Mississippi Code, Advance Sheets, 2013 Pamphlet 2

2013·7.8 MB·English

by  State of Mississippi

CODE
MISSISSIPPI 1972
Annotated
2013
ADVANCE
CODE
SERVICE
Pamphlet Number 2
March 2013
This pamphlet updates the 2012 Cumulative
Supplement.
Contains statutory changes made during
the 2012 Regular Sessions.
Prepared by the Editorial Staff
ofthe Publisher
LexisNexis
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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.
MaterialintheAdvance Code Servicefollowsthe structureoftheMississippi
Code of 1972 Annotated 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
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March 2013 LexisNexis
n
CONSTITUTION
U.S.
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. cause to obtain a verdict on each count,
—
9. Same elements, doublejeopardy. the State was required to prove beyond a
— reasonable doubt that each of the sub-
5. Doublejeopardy In general. stances foundin defendant's housewas in
— fact a controlled substance under Miss.
9. Same elements, doublejeopardy. Code Ann. § 41-29-139 (Rev. 2009), and
Defendant's right to protection against that defendant possessed and intended to
doublejeopardy was not violated because sell each drug. Watkinsv. State, 90 So. 3d
he was subject to multiple punishments 1283 (Miss. Aug. 16, 2012), modified by
for possession with intent to distribute 2012 Miss. LEXIS 624 (Miss. Dec. 13,
five separate controlled substances, be- 2012).
Amendment VI
Jury trial for crimes and procedural rights
JUDICIAL DECISIONS
— —
15. —Speedy trial In general. 22. Delay attributable to defen-
19. —Tests, speedy trial. dant, speedy trial.
22. Delay attributable to defendant, Defendant was not denied his Sixth
—speedy trial. Amendment right to a speedy trial be-
23. Delay attributable to state, speedy cause not a single Barker factor weighed
—trial. in defendant's favor, and one, reason for
34. Prejudice to defendant, speedy the delay, weighed heavily against him;
—trial. although the delay in bringing defendant
36. Timely assertion of right, speedy to trial was more than three times the
trial. — presumptively prejudicial eight-month
65. Confrontation ofwitnesses In gen-
mark, of the 833 total days between in-
76. —Tereaslt. results, confrontation of wit- dictment and trial, 701 days were attrib-
nesses. utable to defendant. Hardisonv. State, 94
— So. 3d 1092 (Miss. 2012).
15. Speedy trial In general. Defendant was not denied his Sixth
19. —Tests, speedy trial. Amendment right to a speedy trial be-
Defendant's right to a speedy trial un- cause not a single Barker factor weighed
der the Sixth Amendment and Miss. in defendant's favor, and one, reason for
Const, art. 3, § 26 was not violated be- the delay, weighed heavily against him;
causetheprejudicewasminimal sincethe although the delay in bringing defendant
fading memories of potential, unnamed to trial was more than three times the
witnesses did not impair defense. Ben v. presumptively prejudicial eight-month
State, 95 So. 3d 1236 (Miss. Aug. 23, mark, of the 833 total days between in-
2012). dictment and trial, 701 days were attrib-
Amend. VI U.S. CONSTITUTION
utable to defendant. Hardisonv. State, 94 trial; although defendant's motion in-
So. 3d 1092 (Miss. 2012). cluded a request for a speedy trial, the
— context and timing ofthe motion showed
23. Delay attributable to state, that he was actually seeking dismissal,
speedy trial. not a trial. Ben v. State, 95 So. 3d 1236
Defendant's right to a speedy trial un- (Miss. Aug. 23, 2012).
der the Sixth Amendment and Miss. —
Const, art. 3, § 26 was not violated be- 65. Confrontation of witnesses In
cause thebulkofthe delaywas due tothe general.
state crime lab's forensic and DNA test- 76. —Test results, confrontation of
ing, which was critical to the case. Ben v. witnesses.
