MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN …Facts: Stephen and Alaina Bullock divorced in...

MISSISSIPPI COURT OF APPEALS OPINIONS

HAND DOWN DATE: 2/28/2017

Attorney(s) for Appellant: DAVID ALAN PUMFORD

Attorney(s) for Appellee: YVETTE LOUISE STELLY, HERBERT J. STELLY

Topics: Divorce - Classification of assets - Date of demarcation - Nonmarital

property - Discovery requests - Attorney's fees - Expert fees - Ferguson

analysis - Equitable distribution

Author: Judge Greenlee

Trial Judge: HON. SANFORD R. STECKLER

BULLOCK v. BULLOCK, NO. 2015-CA-01258-COA

https://courts.ms.gov/Images/Opinions/CO120090.pdf

Trial Court: HARRISON COUNTY CHANCERY COURT

Civil

Holding: Affirmed in part, reversed and remanded in part.

Facts: Stephen and Alaina Bullock divorced in 2015. After the close of trial, the parties agreed to

the classification and division of two marital homes, Alaina’s car, a timeshare, and several

smaller items. By agreement of both parties, the only issues remaining for the court to decide

were the classification and division of the Eagle Point property, the classification and

division of the funds loaned and invested in Landing Gear and Coast Cycle World, whether

to grant Alaina spousal support, and attorney fees. In the final judgment, the court classified

the Eagle Point property as nonmarital, holding that the use of Alaina’s separate property as

collateral for the marital home did not operate to convert the property into marital property.

The chancellor determined that Stephen failed to overcome the legal presumption that the

loan and the investment had been made with marital funds and awarded Alaina a judgment

against Stephen amounting to fifty percent of the loan to Coast Cycle World, and a judgment

entitling her to fifty percent of received and future returns on the investment in Landing

Gear. The court denied Alaina spousal support. The court ordered Stephen to pay fifty

percent of expert accounting fees related to the initial trial, and ordered Stephen to pay all of

Alaina’s attorney fees related to reopening the case. Stephen appeals.

Analysis: Issue 1: Classification of assets

Stephen argues that the chancellor erred in naming the date of the final judgment as the date

of the end of accumulation of assets of the marital estate. The law in Mississippi is that the

date on which assets cease to be marital and become separate assets can be either the date of

separation (at the earliest) or the date of divorce (at the latest). Prior to the issuance of the

chancellor’s final order, the parties agreed to limit the assets for the court’s determination to

the Eagle Point property, the Landing Gear investment, and the Coast Cycle World loan. The

record does not indicate how the court utilizing an earlier date would make any difference to

the classification of the three assets ultimately submitted for the chancellor’s determination.

All facts relevant to classifying those assets occurred prior to the date of separation, which is

of 22Copyright © 2012 Mary E. Miller subscribe or renew at: http://law.mc.edu/mlibulletin

http://law.mc.edu/mlibulletin

the earliest permissible date of demarcation. Thus, there is no error. In addition, the

chancellor did not err in finding that the couple’s use of Alaina’s nonmarital Eagle Point

property as collateral for a loan to buy a marital home did not operate to convert the Eagle

Point property into marital property. Stephen argues that the investment in Landing Gear

was improperly classified as marital, and that the loan to Coast Cycle World was

significantly less than $120,000. Stephen had the burden below to demonstrate that the funds

used for the loan to Landing Gear could be traced to a nonmarital source. He was unable to

provide any documentation tracing the loan and investment back to separate funds. Thus, the

chancellor did not abuse his discretion in finding that Stephen failed to overcome the

presumption that the loan and investment were made with marital assets.

Issue 2: Admission of discovery

After failing for a period of years to satisfy outstanding discovery requests and an order

compelling discovery, Stephen delivered an unlabeled, disorganized, and unsigned-for box

of discovery documents to Alaina’s attorney for use during the second half of the trial

proceedings. The box of documents was not accompanied by a formal written response to the

previous discovery requests. Out of an abundance of caution, the trial court agreed to reopen

the case to consider the evidence in the box. The court instructed Stephen’s attorney to

prepare and provide ahead of time a summary of the discovery intended to be entered from

the box at the hearing and the questions to be asked relevant to the evidence. This document

was never produced or previewed to the other party. After two continuances requested by

Stephen, Stephen refused to attend the hearing. Even if the trial judge had erred in initially

excluding the proffered evidence, Stephen squandered his opportunity to have the evidence

admitted when he refused to attend the hearing after the case was reopened explicitly for that

purpose.

Issue 3: Attorney’s fees

The chancellor awarded Alaina attorney fees limited to the expenses of reopening the case to

admit Stephen’s belatedly produced discovery. The chancellor did not err in awarding

Alaina attorney fees limited to the expenses of reopening the case given that the exclusive

purpose of reopening the case was to allow Stephen to cure his defective participation in the

discovery process. Stephen also argues that the chancellor erred in assessing him half of the

Alaina’s expert’s accounting fees. Alaina’s expert generated an independent report greater

in scope than that of the court-appointed accountant, a report that included identifying

genuine mistakes in the court-appointed accountant’s report as well as identifying the loan

and investment that constitute the disputed marital assets on appeal. Because the

contributions of Alaina’s expert were not entirely derivative and duplicative of the work

done by the court-appointed accountant, there is no abuse of discretion.

