Decisions – COA – July 25, 2017

Connie Hawkins, Individually and on Behalf of the Wrongful Death Beneficiaries of George Leith Hawkins, III, Deceased v. Heck Yea Quarter Horses, LLC, Wallace Heck d/b/a Heck Yea Quarter Horses, LLC and Bruce Horn wrongful death – In June  of 2013, sixty-one-year-old George Hawkins was hired as a temporary employee of Heck Yea to work on a fence-washing project. On the very first day around lunch he  began experiencing a heat stroke. He was asked if he wanted an ambulance twice; he said no.  He was taken to the shade and given a cold drink.   George left the farm between 1:00 and 3:00 p.m. and was observed driving erratically.   His wife found him at home at 4:30 in distress.   George was taken to a hospital and died several days later.  His wife filed a  wrongful-death lawsuit against Heck Yea.  The trial court granted summary judgment finding that Heck Yea did not breach any duty under the  good Samaritan statute to George. The COA affirms finding that whether under the Good Samaritan statute or general negligence principles, Heck Yea twice offered to call an ambulance.  Furthermore, it took the wife two hours to call an  ambulance. “We find that Heck Yea rendered reasonable first aid to George and that its duty ended after George left its premises and Hawkins assumed his care. ”

Evelyn D. Butler, Individually, as Administratrix for the Estate of Alice Jean Butler, and on Behalf of the Wrongful Death Beneficiaries of Alice Jean Butler v. Chadwick Nursing & Rehabilitation Center, Chadwick Nursing and Rehabilitation Center, LLC, John C. Farmer, M.D., and Farmer and Associates Internal Medicine, Inc. –  medical malpractice –  Sixty-eight-year-old Alice Butler was admitted to Central Mississippi Medical Center in  October of 2009.  She was morbidly obese and suffered diabetes, hypertension, arthritis,  gout, and . Her doctor  believed  she needed a hip replacement, but he recommended that she undergo rehab first. In  November she  was transferred to Chadwick Nursing and Rehabilitation Center LLC for rehabilitation. On admission she had  areas of skin breakdown including two bed sores.   While at Chadwick, the sores deteriorated and became infected. On November 27, 2009, Alice was transferred to the emergency room at CMMC, where she was diagnosed with sepsis and other illnesses. On December 27, 2009, Alice died of acute respiratory failure caused by sepsis.  Her family filed a med mal suit alleging that Chadwick failed to notify Alice’s doctors of changes in her condition in a timely fashion.  The case went to trial but after the plaintiff rested, the court granted directed verdicts for CMMC and Farmer.  The COA affirms. “Evelyn’s proof was objectively lacking on at least one essential element of her claim as to each defendant. Accordingly, there was nothing to submit to the jury for determination, and the trial judge property granted the defendants’ motions for directed verdicts.”

Darius Cornelius Ford  v. State of Mississippiineffective assistance in failing to request an alibi instruction – Ford was convicted on aggravated assault and felon in possession in 2012.  The convictions were affirmed on appeal.   The Supreme Court granted Ford leave to file a PCR motion in the circuit court, limited to the issue of “whether trial counsel was ineffective by failing to request an alibi jury instruction.”  Ford filed his motion in the circuit court, and after a hearing the court denied relief finding that the jury found Ford guilty even after hearing his girlfriend testify that he was at her house when the assault took place (but she was asleep at the time).  “In returning two guilty verdicts, the jury obviously chose to disregard [Ford’s and Adams’s] testimony.” The COA affirms.  “The shooting occurred near Adams’s mobile  home, and she was admittedly asleep at the time it occurred. Therefore, her testimony did not provide Ford with an alibi. It necessarily follows that Ford’s trial counsel
did not provide constitutionally ineffective assistance of counsel by not requesting an alibi.

Kenneth Ray Ainsworth v. State of Mississippi –  supplemental instruction on how t o deliberate– Ainsworth was convicted for possession of a controlled substance with intent to distribute.  during deliberations the jury sent out a note indicating that they were 12-0 on possession and 11-1 on possession with intent to sell.  The court perceived that the jury was deliberating on the lesser included charge without first coming to an agreement on the greater and gave a  supplemental instruction and instructed them accordingly.  The jury came back an hour later with a verdict of guilty on the intent charge.  On appeal he argues that it was error to give a supplemental instruction especially where the jury indicated that they had found him guilty of the lesser charge.  On appeal they COA affirms finding that Ainsworth had not objected at trial and that it was not ineffective for Ainsworth’s lawyer to fail to do so.

Cornelius Cannady, Sr.  v. State of MississippiLindsey brief – Cannady was convicted of false pretense and conspiracy to commit false pretense. His lawyer filed a Lindsey brief. The COA affirms.

Marlana Alonso, Individually and on Behalf of All Heirs at Law and Wrongful Death Beneficiaries of James Leroy Smith v. Jason C. Ross  – wrongful death – In February 2013, James Smith, a pedestrian,  was struck by a vehicle driven by Jason Ross on Highway 49 in Hattiesburg.  Smith died and his daughter filed a wrongful death suit. The trial court granted summary judgment. The COA affirms.

Thus, the uncontroverted facts show that Ross was traveling northbound on Highway 49 at approximately 8 p.m., was not speeding, was not using his cell phone, and was not under the influence of any substance. It is further undisputed that the collision did not happen at an intersection or within a crosswalk (as originally pled by Alonso), that it was dark, that Smith was wearing camouflage clothing, and that Smith possessed a BAC of .247. Alonso presented no evidence specifically showing: (1) where the accident occurred; (2) what speed Ross was traveling; (3) whether Ross was keeping a proper lookout; (4) where Smith was at the time of the accident; and (5) whether Smith was exercising due care.

John Ed Oliver, II v. State of Mississippi  armed robbery – Oliver was convicted of armed robbery after he and Danny Kaye Hubbard Jr.drove up behind Christian Rone on his skateboard.   (Rone knew Oliver from high school).   Oliver asked Rone to use his cellphone. Rone handed over his cellphone and  Oliver  indicated that he was going to keep the phone.  When Rone protested Oliver replied, “Who do you think you’re talking to?”  and reached under the seat and pulled out a gun.   Oliver then cocked the gun and pointed it at him. He then drove off.  On appeal Oliver argues sufficiency of the evidence – that there was no proof that the taking was accomplished by placing Rone in fear of immediate harm. The COA affirms.

Pro se PCR appeals affirmed: 

Robert Allen Worth v. State of Mississippi

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