Decisions – COA – 4/30/2019

Hand down list

Christopher Grace v. State of Mississippi armed robbery –  Grace was convicted of two counts of armed robbery and one count of felony fleeing or eluding a law enforcement
officer in a motor vehicle after he and his uncle robbed  the Citizens Bank of
Philadelphia in Scooba, Mississippi.  Grace even gave a confession.  He nonetheless appealed raising only weight and sufficiency of the evidence. The COA affirms.

Milton Grant v. State of Mississippi proof of value of stolen goods – Milton Grant was convicted of receiving stolen property exceeding $1,000 but less than $5,000.   Grant stole a vehicle from Christopher White after White walked into a convenience store.  The vehicle contained Grant’s cell phone and gun.  Grant was able to track his cell phone to  somewhere near Cherry Street in Jackson. White’s manager took White to the location where they spotted White’s vehicle at a gas station.  They waited in vain for the police to show (because Jackson).   White ran up to the vehicle with his  gun.  As Grant drove off, White shot at his vehicle and busted the back window. On appeal Grant argues that Grant argues that the State failed to present sufficient evidence as to the value of White’s 2005 Acura. The COA agrees. “Although the evidence was insufficient to prove the value of White’s vehicle was between $1,000 and $5,000, the evidence was sufficient to convict Grant of misdemeanor receipt of stolen property under Mississippi Code Annotated section 97-17-70(7). Accordingly, we reverse Grant’s conviction and remand to the circuit court for resentencing under this section of the statute.”  (Ed. note: RSS can’t be gone fast enough as Hinds DA).

Owen J. Bradley and Margaret M. Bradley v. Diamondhead Country Club and Property Owners Association Inc. – premises liability –  Owen Bradley and his wife were
walking on a pathway leaving their Lanai Village condominium headed toward the
Diamondhead Country Club swimming pool when Bradley stepped partially off the path with his right foot, causing him to fall onto the edge of the pathway. The drop-off on the side of the walkway was approximately four inches. Six weeks prior to the accident, the walkway had been resurfaced and overlaid with asphalt creating the drop-off. Owen fractured his femur.  The trial court granted summary judgment for the Homeowners Association. On appeal Bradley argues that the trial court erred in striking his expert’s affidavit and in granting summary judgment.   The COA finds that the trial court has great discretion in deciding what to exclude and it did not abuse its discretion here.  Nor was the trial court wrong in holding that a four inch drop off was not a dangerous condition. “However, under Mississippi law, even a seven and-half-inch drop off is not a per se hazardous condition such that the owner of the business would reasonably anticipate that one would fall or trip. See Stanley v. Morgan & Lindsey Inc., 203 So. 2d 473, 477 (Miss. 1967).”

Gregory T. Shelton v. State of Mississippi pcr – Shelton pled guilty in  February 2013 to charges of armed robbery.  Three months later he filed a motion for reconsideration of his sentence.   Shelton argued that he had had a mild stroke in  December 2012  he was taking medications for the stroke and for psychological issues when he pleaded guilty.  The court noted that the motion was time barred (the court can only reconsider a sentence during the same term of court as the sentencing).  Shelton then filed a petition for pcr. The court dismissed it because he filed no documentation to support his claims.  Shelton filed a motion for production of medical and a motion to reopen the time for appeal and a notice of appeal.  The  circuit court denied Shelton’s motion for an out-of-time appeal and the MSSC supreme court entered an order dismissing Shelton’s appeal as untimely filed.  In October 2014, Shelton allegedly wrote a letter to the circuit court explaining that he was unable to obtain his medical records.1 Subsequently, the court entered an order requiring production of the records. The court entered an order appointing an attorney to Shelton.  Shelton’s attorney filed a motion requesting a hearing and attached Shelton’s October 2013 PCR motion and the circuit court’s order dismissing the PCR motion. After a hearing, the court entered an order denying post-conviction relief. On appeal, the COA notes  that Shelton denied taking any medication during the plea colloquy and although he later provided proof he was prescribed drugs for his condition he provided no evidence that he had actually taken them. The COA affirms.

Frankie L. Williams v. State of Mississippi –  right to self representation – Williams was convicted of  murder  and possession of a firearm by a convicted felon. On appeal, Williams asserts that (1) he is entitled to a new trial because the trial court violated his right to represent himself; and (2) he received ineffective assistance of counsel because his lawyer should have stipulated to his prior felony conviction rather than allowing the State to offer the sentencing order into evidence.  The COA finds that while Williams expressed dissatisfaction with his appointed attorneys, he never asked for the right to represent himself.  As for the ineffectiveness claim, the COA finds that that issue is better suited for a petition for pcr.

