Decisions – COA – 7/17/2018

Hand down list 

In the Matter of the Estate of Roselle Turner Rogers, Deceased: Frederick M. Rogers, Jr. v. Walter T. Rogers, Executor, Walter T. Rogers, Individually, and William T. Rogerswill contest –  After their mother Roselle Rogers  died in January of 2013, Frederick Rogers moved to set aside her will claiming that she had been unduly influenced by his brother Walter Rogers who was also a lawyer.  Roselle’s husband Frederick  had been a lawyer and there was a substantial estate including a lot of timberland.   After Frederick wrote to Walter in 1997 that he no longer wanted to be part of the family trust, Roselle redid her will and excluded Frederick but made provisions for Frederick outside of the will.   Frederick lost after a jury trial and appealed. The COA affirms.

Lawrance Dontae Adams  v. State of MississippiLindsey brief – Latterance Adams was found guilty of  unlawful possession of a cell phone while confined in a correctional facility.  Adams’s appointed appellate counsel filed a Lindsey brief, certifying that she has
scoured the record and that the case presents no “arguable issues” for appeal. Lindsey v.
State, 939 So. 2d 743, 748  (Miss. 2005). The COA affirms.

Bruce Patterson v. Mi Toro Mexican, Inc. – premises liability –  On a rainy day in November 2014, Bruce Patterson went to Mi Toro restaurant in Corinth to pick up take out. On the way out he slipped and fell on a wheelchair ramp.  He sued Mi Toro.  The circuit court granted summary judgment for the restaurant finding that the  wheelchair ramp was not a “dangerous condition.” Patterson appealed. The COA affirms.

Roderick O. Turner v. Pelicia Hall, Ron King, Pamela Robinson, Tirah Miton, Warden Banks and Raniece Matthews –  standing to challenge lost of earned time – Turner was serving a five year sentence for robbery and a three year sentence for possession of a controlled substance in prison.  While incarcerated, he was found with a cell phone and after a hearing, lost 180 days of earned time. Turner appealed administratively and then to the circuit court which found that Turner’s compliant was not timely filed.  On appeal, the COA dismisses the appeal because Turner was released from probation  and lacks standing. “When Turner filed his notice of appeal, there were issues to address. In particular,  Turner asserted that his tentative release date was illegally postponed because the MDOC unlawfully revoked 180 days of his earned time, and that the circuit court erred in dismissing his complaint for judicial review as untimely. However, Turner is now released on probation; thus there is no controversy for our review. His appeal is therefore moot.”

Herman Jackson Jr.  v. State of Mississippi –  admissibility of telephone calls made from jail, etc. –    Herman Jackson was convicted of possession of marijuana of more than thirty grams but less than one kilogram with intent to sell.  He was arrested after a  confidential informant told narcotics agents in  Clarksdale that Jackson possessed a large amount of marijuana and that he was
selling it out of his home at 343-B Bolivar Street.  A search warrant was obtained and officers staked out the house. When Jackson drove off, he was arrested for outstanding misdemeanor warrants. He was taken back to the house where officers searched it and found the marijuana.  On appeal he argues that it was error for the trial court not to suppress recordings of telephone calls he made from jail. “Jackson claims there was no evidentiary foundation for the conversation because no one at the police department testified that the machinery was in proper working order while recording, and no one was listening to the conversation to make sure it was accurately recorded.”  He also challenges the search warrant and the reliability of the confidential informant.  The COA affirms.

La’Darrian McCray  v. State of Mississippisufficiency of the evidence –  McCray was indicted in Hinds County on one count of first degree murder, one count of
aggravated assault, and one count of arson. The court directed a verdict on the arson and the jury convicted him on the murder and aggravated assault charges.  He was alleged to have killed Glentez Brown while Brown was heading into his apartment holding his three-month old son.  McCray was arrested after Brown’s wife Ashley told police the next day that she had seen McRay walk past their window with a gun in his hand and that after she heard gunshots she opened the door  and saw a truck leaving the scene. She  recognized the man in the truck as  McCray.  McCray argues on appeal that his trial counsel was ineffective for failing to request a circumstantial evidence instruction. He also argues that it was ineffective for his attorney to withdraw the motion for a new trial and argue only a motion for jnov. The COA affirms.

V’Nell L. Miskell  v. State of Mississippi –     Batson, pros. misconduct –  After  Johnny Cooper’s body was discovered in a creek at Timberton Park in Hattiesburg in September 2014, V’Nell Miskell’s brother Vernell told police that V’Nell had told him that he had murdered Cooper while they were both smoking weed in the park.  V’Nell admitted being in the park but denied shooting Cooper.   On appeal he raises a Batson issue. He argues that he should have been given an instruction that would have told the jury that  “if you believe from the evidence that the alleged confession of the defendant was untrue you should disregard it.” He also argues that the prosecution committed misconduct during  closing argument.  The COA affirms.

Prairie Farms Dairy and ACE American Insurance Company v. Gregory Grahamworkers comp –  Graham delivered milk for Prairie Farms Dairy. In July 2014, he stepped out of his truck and  his knee popped and would not move.  He received treatment for his knee under workers’ compensation.  In March 2015, Graham fell because his leg gave way as he was standing up from his chair in his home.  He injured his neck and back.  In June , 2015, Graham filed a petition to controvert. He sought benefits for a left knee injury and his subsequent back and neck injury. Prairie Farms admitted the left knee injury but disputing the claims for a back and neck injury.  The Mississippi Workers’ Compensation Commission adopted the administrative judge’s  findings that Graham (1) sustained a 50% industrial loss of use of his left knee and was entitled to disability benefits, and (2) sustained a compensable back injury and was entitled to related medical expenses and temporary total disability benefits.  Prairie Farms appeals and the COA affirms.

Michael J. Malouf v. Lisa Evans d/b/a Lake Harbour Marineproof of partnership –   In May 2014, Malouf took his boat to  Michael Evans at  Lake Harbour Marine for repairs.   Malouf subsequently had problems getting anyone at Lake Harbour Marine to answer his calls. He finally reached Lisa Evans who told him on July 11 that his boat was ready.  Malouf picked up the boat but it would not accelerate beyond 5 to 10 mph.  Malouf sued Michael Evans who later died, his wife Lisa, and Lake Harbour Marine. The trial court granted a directed verdict for Lisa on the grounds that there was no evidence she was in a partnership with her husband.  Malouf appeals that ruling and the COA affirms.

Pro se PCR appeals affirmed:

Patrick Dantre Fluker  v. State of Mississippi

Charles Dye  v. State of Mississippi

 

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