MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 11/21/2017

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1 MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 11/21/2017 Topics: Legal malpractice - Proximate causation - Plaintiff's negligent act - Comparative negligence MCDANIEL v. FERRELL, NO CA COA HON. HENRY L. LACKEY HINDS COUNTY CIRCUIT COURT WILLIAM LEE GUICE III, MARIA MARTINEZ JAMES WILLIAM MANUEL, MICHAEL LELAND COWAN Chief Judge Lee Civil William McDaniel retained attorney Wayne Ferrell Jr. to represent him as a plaintiff in the underlying personal-injury suit after he was electrocuted during the course of his employment. The circuit court dismissed the underlying action for failure to prosecute, and as a result, McDaniel brought a legal malpractice claim against Ferrell for professional negligence. Ferrell moved for summary judgment which the trial court granted. McDaniel appeals. McDaniel argues that the circuit court erred in finding that he was the sole proximate cause of his injury and that he could not have succeeded in the underlying action, and thus erred by granting Ferrell s motion for summary judgment on McDaniel s legal-malpractice claim. For legal-malpractice claims predicated on negligence, the plaintiff must prove by a preponderance of the evidence the existence of an attorney-client relationship; negligence on the part of the lawyer in handling the affairs of the client which have been entrusted to the lawyer; and proximate cause of the injury. The test for proximate cause in the legalmalpractice suit is proof of success in the underlying negligence suit. A plaintiff may not recover damages from a defendant where the plaintiff s own negligence was the sole proximate cause of his injuries. Here, McDaniel admitted in his deposition that he did not de-energize the system on the day he was electrocuted. He acknowledged that he was trained on the system and that he knew the importance of de-energizing it. He also admitted he had performed the same task on multiple occasions prior to the day of the incident, and did not suffer any injuries. It is readily apparent that but for McDaniel s failure to de-energize the system, he would not have been electrocuted. It is also foreseeable that such failure to disconnect the transformer and engage the live system would result in electrocution. Thus, McDaniel s own negligent act was the proximate cause of his injury. McDaniel argues that the law and the facts in the underlying suit support a comparative-negligence analysis and should have been submitted to the jury. Where negligence by both parties is concurrent and contributes to injury, recovery is not barred under such doctrine, but the plaintiff s damages are diminished proportionately. Thus, even though the plaintiff was negligent, the plaintiff Page 1 of 9

2 may recover from a defendant whose negligence contributed to the plaintiff s injury. However, comparative negligence only applies where there is more than one proximate cause. Here, McDaniel was the sole proximate cause of his electrocution. And the defendants alleged negligence in the underlying action was not a proximate cause of McDaniel s injuries, and a comparative-negligence analysis was not appropriate. Thus, there is no error. Page 2 of 9

3 Topics: Post-conviction relief - Newly discovered evidence - Successive writ - Section (6) - Intervening decision WILLIAMS v. STATE, NO CA COA HON. GERALD W. CHATHAM SR. DESOTO COUNTY CIRCUIT COURT WANDA TURNER-LEE ABIOTO OFFICE OF THE ATTORNEY GENERAL: ALICIA MARIE AINSWORTH Judge Carlton Alison Williams pled guilty to armed robbery and was sentenced to ten years, with ten years of post-release supervision. She filed a motion for post-conviction relief which the court denied. The denial was affirmed on appeal. Williams later filed a second PCR motion which the court denied. Williams appeals. Issue 1: Newly discovered evidence Williams argues that the evidence she presented in the form of medical records, an affidavit of a pharmacist, and a statement from her psychologist constitutes credible evidence substantiating the existence of a mental illness and the use of psychotropic drugs during Williams s plea. Williams asserts that this evidence was not reasonably discoverable during the time of the plea because the error of the trial court did not occur until the time of the plea. Williams contends that if this evidence had been presented to the trial court at the time of her plea and sentencing, a different result would have ensued. As a result, Williams argues that her claim constitutes an exception to the successive-writ bar provided in section (6). A defendant is entitled to a new trial on the ground of newly discovered evidence where such evidence will probably change the outcome if a new trial is granted; the evidence has been discovered since trial and could not have been discovered before trial by the exercise of due diligence; the evidence is material to the issue; and the evidence is not merely cumulative or impeaching. Williams s history of mental issues and her list of medications were reasonably discoverable to her at the time of her plea as was the information contained in the psychological evaluation report and pharmacist s affidavit Williams attached to support her claim. Issue 2: Intervening decision Williams argues that Coleman v. State, 127 So. 3d 161 (Miss. 2013) constitutes an intervening decision concerning a fundamental constitutional right to not be convicted of a crime without the mental ability to stand trial. An intervening decision is one that creates new intervening rules, rights, or claims that did not exist at the time of the prisoner s conviction. Williams filed her first PCR motion just under a month after the Coleman opinion handed down. Accordingly, the decision in Coleman was available to Williams prior to her filing her first PCR motion, and thus cannot now be considered an intervening decision for her second motion. In addition, Coleman fails to create any rules, rights, or Page 3 of 9