Issue 4: Ferguson analysis

Stephen argues that the chancellor erred in failing to conduct a Ferguson analysis.

Chancellors are required to apply the Ferguson factors on the record when conducting an

equitable distribution of marital property, and failure to do so mandates reversal. Here, the

chancellor distributed the investment in Landing Gear and the loan to Coast Cycle World

fifty-fifty between Stephen and Alaina. While this may ultimately prove to constitute an

equitable distribution, failure to perform a Ferguson analysis on the record precludes

meaningful appellate review. Thus, the case is reversed and remanded for the chancellor to

conduct a Ferguson analysis on the record.



Attorney(s) for Appellant: STEPHEN W. MULLINS

Attorney(s) for Appellee: EDWARD C. TAYLOR, JOSHUA POWELL GARROTT, KATIE RYAN

VAN CAMP

Topics: Products liability - Defective drywall - Innocent seller exemption - Section

11-1-63(h) - Scope of Mississippi Products Liability Act - Continuance -

M.R.C.P. 56(f)

Author: Judge Wilson

Trial Judge: HON. WAYMAN DAL WILLIAMSON

HOLIFIELD v. CITY SALVAGE, INC., NO. 2015-CA-01293-COA


Trial Court: JONES COUNTY CIRCUIT COURT

Civil

Holding: Affirmed.

Facts: In 2011, Kent and Laurie Holifield discovered that the drywall in their home was made in

China. The Holifields allege that their drywall exhibits defects now known to be common in

drywall manufactured in China during the relevant period, i.e., it contains elevated levels of

sulfur and other substances, which result in the emission of smelly gasses that corrode

copper piping and wiring and can cause serious health problems. In 2013, the Holifields

filed a complaint, asserting numerous claims against Ronny Hill Construction Inc., builder of

their house; City Salvage Inc., a building materials supplier; and unknown manufacturers and

distributors of the drywall. City Salvage answered and filed a third-party complaint against

Gulf Coast Shelter Inc., in which it alleged that it had no knowledge of the alleged defects in

the drywall and that it was entitled to indemnification from Gulf Coast for any liability to the

Holifields. City Salvage moved for summary judgment. The circuit court ruled that City

Salvage was an “innocent seller” under the Mississippi Products Liability Act, granted

summary judgment for City Salvage, and certified its ruling as final pursuant to M.R.C.P.

54(b).

Analysis: Issue 1: Innocent seller exemption

The Holifields have conceded that City Salvage did not have actual or constructive

knowledge of the defects alleged in the complaint. However, they argue that City Salvage is

not an innocent seller because, allegedly, City Salvage knowingly sold “salvaged” or

“damaged” drywall as “new.” Even assuming that City Salvage made some representation

regarding the drywall that could be characterized as “packaging or labeling . . . the product,”

its alleged “packaging or labeling” of the drywall as “new” is not an “aspect of the . . .

packaging or labeling of the product that caused the harm for which recovery of damages is

sought” as required under section 11-1-63(h). And even if the alleged sale of the drywall as

“new” somehow amounted to an “alteration or modification” of the product, the alleged

alteration or modification was not “a substantial factor in causing the harm for which

recovery of damages is sought.” Also, there is no claim or evidence that the drywall was

defective because it was salvaged. Thus, City Salvage is entitled to summary judgment

because the innocent seller provision applies as a matter of law.

Issue 2: Scope of MPLA



In 2014, the Legislature amended section 11-1-63 to clarify the MPLA’s scope. As amended,

the MPLA applies “in any action for damages caused by a product, including, but not limited

to, any action based on a theory of strict liability in tort, negligence or breach of implied

warranty.” The amendment was effective after the Holifields filed their complaint. The

Holifields argue that the amendment does not apply to their case. The Holifields are correct

that, at the time their claim accrued and their complaint was filed, the MPLA did not

completely “abrogate” a claim for breach of implied warranty. But even then under the

statute, the provisions of the MPLA—including the innocent seller provision—broadly

applied “in any action for damages caused by a product except for commercial damage to the

product itself.” Thus, an implied warranty claim such as the Holifields is subject to the

innocent seller provision. Thus, the innocent seller provision also bars the Holifields’

implied warranty claim. The Holifields also argue that the circuit court should have granted a

continuance for additional discovery pursuant to M.R.C.P. 56(f). However, they identify no

facts that discovery might have uncovered that would affect City Salvage’s entitlement to

summary judgment under the innocent seller provision.



Attorney(s) for Appellant: CRYSTAL WISE MARTIN, SUZANNE KEYS

Attorney(s) for Appellee: JAMIE D. TRAVIS, TUJUANA S. MCGEE

Topics: Personal injury - Premises liability - Proximate causation - Breach of duty -

Duty to warn of dangerous conditions - Atmosphere of violence

Author: Judge Ishee

Trial Judge: HON. WILLIAM A. GOWAN JR.

HOWARD v. R.M. SMITH INVESTMENTS, L.P., NO. 2015-CA-01235-COA


Trial Court: HINDS COUNTY CIRCUIT COURT

Civil

Holding: Affirmed.

Facts: Justin Dennis pled guilty to kidnapping and was sentenced to fourteen years. His victim,

Erin Howard, filed a negligence-based premises-liability claim against R.M. Smith

Investments L.P., the owner of the property where the Dollar General was located. She was

kidnapped while working as a manager at Dollar General. R.M. Smith filed a motion for

summary judgment which was denied. The circuit court later granted the renewed motion

for summary judgment in favor of R.M. Smith. Howard appeals.