State, 95 So. 3d 1236 (Miss. Aug. 23, While an analyst's supervisor was not
2012). involvedinthe testingofa substance that
—
34. Prejudice to defendant, speedy provedtobecocaine, ashewassufficiently
trial. involved with the analysis and had inti-
Defendant's convictions for aggravated mate knowledge about it and the report
assault and armed robbery were proper preparedbytheanalyst,histestimonydid
becausehisrightto aspeedytrialwasnot not violate defendant's right ofconfronta-
violatedsincethedelaywasneitherinten- tionunderU.S. Const, amend.VI.Jenkins
tional nor egregiously protracted,and v. State, 102 So. 3d 1063 (Miss. 2012).
there was an absence of actual prejudice In the context ofthe defendant's rights
t1o23t9he(dMeifsesn.sJe.unJeoh3n0s,o2n01v1.)S.tate, 68 So. 3d toothceornfarnoanltyasttioinn,voalsvuepdemrvaiysotre,striefvyieiwneprl,acoer
Defendant's right to a speedy trial un- ofthe primary analyst where that person
der the Sixth Amendment and Miss. was actively involved in the production of
Const. Art. 3, § 26 was not violated be- the report and had intimate knowledge of
causetheprejudicewasminimalsincethe analyses even though he or she did not
fading memories of potential, unnamed perform the scientific tests first hand.
witnesses did not impair defense. Ben v. Grim v. State, 102 So. 3d 1073 (Miss.
State, 95 So. 3d 1236 (Miss. Aug. 23, 2012).
Though a laboratory supervisor who
2012).
— testifiedthata substancewas cocainewas
36. Timely assertion of right, not involved in the actual testing, he had
speedy trial. reviewed the report for accuracy and
Defendant's right to a speedy trial un- signed it as the case technical reviewer,
der the Sixth Amendment and Miss. and was sufficiently involved with the
Const. Art. 3, § 26 was not violated be- analysis and overall process that his tes-
cause despite the anxiety and hardship timonydid notviolate defendant's rightof
that defendant could have endured, he confrontation under the Sixth Amend-
waited until two weeks before his initial ment, U.S. Const, amend. VI. Grim v.
trial date to assert his right to a speedy State, 102 So. 3d 1073 (Miss. 2012).
U.S. CONSTITUTION Amend. XIV
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, 94 So. 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. sonforthe strikebecause defendant'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 couldnever addressedthe issue 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
analysis has 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 trial judge 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/govlawmssupp20132
THE CONSTITUTION OF THE STATE OF MISSISSIPPI
Article 3. Bill ofRights
Article 12. Franchise
ADOPTED NOVEMBER 1, A.D., 1890
Article 3.
Bill of Rights.
Sec.
17A. Taking private property by eminent domain; transfer to others prohib-
ited for ten years; exceptions.
§ 17A. Taking private property by eminent domain; transfer
to others prohibited for ten years; exceptions.
No property acquired by the exercise of the power of eminent domain
under the laws ofthe State ofMississippi shall, for a period often years after
its acquisition, be transferred or any interest therein transferred to any
person, non-governmental entity, public-private partnership, corporation, or
other business entity with the following exceptions:
(1) The above provisions shall not apply to drainage and levee facilities
and usage, roads and bridges for public conveyance, flood control projects
with a levee component, seawalls, dams, toll roads, public airports, public
ports, public harbors, public wayports, common carriers or facilities for
public utilities and other entities used in the generation, transmission,
storage ordistribution oftelephone, telecommunication, gas, carbon dioxide,
electricity, water, sewer, natural gas, liquid hydrocarbons or other utility
products.
(2) The above provisions shall not apply where the use of eminent
domain (a)removes apublicnuisance; (b) removes a structurethatisbeyond
repair orunfit forhuman habitation or use; (c) is used to acquire abandoned
property; or(d)eliminates adirectthreattopublichealthorsafetycausedby
the property in its current condition.
—
Editor's Note During the November 8, 2011, election, a citizen-initiated Consti-
tutional amendment, Initiative # 31 - Eminent Domain, was approved by a majority of
the electors ofMississippi. The Governor, byExecutive OrderNo. 1074, datedJanuary
9, 2012, directed the Secretary of State to insert Initiative # 31 in the Mississippi
Constitution asArticle 3, § 17A.
Article 15, § 273(10) of the Mississippi Constitution provides that initiatives
approved by the electors take effect thirty (30) days from the date of the official
declaration ofthe vote by the Secretary ofState. The Secretary ofState certified the
November 8, 2011, election on December 8, 2011.
