Decisions – Miss.S.Ct. – Nov. 30, 2017

Troy Wesley v. Washington County Democratic Executive Committee and Carl McGee –  election contest –   In the August  2015   Democratic primary for Washington County District 3 Supervisor,  Carl McGee received 448 votes and Troy Wesley received 378.  Wesley filed  a complaint in Circuit Court against  McGee and the WCDEC  alleging  that numerous violations of election law had taken place.  The trial court ruled against Wesley finding that there were not  enough illegal votes cast  to change the result
of the election.  Wesley appealed arguing, among other things,  that the election result ballot boxes were not properly sealed as prescribed by law. which called all of the ballots into question.    The Court affirms.

After applying the two-pronged test from Noxubee County, we affirm the trial-court
judgment. Noxubee Cty., 443 So. 2d at 1197. A key part of analyzing an election involves determining whether the will of the voters is clear. See, e.g., Waters v. Gnemi, 907 So. 2d at 315-16. Wesley’s allegations suggest that serious violations of election law may have occurred during the 2015 Democratic primary for Washington CountyDistrict 3 Supervisor, but Wesley failed to indicate that enough illegal votes were cast to warrant a new election. He also failed to show that enough votes were disqualified to warrant a new election. Finding that Wesley failed to meet the requirements under the Noxubee County test, we affirm the circuit court’s decision to dismiss the case on defendant’s summary judgment motion.

 
James Wesley Scott  v. State of Mississippi – 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. The Miss.S.Ct, granted cert but split 4 to 4 thereby affirming the COA.

Bruce Cope, Mary Cope and Ike W. Thrash v. Thrasher Construction, Inc. –   validity of subcontractor’s lien – This is another rebuild-after-Katrina case having to do with the validity of a subcontractor’s lien filed by Thrasher against the Inn by the Sea condos after the general contractor hired by the owners of Inn by the Sea made a complete mess of things and had to be fired. The COA reversed finding that the trial court erred in allowing Thrasher to proceed on a claim for quantum meruit where a contract was involved and that it was error to dismiss the third party beneficiary breach of contract claim. The Miss.S.Ct, granted cert and reverses the COA and reinstates the trial court’s ruling.

Dauwanna Mitchell v. Tabitha Moore, Tillmon Bishop, Guardian of Kevin Earl Moore, Minor (necessary party) –  wrongful death paternity – Travis Weems died in a car wreck in July  2014.  An estate was opened and the court was asked to determine Travis’ heirs.  Travis had a son, Kevin,  with Tabitha Moore sometime around 2006 or 2007.  They were not married.  In 2007 DHS filed a paternity suit against Travis. When process wasn’t served, the court dismissed it without prejudice.  DHS filed a second lawsuit in 2008.  Travis agreed to take a DNA test but it was never done. The Court nonetheless found that Travis was Kevin’s father. A year later Tabitha filed for and obtained an order terminating Travis’ parental rights.  After Travis died, Kevin’s state-appointed guardian filed a motion to revise the chancery court’s order terminating Travis’ parental rights to take out language whereby Kevin’s right to inherit from Travis was taken away.  The court granted the motion.  In the estate proceeding. the court held that Kevin was Travis’ heir.    Travis’ mother appeals and loses.

Mario Ragland v. State of Mississippi –  armed robbery – Ragland was found guilty of the armed robbery  on an Olive Branch Krystal. On appeal he argues weight and sufficiency of the evidence.  He also argues that the accomplice instructions were insufficient. The Miss.S.Ct, affirms.

Samuel Amos  v. State of Mississippi –  accomplice instruction – Amos was convicted of shooting and killing  Marquai Kirkland.  On appeal he argues that the trial court erred in refusing his accomplice instruction. Kirkland was seen getting into a vehicle driven by Amos.  Kirkland’s relative  Terrance Hunter  testified Amos and Kirkland picked him up on the way to  commit a robbery of a drug dealer in Noxapater. Hunter was driving when they got to where the drug deal was to take place Hunter heard a boom and  looked back and  saw that Kirkland had been struck.  Amos pulled Kirkland from the passenger seat and dragged him into the  woods. Hunter testified against Amos.  Amos asked for an accomplice instruction regarding Hunter’s testimony. It was denied. The Miss. S.Ct finds that Hunter was an accomplice after the fact but where  there corroborating testimony connecting the defendant to the crime, the instruction is not required.  Here, the Court finds that there was plenty of evidence connecting Amos to the murder. Amos also argues that the trial court should have granted a mistrial when the prosecution asked Hunter if he had taken a polygraph and he said. yes.  The Court sustained an objection and instructed the jury to disregard the question and answer.  The Court finds that in eliciting  the polygraph testimony the prosecution did not violate a pretrial order and the trial court immediately sustained the objection and instructed the jury.