Analysis: In a negligence-based premises-liability case, a plaintiff must show that the defendant

breached a particular duty owed to the plaintiff, and that the breach of duty proximately

caused damages. Howard was deposed by R.M. Smith, and in her deposition, she admitted

that she initiated contact with Dennis by texting him from her personal cell phone. Because

supervisors were inspecting the store later that day, Howard testified that she got the caller’s

number from the store’s caller ID and initiated contact by asking, “[I]s there anything or

anyone at Dollar General can assist you with [sic].” The conversation continued, and was

escalated by both parties. At one point Dennis said, “You won’t make it to the next year.”

To which Howard responded, “[T]hat’s fine . . . . I hope your people can bury you like my

people can bury me.” Howard admitted later that Dennis informed her that he would see her

that day. The circuit court found these text messages to be a provocation and an independent

intervening cause of Howard’s injuries. Property owners have a duty to remedy or warn of

dangerous conditions on their property that are known, or should be known. However, no

duty to warn is owed to an invitee, licensee, or trespasser if the dangerous situation was one

she created herself and was such that she was well aware of its presence. R.M. Smith owed

no duty to Howard because she created the dangerous situation herself. She initiated contact

with Dennis, provoked him over text messages, and failed to provide notice to anyone that

Dennis may arrive at the store later that day. Dennis testified that upon receiving the text

messages, he was extremely angry and that Howard was his only target that day.

Additionally, Howard never informed R.M. Smith of her previous encounters with Dennis,

nor did she inform it of her text-message conversation with Dennis on the day of the

kidnapping. There had only been two previous crimes of violence at the property in the five

years preceding Howard’s kidnapping. The minimal amount of crimes of violence in the five-

year period prior to the incident does not establish an atmosphere of violence. And, R.M.

Smith cannot be expected to constructively know of a personal vendetta against an employee

when that employee never informed it of such. Since Howard failed to establish the essential

element of proximate cause, the circuit court correctly granted R.M. Smith’s motion for



CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION

Presiding Judge Irving and Judge Wilson

summary judgment.



Attorney(s) for Appellant: T. SWAYZE ALFORD, KAYLA FOWLER WARE

Attorney(s) for Appellee: HAVEN CLANTON

Topics: Guardianship - Bench ruling - Visitation - Appointment of guardian

Author: Judge Barnes

Trial Judge: HON. ROBERT Q. WHITWELL

IN RE GUARDIANSHIP OF MCPHAIL, NO. 2015-CA-01479-COA


Trial Court: CALHOUN COUNTY CHANCERY COURT

Civil

Holding: Affirmed.

Facts: Justin McPhail and Anthony Page Portera filed a petition with the Calhoun County Chancery

Court, requesting to be appointed as guardians of their grandmother, Frances McPhail. The

petition claimed that Frances had executed a durable power of attorney on January 29, 2015,

appointing Justin and/or Page and/or Patricia (Patty) Hibbard, Frances’s daughter and Page’s

mother, as her attorney-in-fact. The petition also argued that it would be in Frances’s best

interest to reside with her granddaughter, Enga Wooten. Before going into the nursing home,

Frances had lived in her house with her other daughter, Pamela McPhail (Pam), for

approximately twenty years. Pam answered the petition for guardianship, raising several

affirmative defenses and claiming that Justin and Page were unfit to serve as Frances’s

guardians. She noted that a prior power of attorney dated January 2, 2007, appointing Pam

and/or Wayne McPhail, Frances’s son, as attorney-in-fact, was in full force and effect. In

May 2015, the parties entered into an “Agreed Order of Continuance and Resetting,” which

included temporary visitation rights for family members to take Frances from the premises of

the nursing home for short periods of time, with Pam to receive four hours’ notice before the

visit when possible. The order also allowed family to take Frances and leave the nursing

home for up to forty-eight hours, two times a month. Pam was to receive forty-eight hours’

notice before any overnight visits. Pam filed a motion for contempt and for a temporary

restraining order in July of 2015, alleging Justin had willfully failed to comply with the May

order. Pam obtained the TRO and was granted legal and physical custody of Frances in

order to retrieve her and bring her back to the nursing home. The chancery court later

dissolved the TRO, finding Justin in contempt, and holding that the May order should remain

in full force and effect. The court later denied the petition for guardianship and set aside the

power of attorney, as there was no evidence that the prior January 2, 2007 power of attorney,

which was executed when Frances “was lucid, in good shape and health[,]” had been

revoked. Finding that Frances had diminished mental capacity, the chancellor appointed Pam

as her guardian and required Pam to submit annual accountings; he also ordered Pam to

remove her name as co-owner of a joint checking account with Frances. Justin and Page

appeal.

Analysis: Issue 1: Bench ruling

The Appellants argue that the chancery court’s final order is prejudicial, as it failed to reflect

the court’s bench ruling. At the conclusion of the hearing, the chancellor appointed Pam as

guardian of the person and estate of Frances. The chancellor authorized visitation with

family members, as long as the visits complied with the rules and regulations of the nursing



home where Frances resided. However, when the order was prepared by counsel, it failed to

address the issue of overnight visits. Although the chancellor entered the subsequent

handwritten amendment that allowed family members to take Frances out for “dinner or ice

cream,” nothing in the order indicated that she would be allowed to leave for overnight

visits. A chancellor’s bench ruling is not final, but subject to modification by that same

chancellor. And here, the chancellor never explicitly held in his bench opinion that

overnight visits would be allowed. Thus, there is no error.