4 claims that did not already exist at the time of Williams s guilty plea and sentence, as the issue of competency was never raised before her plea. Therefore, even if Coleman applied, Williams has failed to demonstrate that Coleman would have actually adversely affected the outcome of Williams s conviction or sentence. Page 4 of 9

5 JOHNSON v. STATE, NO KA COA Topics: Aggravated assault - Modification of jury instruction - Definition of serious bodily injury - Temporary disfigurement - Section (2) HON. JOHN ANDREW GREGORY LAFAYETTE COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: MOLLIE MARIE MCMILLIN OFFICE OF THE ATTORNEY GENERAL: SCOTT STUART Judge Carlton Shauntez Johnson was convicted of aggravated assault and sentenced to twenty years, with four years suspended, followed by four years post-release supervision. He appeals. Johnson argues that the trial court s modification of one of his jury instructions resulted in an incorrect statement of the law. Johnson specifically takes issue with the trial court s modification of Instruction D-1, defining the following element of the charged offense of aggravated assault: serious bodily injury. The judge handwrote or temporary into Instruction D-1, thus changing the instruction to say permanent or temporary disfigurement. Johnson argues that by adding the words or temporary before disfigurement, the trial judge thereby lowered the threshold for the State s burden to show serious bodily injury. The type of serious bodily injury necessary to prove aggravated assault for purposes of section (2) is bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. The indictment charged Johnson with unlawfully, willfully and feloniously, purposely and knowingly caus[ing] serious bodily injury to [Amber], by beating [Amber] with his fist and kicking her in the head even after unconsciousness, in violation of the provisions of section (2)(a)[.] The record also shows that at trial, the jury heard testimony from Amber regarding the injuries she received as a result of the assault. The State also admitted photographs of Amber s injuries into evidence. The evidence was undisputed that Amber suffered a broken jaw, broken nose, and broken eye socket. Thus, no reasonable juror could characterize Amber s injuries as less than serious bodily injury, since her injuries included broken bones and loss of consciousness. Therefore, any error in the trial court s modification of the jury instruction defining serious bodily injury is harmless error. CONCUR IN RESULT ONLY WITHOUT SEPARATE OPINION Presiding Judge Irving CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Judge Wilson DISSENT Judge Barnes joined by Judges Fair and Westbrooks Page 5 of 9

6 RATCLIFF v. STATE, NO CP COA Topics: Post-conviction relief - Time bar - Successive writ - Due process - Equal protection - Proportionate sentence to accomplice HON. ROBERT B. HELFRICH FORREST COUNTY CIRCUIT COURT DOMIANO RATCLIFF (PRO SE) OFFICE OF THE ATTORNEY GENERAL: KATY TAYLOR GERBER Judge Greenlee Domiano Ratcliff pled guilty to two counts of armed robbery and one count of aggravated assault. He was sentenced to twenty years for the first armed-robbery count, twenty years with ten years suspended for the second armed-robbery count, and twenty years for the aggravated-assault count. He filed a motion for post-conviction relief which was dismissed. Seven years later, he filed a second PCR motion. The court dismissed the motion as time barred and as a successive writ. Ratcliff appeals. Ratcliff s judgment of conviction was entered on November 5, 2004, and his second PCR motion was filed on May 8, 2013, well outside the three-year time limit. Thus, his motion is time-barred. His motion is also procedurally barred as a successive writ, as it is his second PCR motion. Ratcliff argues that his rights to equal protection and due process were violated because he received a longer sentence than two of his codefendants. The record contains no evidence to support Ratcliff s claim. But even assuming Ratcliff s claim is true, it does not establish a constitutional-rights violation. There are no statutes or case law stating that a defendant must receive a sentence proportionate to a sentence imposed on an accomplice. Sentencing is within the circuit court s discretion, as long as the sentence imposed falls within the statutory limit. Here, the sentences were within the statutory limits. Page 6 of 9