Joy Renee Keever v. Mississippi Institutions of Higher Learning, University of Mississippi and University of Mississippi Athletic Department –  pre-suit notice of claim requirements – Joy Keever and a business associate were at the UM campus in Oxford as part of their work for 501C Solutions. They were walking to their car when a four-wheeler owned and operated by the University came up behind them suddenly. Keever jumped out of the way to avoid being hit, tripped on some rough asphalt, and fell to the ground, crushing the radius and ulna of her left forearm.  She filed a lawsuit against UM.  The trial court dismissed it finding that her  notice of claim letters failed to provide the University with: (1) the amount of damages sought; (2) Keever’s residential address at the time of injury; and (3) Keever’s residential address at the time the letter was mailed to the University.  The COA affirms.

Ned O. Kronfol, M.D. v. Barbara S. Johnsonmedical malpractice – Barbara Johnson brought a medical malpractice suit against Dr. Ned Kronfol for injuries she suffered from an infected catheter in her dialysis port. After a trial on the matter, the jury found Dr. Ned Kronfol one-hundred percent responsible for Barbara Johnson’s injuries and awarded Johnson a total of $271,000 in damages.  Kronfel raises numerous issues on appeal. The COA affirms.

Autravious Gaston v. State of Mississippilegality of sentence for kidnapping – Autravious Gaston was convicted of kidnapping and sentenced to life.   On appeal he argues that the life sentence is illegal because it was imposed by the judge and not a jury in violation of M.C.A. section 97-3-53.   The COA agrees and reverses and remands for resentencing.

Mississippi law is clear that a jury must pre-fix a sentence of life
imprisonment for kidnapping in its verdict or else the trial court is bound by the statutory maximum of thirty years. Brooks v. State, 236 So. 2d 751, 754 (Miss. 1970). Where a trial court fails to follow the statute, the failure constitutes plain error, and the case must be remanded for re-sentencing. Erwin v. State, 557 So. 2d 799, 801 (Miss. 1990).

William Kevin Hadley v. FedEx Ground Package System Inc. and Steven Ottotimely service of process – Otto was driving a truck for fed ex when he rear-ended  Hadley.  He filed a complaint against FedEx and Otto in the circuit court exactly one day before the statute of limitations expired. Hadley attempted to serve FedEx on its Mississippi registered agent, CT Corporation System, via certified mail.  He had difficulty locating Otto, and filed a motion for additional time to serve process one week before the deadline to serve Otto would expire but never set it for hearing or got an order.  He then attempted to serve Otto via publication.   FedEx and Otto filed motions to dismiss Hadley’s complaint, arguing that Hadley had failed to properly serve them with process within the 120-day deadline prior to the expiration of the statute of limitations. The trial court granted the motions.  It was improper to serve Fed Ex’s in-state registered agent via certified mail and Hadley never served Otto.  The COA affirms.

Hudspeth Regional Center and Mississippi State Agencies Workers’ Compensation Trust v. Linda Mitchellworkers comp – Linda Mitchell was a  nurse supervisor at Hudspeth Regional Center. She injured her back at work, but about six weeks later she returned to work full time at her same position with the same duties and no accommodations. She continued to work at Hudspeth for seven months but was  terminated for cause for refusing to see a patient under her care. Mitchell then  filed a workers’ compensation claim against Hudspeth. The AJ and the  Commission found that Mitchell had sustained a total loss of wage-earning capacity and awarded her permanent total disability benefits. The MSSC  reversed and remanded finding that it was error to fail to apply a rebuttable presumption that Mitchell sustained no loss of wage-earning capacity since she had  returned to her same position. The AJ reached the same result as before. The Commission held that Mitchell “successfully rebutted the presumption that she is entitled to no permanent disability as a result of her brief return to accommodated employment.” The COA finds that the Commission erred in finding that  Mitchell returned to an “accommodated position.”  She testified that six weeks after her injury, she returned to work at Hudspeth full-time with the same job duties and expectations as before and with no accommodations. The COA also  concludes that Mitchell failed to present substantial evidence to rebut the presumption that she sustained no loss of wage-earning capacity and reverses and renders the Commission’s decision.

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