Issue 2: Visitation

The Appellants argue that the chancery court abused its discretion in limiting their visitation

with Frances and prohibiting overnight visitation. There is no abuse of discretion. The court

allowed “liberal” visitation with Frances, as long as the visits comply with the rules and

regulations of the nursing home. The prohibition of overnight visitation is for Frances’s well-

being, which was the chancery court’s primary concern.

Issue 3: Appointment of guardian

The Appellants argue the chancellor erred in appointing Pam as Frances’s guardian.

Chancery courts generally are given wide discretion to take all necessary steps to conserve

and protect the best interest of these wards of the court in determining the appropriate person

to be appointed as a conservator. Here, the court did not abuse its discretion in denying the

Appellants’ petition for guardianship. Justin agreed that Frances needed constant care but

presented no specifics as to how he would care for Frances on a twenty-four-hour basis. He

also admitted he had significant debt; so the chancellor was concerned about how he could

support Frances’s care. Justin testified that he had custody of his son every other week. It

was also noted that Enga was no longer agreeable to taking care of Frances. There was

evidence that Pam and Frances had full access to each other’s bank accounts, and Pam

admitted that she treated the bank accounts as joint accounts, not “yours and mine.” But Pam

denies that she took advantage of her mother. Moreover, the chancellor put protections in

place to ensure Pam appropriately manages her mother’s funds, such as taking Pam’s name

off the checking account and requiring her to pay her own utilities on the home. He also

required Pam to submit an annual accounting.



Attorney(s) for Appellant: JAMES DAVID MOORE

Attorney(s) for Appellee: J. GORDON FLOWERS, DAVID W. UPCHURCH, JOHN G. WHEELER,

LAUREN OAKS LAWHORN, JOHN MARK MCINTOSH

Topics: Medical malpractice - URCCC 4.04 - Designation of expert witness

Author: Presiding Judge Griffis

Trial Judge: HON. JAMES LAMAR ROBERTS JR.

CARNATHAN v. ROGERS, NO. 2015-CA-01644-COA


Trial Court: MONROE COUNTY CIRCUIT COURT

Civil

CONCUR IN RESULT ONLY WITHOUT SEPARATE OPINION

Presiding Judge Irving

Holding: Affirmed.

Facts: On behalf of the deceased, Joe Carnathan, Mary Carnathan filed a wrongful-death medical-

malpractice claim against Dr. William Bryan Rogers, Dr. Joseph Bailey III, Dr. Woodrow

Wilson Brand III, Surgery Clinic of Amory, Gilmore Memorial Hospital d/b/a Gilmore

Memorial Regional Medical Center, John Does 1-5, and ABC Corporations 6-10. Carnathan

attempted to serve Gilmore Memorial Hospital with process, but was informed that the

proper legal entity was Amory HMA LLC. Carnathan did not serve Amory HMA with

process, but instead filed a motion to amend her complaint to add Amory HMA as a proper

party. In this motion, Carnathan also requested to extend the discovery deadline. None of the

joined defendants objected to Carnathan’s motion. Carnathan, however, failed to notice the

motion for a hearing and did not pursue the motion further. Dr. Bailey filed a motion for

summary judgment. Dr. Rogers and Dr. Brand both later filed motions for summary

judgment. The court granted the motions, and Carnathan appeals.

Analysis: Carnathan argues that the circuit court erred when it granted summary judgment to the

defendants in contradiction of M.R.C.P. 15(a) and 19 and URCCC 4.04. In a medical-

malpractice claim, expert testimony must be used. The expert must identify and articulate

the requisite standard that was not complied with and also establish that the failure was the

proximate cause, or proximate contributing cause, of the alleged injuries. At all stages of

pretrial, Carnathan failed to present any witness designation or affidavit in support of her

prima facie case. Without an expert witness, Carnathan could not present evidence of the

standard of care for any of the three physicians and therefore cannot survive summary

judgment. Carnathan’s reliance on URCCC 4.04(A) to support the argument that she was

not yet required to designate an expert witness because she had until sixty days prior to the

trial is a mischaracterization of the rule. In the absence of any expert testimony to support a

medical malpractice claim, the movant is entitled to judgment as a matter of law. As such,

the circuit court judge did not abuse his discretion by merely considering the motions for

summary judgment while Carnathan’s request to amend her complaint was pending. Further,

there was no abuse of discretion in granting the motions for summary judgment, as the

moving parties were entitled to judgment as a matter of law.



Attorney(s) for Appellant: LAMONTAY MARSH (PRO SE)

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: SCOTT STUART, JASON L.

DAVIS

Topics: Post-conviction relief - Defective indictment - Evidentiary hearing -

Ineffective assistance of counsel


Trial Judge: HON. JUSTIN MILLER COBB

MARSH v. STATE, NO. 2016-CP-00072-COA


Trial Court: LAUDERDALE COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: LaMontay Marsh pled guilty to noncapital murder and was sentenced to life imprisonment

with the possibility of parole. He filed a motion for post-conviction relief which the court

denied. He appeals.

