Decisions – MSSC – 6/14/2018

Hand down list

Roger Lee Jackson  v. State of Mississippi –  limitations on cross-examination –  Jackson and  Emmanuel Jones were driving around Jackson looking to buy some drugs (apparently drugs are harder to find now that they aren’t served at the State Street Krystal).   They encountered Jerry Lewis and two others driving around in Lewis’ vehicle and Jackson and Lewis parked near Roach and Farish to transact business.  Jackson and Lewis began to argue and Lewis told Quioncy McGowan to get out of the vehicle.  Jones testified he saw Jackson shoot McGowan and then Jackson shot Jones.  Jones  survived even though he was shot five times. McGowan’s body was found in a nearby vacant lot the same day.  Jackson was charged with murder, aggravated assault and felon in possession of a firearm. A jury acquitted him of murder but convicted him on the other two charges.   On appeal he argues that the trial court erred in limiting his cross examination of witnesses.  Jackson’s defense was to pin the shooting on Lewis and he asked Jones on cross-examination whether during the argument Lewis had complained about his house having been shot up.  The state’s objection was sustained. The Court finds that Jackson failed to preserve this objection at trial.  Jackson claims that on cross he was trying to get Det. Camel to say that Jones told police something that indicated that Lewis was the shooter but that line of questioning was also disallowed. The Court holds that the failure to proffer Camel’s expected testimony dooms this issue.  He also claims that his cross of Michael Davis was also limited. Davis was McGowan’s friend and he testified that Jackson admitted he shot McGowan. But Jackson also said something about Lewis being involved. When Jackson tried to press Davis on this subject, the trial court ruled it inadmissible.  The Court finds that Jackson failed to argue the rule of completeness and failed to make a proffer. Jackson also complains that the trial court erred in limiting his closing argument regarding reasonable doubt. The MSSC affirms.
Rickey Portis  v. State of Mississippi –  prior inconsistent statement –  Portis was convicted of two counts of sexual battery for having repeatedly abused his then eight and nine-year-old stepdaughters. Both girls tested positive for trichomoniasis.  Portis was also positive. He was indicted in May 2015, and hired Jeannene Pacific.  Almost a year later she moved to withdraw on the grounds that Portis refused to even consider a plea which was ill advised considering the sexually transmitted disease Portis shared with the girls. A month later Gay Polk-Payton took over. Trial was scheduled for April 5 but the court would only continue the case until April 18 which the defense agreed to.  On appeal Portis argues that he was forced to agree to the April 18 trial date and he should have had a continuance. The Court finds that Portis agreed to that date. He also argues that the court erred in not allowing him to recall the girl’s half sister as a witness to be questioned about a prior inconsistent statement.    The Court finds no error but clarifies when a prior inconsistent statement may be admitted.

First, the court must examine whether the statement offered is inconsistent
or consistent. In doing so, an unequivocal or obliging admission of the prior statement may, if offered, render the trial testimony consistent with the prior statement, taking the prior statement out of the purview of Rule 613(b). We also caution courts to avoid confusing an explanation with an unequivocal or obliging admission. We also recognize that the witness need not necessarily be confronted with the statement before it is admissible. Second, if the statement is inconsistent, even in a negligible way, the extrinsic evidence of the statement must still pass through Rule 403, the interests of justice catchall in Rule 613(b), and the multitude of court cases providing for when and how impeachment evidence must be treated before extrinsic evidence of the statement could be admitted into evidence. See, e.g., Flowers v. State, 773 So. 2d 309 (Miss. 2000) (a foundation regarding the statement must be laid; counsel must have a good-faith basis for the questions asked on cross-examination and therefore “may not use prior inconsistent statements as a ‘guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible.’”). This Court clarifies that no outright ban on admitting extrinsic evidence of prior inconsistent statements exists, but, rather, the admission is committed to the sound discretion of the trial court, as outlined by the Fifth Circuit’s standards supra. 

Portis also challenges the sufficiency of the evidence. The MSSC affirms.

Joe McGinty and Diane McGinty v. Grand Casinos of Mississippi, Inc. – Biloxi – food poisoning – The McGintys fell ill from Mallory-Weiss syndrome after eating pork chops and eggs at Grand Casino.  Grand Casino filed for summary judgment.  The McGintys argued that circumstantial evidence was sufficient to withstand summary judgment on their negligence and breach of warranty claims.  The trial court threw out the case.  The Miss. Court of Appeals affirmed on the negligence claim but reversed on the breach of warranty.  Grand Casino filed a petition for cert.  asking the Court to affirm trial court’s ruling on the breach of warranty claim. The MSSC affirms the COA.

David Thomas  v. State of Mississippi –  “therapeutic complication” as a cause of death –  Thomas and another man visited the Can Man in Jackson hoping to steal some batteries to exchange for cash. When they got there, they encountered Fred Jackson and attacked him.  Jackson died 41 days later.  When arrested, Thomas admitted to beating Jackson and stealing cash from him. He was convicted of capital murder and sentenced to life. On appeal he argues the evidence was insufficient.  That goes no where. He also argues that the court erred in excluding his expert, the infamous Steven Hayne.  At a pre-trial hearing, Hayne testified that Jackson died from pneumonia he acquired in the hospital and that the cause of death was considered “therapeutic complication – a new category that had been recently recognized in other jurisdictions.  The trial court found the testimony too speculative.  The MSSC agrees. “Here, it is clear from the record that Dr. Hayne’s opinions were not offered to a reasonable degree of medical certainty. Dr. Hayne indicated that the “therapeutic complication” cause of death classification never has been accepted in court.”    Thomas argues that it was error for the court to have found that he was competent to stand trial in light of the fact two experts disagreed. The MSSC finds no error.  Thomas  argues that the trial court, Hon. Jeff Weil, should have recused himself given that he had declared that Thomas’ public defender was incompetent.  The MSSC finds that this was not error. Thomas argues that it was error to refuse two of Thomas’ peremptory challenges under Batson and claims that the court made several errors in instructing the jury.  The MSSC affirms.

 

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