Decisions – COA – 3/6/18

Jason Caissie  v. State of Mississippi –  traffic offenses –   Jason Caissie was found  guilty of operating a motor vehicle without a valid driver’s license and failing to maintain or provide proof of insurance when he came upon a roadblock and refused to give officers his driver’s license or an insurance card.  He appealed and lost and appealed to the Court of Appeals and raised numerous issues.  The COA affirms finding that there is nothing illegal about roadblocks and finds his many other issues without merit.

Ricky L. Shoemaker, Sr. v. State of Mississippisexual battery – Shoemaker was found guilty of sexual battery and gratification of lust over a two year period  of  his 13-year-old granddaughter Amy.  Amy’s mother uncovered the abuse when Amy became hysterical when her mother insisted she attend a birthday party for her cousin that was being hosted by Shoemaker. The trial court allowed Shoemaker’s former stepdaughter to testify that he had sexually abused her as well.  On appeal, Shoemaker argues that his attorney was ineffective in failing to object to the investigator’s testimony about hearsay  statements Amy made to her. The COA finds that this issue is better addressed on post conviction.  He argues that the indictment’s failure to specify a time frame shorter than two years made it impossible to defend against. Here the State amended the indictment from a five-year time frame t o a two-year time frame. This was not error.  Amy testified that the abuse happened so often she could not give dates.  He next argues that his conviction violated double jeopardy because the state did not prove that the sexual battery and gratification of lust were separate incidences. The COA finds this issue procedurally barred. Finally he objects to the prior bad acts evidence involving his former stepdaughter. The COA affirms.

Immanuel Manning  State of Mississippi –  murder/witness intimidation – Manning was convicted of the murder of Christopher Houston and witness intimidation.  Houston was shot outside his home in Starkville. Before he died, he told his girlfriend who had rushed outside after hearing the shots that Papoose had shot him.  Manning’s nickname was Papoose. Manning was arrested in Pearl. After he got out on bond, he spotted Houston’s girlfriend twice and the second time said something threatening to her.  On appeal he argues that the police officer should not have been allowed to testify about locating Manning in Pearl via his cell phone pings because that he was not an  expert.  The COA finds this argument is waived because Manning failed to object at trial.  Manning argues that the evidence of witness intimidation was insufficient.  He also argues that an instruction given the jury on witness intimidation constructively amended the indictment because the indictment stated that  engaged in conversation and blowing kisses while the instruction did not.  Again, the COA finds that Manning waived this issue.

Rush Foundation Hospital, Medical Foundation, Inc., and Rush Medical Group v. Stephanie Carlisle, as the Administrator of the Estate of Christopher Hayden PowellSOL for claims against an estate – Powell died intestate on May 5, 2010.  In November  2011, the Lauderdale County Chancery Court appointed Powell’s mother as his administrator.    In December 2011, three Rush entities probated a claim against the Estate for a total of  $10,413.39.  The Court found that the claims were barred by the statute of limitations.  Carlisle moved for a final accounting and to close the estate. The chancellor granted the motion and issued an opinion in June 2016.  In October  2016, the chancellor entered a “Judgment Closing Estate and Discharging Administratrix.”  Rush appealed. Carlisle argues that the appeal should be dismissed because Rush did not appeal within 30 days of the order finding that its claims were barred by the SOL. The COA finds this issue without merit since that order was not a final judgment.  As for the SOL:

Here, Carlisle was issued letters of administration on November 10, 2011, and the
four-year statute of limitations began to run ninety days later, i.e., on February 8, 2012. Miss. Code Ann. § 91-7-239.6 Therefore, section 15-1-25 required that Rush insist upon satisfaction of its claims or bring an action against Carlisle before February 8, 2016. Rush did not do so until May 26, 2016, approximately three months and eighteen days after the statute of limitations ran. This time period clearly exceeds that of section 15-1-25, and this suit is time-barred.

Jermaine Hill v. Superintendent Ronald King, Tirah Wesley, Warden Brian Ladner and Officer Lt. Gloria Hollis prison contraband – Hill was an inmate in the custody of the MDOC.  In January 2017,  a  “green substance”, an iPod, and an iPod charger  were found under his bed.  Hill received two rule violation reports (RVRs). The reports listed four officers as witnesses to the contraband hidden in Hill’s cell. Hill received a hearing., was found guilty and ordered to lose privileges for eighteen months. Hill appealed administratively and lost.  He then filed an appeal in the Circuit Court which found that MDOC’s decision was supported by substantial evidence, was not arbitrary or capricious, was within the scope of the powers of the MDOC, and did not violate Hill’s constitutional rights.  Hill appealed again and the COA affirms.

Sheila Ann Jones  v. Michael Boyd Jonesproperty settlement agreement – Mike and Sheila were married for almost thirty-four years.  They agreed to a divorce and property settlement in 2012.  In  June  2015, Sheila filed a petition for contempt.  At issue were provisions on the settlement whereby Mike was to pay Sheila  $25,000.00 for her share of the house in monthly  $500.00 payments. He was also supposed to pay $300 a month in spousal support and lasting until she remarried but for no more than 24 months.  Sheila testified that Mike paid a total of $6,000 before he stopped making these payments, and he was in arrears for a total of $19,000. The chancellor denied Sheila relief and then set aside the property settlement agreement on the grounds that it had not been a product of a meeting of the minds given an issue over whether the marital home had been owed by Sheila and Mike or rather her parents. The COA reverses. “It is clear that the Special Chancellor questioned whether there was a legally enforceable contract that gave Sheila and Mike an interest in the property, which would make the property marital and subject to equitable distribution. This issue had been resolved in the Judgment. The Agreement was an enforceable contract that satisfied the statute of frauds. The Special Chancellor erroneously went beyond the Judgment.”

Keith Bowdry, Lakeisha Bowdry and Mississippi Municipal Workers’ Comp Group v. T. Mart, Inc. d/b/a T. Mart Convenience Store and Tommy Brooks Oil Company d/b/a Texaco Gas Station – sanctions for alleged discovery misconduct –   Bowdry was a police officer in Tupelo.  He was on duty when he exited a Texaco and collided with another vehicle. He sued Texaco on the grounds that shrubbery next to the exit made it dangerous to drivers unable to see around the shrubbery.  During discovery, the defendants asked Bowdry about prior injuries.  Bowdry disclosed a motor-vehicle accident that occurred in 2005 in a Tupelo Walmart parking lot. He did not state in any written discovery what his injuries were but disclosed his medical providers.  During his deposition, Bowdry stated that he had not experienced prior neck or lower back problems.  The medical records after the 2005 accident revealed that he had gotten treatment for hose. The defense moved to dismiss based on discovery misconduct. The trial court granted the motion. The COA reverses.

Dismissal was simply not a reasonable sanction. T. Mart argues that Keith made intentional and deceitful misrepresentations. However, we find no evidence to support the conclusion that Keith intentionally misled or blatantly lied when he testified that he had not suffered prior neck and lower-back problems. Unlike in Pierce, Keith’s interrogatory responses and the reasonably expected discovery efforts of the defendants led to the medical records that may contradict Keith’s deposition testimony. Certainly, these medical records may be offered to attack Keith’s credibility at trial and to accurately present evidence of his prior medical history and condition. However, under these circumstances, a lesser sanction of attorney’s fees and costs associated with obtaining the medical records would be an appropriate sanction. Dismissal is certainly not.

 

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