Monthly Archives: March 2015

Armed Robbery

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Mississippi Code Annotated MS Code § 97-3-79 (2013)

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and 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 shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

Trespassing

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 A person can be charged with trespassing in Mississippi when he “willfully or maliciously” trespasses upon the property of another person.  Trespassing is a misdemeanor, and carries a potential sentence of up to six (6) months in jail and a $500.00 fine.

Mississippi law further makes trespassing upon “enclosed land” a crime.  To be charged with trespassing in Mississippi under the enclosed land statute, the accused must have entered the land without the owner’s consent, and after being warned not to enter the property.  This warning can be either by personal notice from the landowner, or by “POSTED” signs.  Under a separate statute, Mississippi criminal law makes it illegal to deface, remove, alter or destroy “POSTED” signs, even if the accused did not actually trespass on the land.

Even where a person has the owner’s consent to enter property, he can be charged with trespassing if he does not leave when the owner of the property requests that he do so.

Possession of Stolen Property

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A person is guilty of possession of stolen property or receiving stolen property under Mississippi law if he intentionally possesses, receives, retains or disposes of stolen property.  Mississippi law requires that a person charged with receiving or possession of stolen property either (1) know that the property is stolen, or (2) have reasonable grounds to believe that the property is stolen.

Under Mississippi law, the standard for deciding whether a person should have known the property was stolen is whether the accused received the stolen property under circumstances that reasonable men would believe the property was stolen.  The State sometimes tries to prove this by showing that the accused person paid a lot less for the property than the property was worth.  For example, if a person buys a Glock pistol for $50.00, when the fair market value is $500.00, then he obviously should know that it is stolen.  In such a case, the person would likely be found guilty of possession or receiving stolen property in Mississippi.

Whether possession of stolen property is a felony or a misdemeanor in Mississippi depends on the value of the property.  If the property has a value of $500.00 or less, then it is a misdemeanor which carries a sentence of six (6) months in the county jail.  If the stolen property has a value of more than $500.00, then it is a felony, with a potential sentence of ten (10) years in prison and a fine of $10,000.00.

There are defenses to the charge of possession or receiving stolen property in Mississippi.  These cases are easiest to defend where the State tries to prove that the defendant paid so much less for the property than it was worth, that he should have known it was stolen.

Felony Child Neglect in Mississippi

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Felony Child Neglect under Miss. Code Ann. § 97-5-39

Child neglect is when a parent or other person responsible for a child’s care and support neglects or refuses to care for the child’s health, morals or well-being, when able to do so, such as failing to provide food, proper education, and medical or surgical care (unless religious beliefs prevent certain forms of medical care).

Common defenses are available in child abuse cases, like innocence or lack of evidence. 

Guest of a Guest/Tenant and the Duty of Care

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It has long been established that an individual who rents from another is an “invitee” and is owed a duty of ordinary care by the landlord to keep the premises reasonably safe.  Mississippi courts have held that a person who is on the rental property at the invitation of the tenant is owed the same duty.  In Joiner v. Haley, 777 So.2d 50, 52 (Miss. App.2000), the Court stated that “it would appear that an invited guest on the premises of rental property would be afforded the same protections extended to the tenant.” The Court also noted that in multi-unit apartment buildings, where the owner expressly or impliedly reserves parts for common use, “[i]t is the landlord’s duty to keep safe such parts over which he reserves control, and, if he is negligent in this respect, and personal injury results to a tenant or to a person there in the right of the tenant, he is liable in tort.” Lucas v. Miss. Hous. Auth. No. 8, 441 So.2d 101, 103 (Miss. 1983) (quoting Turnipseed v. McGee, 236 Miss. 159, 109 So.2d 551 (1959)).

Enhanced Sentencing for Drug Trafficking Resulting in Death

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21 U.S.C.§§ 841(b)(1)(B) provides for enhanced sentencing for trafficking crimes “if death or serious bodily injury results from the use of the controlled substance either possessed or imported by the defendant”. The U.S. Supreme Court Case of Baez-Gil vs. United States considered the proper construction of the term “use”.  At issue in Baez-Gill was whether “use” included the swallowing of a balloon containing heroin for smuggling purposes constituted “use”. 2013 WL 2422803.   The Defendant argued that “use” means the “ingestion or introduction of a controlled substance into one’s body ‘for the purpose of obtaining the benefit or reaction from the drug'”.  In other words, taking the drug for its narcotic or psycohactive properties.

