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CODE MISSISSIPPI 1972 Annotated 2013 ADVANCE CODE SERVICE Pamphlet Number 3 June 2013 This pamphlet updates the 2012 Cumulative Supplement. Contains statutory changes made during the 2012 Regular Session. Prepared by the Editorial Staff ofthe Publisher LexisNexis QUESTIONSABOUTTHISPUBLICATION? ForEDITORIALQUESTIONSconcerningthispublication,orREPRINTPERMISSION,pleasecall: 800-833-9844 ForCUSTOMERSERVICEASSISTANCEconcerningreplacementpages,shipments,billingorother matterspleasecall: CustomerServiceDepartmentat 800-833-9844 OutsidetheUnitedStatesandCanada 518-421-3000 FAX 518-421-3584 ForINFORMATIONONOTHERMATTHEWBENDERPUBLICATIONS,pleasecall: Youraccountmanageror 800-223-1940 OutsidetheUnitedStatesandCanada 518-487-3000 Copyright© 2013 by THE STATE OFMISSISSIPPI All rights reserved. LexisNexisandthe KnowledgeBurstlogoareregisteredtrademarks, andMichieisatrademarkof ReedElsevierProperties Inc., usedunderlicense. Matthew Benderis aregisteredtrademarkof Matthew BenderProperties, Inc. 4462323 ISBN978-0-3271-1786-5 LexisNexis' Matthew Bender & Company, Inc. 701 East Water Street, Charlottesville, VA22902-5389 www.lexisnexis.com (Pub.44620) PREFACE Use ofAdvance Code Service. The 2013Advance Code Service ensures that your Mississippi Code of1972 Annotated is always as current as possible by providing Judicial Decision notes, Attorney General Opinions, Ethics Opinions, research references, and references to law review articles. The ACS may also include changes to statutoryprovisions, andeditorialcomments. Itshipsthreetimes ayear,inthe period between annual Code supplement pamphlet shipments. Advance Code Service pamphlets are cumulative and may be discarded or recycled upon receipt oflater pamphlets. Format. MaterialintheAdvanceCodeServicefollowsthestructureoftheMississippi Code of1972Annotated and should be used in conjunction with the Code and its 2012 Supplement. Annotations. This publication contains annotations taken from decisions of the Missis- sippi Supreme Court and Court ofAppeals. These cases will be printed in the following reporters: * Southern Reporter, 3rd Series United States Supreme Court Reports Supreme Court Reporter United States Supreme Court Reports, Lawyers' Edition, 2nd Series Federal Reporter, 3rd Series Federal Supplement, 2nd Series Federal Rules Decisions Bankruptcy Reporter Additionally, annotations have been taken from the following sources: American Law Reports, 6th Series American Law Reports, Federal Series Mississippi College Law Review Mississippi Law Journal In addition, published opinions of the Attorney General and opinions of the Ethics Commission have been examined for annotations. PREFACE Information, suggestions, comments, and questions. Visit the LexisNexis website at http://www.lexisnexis.com for an onhne bookstore, technical support, customer support, and other company information. For further information or assistance, please call us toll free at (800) 833-9844, fax us toll free at (800) 643-1280, email us at [email protected], or write to: Mississippi Code Editor, LexisNexis, 701 E. Water Street, Charlottesville, VA 22902-5389. June 2013 LexisNexis THE CONSTITUTION OF THE UNITED STATES OF AMERICA Article I The Congress § 8. Powers of Congress. JUDICIAL DECISIONS — — 2. Burden u—pon interstate commerce. V. Morgan, So. 2d , 2013 Miss. LEXIS 12. —Taxation In general. 141 (Miss. Apr. 4, 2013). 18. Miscellaneous taxes. — 12. Taxation In general. 2. Burden upon interstate commerce. — Miss. Code Ann. § 27-70-5 (2010) vio- 18. Miscellaneous taxes. lated the Commerce Clause, U.S. Const, Appellants were not entitled to attor- art. I, § 8, cl. 3, as it was internally ney's fees under42 U.S.C.S. § 1988, even inconsistent since: (1) ifanother state en- though they correctly alleged that Miss. acted an identical law and a distributor Code Ann. 27-70-5 (2010) violated the obtained cigarettes in Mississippi for sale Commerce Clause, U.S. Const, art. I, § 8, outside of Mississippi, then Mississippi cl. 3, as they had an adequate remedy, would impose a fee on a transaction and whichtheyinvoked, declaratoryreliefun- the other state would impose a fee on a der Miss. R. Civ. P. 57; under the Tax transaction; (2) ifthe cigarettes acquired Injunction Act, 28 U.S.C.S. § 1341, the by the Mississippi distributor were sold constitutionality of a state tax could not intrastate, they would be subject to only bechallengedunder42U.S.C.S. § 1983in onefee; and(3)ifanotherstateenactedan state court if an adequate remedy was identical statute, interstate commerce availableundersta—telaw. Co—mmonwealth would bear a burden that intrastate com- Brandsv. Morgan, So. 2d ,2013Miss. merce would not. Commonwealth Brands LEXIS 141 (Miss. Apr. 4, 2013). AMENDMENTS Amendment V Grand jury indictment for capital crimes; double jeopardy, self-incrimination; DUE process of LAW; JUST COMPENSATION FOR PROPERTY JUDICIAL DECISIONS — — 5. —Doublejeopardy In general. 