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 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, andMichieis atrademarkof ReedElsevierPropertiesInc., usedunderlicense. 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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 online bookstore, technical support, customer support, and other company informa- tion. 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. 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