Decisions – MSSC – 8/9/2018

Hand down list

Phyllis Maness and James A. Maness v. K & A Enterprises of Mississippi, LLC -– option contract –  The MSSC denies rehearing but substitutes the opinion  (which usually means the opinion has been tweaked) – Phyllis and James Maness  entered into an Option Agreement to sell  certain lots in a Hancock County subdivision from  K&A Enterprises, LLC  in May 2004 for $1,000,000 to be paid over a period of time with interest payments.  The contract placed a duty on Maness  to cure title defects.  A year later K & A  exercised the option.  Shortly thereafter, the parties modified the option contract and agreed that  K&A would stop making interest payments due to the lack of clear title and the fact that the Mannesses were suing to clear title.  When  K&A discovered that title was still a problem, it quit making payments and filed suit. K&A filed a Partial Motion for Summary Judgment on Liability, a Partial Motion for Summary Judgment on Damages, and a Motion to Dismiss the Mannesses Counterclaim. The trial court granted all three and the Manesses appealed.  The MSC affirms.

Rickie Omar Smith  v. State of Mississippiwhether state has to prove surplusage in indictment – Smith was found guilty of the armed robbery of a house in Post Gibson in April of 2016.  The indictment charged Smith with stealing “a PlayStation, a wallet, a purse, and approximately $400.”  On appeal he argues that there was insufficient evidence to prove that these things were stolen and while it isn’t generally necessary to allege and prove that specific items were stolen, where the specific items are included in the indictment, he state takes on the higher burden of proving those items were stolen as in Richmond v. StateThe MSSC differentiates the facts of Richmond from those here because in Richmond the indictment was ambiguous as to whether the defendant was being charged with larceny or auto theft. In this case, armed robbery does not require that items totaling more than a specific amount were taken.    The MSSC affirms.

Richard Chapman v. State of Mississippi –  out of time appeal/inadequate record  –  Chapman was convicted of rape in 1982. No appeal was taken. In 2005, the Innocence Project filed a motion to preserve all evidence including any biological evidence. The DAs office responded that all evidence had been destroyed puruant to a court order in 1985.   He then filed a pcr in the MSSC which the court granted and  ordered the trial court to conduct an evidentiary hearing to determine if the record and transcript from the jury trial still existed and,  if not, whether something equivalent could be reconstructed.   After the  parties reconstructed much of the record on remand, the trial court granted Chapman leave to file an out-of-time appeal from his 1982 rape conviction and life sentence. The State appealed. The MSSC reverses and renders finding that when the legislature passed the post-conviction relief act in 1984, it contained a three year statute of limitations.  For persons convicted prior to 1984, the SOL began running at the time the Act was passed.  Chapman, then, had until April 17, 1987, to file a pcr.  Instead he waited until 2012.  Even if there were no procedural bar, Chapman’s argument that the reconstructed record is inadequate to allow for an appeal fails because the record as reconstructed is sufficient to address the issues (e.g., defective indictment, that the jury was not adequately sworn, etc.) that he argues entitle him to a new trial.

State of Mississippi v. Walgreen Co. and Super D Drugs Acquisition Co. d/b/a Walgreens # 15737 –  circuit vs chancery – The State of Mississippi filed lawsuits in the  Chancery Court of Desoto County against various pharmacies claiming that the pharmacies’ had requested Medicaid reimbursement using  “usual and customary”  prices that were inflated.  The Defendants moved to transfer the cases to circuit court arguing that they had a right to a jury trial. The State argues that chancery court had jurisdiction because it is seeking both legal and equitable remedies. The chancellor ordered the cases transferred to circuit court and the State petitioned for  an interlocutory appeal which was granted. The MSSC affirms finding that while the case could have remained in chancery, it was also triable in circuit and the chancellor did not abuse his discretion in transferring the case there.

The Court grants cert in  Donte Shepard  v. State of Mississippi  (the link is to the COA opinion)  Shepard was convicted of capital murder for shooting and killing Tony Brown at a residence on Randall St. in Jackson. A 13-year-old who was passing by at the time of the shooting identified three people running from the house. One of those was Shepard. On appeal, Shepard argues that the conviction was against the wight of the evidence and that he should have been granted a circumstantial evidence instruction.  He also argues that the court erred in refusing to allow a peremptory strike against a white male after the State objected to the strikes of four white men under Batson.  Shepard explained that the juror  “laughed too many times at [the prosecutor’s] jokes and did not like [his] jokes at all.” Further, he had a master’s degree and may not be able to “conceptualize or even give proper context to what’s going on [in Brown’s neighborhood].”  The court found the reasons to be pretextual.  The COA finds no error. Finally, Shepard raises several issues of ineffective assistance. The COA passes on those issue because they are better raised on post conviction.  Shepard files a cert. petition arguing that the COA erred in its analysis of all the issues.



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