5. Doublejeopardy In general. 7. Civil and criminal proceedings, 7. —Civil and criminal proceedings, —doublejeopardy. doublejeopardy. 9. Same elements, d—oublejeopardy. Although defendant claimed that the 17. —Self-incrimination In general. court's decision to set his pleas aside and 21. Witnesses,—self-incrimination. bring him to trial constituted a breach of 51. Due process In general. the plea agreement on the State's behalf. , Amend. VI U.S. CONSTITUTION — an abuse of discretion, and double jeop- 17. Self-incrimiiiation In general. ardy, the circuit court did not abuse its — discretion by disregarding the original 21. Witnesses, self-incrimination. plea agreement and putting the case on Although cross-examination of the vic- thetrialdocketbecausedefendant'sguilty tim of an armed robbery regarding his pleas were involuntary. Therewas norea- indictment on an aggravated assault son why defendant should not have been charge might have caused the jury to proceeded against as ifno trial had previ- disbelieve the victim's testimony against ously taken place; therefore, defendant defendant, the trial court properly ex- could notgethis convictions set aside and cluded the evidence because the victim tnheewntcrilaalibmytthhaetDhoeubwlaesJperooptaercdteydCflaruosmesa had invoked his Fifth Amendment right against self-incrimination and defen- ofthe Mississippi and United States Con- —Ust.iStS.uot.Cioo2nndss,t—,Maism2se0.n1d3C.oMnVis.sts,C.aatArcpthp.i.n3,gLsE§Xv.I22SStaa1tn4ed6, 3rdidagenhlttd'ss.toRSiexntthfheroAvvim.cetSnitmad'tmse,eFn—itftShroi.gA2hmtdes—nhd,am2de0n1tt3o (Miss. Ct. Ap,p. Apr. 2, 2013). Miss. LEXIS 150 (Miss. Apr. 11, 2013). 9. —Same elements, doublejeopardy. 51. Due process — In general. Defendant's right to protection against Petitioner was allowed to proceed with doublejeopardy was not violated because a motion for access to his experts for the he was subject to multiple punishments purpose of evaluation, testing, and any for possession with intent to distribute other purpose reasonably believed by five separate controlled substances, because to obtain a verdict on each count, counsel to be necessary for the full litiga- the State was required to prove beyond a tion of his post-conviction claims. As a reasonable doubt that each of the sub- matter of due process, prisoners sen- stances foundin defendant's housewas in tenced to death should be granted access fact a controlled substance under Miss. to their experts so long as the access Code Ann. § 41-29-139 (Rev. 2009), and complied with corrections rules and regu- that defendant possessed and intended to lations and so long as those rules and sell each drug. Watkins v. State, 90 So. 3d regulations did not violate th—eir due pr—o- 1283 (Miss. Aug. 16, 2012), modified by cess rights. Graysonv. State, So. 2d 2012 Miss. LEXIS 624 (Miss. Dec. 13, 2013 Miss. LEXIS 163 (Miss. Apr. 18, 2012). 2013). Amendment VI Jury trial for crimes and procedural rights JUDICIAL DECISIONS — — 15. Speedy trial In general. 76. Test results, confrontation of wit- — 19. —Tests, speedy trial. nesses. 22. Delay attributable to defendant, 79. Compulsory process. — —speedy trial. 80. As—sistance ofcounsel In general. 23. Delay attributable to state, speedy 121. Post-conviction proceedings, assistance ofcounsel. —trial. 