Analysis: Issue 1: Defective indictment

Because Marsh’s indictment did not include the phrase “without authority of law,” Marsh

argues his indictment is defective. Instead of using the phrase “without authority of law,”

Marsh’s indictment used the word “unlawfully.” The Mississippi Supreme Court has held

that using the word “unlawfully” in place of the phrase “without authority of law” is not

error because the words are synonymous and interchangeable.

Issue 2: Evidentiary hearing

Marsh argues that the trial court erred in denying him an evidentiary hearing because he is

actually innocent. He submitted his own affidavit concerning the events charged in his

indictment. However, Marsh’s affidavit contradicts his own statement made to police.

Further, two witnesses both stated to police that Marsh shot the victim. Based on these facts,

this issue is without merit.

Issue 3: Ineffective assistance of counsel

Marsh argues his trial counsel was ineffective when he purportedly gave Marsh false

information by telling him that he would be eligible for parole, failed to conduct a pretrial

investigation, and failed to put forth a defense. There is nothing in the record to suggest that

Marsh’s counsel failed to conduct a pretrial investigation or that his counsel’s alleged failure

to do so prejudiced Marsh. As indicated from the record, Marsh’s trial counsel negotiated

Marsh’s plea and, as a result of the negotiation, Marsh was adjudged guilty of noncapital

murder, allowing him the possibility of parole—as opposed to being adjudged guilty of

capital murder and not being afforded the possibility of parole—in exchange for his plea.

Thus, Marsh fails to show that his counsel’s assistance was ineffective.



Attorney(s) for Appellant: OFFICE OF STATE PUBLIC DEFENDER: MOLLIE MARIE MCMILLIN,

GEORGE T. HOLMES

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: ABBIE EASON KOONCE,

JASON L. DAVIS

Topics: Armed robbery - Habitual offender status - Section 99-19-83 - Section 99-19-

81


Trial Judge: HON. LEE SORRELS COLEMAN

BROWN v. STATE, NO. 2016-KA-00204-COA


Trial Court: CLAY COUNTY CIRCUIT COURT

Criminal


Judge Wilson

Holding: Affirmed in part, reversed and remanded in part.

Facts: Javon Brown was convicted of three counts of armed robbery and sentenced as a habitual

offender to three consecutive life sentences without the possibility of parole, suspension, or

early release. He appeals.

Analysis: On appeal, the critical issue is whether the State presented sufficient evidence to show that

Brown was a habitual offender under section 99-19-83. The State concedes that there was

not sufficient evidence and that the circuit court’s sentence should be reversed, and the case

remanded for resentencing. Because there was no proof submitted that gave any indication

that Brown had actually served sentences of one year or more for any of his previous felony

convictions, there is insufficient proof to find that Brown is a habitual offender under section

99-19-83. Because the State failed to prove that Brown qualified for the habitual-offender

enhancement under section 99-19-83 previously, it is not now able to retry the issue.

However, because the proof submitted by the State at the sentencing hearing demonstrated

that Brown was twice previously convicted of felonies and sentenced to serve at least one

year for each conviction, there was sufficient proof to sentence Brown under the habitual-

offender enhancement provided by section 99-19-81.



Attorney(s) for Appellant: OFFICE OF STATE PUBLIC DEFENDER: MOLLIE MARIE MCMILLIN,

GEORGE T. HOLMES

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: ABBIE EASON KOONCE,

JASON L. DAVIS

Topics: Felony fleeing - Probable cause - Lesser-included offense instruction


Trial Judge: HON. VERNON R. COTTEN

JOHNSON v. STATE, NO. 2016-KA-00370-COA


Trial Court: NEWTON COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: Keith Johnson was convicted of felony fleeing in a motor vehicle from a law-enforcement

officer and sentenced as a habitual offender to five years, without the possibility of early

release. He appeals.

Analysis: Issue 1: Probable cause

Johnson argues that the officer lacked probable cause to stop him. It is well settled that a

police officer personally observing a traffic violation is sufficient to meet the requisite cause

for a stop. Here, Officer Garvin testified that he personally observed Johnson make a right

turn onto a state highway without signaling while traffic was present, a traffic violation.

Johnson admitted to the same at trial. Thus, this issue is without merit.

Issue 2: Jury instruction

Johnson argues that the circuit court erred in denying his lesser-included-offense instruction

because the evidence purportedly supported a conviction on a lesser-included offense of

reckless driving. For an offense to be a lesser-included one of the offense charged, all

elements of the lesser offense must be included in the greater offense. It is clear that no

element of the crime of reckless driving is included in the crime of fleeing a law-

enforcement officer; thus, it is not a lesser-included offense. Johnson was charged with

failing to yield to a law-enforcement officer as a felony, and no other crime. Thus, because

reckless driving is not a lesser-included offense of fleeing a law-enforcement officer,

Johnson was not charged with reckless driving, and lesser-nonincluded-offense instructions

are not authorized.



Attorney(s) for Appellant: OFFICE OF STATE PUBLIC DEFENDER: MOLLIE MARIE MCMILLIN

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: ABBIE EASON KOONCE

Topics: Aggravated domestic assault - Improper sentence - Habitual offender status

Author: Judge Carlton

Trial Judge: HON. KATHY KING JACKSON

ADELE v. STATE, NO. 2015-KA-01726-COA


Trial Court: GEORGE COUNTY CIRCUIT COURT

Criminal




Judge Wilson

Holding: Affirmed.

