51. The Court finds this issue moot since the legislature has amended the lethal injection statute.  He also claims that executing an inmate more than forty years after he was first sentenced to death would violate the United States and Mississippi Constitutions.  The Court finds this issue is without merit.

The Court grants cert in the following cases:

James Scott v. State of Mississippi –(the link is to the COA opinion) –   rape/kidnapping – Scott was charged with having broken  into the home of Danielle Landry in Hattiesburg, Mississippi.  Landry believed Scott intended to rape her and so she  offered money to Scott in exchange for her release.  Scott took Landry to her car, forced her into the passenger seat, and drove from the house to drive to an ATM but Landry managed to flee.   Scott was convicted of attempted rape, kidnapping, and burglary of a dwelling sentenced to  three consecutive life sentences as a habitual offender.  On appeal Scott argues that he should have been allowed to elicit Landry’s prior marijuana use, that the instructions were incorrect, that the state should have been prohibited from using DNA evidence since it was not disclosed until right before trial,  sufficiency of the evidence, etc. The COA affirms.

On cert he argues that the court erred in limiting the testimony of a neighbor who could have impeached Landry, erred in failing to instruct the jury on the elements of rape, and the court erred in denying a continuance to confront the DNA evidence that was not timely disclosed.

James Scott cert ptn

Marlon Little v. State of Mississippi  (the link is to the COA opinion) – sufficiency of the evidence –  Little was convicted of armed robbery and felon in possession in the  October 31, 2013, robbery of nurse practitioner  Danny Ellis outside of his Port Gibson office.  On appeal he raises sufficiency of the evidence and he prevails! The only evidence against Little was the testimony of Ellis and  who told police he was robbed by a clean-shaven, stocky African American male in his mid-to-late twenties.  A tip led police to Little who is forty years old, tall and thin, with gold teeth, and normally wears a goatee.  Ellis picked him out of a lineup solely due to his distinct nasolabial folds.  Little’s photo was the only picture with distinct nasolabial folds. The COA reverses and remands finding that  “the weight of the evidence preponderates heavily against the verdict where the sole substantive proof presented at trial was the testimony of the victim identifying the defendant, and the victim’s initial description of the attacker to the police was inconsistent with that identification.”

The State filed a cert. petition arguing that the COA misapprehended the facts and should not have acted as a 13th juror.

Marlon Little State cert petition

City of Meridian, Mississippi d/b/a East Mississippi Drug Task Force v. $104,960.00 U.S. Currency, and a 2003 Ford F-150 Supercab Truck, VIN #1FTRX17213NB65899 and Maria I. Valle Catalan – (the link is to the COA opinion) – forfeiture – In June  2012, Catalan was pulled over for “tired” driving. A consensual search revealed $104,690 hidden in one of the truck’s compartments.  No contraband or drugs were found in the truck and  Catalan was not  charged with any criminal offense or even a traffic ticket. The City filed a petition for forfeiture requesting the forfeiture of Catalan’s truck and the $104,690. Catalan filed an answer and a request for production. She eventually filed a  motion to dismiss under Rule 12(b)(6) which the trial court granted. The City appeals.  The COA affirms.

The City files for cert. arguing that the Court of Appeals erred when it ruled that the trial court did not fail to convert the M.R.C.P. 12(b)(6) motion to that of a M.R.C.P. 56 Motion; the COA misapplied MRCP 8; and the COA  erred in finding that the Petition for Forfeiture failed to contain specific factual allegations.

City of Meridian cert petition

And the Court amends Rule 40 (b) of the  Mississippi Rules of Appellate Procedure to add that responses to a motion for rehearing are limited to 25 pages but declines to adopt word counts like those used by the Fifth Circuit Court of Appeals.

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