Executive Order No. 1074, signed by Governor Haley Barbour on January 9, 2012,
provides:
"To the Secretary ofState
"State ofMississippi:
5
Art. 3, § 22 Mississippi Constitution
"WHEREAS, Three (3) Constitutional Initiatives proposed Amendments to the
Mississippi Constitution and mettherequirements oftheMississippi Constitution and
the laws ofthis State tobe placedon the November8, 2011 ballot, as follows: Initiative
# 26 - Definition of"Person"; Initiative # 27 - Voter Identification; and Initiative # 31 -
Eminent Domain; and
"WHEREAS, The Constitutionrequiresthatthe Initiatives "receive amajorityofthe
votesthereonandnotlessthanfortypercent(40%)ofthetotalvotescastattheelection
at which the measure was submitted to be approved." Miss. Const. Art. 15, § 273(7).
"WHEREAS, Initiative #27 and Initiative #31 were approved by the electors of
Mississippi in accordance with Miss. Const. Art. 15, § 273(7); and
"WHEREAS,Art. 15, § 273 furtherprovides thatinitiatives approvedbythe electors
take effect thirty (30) days from the date ofthe official declaration ofthe vote by the
Secretary ofState. Miss. Const. Art. 15, § 273(10). The Secretary ofState certified the
November 8, 2011, election results on December 8, 2011; and
"WHEREAS,UnlikeInitiative#26,whichfailedtopasstheelectorate,Initiative#27
and Initiative #31 were both silent as to where the proposed Amendments to the
MississippiConstitutionwouldbeplaced;furthermore,theMississippiConstitution, as
well as statutory law, is silent as to who has the administrative and/or ministerial
authorityto insert the initiatives ofthe people ofMississippi, passedbythe electorate,
as part ofthe Constitution; and
"WHEREAS,Article 5, § 123 ofthe Mississippi Constitution grants the Governor of
the State ofMississippithe authorityto"seethatthelaws arefaithfullyexecuted"; and
"WHEREAS, Section 7-1-5oftheMississippiCodeAnnotatedsetsforththepowersof
the Governor ofthe State ofMississippi, including, but not limited to, serving as the
supreme executive officerofthe State, seeingthatthelaws arefaithfullyexecuted, and
supervising the official conduct ofexecutive and ministerial officers; and
"WHEREAS, in the absence of constitutional and/or statutory provision providing
otherwise, the Governor has the authority to provide direction for carrying out all
lawful administrative and ministerial functions ofstate government; and
"NOW, THEREFORE, I, Haley Barbour, Governor ofthe State ofMississippi, under,
andbyvirtue ofthe authorityvested in me bythe Constitution and Laws ofthis State,
do hereby direct the Secretary ofState C. Delbert Hosemann, Jr., as follows:
"To insert Initiative # 31 in the Mississippi Constitution as Art. 3, § 17A, to follow
Art. 3, § 17,wheretheconstitutionalrequirementsforthetakingofpropertyforpublic
use are located;
"To insert Initiative # 27 in the Mississippi Constitution asArt. 12, § 249A, to follow
Art. 12, § 249,where theconstitutionalrequirementstovoteinthe StateofMississippi
are located;
"Idoauthorizeanddirectyou,uponreceiptofthisExecutiveOrder,totakenoticeand
be governed accordingly.
"IN WITNESS WHEREOF, I have hereunto set myhand and caused the Great Seal
ofthe State ofMississippi to be affixed.
"DONE atthe Capitol, inthe CityofJackson, thisthe 9thdayofJanuary, intheyear
ofour Lord two thousand and twelve, and ofthe two hundred and thirty-sixth year of
the United States ofAmerica."
§ 22. Double jeopardy.
JUDICIAL DECISIONS
21. Different elements, no double § 97-37-5)requiredproofofapriorfelony,
jeopardy. while conviction of carrying a concealed
As a conviction of possession of a fire- weapon (Miss. Code Ann. § 97-37-1) re-
armby a convicted felon (Miss. CodeAnn. quired proof that the weapon be con-
6