Decisions – MSSC – 4/19/2018

hand down list 

Dominic C. Robinson  v. State of Mississippieyewitness instruction/ evidence of leniency/ comment on silence –  On March 5, 2011, Robinson attended a concert by Lil Phat at the Creme De La Creme nightclub in Moss Point. After he was refused intro into the VIP room and then thrown out of the club, he fired at the front door hitting three people.  He was convicted of three counts of aggravated assault and sentenced to 30 years.  On appeal he argues that it was error to instruct the jury on eyewitness testimony that it could take a  single eyewitness to convict the defendant if proven beyond a reasonable doubt.  Since only one of the witnesses could identify Robinson, he clams this impermissibly singled out that witness’ testimony. The mere mention of the witness’ name did not amount to an improper comment on the weight of the evidence.  The eyewitness, Darius Wright, had had pending drug possession charges which the DA reduced to a misdemeanor.  Robinson asked to introduce the order reducing the charges but the trial court refused to admit it.  At trial, Robinson stated he wished to introduce it as evidence going to Wright’s truthfulness but since he was sentenced to less than a year, it was inadmissible under MRE 609.  On appeal he argues that it was admissible to show that Wright’s testimony was in exchange for leniency.  The Court finds the issue procedurally barred since this was not the argument Wright made at trial.  He also argues that the DA erred in commenting on his post arrest silence. Robinson turned himself in three days after the shooting and informed police he  would not speak without his attorney present.  Before trial, the State asked for notice of whether he intended to rely on an alibi defense but got no response.  Robinson took the stand and admitted to being at the club but leaving for Mobile prior to the shooting. The DA cross examined him on this new information asking him whether this was the first time he had ever asserted that he had been gone at the time of the shooting.  The Court finds that Robinson failed to object at trial and the question was not plain error.  “[W]e find the prosecutor’s question to Robinson about the novelty of his alibi defense to be a comment on his failure to comply with a discovery rule rather than an attempt to attack the credibility of his testimony.”

Forrest General Hospital, J. Keith Thompson, Hattiesburg Clinic, Grif A. Leek and South Mississippi Emergency Physicians, P.A. v. Steven Dale Uptonvenue where plaintiff amends to add defendant – In March 2014, Steven Upton experienced severe pain in his hand. He went to the ER at Forrest General where he underwent surgery to correct a blockage of blood flow to his hand.  A month later he had a follow up with his surgeon at which Upton complained of problems. He was told to come back in a month. Nine days later he went to UMMC where he was told that if he had waited 30 days, his hand would have gad to be amputated.  Upton filed suit against various Forrest County medical providers in Hinds County.  The defendants wrote to Upton’s counsel stating that venue was only proper in Forrest County.  Upton’s counsel responded that he had just determined that there was negligence on the part of defendants in Hinds County. Upton then filed an amended complaint against UMMC and a Jackson doctor.  The Forrest County Defendants moved to sever and transfer.  At the hearing, UMMC asserted that it would waive its right to trial in Hinds since there were more Forrest County defendants. The trial court denied the motion.  On interlocutory appeal, the MSSC reverses finding that venue is determined at the outset of the suit and that it may not be changed by an amended complaint that adds a new defendant.

Everett Moore  v. State of Mississippicircumstantial evidence instruction – Everett Moore of second-degree murder for shooting and killing Norris Smith who was found slumped over in his car that had run into a building.  At trial, Moore requested a circumstantial evidence instruction that was denied by the trial curt. On appeal, the MSSC reverses and remands.  “Because the State adduced no direct evidence of Moore’s guilt, the trial court’s refusal of Moore’s sought circumstantial evidence jury instruction was an abuse of discretion.”

Gerald Emmett Beard, Charles Jules Michel, Harold Joseph Byrd, Nils Kerem Mungan, George Thatcher Shepard, Jr., Matthew Denson DeShazo, William M. Aden, Thomas I. Rice, III and Joel G. Payne, Jr. v. City of Ridgeland, Mississippi and Mayor and Board of Aldermen of the City of Ridgelandzoning –  The MSSC reverses the zoning changes made by Ridgeland in order to all a Costco to be built on Highland Colony Parkway.

The City failed to show by clear and convincing evidence that a mistake in the original zoning occurred or that a change in the character of the neighborhood occurred that justified rezoning, and a public need existed for the rezoning. Because, almost immediately after adopting a new comprehensive zoning ordinance and map in 2014, the City sought to change the zoning of the proposed Costco site to allow numerous prohibited uses, and because those additional uses effectively transformed the proposed Costco site from a C-2 district to a C-3 district, we find that the City illegally rezoned the property at issue.

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