Author Archives: Bill Kellum

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In criminal trials in Mississippi the prosecution may attempt to enter the alleged  confession of a Defendant into evidence.  However, the State has the burden of proving voluntariness of confession.  The burden is met by testimony of officer or other person 
having knowledge of facts that confession was voluntarily made without any threats, coercion, or offer of reward.

When objection is made to the introduction of a confession, the defendant is entitled to a preliminary hearing on the question of admissibility of confession; this hearing must be conducted in absence of the jury.

If the prosecution then makes out a prima facie case as to the voluntariness of confession, the Defendant must present testimony that violence, threats of violence, or offers of reward induced his confession.  The prosecution must then take testimony from all the officers who were present when the Defendant was questioned and when confession was signed, or give adequate reason for absence of any such witness.

If the Judge determines that the confession was voluntary, the confession is admitted into evidence and presented to the jury.

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In some cases, an attorney may find that they cannot represent a client due to the client’s illegal or unethical behavior.  The attorney must exercise caution when withdrawing and follow the Mississippi Rules of Ethical Conduct.

The Ethics Committee of the Mississippi State Bar has opined that Rule 1.16 of the code indicates that a lawyer may withdraw from representing a client for good cause if withdrawal can be accomplished without material adverse effect on the client. Rule 6.2(c) indicates that a lawyer should not avoid appointment to represent a person except for good cause such as the client being so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.

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An arraignment is a procedural process wherein the court reads the criminal charge to the defendant and determines if bail will be set and the amount of bail.  The defendant may waive a reading of the charges and enter a plea of not guilty.  During the arraignment, the judge may review your charge to determine whether probable cause exist to sustain a criminal conviction.

The defendant may also plead guilty or no contest. A no contest plea is similar to a guilty plea in that you are accepting the validity of the charge – but with No Contest you are not admitting guilt.  Upon a plea of  No Contest or Guilty, you may be sentenced at that time, depending on the severity of the charge, and will not go to trial. If you plead Not Guilty, a pre-trial date or a trial date will be set.

During the arraignment or preliminary hearing, the judge will set the bail or bond amount, which varies depending on the crime and the defendant’s criminal history. If the crime is of a less serious nature and the court does not believe you are a flight risk or a danger to society, there may be bail amount set.  In the case of more serious crimes such as rape or murder, the court may decide to set a high bail or no bail.

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§ 99-19-81. Sentencing of habitual criminals to maximum term of imprisonment

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

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Mississippi law defines burglary as breaking and entering into any structure with the intent to commit a crime therein.

To be convicted of burglary, two elements of the crime must be proved beyond a doubt (or pled guilty to by the defendant). In other words, the State must prove that the defendant actually entered a structure, and entered with the intent to commit a crime in that structure.

The first element of the crime of burglary—entering—requires that you actually enter into a structure without permission to do so. Illegal entry also includes being lawfully present in a structure, but breaking or entering through an inner door and into a room that you have no permission to enter. This would include, for example, lawfully being in a shop but sneaking into the storeroom when the clerk is not watching.

The second element of burglary relates to the defendant’s state of mind at the time of entry into the building. To be convicted of burglary, the defendant must have first decided to commit a crime, and then entered the building for that purpose.

Using the example above regarding entry of a storeroom without permission, if the intent upon entry was to commit a crime, such as stealing stock from the room, you have satisfied the intent element, and have burglarized the shop owner’s private portion of the store.

The intended crime does not have to be successful or completed; entering with a criminal intent satisfies the two elements of burglary, and may lead to a conviction.

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When an insurance policyholder has been sued and has presented the claim to its insurer for a defense, the plaintiff or insurance company may file a Declaratory Judgments to resolve issues involving insurance coverage.  Such issues may relate to the existence of coverage for a particular claim, whether a policy exclusion is applicable, or the priority of coverage between two or more insurers.  Am. Family Mut. Ins. Co. v. Moore, 912 S.W.2d 531 (Mo. Ct. App. 1995).  However, a declaratory judgment action should not be filed to reform the policy or when the insurer has already denied coverage under an insurance policy.