34. Prejudice to defendant, speedy 15. Speedy trial — In general. —trial. — 36. Timely assertion of right, speedy 19. Tests, speedy trial. trial. — Defendant's right to a speedy trial un- 65. Confrontation ofwitnesses In gen- der the Sixth Amendment and Miss. —eral. Const, art. 3, § 26 was not violated be- 72. Hearsay, confrontation of wit- causetheprejudicewas minimal sincethe nesses. fading memories of potential, unnamed , U.S. CONSTITUTION Amend. VI witnesses did not impair defense. Ben v. Defendant's right to a speedy trial un- State, 95 So. 3d 1236 (Miss. Aug. 23, der the Sixth Amendment and Miss. 2012), writ of certiorari denied by 2013 Const. Art. 3, § 26 was not violated be- U.S. LEXIS 2589, 81 U.S.L.W. 3555 (U.S. causetheprejudicewasminimalsincethe Apr. 1, 2013). fading memories of potential, unnamed — witnesses did not impair defense. Ben v. 22. Delay attributable to defen- State, 95 So. 3d 1236 (Miss. Aug. 23, dant, speedy trial. 2012), writ of certiorari denied by 2013 Defendant was not denied his Sixth U.S. LEXIS 2589, 81 U.S.L.W. 3555 (U.S. Amendment right to a speedy trial be- Apr. 1, 2013). cause not a single Barker factor weighed — in defendant's favor, and one, reason for 36. Timely assertion of right, the delay, weighed heavily against him; speedy trial. although the delay in bringing defendant Defendant's right to a speedy trial under the Sixth Amendment and Miss. to trial was more than three times the presumptively prejudicial eight-month Const. Art. 3, § 26 was not violated because despite the anxiety and hardship mark, of the 833 total days between in- that defendant could have endured, he dictment and trial, 701 days were attrib- waited until two weeks before his initial utable to defendant. Hardisonv. State, 94 trial date to assert his right to a speedy So. 3d 1092 (Miss. 2012). Defendant was not denied his Sixth trial; although defendant's motion in- Amendment right to a speedy trial be- ccolnutdeexdtaanrdeqtuiemsitngfoorfathsepmeoetdiyontrisahl,owtehde cause not a single Barker factor weighed that he was actually seeking dismissal, itnhededfeelnayd,anwt'esigfhaevodr,heaanvdiloynea,garienasstonhifmo;r not a trial. Ben v. State, 95 So. 3d 1236 (Miss. Aug. 23, 2012), writ of certiorari although the delay in bringing defendant denied by 2013 U.S. LEXIS 2589, 81 to trial was more than three times the presumptively prejudicial eight-month U.S.L.W. 3555 (U.S. Apr. 1, 2013). — mark, of the 833 total days between in- 65. Confrontation of witnesses In dictment and trial, 701 days were attrib- general. utable to defendant. Hardisonv. State, 94 — So. 3d 1092 (Miss. 2012). 72. Hearsay, confrontation of wit- — nesses. 23. Delay attributable to state, Purported statements of unidentified speedy trial. persons at the company that manufac- Defendant's right to a speedy trial un- tured the bullets involved in a crime con- der the Sixth Amendment and Miss. stituted hearsay, and because it was un- Const, art. 3, § 26 was not violated be- clearwhocontactedthecompany, perhaps causethe bulkofthe delaywas duetothe double hearsay, and its admission re- state crime lab's forensic and DNA test- sulted in a violation ofthe C—onfrontati—on ing, which was critical to the case. Ben v. Clause. Burdette v. State, So. 2d State, 95 So. 3d 1236 (Miss. Aug. 23, 2013 Miss. LEXIS 75 (Miss. Mar. 28, 2012), writ of certiorari denied by 2013 2013). U.S. LEXIS 2589, 81 U.S.L.W. 3555 (U.S. — Apr. 1, 2013). 76. Test results, confrontation of witnesses. — 34. Prejudice to defendant, speedy Admission of a crime lab report was trial. error because the surrogate testimony Defendant's convictions for aggravated that was used to enter the report into assault and armed robbery were proper evidence was presented by a police officer becausehisrightto aspeedytrialwas not with no apparent relation to the Missis- violatedsincethedelaywasneitherinten- sippi Crime Laboratory or to the report, tional nor egregiously protracted,and and the analysts were not found to be there was an absence ofactual prejudice unavailable, and defendant had no prior tothedefense. Johnsonv. State, 68 So. 3d opportunityforcross-examination;thead- 1239 (Miss. June 30, 2011). mission ofthe document without live tes- 3 Amend. VI U.S. CONSTITUTION timony from an individual involved in the had invoked his Fifth Amendment right analysis constituted a violation of the against self-incrimination and defen- —Confrontat—ion Clause. Burdette v. State, dant's Sixth Amendment rights had to So. 2d , 2013 Miss. LEXIS 75 (Miss. yield to the victim's F—ifth Ame—ndment Mar. 28, 2013). rights. Renfro v. State, So. 2d , 2013 While an analyst's supervisor was not Miss. LEXIS 150 (Miss. Apr. 11, 2013). involved in the testingofa substance that 80. Assistance of counsel — In gen- provedtobecocaine, ashewassufficiently eral. involved with