Decisions – COA – 4/23/2019

Hand down list

Carl Maurice Wallace v. State of Mississippi –  suppression/ traffic stop – Carl Wallace was convicted of possession with the intent to distribute a variety of controlled substances and for possession of a firearm by a felon.  Wallace was arrested after a confidential informant called the sheriff’s office and stated that there was an SUV, a white Tahoe or Yukon with three people inside,  parked at a gas station in Fayette, and it reeked so badly that it had a “loud odor” of what the caller believed to be marijuana. The deputy who received the call had worked with the CI in the past. He and another deputy drove to the gas station and before getting there encountered a vehicle fitting the description.  As they drove past they could tell that the driver was not wearing a seatbelt and initiated a traffic stop.  The deputies smelled the marijuana and searched the vehicle and found marijuana, cocaine, etc.  Wallace moved unsuccessfully before trial to suppress the evidence arguing that the stop was illegal.  The motion was denied. He raises the same issue on appeal. The COA affirms.

The Estate of Joan B. Roosa, Deceased: Christopher A. Roosa, John D. Roosa, Stuart Allen Roosa, Jr., All Individually; Kathleen Roosa and Danielle Roosa, by and through their Next Friend and Natural Guardian, John D. Roosa; Sophia Roosa, Stuart Allen Roosa, III and Barron Roosa, by and through their Next Friend and Natural Guardian, Stuart Allen Roosa, Jr.; Christopher A. Roosa, As Executor and Trustee of the Joan B. Roosa Family Trust; and Velda Ann Powell v. Rosemary D. Roosa –  will contest/codicil/forfeiture provision –  Joan Roosa died in October 2007. She executed a will in 2002 and a codicil to it in 2004; a second codicil was executed in 2007.  Under the terms of the will and the first codicil, all of the children and grandchildren were to receive some proceeds under the will. In contrast, under the second codicil, the bulk of the estate was left to Rosemary.  Christopher, the executor of Joan’s estate, submitted Joan’s will and the first codicil for probate.  Rosemary submitted the will, the first codicil, and the second codicil for probate. Christopher and the other children contested the second codicil claiming  that Rosemary had undue influence over Joan.   A jury returned a general verdict for  Christopher and the other contestants, rejecting the second codicil.   Joan’s will had a forfeiture provision which would deprive any beneficiary from taking under the will if they contested the will. Christopher sought to have this forfeiture provision enforced against Rosemary since she filed the second codicil for probate.  The chancellor held that the forfeiture provision was unenforceable because  Rosemary had acted in good faith.  Christopher appealed, asserting the chancery court erred in: (1) finding that the forfeiture provision was not enforceable against Rosemary; (2) refusing to give the jury interrogatories; (3) allowing Rosemary to use Joan’s car while waiting to settle Joan’s estate; and (4) allowing Rosemary’s former attorneys to intervene.  The COA affirms.

Jimmy McInturff and Sandra McInturff v. Yellow Roadway Corporation and Roadway Express Corporationworkers comp./statute of limitations – Jimmy and Sandra were a husband and wife truck-driving team.   In June of  2013 they were  involved in a motor-vehicle accident in Florida while on the job for Yellow Roadway Corporation. The McInturffs went to a local hospital in Florida where they were examined and given a work-status note removing them from work for three days.  Yellow Roadway paid workers’ compensation medical expenses for the McInturffs’ various doctor appointments, tests, physical-therapy sessions, and prescription medications for neck pain, back pain, and stiffness relating to the accident. The McInturffs were not paid any disability benefits apart from the medical expenses.  At some point in February or March 2016, the McInturffs inquired about disability benefits for time missed from work due to the accident. They were subsequently advised that the medical visits and diagnostic scans that had already been authorized would be covered but that the statute of limitations had expired on their claims.  In April 2016 Jimmy and Sandra both filed individual petitions to controvert.  The AJ found that the statute of limitations had run on the McInturffs’ workers’ compensation claims. The Commission affirmed as does the COA.

Latoya Atkins Richards  and Floyd Richards v. State of Mississippihearsay/404(b)/ sufficiency of the indictment – Floyd Richards was indicted for attempted sexual battery of his stepdaughter, M.A., who was fourteen at the time of the disclosure of the allegations. M.A.’s mother, Latoya Richards, was jointly indicted for  contributing to the neglect and delinquency of a child. After a joint trial, Floyd was convicted of the lesser offense of touching a child for lustful purposes, and Latoya was convicted of the crime charged. On appeal Floyd argues that it was error to allow the  forensic interviewer to testify to M.A.’s reported time frame of the “Jeep incident” (wherein M.A. had ridden to the store with Floyd and he stopped the jeep and told her to touch his penis).  The CA finds that it was admissible as a prior consistent statement after Floyd had attacked M.A.’s credibility regarding the date of the “Jeep incident.”   Latoya argues that the indictment was insufficient to charge her with permitting the continuing sexual abuse of a minor for whom she was a parent or guardian because it lacked the word “permits” as in the statute.  The COA finds that the indictment was sufficient. Floyd claims that it was error to allow the jury to hear evidence of Floyd’s past sexual abuse of M.A.. The state argued that it was admissible to
to show Floyd’s intent, motive, opportunity, plan, and preparation to “groom” M.A. for the “Jeep incident.” The State also offered evidence of Floyd’s past physical abuse to show Floyd’s intent and motive and to explain M.A.’s fear of Floyd.  The COA finds no error. Finally Floyd attacks the sufficiency and weight of t he evidence. The COA affirms.