Prior to the commencement of a declaratory judgment action there must be a determination as to whether a “justiciable controversy” exists.  To establish a justiciable controversy, the petitioner must show that there is a controversy between adverse parties with “legal interests susceptible to immediate resolution and capable of present judicial enforcement.” Prof’l Firefighters Ass’n of Omaha v. City of Omaha, 803 N.W.2d 17, 26 (Neb. 2011).

When the policyholder has been sued and has presented the claim to its insurer for a defense, the presence of a justiciable controversy is usually apparent.  However, as noted above, a declaratory judgment may not be filed when coverage has been denied.  The denial of coverage by the insurer indicates that it was not uncertain or insecure of its rights, status, or legal relations with respect to the making of that decision. 

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The Mississippi Court of Appeals has dealt with the question of whether a criminal act that causing the “accidental death” of a person can be an “occurrence” or “accident” as defined in an insurance policy and whether a criminal act exclusion applies in Rita Kees Lambert, Individually, and v. Safeco Insurance Company of America, No. 2011-CA-00166-COA (Miss.App. 05/08/2012). Rita Kees Lambert, individually and as a personal representative of all heirs at law and wrongful-death beneficiaries of her son, Brian Michael Kees, filed a wrongful-death action in Rankin County Circuit Court against Al Ellis and John Does 1-10, alleging that Brian had suffered physical injuries and death as a result of Ellis’s gross negligence. The circuit judge assessed $75,000 in damages against Ellis. The circuit judge ultimately entered a final judgment finding that Ellis was not entitled to liability coverage under the homeowner’s insurance policy issued to him by Safeco Insurance Company of America (Safeco) for the $75,000 judgment entered against him as a result of Brian’s death. Lambert appealed.

