Decisions – COA – 1/29/2019

Major Lee  v. State of Mississippi  –  prosecutorial misconduct/amending the indictment – Lee was found guilty of possession  of cocaine with intent to sell.  Lee was arrested after Columbus police officers attempted a traffic stop and Lee fled.  When his car reached a dead end, Le got out and fled.  He was caught and a bag of marijuana recovered from a fence that Lee had climbed during his flight. A smaller bag of cocaine was found on the ground next to the fence. On appeal Lee contends that prosecutorial misconduct requires a new trial. The misconduct  alleged consisted on the prosecutor asking during voir dire whether anyone thought Lowndes County had a drug problem, asking the jury if it could follow a certain instruction and find Lee guilty, and making several comments directed at  Lee’s exercise of his right to trail.  The COA finds 4 of the 5 instances of alleged misconduct were not objected to. Notwithstanding the procedural bar, none of the instances were so inflammatory that the court needed to intervene.   As for the instance where Lee objected – the question about whether the county had a drug problem – the judge told the state to move along and Lee did not ask the court to admonish the venire to ignore the question.  Moreover, the evidence was overwhelming.  Lee also challenges the state’s amending the indictment to charge his as an habitual only after the trial ended.  The COA finds that the state had provided Lee’s counsel with a copy of the amendment prior to trial  and Lee failed to object waiving any issue with the amendment.

Mississippi Manufacturers Association Workers’ Compensation Group v. Mississippi Workers’ Compensation Group Self-Insurer Guaranty Association –  workers comp./guaranty assoc. – The Miss. Manufacturers Assoc.  Workers Comp. Group is an employers’ groups that had  first chosen to self insure for workers compensation. It  later decided to purchase insurance but was still levied assessments by the Mississippi Workers’ Compensation Commission  and the Mississippi Workers’ Compensation Group Self-Insurer Guaranty Association.  The MMAWCG is  challenging those assessments.

We hold that GGA had continuing authority to assess the MMAWCG for at least three
years after it withdrew from the GGA. However, based on the plain language of section 71-3-163(1)(c), we hold that the assessment at issue in this appeal was invalid because the balance of the GGA’s guaranty fund never declined to the level at which the controlling statute authorizes the GGA to make additional assessments. Therefore, we reverse and render the judgment of the Commission upholding the assessment.

Benjamin W. Allen III  v. State of Mississippi –  embezzlement –  Allen was the president of Downtown Jackson Partners, a group formed to promote downtown Jackson businesses. He was indicted for eight counts of embezzlement and convicted on a single count that  involved the payment by  DJP of Ben Allen’s wife’s cell phone plan.  Allen  would reimburse DJP for the payment.  The evidence, though, showed that DJP approved of the method whereby it would pay for the cell phone usage and be reimbursed by Allen. The COA reverses and renders finding insufficient evidence of embezzlement.  If anything, the case is evidence that Robert Shuler Smith is completely unfit to serve as Hinds County’s District Attorney.  Not that more evidence was needed.

Franklin Land Associates, LLC v. S.L. Sethiland contract/ return of escrow –  In 2010 Franklin and Sethi entered into a contract whereby Franklin purchased 60 acres in Madison County for a high end shopping center.  Eventually, they agreed that Franklin would deposit $160,000 in escrow.  The earnest money was refundable during the inspection period if Franklin terminated the agreement because of 1) the default by seller, 2) the condition of the title was not satisfactory, or 3) Franklin did not receive all governmental approvals needed. Franklin ended up terminating the agreement claiming he did not receive all the governmental approvals needed and he demanded the earnest money be returned.  The court found that Franklin was not entitled to have the $160,000 returned. The COA affirms finding that Franklin terminated the agreement before the government made a decision on the applications.

Mary Alice Stubbs v. James Lee Stubbs –  retirement funds in divorce – The Stubbs married in 1978.  In 1996, Mary was awarded a divorce due to desertion.  James was ordered to pay $400 a month child support, to provide health insurance, and pay attorneys fees.  In 2017, Mary filed a petition to allocate retirement funds. The chancellor dismissed the petition.  On appeal, the COA affirms. While retirement funds earned during the marriage are marital property,  if a party does not assert a right to them, the party may be estopped from later claiming them.   Here Mary waited 21 years.  Therefore, the chancellor did not err in dismissing her petition.