 

Eddie Minor, III  v. State of Mississippiarmed robbery – Minor was indicted for murder and  armed robbery  of 16-year-old  Jessie Elbert Taylor.  The jury deadlocked on the murder charge (presumably because there were two assailants) but convicted on the armed robbery.  On appeal, he argues weight and sufficiency of the evidence. The Miss.S.Ct. affirms.

Edward Young  v. State of Mississippi murder – Young was convicted of murdering Travis Anderson. by shooting him whole he was sitting in a car talking to Young’s cousin.   On appeal he argues that the conviction was against the weight of the evidence since the only evidence was the testimony of the eyewitness. There was no physical evidence introduced.  The Miss.S.Ct affirms.

 

In the Interest of L.B.C., a Minor v. Forrest County Youth Court –  requiring minor to register as a sex offender – L.B.C., a 14 year old who functioned as a 9 -year-old ,was charged in youth court  with digitally penetrating two 6 year old girls.  He admitted to the charges.  He was adjudicated delinquent,  sentenced to treatment, and required to register for life as a sex offender.  He appealed the sex offender registration requirement arguing that the only provision in the sex offender registration statutes involving delinquency adjudications and sexual battery  requires the juvenile to register as a sex offender only if force was used.  There were no allegations that force was used here.   Furthermore, it was a violation of L.B.C.’s due process rights to order that he be required to register as a sex offender without allowing him to present evidence that he does not present a danger to society.  Requiring him to register as a sex offender also violates the privacy protections afforded to juvenile offenders by the Youth Court laws.  The Miss.S.Ct. affirms.

In In Re: James W. Johnson, Jr., M.D., Keystone Medical Services of MS, Inc. a/k/a Keystone Medical Services of MS., P.A., Keystone Healthcare, Inc. d/b/a Keystone Healthcare Management the Court orders the recusal of Judge Pickard. The case is a med mal over the death of Carolyn Smith, a life long resident of Copiah County who had worked as a Deputy Clerk in the Copiah County Circuit Clerk;s office for the last 15 years.  On December 31, 2015, she tripped and fell in her home and presented at the ER for a laceration on her forehead.   She was in the ER for three hours and was discharged.  But hours later she went into cardio pulmonary arrest. The lawsuit alleges that her vital signs deteriorated while she was in the ER but was discharged anyway. The defendants filed a motion to recuse and a hearing was held in April 2017 but there has been no ruling.  Ten days after the hearing, the defendants filed a motion in the Miss.S.Ct. asking for an order recusing Judge Pickard or a change of venue.

 

The Court grants cert in Bettye Logan v. Klaussner Furniture Corporation  and American Casualty Company of Reading, PA – workers comp.  (the link is to the COA opinion) – Logan was employed by the Klaussner Furniture Corporation  when in  October 2003, she was injured  when her foot became caught in some fabric fibers at work, causing her to fall. The AJ found that Logan had not suffered any industrial loss of use to her left lower extremity. The Commission affirmed. The COA  reversed and remanded  finding that (1) Logan had suffered a loss of wage-earning capacity, and (2) the evidence supported a finding of permanent-partial 2 disability or permanent-total disability.  On remand, the AJ  found that Logan suffered a sixty-percent loss of industrial use to her left lower extremity.  The  Commission affirmed  stating that it agreed with the AJ that Logan had the ability to return to employment at least at a sedentary level based on the medical and vocational evidence. On appeal, the COA reverses because the Commission failed to follow the COA’s opinion.

The employer’s cert petition  argues that the COA opinion

is in direct conflict with Smith v. Jackson Constr. Co., 607 So. 2d 1119 (Miss. 1992), and other longstanding precedent of this Court. Additionally, the holding of the majority rewrites §71-3-17(c) and effectively turns all scheduled member cases into body-as-a-whole cases. While acknowledging that the claimant sustained an injury to a scheduled member (her leg), and received a 4% medical impairment rating, the majority held that “either section 71-3-17(a) (permanent total) or (c)(25) (permanent partial) controls in this case, not section 71-3-17(c)(2) as applied by the Commission.” Logan II, at ¶15. According to the majority any time a scheduled member injury impacts an employee’s wage earning capacity, it should be treated as a non-scheduled member injury under (c)(25). As the dissent correctly observes, the majority misstates and confuses the law. Logan II, ¶18. In point of fact, the majority’s holding has never been the law in Mississippi.

 

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