Decisions – COA – 4/9/2019

Hand down list

Larry Charles Carter Carter v. State of Mississippi –  proof of habitual status – After shots were fired into an apartment injuring a child inside, Larry Carter requested to see a police officer. When one arrived, he confessed to having shot into the apartment because he had had an argument with the man who lived there.   He also revealed where the gun was hidden.  On appeal he argues that the state had failed to prove his habitual status because they used two burglaries that were in the same indictment.  The COA affirms. “Despite the fact the charges were brought in a single indictment, we find that they are sufficient to support Carter’s sentence enhancement as a habitual offender because there were two separate houses burglarized that resulted in two separate victims.”

Henry H. Gunter IV v. Elizabeth Beard Gunterchild support/private school tuition  – Henry and Elizabeth married in 2001,  had children, and after Elizabeth filed for divorce in 2016, agreed to a divorce with Elizabeth having  primary physical custody. They left it to the chancellor to decide  child support, private-school tuition, extracurricular expenses, and uninsured medical expenses.  The chancery court determined that Henry “will pay twenty two percent (22%) of his adjusted gross income per month in the amount of nine hundred eighteen dollars ($918.00) and that the parents “will equally divide the cost of private school tuition, daycare, and extracurricular expenses [of] the minor children.”  Henry  argues that it was error to order him to pay 22% of his adjusted gross income in addition to the other expenses since the total equaled 43.2% of his income.  The COA reverses  the award of  one-half of private school tuition without a written or specific finding as to why the deviation was needed but did not err in awarding  one-half of daycare costs and  one-half of uninsured medical expenses.

Oshaun Johnson v. T & T Farms, Inc. f/k/a Hickory Hollow Farms, Inc.products liability – In October 2013, Johnson was working as a night shift clean-up crew member at Polk’s Meat Products Inc. when his left hand and arm became caught in the exposed chain drive of the meat grinder where he was stuck until discovered by coworkers. As a result of his injuries, Johnson suffered multiple hand fractures, which required surgery and skin grafts. Polk had purchased the used grinder from T&T Farms. Johnson sued T&T claiming that it had made modifications to the meat grinder, including removing safety devices associated with the chain drive, and that T&T Farms then sold the meat grinder to Polk’s in an altered and dangerous condition.  The trial court granted summary judgment to T&T Farms finding that there was no defect but that someone had left the cover off. The COA affirms.

Mueller Industries, Inc. and Stonington Insurance Company v. Shannon Waitsworkers comp. – In November 2014, Shannon was working as a breakout operator for Mueller Industries when he fell and injured his right arm and shoulder. He was taken to the ER and underwent surgery. The AJ accordingly found that he was entitled to total temporary benefits from November 13, 2014 to February 13, 2017, and permanent partial disability
benefits in the amount of $454.42 per week for a period of two hundred weeks, based on 100%)industrial loss of use relative to the right upper extremity. On appeal, Mueller argues that Wait’s usual employment was sales and not production and he was capable of continuing in that work. Waits argued that that every job he had performed over the last eight years required lifting fifty pounds occasionally. Waits argues that according to his medical restrictions, he is only capable of occasionally lifting 18.5 pounds The COA affirms.

Swampfox Oilfield Services, LLC v. Blackjack Oil Company, Inc. –   oil drilling contract – Blackjack had a lease on an abandoned oil well in Walthall County and  contracted with Swampfox Oil Services to attempt to drill the well to a depth of 3400 feet.  The dig was difficult and Swampfox eventually lost an expensive drill bit provided by Blackjack in hole. After trying to retrieve the bit for two days with no success,  Blackjack decided to abandon the hole.  Swampfox filed suit  alleging that Blackjack failed to make payments required under the parties’ contract. Blackjack  filed a counterclaim for damages for the
loss of the well and the cost of having to drill a new well.  The jury found for Blackjack on both Swampfox’s claim and Blackjack’s counterclaim and awarded  damages of $10,971.85. The COA holds that the verdict in favor of Blackjack on Swampfox’s claim was supported by substantial evidence and was not against the overwhelming weight of the evidence but that  Blackjack’s counterclaim was barred by the parties’ contract.

Shon Pierre Byrd, Jr. v. State of Mississippidouble jeopardy –  On May 11, 2014, eighty-seven-year-old H.L. Putnam was shot and killed as he sat in his car outside Vowell’s Marketplace in Meridian in May of 2014. At trial, a Vowell’s cashier, Summer Bowden,  identified Shon Byrd as the person she saw running across the Vowell’s parking lot after the shots were fired.  That same day she was shown a photo lineup without Byrd’s photo and she identified a possible suspect.  The second lineup four months  later had Byrd’s photo and she picked him as the person she saw. Someone in a car with Byrd and two others just before the shooting testified that Byrd had said he saw “a lick” and asked to be let out of the car near Vowell’s. As their car drove off, she heard gunshots.  Their car stopped at a stop sign and Byrd ran and got into the car.  She asked if he had killed anyone and he replied “what do you think?” Later all four of the people in the car when on a shopping spree with Putnam’s credit card. Byrd’s first trial ended in a mistrial when the state called a probation officer to testify as to Byrd’s whereabouts at the time around the shooting since Byrd was wearing an ankle bracelet that was being monitored by Youth Court.  The Youth Court had entered an order allowing the probation officer to testify without first giving notice to Byrd.  On appeal Byrd argues that it was a violation of double jeopardy to make him undergo a second trial.  But because Byrd requested the mistrial, the “manifest necessity” test does not apply. He also complains that only two of four 911 calls were introduced into evidence and that the conviction was against the weight of the evidence.  The COA affirms.

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