Decisions – MSSC – 4/26/2018

Hand down list 

Doretha Thompson v. Baptist Memorial Hospital-DeSoto, Inc. and James E. Fortune, M.D. –  medical malpractice/sponge left in patient – Doretha Thompson had her gallbladder removed in 2004.  In 2011 she went to the ER complaning of stomach pain and a sponge was discovered in her abdomen.  She sued the hospital and the surgeon.  The surgeon claimed he did not deviate from the applicable standard of care, which he contended did not require him to count or keep track of the number of surgical sponges used in the operation, but which allowed him to rely on an accurate sponge count conducted by a nurse and scrub technician assisting in the 2004 procedure, both of whom were employed by the hospital.  On appeal, the MSSC reverses because of the trial curt’s refusal of two instructions that would have told the jury that if they found that a sponge was left in Thompson’s abdomen, then a presumption of negligence is raised that must be rebutted by Dr. Fortune.

Jerry Lynn Lofton  v. State of Mississippi –  criminal defendant represents himself at murder trial –  Lofton was charged with killing Edroy James Ballard Jr. in  June of  2014, in Horn Lake.  He was given appointed counsel, Adam Emerson.   Several months later, his attorney  filed a motion to reconsider Lofton’s indigent status. The attorney informed the  court that Lofton had refused to meet with him and wished to hire private counsel. Lofton, who had made a $100,000 bond and was employed, told the judge he desired to hire his own attorney. In February 2016, Lofton mentioned representing himself. Months later, he  asked the court if he could participate in some role in his defense.  The judge granted Lofton’s request and instructed Emerson to remain as appointed “co-counsel.”  Less than a month later, Lofton filed a motion for new counsel claiming  he and Emerson could no longer work together. The judge  appointed
Stacey Spriggs as Lofton’s new attorney in  July of  2016.  A month later,  Lofton  moved for new appointed counsel.  The judge  denied the motion.  Once the trial began, Lofton had numerous complaint about Spriggs and asked the judge to represent himself.  The judge refused and required Spriggs to remain for Lofton to consult which Lofton did throughout the trial. On appeal, he argues that  although he proceeded with the assistance of counsel, he essentially was a pro se defendant at trial and was not given proper warnings about self-representation. The MSSC finds no error.

From the outset, the record shows the trial judge and both of Lofton’s appointed
attorneys exhibited tremendous patience and professionalism as Lofton flip-flopped often in his requests for representation. One moment he wanted private counsel; the next he wished to represent himself in some fashion. But what did remain constant, as trial approached, was Lofton’s demand to play a substantial role in his defense. As he pointedly put it, he preferred “hybrid representation.” And he asked for a lead role in a co-counsel arrangement, where his appointed attorney would not make any decisions without Lofton’s approval. The trial judge ultimately granted this request, allowing Lofton to represent himself with assistance of appointed counsel.

The Court grants cert in  Curtis Brown v. Professional Building Services, Inc. (the l ink is to the COA opinion).  Curtis Brown was the clubhouse manager at Colonial Country Club in Jackson.  He was injured when he stumbled and fell over a chair left in the doorway to the grill.  Brown sued Professional Building Services, the club’s cleaning service, claiming that they left the chair in the doorway.   The jury returned a verdict for PBS.  On appeal  Brown argues that the trial judge abused his discretion by (1) overruling Brown’s objection to a photo of a chair in the doorway to the grill, (2) denying Brown’s request for a jury instruction that specifically mentioned that the overhead lights in the grill were turned off, (3) allowing a defense expert in biomechanics to testify that Brown’s claim that he suffered bilateral patellar tendon ruptures bywalking into a chair was not “plausible,” (4) excluding one answer from his treating physician’s deposition testimony regarding the general possibility that there could be mistakes in medical records, and (5) by responding to a note from a juror with a general instruction to continue deliberations.  The COA affirmed. Curtis Brown filed a cert petition arguing that it was error to admit the photo of the scene that was taken years after the accident by the defendant’s attorney.

Brown’s cert petition

The Court grants cert in Shalondra Vale v. State of Mississippi (the link is to the COA opinion).  Vale was found guilty of burglary of a dwelling. On appeal she objects for the first time to the indictment. She was charged with breaking into a house “wherein valuable things were kept for use, and did carry away jewelry.”  The statute requires that the defendant be charged with breaking into a dwelling  “with intent to commit some crime therein.” The COA reversed because the indictment failed to include the element “with intent to commit some crime therein.”  The state filed a cert petition arguing that the COA’s opinion “ignored the fact that the indictment substantially described the offense and notified Vale that she was charged with violating Miss. Code Ann. § 97-17-23, which includes the element of intent.”

State’s cert. petition

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