Look at this.

Last night I posted here about Mississippi’s Castle Doctrine.  Today the Clarion Ledger is reporting that a Jackson resident was awakened by 5:00 a.m. this morning and saw the silouette of a man standing in his bedroom.  Pretty scary.  Not how you want to get up in the morning.  The CL is reporting that the resident retrieved a weapon and chased the man off, and when the intruder made a threatening gesture the resident shot him in the leg.

It happened this morning, and the case is still under investigation, but from the information reported it looks like the Castle Doctrine might come into play.  It will be interesting to see how JPD and the Hind’s County DA’s office analyze the situation, and how it turns out.

Castle Doctrine laws, or “castle laws,” are based on very old English common law, which recognized that someone’s home is a place where they should be free from illegal trespassing or violent attacks.  As such, the laws gave citizens the right to defend their home (their “castle”), from violent attacks or intrusions, to the extent of using deadly force if necessary.  Each state’s laws are different with regards to the Castle Doctrine, with some having no law at all, all the way to the other extreme, which is where Mississippi is on it.  Basically, the law allows you to defend your home against attack or intrusion without criminal or civil consequences.

In 2006, Mississippi enacted one of the nation’s most extensive “Castle Doctrine” laws.  Instead of making an entirely new law, Mississippi’s castle doctrine comes from an amendment to the already existing “justifiable homicide” statute.  Miss. Code Ann. § 97-3-15.  This law reads, in relevant part:

1) The killing of a human being by the act, procurement or omission of another shall be justifiable in the following cases:

(e) When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling, in any occupied vehicle, in any place of business, in any place of employment or in the immediate premises thereof in which such person shall be;

(f) When committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;

A “dwelling” means a building or conveyance of any kind that has a roof over it, whether the building or conveyance is temporary or permanent, mobile or immobile, including a tent, that is designed to be occupied by people lodging therein at night, including any attached porch;

 (3) A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, or against a vehicle which he was occupying, or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle, business, place of employment or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that dwelling, occupied vehicle, business, place of employment or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred. This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or is the lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or if the person who uses defensive force is engaged in unlawful activity or if the person is a law enforcement officer engaged in the performance of his official duties;

(4) A person who is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force under subsection (1)(e) or (f) of this section if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person’s failure to retreat as evidence that the person’s use of force was unnecessary, excessive or unreasonable.

(5)    (a) The presumptions contained in subsection (3) of this section shall apply in civil cases in which self-defense or defense of another is claimed as a defense.

(b) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant acted in accordance with subsection (1)(e) or (f) of this section. A defendant who has previously been adjudicated “not guilty” of any crime by reason of subsection (1)(e) or (f) of this section shall be immune from any civil action for damages arising from same conduct.

If you read this carefully you will see that Mississippi takes the Castle Doctrine to the extreme, not only allowing you to defend your home (porches especially), but also your car, your place of employment, or practically anywhere you have a legal right to be.  Also, unlike some states, you do not have to retreat before you take action to defend yourself.  Last, but not least, the law added civil immunity (you can’t be sued) if you are forced to defend yourself in accordance with this law.

A couple of quick points about this law:

1. It is limited to the defense of people, not property.
2. It does not affect gun ownership rights in any way (i.e., if you cannot possess a gun for some reason, then this does not confer on you the right to have one).

This law has only been around for four years, and I’ve already had a few cases that have had castle doctrine implications.  As always, there are exceptions and nuances to this law, as any other, so do not believe that this law has turned your front porch into a target range.  If you have been accused of a crime, and you believe you were within your rights to defend yourself under this law, give me a call and let’s think it through.  I am here to help.

Mississippi Code Annotated § 97-9-73 makes it against the law to “obstruct or resist by force, or violence, or threats, or in any other manner, his lawful arrest or the lawful arrest of another person by any state, local or federal law enforcement officer . . . .”  Resisting arrest is a misdemeanor crime in Mississippi, and can be punished by a fine of up to $500.00 and imprisonment of up to six months in the county jail.

I’ve never seen this crime charged by itself.  Resisting arrest is usually an add-on charge, resulting from a traffic stop or other action by law enforcement that unfortunately escalates and gets out of hand.  In my experience the threshold for being accused of resisting arrest is very low.  In essence, when you resist arrest, by either “mouthing off,” pulling away while being cuffed, or you “bow up” when an officer approaches you, you are challenging an officer’s authority, and they generally don’t like that.   This results in a fact-intensive “he said-she said” type of trial, and your lawyer needs to be firm and aggressive when questioning the arresting officer to ensure that things don’t get “embellished,” with the truth being sacrificed as a result.

Now I am going to tell you about a legal concept that could get you into trouble – in Mississippi you have an absolute right to resist an unlawful arrest.  An unlawful arrest may occur because the officer does not have probable cause to arrest you for anything, does not have a warrant when he needs one, or uses unlawful excessive force against you. 

PLEASE BE ADVISED – the bad thing is that you are probably not a Supreme Court Justice, and so you are not in a position to make a legal decision on the lawfulness of the arrest “on the fly” while you decide to resist or not.  That decision will be made weeks or months after the incident by a judge that was not there, and can only go on what he or she hears and perceives in their courtroom.  If you are put in this unfortunate situation, try to be as respectful as possible, but remember that you are not required to say anything after you have identified yourself, and you are not required to put up with abuse by law enforcement.