Facts: David Adele was convicted of aggravated domestic assault and sentenced as a habitual

offender to life without parole. He appeals.

Analysis: Adele argues that the trial court improperly sentenced him as a habitual offender, because the

State failed to prove beyond a reasonable doubt that he had been sentenced to separate terms

of one year or more on two separate convictions. Adele’s trial counsel failed to object to the

State’s proof of Adele’s habitual-offender status at both the motion hearing and Adele’s

sentencing hearing, but Adele asks the Court to review the issue as plain error. In order to

sentence a defendant as a habitual offender, the State must prove the defendant’s habitual-

offender status beyond a reasonable doubt. The record in this case shows that the State listed

two separate prior convictions and provided the court with the certified pen pack and

certified copies of both convictions. It appears that the trial court, after reviewing the

evidence of Adele’s prior convictions and sentences provided by the State, interpreted the

documents to reflect that Adele served the twelve months on the unlawful-restraint

conviction while he was serving the thirty-year sentence for murder. Thus, the record

contains sufficient evidence to support the trial court’s order granting the State’s motion to

amend Adele’s indictment.



Attorney(s) for Appellant: ROSS PARKER SIMONS


Topics: Aggravated assault - Ineffective assistance of counsel - Recusal of judge -

URCCC 1.15 - Motion to suppress - Lesser-included instruction - Habitual

offender status

Author: Judge Ishee

Trial Judge: HON. DALE HARKEY

TORREY v. STATE, NO. 2014-KA-00978-COA


Trial Court: JACKSON COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: Theodosius Torrey was convicted of aggravated assault and sentenced as a habitual offender

to twenty years. He appeals.

Analysis: Issue 1: Ineffective assistance of counsel

Torrey argues that the circuit court abused its discretion in requiring Torrey go to trial with

his attorney and that because his attorney was unprepared, he provided ineffective assistance

of counsel. However, Torrey has not shown concrete facts evidencing his defense was

prejudiced to the point of constituting manifest injustice. Although Torrey indicated that he

had hired another attorney, the attorney’s testimony during the post-trial hearings revealed

that he had done no work on the case, and intentionally avoided being served to make an

appearance before the court. The circuit court did not abuse its discretion either in enforcing

the trial date or in denying the original attorney’s motions to withdraw or continue the case.

The attorney had over three months from his initial appearance to prepare for trial. With

regard to Torrey’s ineffective assistance of counsel claim, the record does not affirmatively

indicate that Torrey received ineffective assistance of constitutional dimensions. Nor have

the parties stipulated that the record is adequate to allow the Court to make findings without

considering a trial judge’s findings of fact. Thus, Torrey’s claims with regard to ineffective

assistance of counsel are dismissed without prejudice to his ability to raise them in post-

conviction proceedings, if he chooses to do so.

Issue 2: Recusal of judge

Torrey argues that the circuit judge should have recused himself from Torrey’s case because

he was involved in past cases related to Torrey when serving as the district attorney for

Jackson, George, and Greene Counties. Torrey is procedurally barred from asserting this

claim on appeal as he did not file his motion to recuse in accordance with URCCC 1.15.

Torrey failed to attach an affidavit from himself or his attorney to his motion, as required by

Rule 1.15. In addition, Torrey’s motion for recusal was not timely.

Issue 3: Motion to suppress

Torrey argues that the circuit court erred in denying his motion to suppress his recorded

statement because Torrey requested counsel, but continued to be questioned by



CONCUR IN PART, DISSENT IN PART WITHOUT SEPARATE OPINION

Judge Westbrooks

investigators. Once a defendant asks for counsel, he cannot be interrogated further until

counsel has been made available, unless the accused himself initiates further communication,

exchanges, or conversations with the police. As the finder of fact during a suppression

hearing, it is within the sound discretion of the circuit judge to determine whether Torrey

invoked his right to counsel. The interview transcript shows that at the outset of the

interview, Torrey was properly read his Miranda rights, and stated that he understood his

rights. Torrey was next asked by the detective if he was “willing to make a statement or

answer questions,” to which Torrey responded, “Mm-hm.” Torrey further acknowledged that

he understood his rights, that he had not been made any promises or threatened, nor had he

been coerced by the officers when he initialed and signed an affidavit to that effect. While

the State bears the burden of proving beyond a reasonable doubt that a statement was given

after a valid waiver, the record clearly shows that the State has satisfied its burden here.

Issue 4: Lesser-included instruction

Torrey argues that the circuit court committed reversible error in its refusal of Torrey’s

simple-assault jury instruction. A lesser-included instruction should be given where the

evidence is such that a reasonable jury could find the defendant not guilty of the principal

offense charged in the indictment, yet guilty of the lesser-included offense. Aggravated

assault under section 97-3-7(2)(a) and simple assault under 97-3-7(1)(a) are distinguished

mainly by the extent of the victim’s injury, i.e., whether the victim suffered ‘bodily injury’ or

‘serious bodily injury.’ A lesser-included offense instruction should never be granted on the

basis of pure speculation. Viewing the evidence in the light most favorable to Torrey, no

reasonable jury could have found Torrey guilty of the lesser-included offense of simple

assault. Thus, the court did not err in refusing the instruction.