On August 13, 2005, Brian and his father, Michael Kees, attended a swimming party at Ellis’s home in Brandon, Mississippi.  Ellis claimed that at some point during the pool party, Michael went into Ellis’s home and stole money. Michael exited the house with Brian and hurried to his car. After concluding that Michael had stolen money from him, Ellis retrieved his pistol and followed Michael outside. As Michael exited the driveway, Ellis fired his pistol at Michael’s car, which Ellis claimed was an attempt to disable and stop the car. Ellis stated that he did not know that Brian was in the vehicle. One of the bullets ricocheted off of the pavement and hit Brian. Brian later died as a result of the gunshot wound. Ellis was arrested and charged with Brian’s murder. Ellis pled guilty to the lesser charge of manslaughter by culpable negligence, and he was sentenced to a term of incarceration, house arrest, and probation. Lambert, individually and as a personal representative of all heirs at law and wrongful-death beneficiaries of Brian, filed a wrongful-death suit in the Rankin County Circuit Court against Ellis and John Does 1-10. Ellis answered and denied liability for damages. On May 22, 2008, the circuit court entered an agreed order permitting Safeco, Ellis’s homeowner’s insurance carrier, to intervene in the wrongful-death action. On June 4, 2008, Safeco filed a complaint for declaratory judgment, asserting that Safeco’s homeowner’s insurance policy did not provide Ellis with liability coverage or a defense or indemnification for any claims arising out of Lambert’s wrongful-death suit. Safeco then filed a motion for summary judgment. Following a hearing, the circuit court denied Safeco’s motion, finding genuine issues of material fact on the issue of coverage. Lambert moved for partial summary judgment on the issue of Ellis’s liability, which the circuit court granted. The circuit court also entered an agreed order, assessing $75,000 in damages against Ellis. After a bench trial on the remaining issue of whether Safeco owed liability coverage to Ellis for Lambert’s $75,000 award of damages, the circuit court entered its judgment in favor of Safeco, finding that Ellis was not entitled to liability coverage under Safeco’s homeowner’s insurance policy. Lambert filed her appeal on January 28, 2011. On appeal, Lambert argues that the circuit judge erred by finding that Ellis is not entitled to liability coverage under his homeowner’s insurance policy, issued by Safeco, for the $75,000 judgment entered against him as a result of Brian’s death. Specifically, she claims that the circuit judge erroneously determined that the policy provides no coverage because: Ellis committed an illegal act; Ellis intended to discharge the firearm in the direction of the vehicle, actions that were not accidental and not an “occurrence” as required under the policy; and Ellis’s actions were intentional, thus barring coverage under the policy’s intentional acts exclusion. Under Mississippi law, when the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written. Additionally, provisions that limit or exclude coverage are to be construed liberally in favor of the insured and strongly against the insurer. In his final judgment on the issue of coverage, the circuit judge determined: “The uncontradicted evidence shows that . . . Ellis knowingly and willfully discharged his weapon at the vehicle in which Brian . . . was riding, evincing a depraved heart regardless of human life, and the evidence is uncontradicted and undisputed that . . . Ellis in fact pled guilty to the crime of manslaughter by culpable negligence. It cannot be disputed by the parties that . . . Ellis did in fact and in law commit a crime and thus an illegal act. Accordingly, the court finds that the death of Brian . . . was caused by an illegal act committed by . . . Ellis, and therefore, pursuant to the Illegal Acts Exclusion in the subject Safeco policy, Safeco does not owe liability insurance coverage to . . . Ellis for the claims being made against him as a result of the death of Brian . . . . Although there was no proof that Ellis intended to harm or kill Brian personally, the undisputed evidence showed that Ellis did intend the act of shooting a firearm towards and at the vehicle in which Brian was riding. Because Ellis intended the act of shooting his gun and shooting it at the Kees’ vehicle, Ellis’ actions were not an accident and thus not an “occurrence” as required under the subject Safeco policy. Lambert argued that although Ellis intended to discharge his firearm, the uncontradicted evidence established that he did not intend the consequences of his act – Brian’s death. Lambert also pointed out that Ellis pled guilty to manslaughter by culpable negligence, which she claims is not a specific-intent crime. Lambert thus claimed that the record shows that Ellis lacked the requisite intent to commit an illegal act; therefore, the illegal-acts exclusion in the policy does not apply. Ellis admitted that he indeed intended to discharge his firearm at the Kees’ vehicle, resulting in Brian’s death (although Ellis claims he only fired at the vehicle with the intention of disabling the car). That fact alone was sufficient for the Mississippi Court of Appeal and it affirmed the circuit judge’s finding that Brian’s death was caused by an illegal act committed by Ellis. Under the illegal-acts exclusion in the Safeco policy, therefore, Safeco could not not owe liability insurance coverage to Ellis.

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The Mississippi Rules of Civil Procedure provide two avenues to move the trial court to reconsider its judgment. The aggrieved party may (1) file a motion for a new trial or to alter or amend under Rule 59 or (2) file for a relief from a final judgment under Rule 60(b). M.R.C.P. 59, 60(b). The timing of the motion to reconsider determines whether it is a Rule 59 or Rule 60(b) motion.

A motion to reconsider filed within ten days of the entry of the judgment falls under Rule 59 and tolls the thirty-day time period to file a notice of appeal until the disposition of the motion. M.R.C.P. 59(b), (e); M.R.A.P. 4(d); City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So.2d 983, 985 (¶ 3) (Miss.2001) (citations omitted). Consequently, a notice of appeal following the denial of a Rule 59 motion to reconsider encompasses both the denial of reconsideration and the underlying judgment. Perkins v. Perkins, 787 So.2d 1256, 1261 (¶ 9) (Miss.2001) (citations omitted).

