Decisions – COA – 8/28/2018

Hand down list

Paul Posey and Robert Posey v. Dorothy Pope and Willard Posey –  will contest – When Gladys Posey died in 2013, two of her children challenged her 2008 will and two 2007 warranty deed  claiming they were the product of undue influence. A jury found for the children contesting the will and the chancellor set it aside. On appeal, the proponents of the will argued it was error to admit evidence regarding the 2007 deeds, some 2013 deeds, and Gladys’ banking records. They also argue that there were too many jury instructions.  The COA affirms.

Heather Marie Dunnam v. Shaun Dunnam –  custody – Heather and Shaun married in 2007 and had two children.  In 2015, Heather filed for divorce.  The chancellor  directed both parties to undergo drug tests;  Heather tested positive for cocaine, and Shaun tested positive for marijuana. The chancellor ordered that the couple have joint custody but that Shaun have primary physical custody. On appeal Heather argues that the chancellor improperly analyzed the Albright factors. The COA affirms finding, among other things, that Heather’s domestic disputes with her new partner did not help her case for custody.

James Edward Pryor v. State of Mississippiaggravated DUI – Pryor was convicted of aggravated DUI after his truck rear ended another truck and permanently disabled a passenger.  His blood tested positive for alcohol and meth. On appeal he challenges the sufficiency of the evidence arguing that the jury was not made to specify whether the intoxicant was alcohol or meth, that the trial court should have defined mutilation and disfigurement, and that it was error to allow an accident reconstructionist to testifty. The COA affirms.

Tremaine Whittaker  v. State of Mississippi –  sexual battery –  Whittaker was convicted of  statutory rape, sexual battery of a minor child, and gratification of lust. He was accused of snatching a 14-year-old (his stepdaughter’s best friend) while she waited at a school bus stop in Jackson, forcing her to perform oral sex,  and then taking  her to school (a few things wrong with that plan).   On appeal he argues that the State should not not have referred to the crime as “rape”, that the results of a search warrant should have been suppressed, and that the court erred in admitting hearsay testimony from a forensic interviewer and a nurse who treated the girl. The COA affirms.

Sharon G. Lee and Herbert Lee Jr. v. City of Byram, Mississippi, Mayor Richard White and Board of Aldermen of the City –  zoning – Byram rezoned some property along Siwell Road but completely screwed up the process. First of all, they failed to provide notice.  When nearby homeowners  realized months later they were getting a dance studio in the neighborhood they filed suit. The chancellor dismissed the suit on the grounds that the homeowners failed to appeal within ten days of the rezoning despite the fact they never got notice. On appeal Byram argues the issue is moot because they subsequently rezoned the property and thereby fixed it. The COA reverses. Where proper notice is not given, Byram cannot rely on the  ten day time period for an appeal. The controversy isn’t moot because Byram’s descriptions of the property was not consistent and the two zonings were of different albeit nearby properties.

In the Matter of the Dissolution of the Marriage: Vanessa Marie Pevey (Black) v. Dallas Kent Pevey Jr. –  custody/Rule 59 motions – A year after their divorce, Dallas moved to modify custody alleging that Marie was using illegal drugs, acting erratically, moving around frequently, and was not adequately caring for the children. After a hearing, the chancery court denied relief.  Dallas filed for rehearing on the grounds that he had just discovered that Marie lied during the hearing about her  employment, living situation, and drug use. The chancery court held a hearing on the motion and granted custody to Dallas. On appeal the COA affirms. “Sitting as an appellate court, we are in no position to second guess the chancellor on whether he made an error in his initial credibility determinations. We therefore can find no abuse of discretion in granting the Rule 59 motion.”

Craytonia Latroy Badger  v. State of Mississippi –  denial of request to  recall a witness – Badger was convicted of burglarizing a drug store. His vehicle was stopped the night of the burglary and prescription drug bottles from the store were found in his car.  On appeal Badger argues that the t rial court erred in not allowing him to recall the officer who performed the traffic stop arguing that the officer’s revelation that the patrol car had a video camera was  new information he wanted to explore. The COA denies relief on the grounds that the information about the camera was elicited by the defense and Badger could have questioned the officer more thoroughly at that time.

Our review of the record indicates that neither Badger nor his counsel requested that the trial court retain Lieutenant Williams for later questioning or to instruct Lieutenant Williams that he remained under subpoena and should not leave in case defense counsel recalled him. The record shows that the State subpoenaed Lieutenant Williams to testify as a witness at trial. Defense counsel failed to subpoena Lieutenant Williams before trial and also failed to request a subpoena instanter for him after his trial testimony. Furthermore, neither defense counsel nor Badger requested a continuance to investigate the “new evidence” heard during Lieutenant Williams’s cross examination.

 

Travis Caffie  v. State of Mississippi –  jury instructions – Travis Caffie was convicted of  shooting into a dwelling, shooting into a motor vehicle, and two counts of aggravated assault.  On appeal he argues that the jury instructions left out some  essential elements of the crimes.  The COA disagrees and affirms.

Joshua Chance Warren v. State of Mississippi –  ineffective for failing to request a cautionary instruction  –  Warren was convicted of grand larceny.  Warren and Woods had visited Woods’ grandmother’s house and afterwards she was missing seven rings.  Woods testified that she and Warren planned to steal  her grandmother’s  rings with Warren distracting  her grandmother  while she stole the rings. On appeal, Warren claims that his counsel was ineffective for failing to request a cautionary instruction. The COA affirms finding that Warren cannot show that he  was denied effective assistance of counsel of constitutional dimensions.

Mary L. Harmon v. SFD Holdings Inc. (Oxford Healthcare) and Liberty Mutual Insurance Company –  workers compensation – Mary Harmon  was working as a certified nurse assistant at Oxford Healthcare when she was injured. Her employer admitted that she sustained an injury to her cervical spine, back, and right upper extremity.  The AJ  found that Harmon suffered a 50% loss of wage-earning capacity and awarded her  $242 per week in temporary total disability benefits for over a two year period and  $121.01 per week in permanent partial disability benefits for 450 weeks. On appeal the Commission 
reduced the loss of wage-earning capacity from 50% to 20% which meant she got $48.40 per week in permanent partial disability benefits to $48.40 per week. She appealed arguing that the Commission’s reduction was arbitrary and capricious. The COA affirms finding that substantial evidence supports the Commission’s decision to reduce the loss of wage-earning capacity.

 

 

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