Larenzo Pettis v. State of Mississippisufficiency/weight of the evidence – Larenzo Pettis was convicted of robbery after being caught leaving a Wal Mart with a tv he had not paid for. When confronted at the exit, Pettis reached in his left pocket and
threatened the employee stating “this is not worth dying for, . . . getting shot over, . . . [or] getting cut.” Pettis grabbed the television from the cart and ran out of the building.   Pettis argues on appeal that at most he was guilty of shoplifting because robbery requires a taking by threat and he had taken the tv before there was any threat.  The COA finds that argue without merit and affirms.

David Ware v. State of Mississippichange in law with regard to sentence – David Ware was indicted for the sale of a controlled substance and sentenced to 30 years with 10 suspended. Ware appeals, claiming the trial court erred in failing to apply the ameliorative amendments of section 41-29-139(b)(1)(A) for his sentencing, which became effective in July 2014, prior to his trial. Under the amended statute, Ware would have been sentenced only to eight years. Ware also argues the trial court erred in denying a cautionary jury instruction regarding the testimony of confidential informants. The Mississippi Supreme Court in Walters v. State, 206 So. 3d 524, 530  (Miss. 2016),  pronounced that, through the provisions of section 99-19-1, “the Legislature has given strict instruction that the definition of a crime is controlled by the relevant criminal statute in place at the time the crime was committed.” The COA affirms.

Mark Hicks v. State of Mississippi404(b) – Mark Hicks was convicted of possession of stolen property – a truck –  as a habitual offender. A truck was stolen from Stamper Trucking Company in Louisiana.  When it was found in Mississippi, Hicks was standing beside it and he claimed he owned the truck. But the ignition was dislodged from the dashboard and was hot wired and the truck had “R. Stamper” painted on the door.  Prior to trial, Hicks’ attorney moved to keep out the fact that when law enforcement first encountered Hicks it was for the purpose of serving him with an arrest warrant. he court ruled that the deputies would only testify that the reason they were at Hicks’s home was because “there [was] a warrant from another county.” But when one of the deputies testified he stated that they were looking for Mr. Hicks to serve an arrest warrant from another county in violation of the court’s ruling. However, Hicks’ attorney did not object. When the other deputy was questioned he too stated that they were looking for Hicks to serve an arrest warrant. Again there was no objection. On appeal Hicks argues that the deputies’ using the term arrest mandates a new trial. The COA finds that Hicks was required t o object and, furthermore, that the use of the term arrest was not error in that it was needed to explain why the deputies were seeking Hicks.

Sun South LLC v. Bayou Vista LLCdefault judgment – Sun South, an LLC with two members, executed a promissory note in June 2009 agreeing to pay  $690,289.25 to Bayou Vista.  In April of  2012, Bayou Vista sued to collect the principal amount owed on the
promissory note, plus interest and attorney’s fees, and named only Sun South as a defendant.  Bayou Vista attempted service who eventually served the wife of one of the two members.  Sun South never responded and the circuit court entered a default judgment against it in July of 2012 for  $658,842.13, plus interest and $15,000 in attorney’s fees.   The circuit clerk issued writs of execution upon four pieces of property that Sun South owned. On October 27, 2015, the circuit court entered an order directing that the sale of the four levied properties be advertised for sale and auction pursuant to Mississippi law. The circuit court then ordered a writ of execution to be issued and served upon Sun South, followed by a notice of public sale about Sun South’s levied property. The writs of execution were issued on November 18, 2015, and personally served upon Halford on November 19, 2015, marking the first time that Sun
South officially received notice of any default judgment levied against it. In December 2015,  Sun South’s real and personal property was sold.   In November  2017, Sun South filed a motion for relief from judgment, pursuant to Rule 60(b)(4), and argued that Bayou Vista failed to properly serve Sun South, which voided the judgment for lack of personal jurisdiction. The circuit court denied the motion.  The COA reverses. “Sun South made no formal or informal appearance in the litigation to file an answer or defend the merits of the case until its Rule 60(b)(4) motion, which has no time limitation for void judgments.”

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