Issue 5: Habitual offender status

Torrey argues that the amended indictment reflecting his habitual-offender status was

“convoluted,” and procedurally improper. Indictments cannot be amended after conviction.

On December 12, 2012, the State submitted its motion to amend to charge Torrey as a

habitual offender. On January 11, 2013, the circuit court heard the motion upon the request

of the State. Torrey’s counsel at the time, Wendy Martin, stated that she had “no response,”

and requested “that this [motion] be done closer to trial, the day of trial.” On February 28,

2013, the circuit court granted the State’s motion, entering an order amending the indictment

to charge Torrey as a habitual offender. Torrey’s trial did not take place until May 20, 2013.

Thus, there is no error.



Attorney(s) for Appellant: OLIVER E. DIAZ JR., DAVID NEIL MCCARTY

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: BARBARA BYRD, JASON L.

DAVIS

Topics: Post-conviction relief - Successive writ - Section 99-39-23(6) - Newly

discovered evidence

Author: Judge Ishee

Trial Judge: HON. LISA P. DODSON

FELICIANO v. STATE, NO. 2015-CA-01609-COA


Trial Court: HARRISON COUNTY CIRCUIT COURT

Criminal



Holding: Affirmed.

Facts: David Feliciano was indicted as a habitual offender and pled guilty to one count of felony

fleeing the scene of an accident. He was sentenced to seventeen and one-half years to serve.

Feliciano filed a motion to vacate, set aside, and correct his sentence under the Uniform Post-

Conviction Collateral Relief Act and was denied relief. Feliciano then filed a second PCR

motion which the court denied as a successive writ. He appeals.

Analysis: Section 99-39-23(6) provides that a prisoner who raises an issue that the circuit court

addresses in a final judgment with specific findings of facts and conclusions of law cannot

raise the issue again. Any motion filed after an entry of the final judgment and asserting the

same issue is procedurally barred as a secondary or successive writ. In Feliciano’s first PCR

motion, he argued that new medical evidence was discovered that negated the intent element

for his crime. The circuit court found that not only was Feliciano’s motion not in

compliance with the UPCCRA, but it also failed on the merits because there was no new

medical evidence that would allow relief under the UPCCRA. Feliciano’s second PCR

motion again alleged that new medical evidence was discovered, this time specifically

referencing an incident that occurred when he was fourteen years old and was struck by a

van. The circuit court again found that this was not newly discovered evidence, since

Feliciano had known of this injury for approximately twenty years, and told the circuit court

during his plea colloquy that he did not have any injuries that would impair his ability to

competently enter his plea. Though his first PCR motion was not in the particularized

format required under the UPCCRA, Feliciano specifically requested relief under the

UPCCRA, and the circuit court adjudicated the motion on the merits and in accordance with

the UPCCRA. Thus, there is no error.



Attorney(s) for Appellant: M.A. BASS JR., MICHAEL R. BONNER

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: ALICIA AINSWORTH,

JASON L. DAVIS

Topics: Statutory rape - Voir dire - Confrontation Clause - Testimonial evidence -

Hearsay - Course of investigation

Author: Presiding Judge Griffis

Trial Judge: HON. LAMAR PICKARD

JOHNSON v. STATE, NO. 2015-KA-01064-COA


Trial Court: CLAIBORNE COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: Alvin Johnson was convicted of two counts of statutory rape and sentenced to a term of life

for Count I and fifteen years for Count II. He appeals.

Analysis: Issue 1: Voir dire

Johnson argues the trial court erred when it qualified juror Darden, because Darden failed to

respond when asked if she knew Johnson or his family members. A party who fails to object

to the jury’s composition before it is empaneled waives any right to complain thereafter.

Johnson did not object to the jury member, either before trial, contemporaneously with the

State’s objection during trial, or in his post-trial motions. Thus, the issue is procedurally

barred. In addition, the trial judge found no evidence that Darden could not be fair and

impartial. Although Darden did not initially disclose knowledge of Johnson, this omission

was later cured. The trial judge conducted a second voir dire and discovered the convoluted,

distant relation of Darden and Johnson. When asked, Darden did not deny knowledge of

Johnson; she admitted that she was familiar with Johnson from around Port Gibson. Darden

was not a blood relative and did not have a personal relationship with Johnson. Thus, the

trial court did not abuse its discretion when it accepted Darden’s assurance that she could

render a fair and impartial judgment.

Issue 2: Confrontation Clause

Johnson argues that the testimony of the police chief of the Port Gibson Police Department

was admitted in violation of the Confrontation Clause, because he was permitted, over

several objections, to give testimonial evidence concerning the investigation. At the trial-

court level, Johnson asserted a standing objection to hearsay evidence. He did not, however,

object on the basis that he was denied the right to confront the witnesses who provided

statements to Chief Jackson. Thus, he effectively waived the issue for appeal. With regard to

his hearsay argument, admitting out-of-court statements made to the police during the course

of their investigations is permissible. A police officer may show that he has received a

complaint, and what he did about the complaint without going into the details of it. Here, the

chief’s testimony was not hearsay, and therefore, it was admissible. The chief’s testimony

about the witness statements given to him during the course of his investigation were not

admitted to prove the truth of the matter asserted but rather to explain the next steps in the



chief’s investigation.

