Decisions – COA – 5/21/2019

Hand down list

Montalto v. Statepcr – In 2008  Montalto pleaded guilty to aggravated assault and kidnapping charges.  The kidnapping offense involved a young child, so he was also ordered to register as a sex offender.  Montalto filed a pcr in the trial court complaining that he wasn’t given earned release time. The circuit court dismissed it finding that Montalto had to first ask permission of the MSSC. The COA reverses because persons who plead guilty file their pcrs with the trial court.  Judge David McCarty specially concurs writing that Montalto’s claim is meritless and it would make more sense to go ahead and affirm on that ground rather than waste the court’s time in remanding the case.

Sharon Lee, Herbert Lee Jr., and Percy Toaster v. The City of Byramzoning – The City of Byram rezoned a property to allow a dance studio to operate.  The Lees filed a notice of appeal and served a proposed bill of exceptions on the city clerk.  The mayor never signed the bill of exceptions and the city eventually moved to dismiss on the grounds that the Lees never filed a proper bill of exceptions. The COA reverses and remands finding that the Lees filed their notice of appeal and proposed bill of exceptions within the ten-day deadline. “On remand, the circuit court should consider the merits of the arguments raised in the Appellants’ bill of exceptions.  At the time the circuit court heard the City’s motion to dismiss, the court had before it not only the proposed bill of exceptions but also all the certified documents the City attached to its motion to dismiss.  If on remand, though, the circuit court determines that the Appellants should file an amended bill of exceptions, the court should establish a reasonable time for the Appellants to do so and for the City to provide its proposed changes.”

Peter J. Henderson  v. State of Mississippiineffective assistance in failing to request theory of the case instructions – Peter Henderson was convicted of  first-degree deliberate design murder of Chandler Pugh.   Henderson was dating Pugh’s ex-girlfriend, Charlotte Guillotte.   In August 2016, Pugh forced his way into her apartment and assaulted and threatened her. She reported the incident to police and called Henderson to tell him about it.  Henderson met Guillotte at her apartment and they were running errands when  Pugh  pulled up beside Guillotte’s car.  While Guillotte and Pugh were talking in front of Guillotte’s car, Henderson exited the passenger side of the car and approached them and after some back and forth Henderson shot Pugh who died from his injuries.  On appeal Henderson argues his trial attorneys provided ineffective assistance because they failed to request jury instructions on all of his theories of defense. They asked for and got a self-defense instruction but Henderson argues that they should have requested a castle-doctrine instruction, a stand-your-ground instruction, and a defense-of-others instruction.  The COA finds that none of these defenses were ever mentioned at trial and therefore Henderson’s attorneys were not ineffective. Henderson also argues that the conviction was against the weight of the evidence. The COA affirms.

He Shao v. University of Mississippi Medical Center –  wrongful termination/statute of limitations – In  December 2014, He Shao filed a complaint against UMMC after her termination from a post-doctoral fellowship program with UMMC in 2011. The court dismissed the case for failure to properly serve the Attorney General’s Office within 120 days.  He Shao  filed a second complaint in February 2017, in Hinds County Circuit Court. That court dismissed it  based upon the doctrines of res judicata and judicial estoppel.  On appeal the COA affirms but not on the basis of res judicata and judicial estoppel.  Rather, “we find that He Shao’s claim is barred by the statute of limitations. Therefore, the Hinds County Circuit Court’s dismissal of He Shao’s second complaint is affirmed.” 

John Calvin Howard v. Rolin Enterprises LLC and Linda Walkerpremises liability – Walker, doing business as Rolin, owned the Convention Center in Claiborne County  which she rented to third parties for events.  Moore rented the Convention Center to host a party following an Alcorn State football game in September of 2013.  Howard and a group of his friends including Michael Moseley attended the event.  While on the dance floor, Howard and Mosely were assaulted by other partygoers.  Security broke up the fight and sent the other group out.  Security told Howard and Moseley to wait on-stage for a few minutes.  After about ten to fifteen minutes, Howard and Moseley decided to leave the Convention Center and were excreted by a security guard.  While in the parking lot, the same group attacked them again.  Howard filed a complaint against Rolin, alleging that it had failed to maintain the premises in a reasonably safe condition. He later filed an amended complaint adding the security guard claiming that he did nothing to stop the second attack. Walker and Rolin filed for summary judgment which was granted. Howaed appealed but the appeal was dismissed for lack of a final judgment. In remand Walker and Rolin asked for the judgment to be certified as final which the court did. Howard against appealed. The COA affirms finding that Howard faiuled to produce any evidence of Walker’s actual and constructive knowledge of the alleged violent nature of the assailant nor Walker’s actual and constructive knowledge of the atmosphere of violence.

Wade Hampton Blackwell Jr. v. State of Mississippi –  touching a child for lustful purposes – Wade Hampton was found  guilty of two counts of touching a child for lustful purposes starting when his male victim was 10.   On appeal he argues that the prosecution should not have been allowed to amend the range of dates listed in the indictment; (2) a prosecution witness should have been precluded from testifying that Blackwell had molested him approximately twenty years earlier; (3) the prosecution made improper comments during its closing argument; (4) the circuit court should have granted his motion for a continuance after the victim gave unanticipated testimony; and (5) his convictions should be reversed based on cumulative error. The COA affirms.

David Lee May v. State of Mississippi –  speedy trial – David Lee May was convicted of two counts of aggravated assault and sentenced, as a violent habitual offender, to concurrent terms of life imprisonment. On appeal he argues that the trial court  should have dismissed his indictment based on a violation of his constitutional right to a speedy trial. The COA affirms with Judge McCarty dissenting. Every lawyer in Mississippi knows that’s a loser issue; there is no such right in this state.

Patsy B. White v. William T. White d/b/a Royers Estates Inc. –  statute of frauds/constructive trust – In November 2007, Royers Estates Inc. received approximately 22.5 acres of property in Pike County in exchange for a deed of trust valued at $56,375. The deed of trust was between William, the owner of Royers Estates, and his mother Pauline Edwards, the previous owner of the property. William was to pay Pauline the sum of $882 per month until it was paid in full. When  William became unable to make the monthly payments Patsy agreed to take over the payments on the subject property in order to avoid foreclosure. She claimed that William verbally agreed to transfer his interest in the subject property to her. Patsy also took over payments for other properties under the same condition: that William transfer title to Patsy in return for payment. After the last payments were made, discovered that title to the subject property had never been transferred and she sued.   The trial court dismissed her case finding that her  breach-of-contract claim was barred by the statute of frauds and the statute of limitations. Additionally, the court determined that Patsy failed to meet the requirements for injunctive relief and “fail[ed] to plead any of the requisite elements for the imposition of a constructive trust.”  She appealed and the COA affirms.

Pro se PCR affirmed:

Carlos Boyd Smith  v. State of Mississippi

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