Tag Archives: mississippi

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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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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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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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Miss. Code Ann. § 97-3-117 defines carjacking as “knowingly or recklessly, by force or violence, whether against resistance or by sudden or stealthy seizure or snatching, or by putting in fear, or attempting to do so, or by any other means taking a motor vehicle from another person’s immediate actual possession.” .  

To obtain a conviction for the charge of carjacking, the prosecution must show that, 1) a vehicle was forcibly or sneakily taken; 2) from another person; and; 3) that the other person was in immediate possession of the vehicle when it was taken

However, the first requirement does not necessarily require that the car be taken through a violent act or even through fear and intimidation.   If the defendant took control of the vehicle while the owner was pumping gas, the first requirement is applicable.

The victim does not necessarily have to be in the car to be convicted of car jacking.  In the Mississippi case of Young v. State, a husband and wife were washing their cars at a local car wash.  As the couple was washing the husband’s car, the defendant took the keys from the wife and took her car parked in the next bay.  The defendant was charged with carjacking.  His defense to the charge was that the wife was not actually inside of the vehicle and not in “immediate possession” of the vehicle. So, therefore, the actual crime of carjacking did not occur.  The court held that “we cannot agree that the legislature intended the statute be construed so literally as to mean that a person commits a carjacking only when an individual is physically inside the vehicle.”  Young v. State, 962 So.2d 110 (Miss.Ct.App.2007).

A conviction of carjacking carries a fine of up to $5,000 and up to 15 years incarceration.  Miss. Code Ann. § 97-3-117 (1) (a).

Mississippi  statute further holds that anyone convicted for attempted carjacking will receive the same punishment as an actual carjacking .   Miss. Code Ann. § 97-3-117 (1) (b).

If someone is convicted twice of armed robbery in connection with a carjacking or even for simple carjacking the punishment doubles.  A second offense of armed carjacking could result in 60 years incarceration  Miss. Code Ann. § 97-3-117 (3).

The use of a dangerous or deadly weapon, including imitations of deadly weapons, will enhance the crime of carjacking into Armed Carjacking. Miss. Code Ann. § 97-3-117 (2), A conviction for armed carjacking can result in increased penalties.  The fine for armed carjacking can be as high as $10,000 in fines and up to 30 years in prison.  Miss. Code Ann. § 97-3-117 (2) (a).

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Miss. Code Ann. § 97-3-79., defines armed robbery as “feloniously [taking] the personal property of another, “by the exhibition of a deadly weapon” in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person . . . .” .

To obtain a conviction for the charge of robbery, the prosecution must show that, 1) That you had a “felonious intent;”; 2) that you used force or putting in fear as a means of effectuating a theft; 3) that a deadly weapon was used and: 4) that you took and carried away someone else’s property from the victim’s person or in the victim’s presence.

  The punishment for armed robbery may include a life sentence.

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Under Mississippi Code Ann §41-32-1 et seq, individuals suffering for drug and alcohol abuse may be involuntarily committed to a private facility.  The law requires that the person asking the court to do so be either a spouse, parent, next of kin, friend or relative.  The Petition for Involuntary Commitment must be filed in the county of the patient’s residence or county in which he or she is found.

The Petition must allege that the patient is an alcoholic or drug addict, who is powerless over alcohol or drugs and whose life is unmanageable.  The Petition must also allege that the mental and physical health, continued family life, position in the community are dependent upon receiving treatment and that the patient has refused to self-commit despite requests; that the petitioner has selected a treatment facility or combination of facilities; financial arrangements have been made and that the facility has approved admission, subject to commitment by Court.

The Court will consider all of the foregoing factors plus “clear and convincing” evidence that involuntary commitment is appropriate.  The length of treatment may be for 60 days maximum and an additional 120 days as an outpatient or longer if the treatment facility decides additional treatment is warranted.

 

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Mississippi Code Section 41-29-139 makes it a felony crime to “sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell barter, transfer, distribute or dispense” marijuana.

 If the amount of marijuana involved is less than 30 grams, the potential sentence is three (3) years in prison, and a $3,000.00 fine.  In the case of a first offender who is charged with possession with intent to sell or distribute more than 30 grams, but less than 1 kilogram or marijuana, the potential sentence is twenty (20) years in prison, and a fine of $30,000.00.  In all other cases, the potential sentence is thirty (30) years in prison, and a fine of $5,000.00 (minimum) to $1,000,000.00 (maximum).

In Mississippi, the State must prove beyond a reasonable doubt that the accused possessed the marijuana with the intent to sell or distribute.  The government is allowed to prove intent through the use of circumstantial evidence.

Under Mississippi law, the State may try to prove that a person had the intent to sell or distribute by showing that the amount of the marijuana in the person’s possession is proof of intent to sell.  To charge and convict a person based upon the amount of marijuana, the government must prove that the marijuana in his possession exceeded the amount that would be reasonable for personal use.  If the amount of marijuana could be for personal use, as well as to sell or distribute, then the person cannot be convicted of possession with intent.

Additionally, the packaging of marijuana as well as other evidence of drug trafficking may be used to prove possession with intent to sell or distribute.

Proving possession with intent based upon the weight and packaging of marijuana is difficult.  The Mississippi Supreme Court has held that where a defendant was caught with 323.4 grams of marijuana, two (2) scales, a device used to hold marijuana, rolling papers, and $356.00 in cash, there was insufficient evidence of intent to sell or distribute.  The Court held that the amount of marijuana was within the amount that a person could reasonably use, and that the holding device and rolling papers were consistent with using marijuana, not selling it.  Jowers v. State, 593 So.2d 46 (Miss. 1992).

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Mississippi law provides landlords with the right to terminate any tenancy by following the applicable statutes. The most common reasons for termination are failure to pay rent and other breaches of the lease provisions. It is important to remember that landlords may not remove their tenants without following the evictions process.

To evict tenants in Mississippi, landlords must initiate the process by providing the tenant with a “notice of termination”.  While not required by statute, manner of delivery should be by U.S. Mail certified and attaching notice to the door of the property.  This will protect the landlord from lack of notice defenses.

 For month-to-month tenancies, one week notice by the landlord is required informing the tenant that the tenancy is being terminated. For longer-term tenancies, such as one year or two year, the landlord must provide notice in accordance with the provisions of the lease agreement.  The notice should identify which lease provision(s) were breached and under what provision the tenant is being evicted.

Miss. Code Ann § 89-8-13(1)-(3)).allows for the following types of written termination notices:

Notice to quit: 30-day notice provided by the landlord for breach of any lease provision other than the failure to pay rent. If the tenant is able to remedy the breach within 30 days, the tenancy will not be terminated

(Miss. Code Ann § 89-7-27).

Notice to pay rent or quit: 3-day notice that requires the tenant to pay rent within 3 days or leave the property.  Upon tenants failure to pay amounts owed, the landlord may then initiate eviction proceedings in the appropriate court.  What court in which to file your petition depends on the amounts owed.  If the tenant owes $4,000.00 or less the landlord will file an action in Justice Court..  If more than $4,000.00, the landlord will need to file a petition in county court or circuit court.  If filing in Circuit court and county court, the landlord should retain counsel.  The process is much more complicated and time consuming than most landlords care to manage themselves.

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