Decisions – COA – 5/8/18 – part 1

Hand down list

Jerome Henderson and Willie Henderson v. Roosevelt Blountlease – In 2013,  Blount entered into a contract whereby he leased (with eventual purchase) for $3000 a month  a building and  5 acres of land in Marshall County from the Hendersons. The contract required the Hendersons to make certain repairs to the building which was to be used for a club.  For eighteen months Blount made payments although not the $3000 a months The Hendersons never made any of the repairs. Eventually the  Hendersons prematurely demanded payment from Blount  the remaining balance due on the full contract amount of $125,000. In early 2015, the Hendersons terminated Blount’s use of the property by suing to remove him.  Blount then sued the Hendersons for breach of contract seeking  $38,771.3.  The circuit court held a bench trial and ruled for Blount finding that he was entitled to rescission of the contract and  return of all monies paid in the amount of $30,427. The  Hendersons appealed. The COA affirms.

Torey Patshawn Hubbard  v. State of Mississippi –  amending indictment to change date –  Hubbard was convicted of burglarizing the home of Bernice Freelon who came home one evening and found Hubbard in  her house holding some of her things. Hubbard’s indictment charged him with committing burglary “on or about August 14, 2016[.]” After voir dire, the State moved to amend the date of the offense to “on or about August 13, 2016[.]”  The trial court allowed the change. On appeal, Hubbard who testified that he was at his aunt’s house from August 12 until August 14, raises the amendment of the indictment as error. The COA affirms. “Because time was not an essential element of the burglary for which Hubbard was indicted, we find the amendment to Hubbard’s indictment constituted one of form rather than of substance.”

Jane Doe v. Holmes County School District Tort Claims Act and minor’s savings clause – A sixteen year old student at a Lexington, MS, high school alleged that she was raped by George Lomax, the  assistant principal, on April 4, 2013.   On March 26, 2014, Jane, through her parents,  served a notice of claim to the Holmes County School District.   A month later, the HCSD sent a denial letter. In October 2015, a second notice of claim was sent, and on January 29, 2016, Jane filed a complaint against HCSD on her own behalf.  HCSD filed a motion to dismiss, asserting that the statute of limitations had run on Jane’s claim because of its 2014 denial letter. In response, Jane filed a motion to substitute her mother as an interested party under MRCP  17. The circuit court denied Jane’s motion and dismissed the lawsuit. Jane appealed. The COA reverses and remands finding that her claim was “tolled under section 11-46-11(4) until she reaches the age of majority or an interested party actually files a complaint on her behalf.”

Clifford C. Frisby and Oasis Real Estate Investment, Inc. v. Ferrell “BJ” Wardenspecific performance/best evidence exception –  Frisby had a house in Harrison County.   In 2011, he  allowed Warden to move into this property. Four years later he sought to evict Warden.  Warden responded by filing three handwritten contracts  between himself and Frisby for purchase of the property.  The documents detailed work that Warden performed for Frisby, and indicated that Warden’s work would count toward the $24,000 purchase price of the property.  After a hearing,  the chancellor  ordered Frisby to specifically perform on the three contracts and ordered Warden, based on the amounts previously paid pursuant to the contracts, to pay $11,300 as full and final payment toward the purchase price of the property.  Frisby appealed arguing that it was error to admit copies of the three handwritten documents in lieu of the originals. Frisby claimed the documents were . forgeries. Warden testfied that he prepared the documents to memorialize their agreement and took them to Frisby’s office  where Frisby made copies of the documents and retained the originals. Other witnesses testified that they had overheard  Frisby and Warden discussing ownership of the house for labor.  “The chancellor, after hearing all the evidence, accepted Warden’s testimony as the most credible, admitting the duplicates pursuant to Rule 1004(c).”  MRE 1004(c) allows copies of a document to be introduced  when the party against whom the original would be offered had control of the original, received notice that the original would be subject to proof at trial, and failed to produce the original at trial. M.R.E. 1004(c).

Martez Taylor  v. State of Mississippinecessity defense for felon in possession – Taylor testified that he  was living in a Jackson hotel room with his girlfriend and her infant son when the girlfriend’s aunt, Danielle Brent showed up  holding a cell phone and a small-caliber pistol. Brent did not like Taylor. When he tried to leave, Brent blocked his way and began waiving the pistol and pointing it at him.  They struggled over the gun  until Taylor bit Brent on the wrist and she dropped it.  Taylor grabbed it and some of his things and got a bus to his mother’s house where he gave the gun to his mother along with the other items he had grabbed that did not belong to him.   Taylor was charged with robbery and possession of a firearm by a convicted felon.  At trial he submitted an instruction that would have allowed him to be acquitted if the jury found that he possessed the gun only out of necessity. The trial curt refused the instruction. On appeal the COA reverses. “We conclude that a reasonable juror who believed Taylor’s testimony could have found the necessity defense meritorious. The jury therefore should have been instructed on Taylor’s theory of the case, and because it was not, we reverse his conviction and remand for a new trial.”  Taylor was acquitted of robbery but the COA addresses Taylor’s argument that the trial curt erred in allowing the state to introduce details of his prior convictions. “While this particular issue should not recur on remand (as Taylor was acquitted of robbery and will not be retried for that offense), if the details of Taylor’s prior convictions are found to be admissible on remand their use should be limited to credibility “and not to show a propensity . . . to have acted on the present occasion in conformity with the criminal character suggested by the previous conviction.”

D’Anzor Jackson v. State of Mississippiburglary – D’Anzor Jackson was convicted of burglary after he entered the apartment of his neighbor, entered her apartment, exposed himself in front of her and her children, and made several bizarre statements that could be interpreted as sexual innuendos. When Jackson was arrested, he  claimed to be the second coming of Jesus Christ. On appeal he argues that the evidence was insufficient. The COA affirms.

Kendrick Daton Thomas a/k/a Kendrick Thomas v. State of Mississippi Lindsey brief – Thomas was convicted of one count of possession of a Schedule II controlled substance (cocaine) and one count of possession of a Schedule I controlled substance (marijuana). His appellate counsel filed a brief pursuant to the Mississippi Supreme Court’s holding in Lindsey v. State, 939 So. 2d 743 (Miss. 2005), stating that the record contained no appealable issues. Thomas did not file a pro se brief. The COA affirms.

Pro se PCR appeals affirmed:

Julius Scott Turner  v. State of Mississippi  


2 thoughts on “Decisions – COA – 5/8/18 – part 1

  1. Is there any way to see docket list for next Ms Supreme Court decisions? My daughter’s case in Pike County is pending to the decision in Samuel Wilcher Jr. v Lincoln Co Ms Board of Supervisors and City of Brookhaven. Thanks.
    Anne Brabham

    • The Wilcher case was argued in December so the decision could come down any Thursday but there is no way to know which Thursday the decision will be handed down.

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