But a motion to reconsider filed more than ten days after the entry of the judgment falls under Rule 60(b). City of Jackson, 792 So.2d at 985 (¶ 3). And a Rule 60(b) motion does not toll the thirty-day time period to file a notice of appeal. Michael v. Michael, 650 So.2d 469, 471 (Miss.1995) (citing Bruce v. Bruce, 587 So.2d 898, 903 (Miss.1991)). So a notice of appeal following the denial of a Rule 60(b) motion to reconsider limits this court’s review to whether reconsideration was properly denied under Rule 60(b). This court has no jurisdiction to consider the merits of the underlying judgment. Melton v. Smith’s Pecans, Inc., 65 So.3d 853, 858 (¶ 18) (Miss.Ct.App.2011) (citing Overbey v. Murray,569 So.2d 303, 305 (Miss.1990); Accredited Sur. & Cas. Co. v. Bolles, 535 So.2d 56, 58 (Miss.1988); Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984)).  Woods v. Victory Mktg., LLC, 111 So. 3d 1234, 1236 (Miss. Ct. App. 2013)

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It is important for businesses to understand that the registration of a domain name does not afford trademark protection. Some businesses will use its trademark to identify its products or services but utilize a slightly different domain name.  If the domain name is not registered with the United States Trademark and Patent office, its is merely a web address and not a trademark.

A business may trademark a domain name if it is being used as more than a web address. The domain name owner must be using that domain name in commerce to identify the source of its goods or services.  By filing an application for trademark status, the domain name owner will receive optimum protection from infringing users.

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Many businesses overlook the importance of trademarking their name and and logo. Although requirements for the registration of all trademarks are similar, there are minor differences in registering a name as a trademark and trademarking a logo.  If a business has both a name and a logo, separate trademark applications should be filed. Trademarking the logo should be the first priority.

By filing an application with the United States Trademark and Patent Office, a business may trademark a word or words using standard characters or through stylized characters. Stylized word trademarks are a hybrid of both logos and names. A trademarked word or name informs the public of the source or name of the product, the style of the trademark projects the source or name in a fashion similar to a logo. Examples of stylized word trademarks include the stylized trademarks below:hplogo.  . pepsi

Businesses needing name or logo protection and specific stylized lettering should file two separate trademark applications. Using the example above, the name “Pepsi” could have trademark protection and another trademark protection for the stylized trademark. The business receives optimum protection because filing for words only is the strongest protection for the words, and filing separately for stylized lettering is the strongest protection for the stylized lettering.

After a business has created a name, performed a trademark search, and sold the product bearing the trademark in commerce, it may file for an actual use application to register the trademark. If the business is waiting to use the the trademark commercially, it will file on an intent to use basis if it has a bona fide intent to use the trademark. The United States Trademark and Patent Office will not register the trademark until it is used in commerce or a bona fide intent to use has been properly shown.

The use in commerce requirement can be shown through the the trademark’s use in connection with products or services. If the name is simply the name of a business or enterprise, it is known as a trade name. If the business trademark and its trade name are the same, that name will be both a trade name and a trademark.  If a business seeks to protect its trade name, it should use that name as a trademark in connection with its goods and services.

During the application process, the applicant must select the applicable goods or services in which the products or services bearing the name are or will be sold or offered. The applicant must also be able to demonstrate that the name can be distinguished from other names.

Once the application is completed and filed, the USPTO examines the trademark to determine whether it is eligible for registration. The application may be opposed by another filer seeking to protect a competing or similar mark. If the applicant business can establish priority of use, they will likely prevail over the the competing filer.

If the name or logo is successfully trademarked, the business will receive protection for its goods or services. The business should be aware that it will not receive optimum protection outside of the specific goods or services listed.   To prevent abandonment of the trademark, the business holding the trademark should continue to use the name in commerce.  Also, the business should monitor the trademark to prevent infringement.

Although the applicant need not be an attorney to file for a trademark, a trademark attorney should be hired to ensure proper compliance.