7 MORTON v. STATE, NO KA COA Topics: Attempted murder, Armed robbery & Burglary of dwelling - Sufficiency of indictment - Jury instructions - Constructive amendment of indictment - Ineffective assistance of counsel - Prior bad acts - Opinion testimony - Improper bolstering of witness HON. ISADORE W. PATRICK JR. WARREN COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: MOLLIE MARIE MCMILLIN OFFICE OF THE ATTORNEY GENERAL: SCOTT STUART Chief Judge Lee Bryan Morton was convicted of attempted murder, armed robbery, and burglary of a dwelling. Morton was sentenced to thirty years for the attempted-murder conviction, thirty years for the armed robbery conviction, and twenty years for the burglary conviction. He appeals. Issue 1: Sufficiency of indictment Morton argues that the indictment was fatally defective for failure to charge an essential element of the crime. An indictment must contain the essential elements of the offense charged, sufficient facts to fairly inform the defendant of the charge against which he must defend, and sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense. So long as a fair reading of the indictment, taken as a whole, clearly describes the nature and cause of the charge against the accused, the indictment is legally sufficient. Here, Morton s indictment sufficiently notified him of the charge against him, attempted murder. The indictment used the word attempt, as well as contained the language that the crime, if accomplished, would constitute an offense of murder, indicating the incompleteness of the attempted crime. Issue 2: Jury instructions Morton argues that the jury instructions given for the attempted murder charge omitted an essential element and varied materially from the indictment. Morton also claims that the instruction given for the armed-robbery charge materially varied from the indictment and thus constituted a constructive amendment. While jury instructions should track the language in the indictment, their failure to do so is not fatally defective, so long as they do accurately follow the requisite elements of the crime. Here, the jury instructions accurately followed the requisite elements of attempted murder by charging that Morton had to have intended to murder the victim, attempted to murder the victim, and failed to actually kill the victim. In regard to Morton s claim that the jury instructions constructively amended the indictment, not all variances between the indictment and instructions constitute a constructive amendment. The central question is whether the variance is such as to substantially alter the elements of proof necessary for a conviction. Here, the variance Page 7 of 9

8 between the indictment and the jury instructions did not substantially alter the elements of proof necessary for a conviction. Morton also claims that the instruction on armed robbery materially varied from the indictment and constituted a constructive amendment. In Mississippi, both an attempt to take and an actual taking of another s personal property against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon constitutes robbery. Thus, the variance is immaterial. If the jury found that Morton actually took the property, he was guilty of robbery. If the jury found that Morton only attempted to take the property, he was guilty of robbery. Issue 3: Ineffective assistance of counsel Morton argues that he received ineffective assistance of counsel because his attorney did not request an alibi jury instruction. On direct appeal, a claim for ineffective assistance of counsel should only be addressed when the record affirmatively shows ineffectiveness of constitutional dimensions, or the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. Here, the parties do not stipulate that the record is adequate for the appellate court to make a finding on direct appeal. And there is nothing in the record that indicates why Morton s counsel did not request an alibi instruction. Thus, this claim will not be addressed on direct appeal. Morton also argues his counsel failed to request a hearing on the validity of the search warrant. However, his claims are merely conclusory. This claim will not be addressed on direct appeal. Issue 4: Prior bad acts Morton argues that the trial court erred by allowing inadmissible testimony solicited by the prosecution of Morton s prior criminal activity. However, the record shows that the trial court did not admit the testimony. Morton s counsel objected to the statement on the ground of hearsay, and the objection was sustained. Additionally, the trial court made an on-therecord finding that the statement be stricken. Issue 5: Opinion testimony Morton argues that the trial court erred by allowing a State s witness to testify regarding the belief or credibility of an alibi witness s testimony. He argues that the statement at issue was improper opinion testimony by a layperson. At trial, Morton did not object to this line of questioning. The failure to make a contemporaneous objection waives the right of raising the issue on appeal. Issue 6: Improper bolstering Morton argues that the trial court erred by allowing the State to improperly bolster the credibility of its witness. Morton failed to object to this question. Thus, the issue is procedurally barred. In addition, both the State and Morton s defense counsel questioned the witness about any leniency deal she had made, to which she testified that there was none. Page 8 of 9

9 HOLDER v. STATE, NO CP COA Topics: Post-conviction relief - Revocation of suspended sentence - Banishment condition HON. ROBERT B. HELFRICH FORREST COUNTY CIRCUIT COURT THOMAS HOLDER (PRO SE) OFFICE OF THE ATTORNEY GENERAL: SCOTT STUART Judge Wilson Thomas Holder pled guilty to touching a child for lustful purposes and was sentenced to fifteen years. However, the entire sentence (save for time served) was suspended subject to Holder s good behavior and compliance with certain conditions. Holder promptly violated one of those conditions by providing a false address on his sex offender registration form. As a result, the circuit court revoked his suspended sentence and ordered him to serve the full sentence. Holder filed a motion for post-conviction relief which the court denied. The denial was affirmed on appeal. Holder then filed a second PCR motion. The circuit court denied the motion, and Holder appeals. Holder argues that his original sentencing to an illegal banishment condition rendered his guilty plea void. This argument refers to a condition of Holder s suspended sentence that required him to [d]epart from Hattiesburg and stay at least one hundred miles away from Hattiesburg for the entire period of his suspended sentence. Holder specifically agreed to this condition in his plea petition. Holder s revocation had nothing to do with the banishment condition. His suspended sentence was revoked because he provided a false address on his sex offender registration form. Thus, the banishment condition does not affect the order revoking his suspended sentence due to his violation of an unrelated condition. The banishment condition has no continuing effect on Holder, and the issue is moot because a ruling in Holder s favor would be of no practical benefit to him. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Presiding Judge Irving DISSENT Judge Westbrooks Page 9 of 9