The Court did not resolve whether the Defendant’s interpretation was correct or incorrect as the argument was just part of his ineffective assistance of counsel claim.  However, the Court did reference the district court case of United States v. Baker 05-cr-496, which found that the person swallowing the drugs for purposes of importation or possession had  made “use” of the drug.  However, the proper construction of the term “use” has not been ruled on by the Supreme Court and remains a novel question of law.

Enhanced Sentencing for Sale of a Controlled Substance Resulting in Death

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The recent Supreme Court case of Burrage v. United States held that the use of a Federal Drug Trafficking sentencing enhancement in cases where the drug user dies is limited.  Burrage was prosecuted for distributing a controlled substance which resulted in the death of the buyer. Under the the enhanced penalty statute, Burrage could be sentenced to a statutory minimum of 20 years.

Government prosecutors argued that the Supreme Court should adopt a concurrent causation rule wherein a conviction would be allowed even without proof that the defendant’s drug was sufficient to kill the buyer.  Under this rule “death results from the use of such substance” if the defendant’s drug, together with other causes, created intoxication that lead to death.

The court rejected the government’s argument, ruling that “especially in the interpretation of a criminal statute subject to the rule of lenity….. we cannot give the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant.”

The Court held instead that a “but for” causation test must be applied stating “that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under penalty enhancement provision of 21 U.S.C. §841(b)(1)(C) unless such use is a but-for cause of death or injury”

Challenging a wire tap as evidence

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To challenge a wire tap, the movant must be a party with standing.  The “aggieved person” is the person against whom the wiretap was directed or someone who was a party to those communications.  The movant may file a motion to suppress evidence on the following grounds:

  1. the communication was unlawfully intercepted
  2. the order authorizing or approving the interception was insufficient on its face or
  3. the interception was not made in conformity with the order authorizing or approving it.

Wire taps are designed to intercept relevant subject matter only and are to be suspended during the discussion of non criminal activities.  The agency is required to “minimize” the scope of the wiretap to include discourse related to the subject matter contained in the authorization.  When reviewing a minimization challenge the court looks at the reasonablness of the agents efforts to minimize the wiretaps.  Challenges to wiretaps through “minimization” motions are rarely granted

More commonly used challenges to wiretaps involve whether the government could have used other investigative techniques to obtain the information.  If the Court determines that other, less intrusive techniques could have been used or were not used, the wiretap evidence may be suppressed.

Defendants may bring what is known as a “Franks” challenge alleging that the authorization was granted based on a “false statement knowingly and intentionally with reckless disregard for the truth” made in the government’s affidavit. Franks v. Delaware.  Upon a showing that the statement was necessary to establish the required probable cause element.  The defendant must show that the statement made was made knowingly and intentionally and with reckless disregard for the truth. 

All challenges to wiretaps are difficult to win.  Motions must be pled with specificity and may require discovery request directed to the prosecutors.

Federal Wire Taps

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Prior to obtaining judicial authorization for a wire tap, the government must adhere to the procedural steps contained in 18 U.S.C. § 2510.  The government must state:

  1. the phone number to be intercepted;
  2. the phone number’s subscriber;
  3. the names of the interceptees;
  4. that there is probable cause to believe that the named interceptees are committing, have committed, or are about to commit an offense listed in U.S.C §2516 and;
  5. which qualifying federal law is possibly being violated

The government must submit an affidavit in support of the application explaining with specificity why the wiretap is necessary.  The government must explain what normal techniques have been attempted and that those techniques have failed.  The government must also explain why normal techniques appear unlikely to succeed or are too dangerous.  Normal techniques consist of the following:

  1. standard visual and aural surveillance;
  2. questioning and interrogating of witnesses and participants, including the use of grand juries and grants of immunity, if necessary
  3. search warrants; and
  4. infiltration of conspiratorial groups by undercover agents or informants

If the Court finds that the statutory prerequisites have been met, an order will be issued authorizing the wire tap for a period of thirty days.

Medical Malpractice Statute of Limitations

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Mississippi’s statute of limitations for medical malpractice cases, codified in Mississippi Code section 15-1-36, specifies that the injured party must file their claim within two years of the date on which the health care provider committed the alleged malpractice, or on which with “reasonable diligence” the malpractice “might have been first known or discovered.”