Attorney(s) for Appellant: DONALD MITCHELL (PRO SE)

Attorney(s) for Appellee: OFFICE OF THE ATTORNEY GENERAL: ALICIA MARIE AINSWORTH

Topics: Post-conviction relief - Scrivener's error - Validity of search warrant

Author: Judge Wilson

Trial Judge: HON. WILLIAM A. GOWAN JR.

MITCHELL v. STATE, NO. 2015-CP-00575-COA


Trial Court: HINDS COUNTY CIRCUIT COURT

Criminal

DISSENT

Presiding Judge Irving joined by Chief Judge Lee and Judge Westbrooks

Holding: Affirmed.

Facts: Donald Mitchell pled guilty to possession of cocaine with intent to distribute and was

sentenced to thirty years, with twenty years suspended and ten years to serve. Mitchell filed

a motion for post-conviction relief, which the court dismissed. Mitchell appeals.

Analysis: The premise of Mitchell’s PCR motion, that the search warrant was stale and invalid, is

factually incorrect. The only logical conclusion that can be drawn is that the officers applied

for and received the warrant on September 4, 2008, and executed it the same day. That the

municipal judge mistakenly wrote “Aug” on the form affidavit and warrant is of no

consequence. A judge’s scrivener’s errors in an affidavit and warrant do not render the

warrant invalid. Because the allegations in the motion to suppress were factually inaccurate,

the motion lacked merit and Mitchell’s attorneys did not provide ineffective assistance.



Attorney(s) for Appellant: JOSHUA WILLIAMS (PRO SE)


Topics: Post-conviction relief - Competency hearing - Voluntariness of pleas -

Ineffective assistance of counsel - Factual basis for pleas

Author: Judge Carlton

Trial Judge: HON. ANTHONY ALAN MOZINGO

WILLIAMS v. STATE, NO. 2016-CP-00382-COA


Trial Court: JEFFERSON DAVIS COUNTY CIRCUIT COURT

Criminal

Holding: Affirmed.

Facts: Joshua Williams pled guilty to armed robbery and manslaughter. He was sentenced to

twenty years for the manslaughter conviction and a consecutive ten-year term for the armed-

robbery conviction. He filed a motion to reconsider his sentences. He then filed a motion for

post-conviction relief which the court denied. Williams appeals.

Analysis: Issue 1: Competency

Williams argues that the circuit court erred by not conducting a hearing to determine whether

he was competent at the time he entered his guilty pleas. During his plea hearing, Williams

offered no evidence to show he was incompetent to enter his guilty pleas. Instead, when the

circuit court asked whether he was under the influence of drugs or alcohol, or whether he had

any emotional or physical problems that would prevent him from participating in the hearing,

Williams answered negatively while under oath. In addition, the record shows that the circuit

court repeatedly asked questions to determine whether Williams understood the

consequences of pleading guilty to the crimes charged and whether Williams was doing so

voluntarily, knowingly, and intelligently. Along with Williams’s plea petition, Williams’s

attorney submitted a signed certificate stating that, after fully discussing the case with

Williams, she was satisfied that Williams was competent and had no condition that affected

his ability to understand the guilty-plea proceedings. As the movant, Williams bore the

burden of proof to show that he lacked the competency to enter his guilty pleas. Because

Williams failed to meet his burden of proof, there is no support for Williams’s claim that the

circuit court erred by failing to sua sponte order a competency hearing.

Issue 2: Voluntariness of pleas

Williams argues that his pleas were not voluntary, knowing, and intelligent. A plea is

considered voluntary when the defendant knows what the elements are of the charge against

him, including an understanding of the charge and its relation to him, what effect the plea

will have, and what the possible sentence might be because of his plea. Williams claims that

his prior mental-health issues rendered his guilty pleas involuntary. However, the plea-

hearing transcript reflects Williams’s statements under oath in open court that he voluntarily

wished to change his pleas to guilty; he understood the consequences of waiving his

constitutional rights and pleading guilty; he was not presently under the influence of drugs or

alcohol; and he had no emotional or physical problems that would prevent him from



participating in the hearing. In addition, Williams acknowledged that he had not been

coerced, threatened, or promised anything to induce him to change his pleas; he had fully

discussed with his attorney the charges he faced; and he understood the minimum and

maximum sentences associated with the charges against him. Thus, there is no merit to this

issue.

Issue 3: Ineffective assistance of counsel

Williams argues that he received ineffective assistance of counsel because his attorney failed

to investigate his competency to enter his guilty pleas and interview crucial witnesses in the

case. Williams’s allegations lack support. He fails to provide any evidence to demonstrate

that he lacked competency during the time period in which he committed the charged

offenses, was indicted, and then entered his guilty pleas. Instead, Williams provides only his

own bare assertions to support his claims. By signing his plea petition, Williams agreed that

his attorney “had done all that anyone could do to counsel and assist” him and that he was

“satisfied with the advice and help” that his attorney had provided.

Issue 4: Factual basis for pleas

Williams argues that he “is actually and factually innocent” of the manslaughter charge.

However, the record clearly reflects his statements under oath as to the following: he

committed the crimes charged; the facts and allegations contained in the charges were true;

and he was pleading guilty to the charges of his own free will. Thus, the circuit court

possessed a sufficient factual basis to accept Williams’s guilty pleas.



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