the analysis and had inti- — mate knowledge about it and the report 121. Post-conviction proceedings, preparedbytheanalyst,histestimonydid assistance ofcounsel. not violate defendant's right ofconfronta- Because there was no merit to petition- tionunderU.S. Const, amend.VI.Jenkins er's claims that trial and appellate coun- V. State, 102 So. 3d 1063 (Miss. 2012). sel were ineffective, counsel's failure to In the context ofthe defendant's rights raise the claims in the original toconfrontation, asupervisor,reviewer, or postconviction relief proceedings did n—ot otheranalystinvolvedmaytestifyinplace prejudic—e petitioner. Grayson v. State, ofthe primary analyst where that person So. 2d , 2013 Miss. LEXIS 163 (Miss. was actively involved in the production of Apr. 18, 2013). the report and had intimate knowledge of Because the jury in a capital case was analyses even though he or she did not informed adequately that a life sentence perform the scientific tests first hand. would be without parole, counsel's failure Grim v. State, 102 So. 3d 1073 (Miss. to raise this claim in the original 2012). postconviction relief proceedings did n—ot Though a laboratory supervisor who prejudic—e petitioner. Grayson v. State, testifiedthata substancewas cocainewas So. 2d , 2013 Miss. LEXIS 163 (Miss. not involved in the actual testing, he had Apr. 18, 2013). reviewed the report for accuracy and Because the jury in a capital case was not unconstitutionally foreclosed by the signed it as the case technical reviewer, and was sufficiently involved with the jury instructions from considering all analysis and overall process that his tes- mitigating circumstances, counsel's fail- timonydidnotviolate defendant's right of ure to raise this claim in the original confrontation under the Sixth Amend- postconviction relief proceedings did n—ot mSteantte,, 1U0.2S.SoC.o3ndst,107a3me(nMdis.s.VI2.012G)r.im v. pSor.eju2ddic—e,pe2t0i1ti3onMeirs.s.GrLaEysXoInSv.16S3tat(eM,iss. Apr. 18, 2013). 79. Compulsory process. Because post-conviction relief (PCR) Although cross-examination of the vic- proceedings are a critical stage of the tim of an armed robbery regarding his death-penalty appeal process at the state indictment on an aggravated assault level, PCR petitioners who are under a charge might have caused the jury to sentence of death do have a right to the disbelieve the victim's testimony against effective assistan—ce of P—CR counsel. defendant, the trial court properly ex- Grayson v. State, So. 2d , 2013 Miss. cluded the evidence because the victim LEXIS 163 (Miss. Apr. 18, 2013). U.S. CONSTITUTION Amend. XTV Amendment XIV Citizenship; privileges and immunities; due process; equal protection; apportionment of representation; disqualification of officers; public debt; enforcement JUDICIAL DECISIONS — 77. Ra—cial discrimination In general. strike by failing to conduct the proper 81.5. Race-neutral exercise of per- Batson analysis, prejudice is automati- emptory challenges, impartialjury. cally presumed, and a court will find re- — versibleerror. Hardisonv. State, 94So. 3d 77. Racial discrimination In gen- 1092 (Miss. 2012). eral. Trial could erroneously denied defen- — dantaperemptorystrikebyholdingthata 81.5. Race-neutral exercise of per- juror's previous service on a jury in a emptory challenges, impartial criminal case was not a race-neutral rea- jury. sonforthestrikebecausedefendant'srea- If a prosecutor's distrust of a venire sonfortheperemptorychallenge,thatthe member is a race-neutral reason, then a juror's responses about a priorjury expe- defendant's distrust must be as well, and rience indicated he could be pro-prosecu- a trial court cannot deprive defendants of tion, qualified as race-neutral; the trial their right to a peremptory strike unless couldneveraddressedtheissue ofpretext the trial judge properly conducts the but simply held that the stated reason analysis outlined in Batson; the Batson was not race-neutral, and the denial of analysishas three steps, and itis impera- defendant'speremptorychallengewithout tive that a trial judge follow those steps a proper Batson analysis constituted re- accordingly, and when a trialjudge erro- versibleerror. Hardisonv. State, 94So. 3d neously denies a defendant a peremptory 1092 (Miss. 2012). Digitized by the Internet Archive 2013 in http://archive.org/details/govlawmiadvancecode201303