J.P. and N.P. v. L.S. and M.S. –  termination of parental rights – JP and NP were married and had two children, a girl in 2010 and a boy in 2012.   NP had a meth addiction.  Her first son (born before the two to her marriage with JP) was born with meth in his system according to a hair follicle test. NP’s mother PA  adopted that child.  When JP and NP’s first child was born, JP’s work history was unstable.  NP worked some as a nail technician but her mother PS provided substantial support. In May of 2013 the boy was burned when JP used acetone to build up a fire in the fireplace.  The child did not get medical care until the next day when PS took him to the doctor.  In October of 2013 NP was arrested for shoplifting.   In December of 2013, NP and JP separated and NP began using meth again.    They got back together in 2014 and stayed with friends and in motels.  NP took unauthorized advances from her grandmother’s credit card for over $13,000.  At trial NP admitted she had a gambling problem.  Eventually NP’s meth problem got so bad that she signed guardianship papers letting L.S. (NP’s first cousin)  and M.S. have guardianship over the children.  That same night, JP was severely burned at a friend’s bonfire.  The children’s hair was tested and showed dangerous levels of meth in their systems.  At that point, LS and MS began neglect proceedings and sought to adopt the children. The court terminated the parents’ rights and approved the adoption. The COA affirms.

Terrence Shannon v. State of Mississippi –  voir dire – Shannon was convicted of first degree murder and felon in possession.  Shannon was outside his house with two others. He was drinking beer and rolling cigarettes.  Sam Isabell rode by on his bike and Shannon accused him of stealing his rolling papers.  Isabell denied having done so. Shannon went inside and grabbed a gun and shot Isabell in the head.   On appeal Shannon claims that the trial court did not properly conduct voir dire. The COA observes that Shannon did not object at any time.  As for the rulings the court made with regard to the selection of jurors, the COA cannot find any manifest error. Shannon claims that the court erred in letting eyewitness Ricardo Roman testify because Roman could not identify Shannon as present in the courtroom.  Again, Shannon did not object.  ButRoman testified that he had gone blind in one eye since the shooting and that he could recognize Shannon at the time he shot Isabell.  The COA affirms.

Kevin B. McCall v. Cynthia C. McCall –  child support contempt/modification –  The McCalls divorced in 2014 after 13 years of  marriage.  Kevin agreed to pay $3,500 a month child support along with a lump sum payment of $100,000 due in May 2014.  In June 2014 Cynthia filed a petition for contempt  claiming that Kevin was in arrears by failing to make the lump sum payment.  At a hearing in April of 2015, Kevin agreed he was in arrears on the $100,000 and $21,955 behind on the monthly payments.  In March of 2016, Kevin filed a petition for modification on the grounds that he lost ownership of a Texas sawmill.  The chancellor denied the motion and found Kevin in contempt. On appeal the COA affirms.

Enricko Hollis v. State of MississippiLindsey brief/lustful touching of a child –  Hollis was convicted of touching a child for lustful purposes. Hollis appealed, and his appellate counsel filed a brief pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005), asserting that she could find no issues to appeal.  Hollis did not file a pro se brief even though given the opportunity to do so. The COA affirms.

Cortez Watts v. State of MississippiA Batson reversal  – Derek Phillips and Barry McCray were robbed by a woman they met at a casino and her partner in crime,  Cortez Watts.  Watts was found guilty of a number of crimes including attempted armed robbery.  On appeal he argues that the trial court erred in denying him a peremptory challenge.  During jury selection Watts struck three potential jurors who were white, the state made a Batson challenge.  The trial court found a prima facie case since Watts struck the only white people who had been empaneled.   Watts offered his reasons and the trial court allowed all of the strikes except for one to Juror No. 3. Watts stated that he struck No. 3 because he was a banker and probably knew a lot of people in the community.   The COA finds that this was error because the reason offered by Watts was race-neutral and the State failed to meet its burden that the reason was pretextual.

Pro se PCR appeals affirmed:

Leonard Mayhall  v. State of Mississippi 

William Antonio Avery  v. State of Mississippi





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