Because these cases depend so heavily on the facts, and every case is different, they tend to be very defensible.  If you have been charged with resisting arrest, and you believe you were well within your rights and didn’t commit this crime, give me a call at 601-991-1099, or send an email to clarence@guthriefirm.com.  I am here to help.

1. Use in electronic mail or electronic communication any words or language threatening to inflict bodily harm to any person or to that person’s child, sibling, spouse or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.
2. Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of threatening, terrifying or harassing any person.
3. Electronically mail or electronically communicate to another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct, or criminal conduct of the person electronically mailed or of any member of the person’s family or household with the intent to threaten, terrify or harass.  And finally,
4. Knowingly permit an electronic communication device under the person’s control to be used for any purpose prohibited by this section.  (PAY ATTENTION TO THIS – It is against the law to let someone borrow your cell phone when you know they are going to use it to harass someone).

Cyberstalking is a felony punishable by imprisonment for not more than two years or a fine of not more than Five Thousand Dollars ($5,000.00), or both.  But if you commit the crime while violating a restraining order, or while on probation or pretrial release, etc., or you’ve done it before, or the prosecution proves that a “credible threat” has been communicated, then the punishment increases to imprisonment for not more than five (5) years or a fine of not more than Ten Thousand Dollars ($10,000.00), or both.  Miss. Code Ann § 97-45-15.

There are several federal statutes that criminalize forms of cyberstalking as well, and it is important for your lawyer to be familiar with all of them.  Cyberstalking is a relatively new, high-tech crime, and it has equally high-tech defenses.  If you are accused of cyberstalking give me a call at 601-991-1099 or contact me here.  I have defended computer crimes since 1999, and I am here to help.

No, not corn-squeezin’, white-lightnin’ bootlegging.  This is the new bootlegging, and it has to do with bootleg or pirated DVDs.

Movie pirating and bootlegging cost the motion picture industry billions of dollars each year, and so Hollywood – led by the Motion Picture Association of America, the same people that rate movies - has lobbied the federal government and the states to make bootlegging videos and DVDs a crime.  The federal government and at least 43 states now recognize bootlegging and pirating motion pictures to be a crime.  Mississippi entered the war on bootleg movies in 2005.

Mississippi Code Annotated Section 97-23-92 makes it a crime to “knowingly operate the audiovisual recording function of any device in a motion picture theater while a motion picture is being exhibited without the consent of the theater owner.”  A person convicted of this crime can be punished by a fine not to exceed $1000.00 or imprisonment for up to six months in the county jail.  In addition, the statute states that the theater owner cannot be liable for “detaining” you if they catch you until law enforcement can get there.

This crime is in the “offenses against trade” section of the Mississippi Code, along with shoplifting, scalping tickets, home repair fraud, etc.  It is a theft of intellectual property, and the variations on this type of theft can get complicated very quickly (downloading movies on the internet, peer-to-peer (P2P) sharing, etc.).  Because it is complicated, if you are accused of this type of crime, you will need a lawyer who understands at least the basic technology involved.

My advice is to not even try to take a recording device into a movie theater, and to be very careful when buying DVDs, games, and movies, no matter what the format.  Also, please know what you are doing when you are purchasing movies for download online.  I don’t enjoy paying $8.50 at the movie theater either – and that does not even include the popcorn - but the amount of loss caused by bootlegging and piracy only increases the prices for all of us.

If you are accused of or arrested for any type of bootlegging or intellectual property theft, give me a call.  I’ve done these types of cases before, and I’ll be glad to help you if I can.

The SunHerald is reporting today that a homeless man in Biloxi was arrested over the weekend for misdemeanor impersonating a police officer.  The man availed himself of a meal at Jazzeppi’s Ristorante and Martini Bar, told a restaurant employee that he was a cop, then attempted to skip out on the bill.  His bail was set at $25,630, which sounds relatively high for a misdemeanor, but it is impossible to pass judgment on the amount of bail without knowing all the facts considered by the court.

Mississippi has several different laws pertaining to impersonation of a law enforcement officer:

• Miss. Code Ann. § 97-7-43 and 44 make it illegal to falsely or willfully assume or pretend to be an officer or employee “acting under the authority of” the State of Mississippi, or any part thereof (county, city, etc.).  This would include most police officers and sheriff’s department personnel.
• Miss. Code Ann. § 45-3-29 makes it illegal to impersonate a state highway patrolman, including wearing any of the insignia thereof.
• Miss. Code Ann. § 41-29-159(e) makes it illegal to impersonate the director, or any agent of, the Mississippi Bureau of Narcotics.

All of these crimes are misdemeanors, with punishments ranging from a small fine, to imprisonment for up to one year.

Typical fact patterns having to do with these crimes look something like the situation that happened this weekend.  Bail Agents sometimes unfortunately get caught up in these kinds of situations as well.  Other problems include using police lights, etc.

Perjury occurs when you deliberately lie in a legal proceeding after having taken an oath to tell the truth.  Perjury requires that you lie about a “material matter,” which means it must be relevant to the case at hand.  In other words, if you are on the witness stand testifying about the crime of larceny, and the lawyer asks you how much you weigh, and you fudge it a bit, then you haven’t committed perjury, unless your weight is relevant to the case.

Perjury  can be committed in criminal cases, civil cases, or “in any case where an oath or affirmation is required by law . . . .”  This would cover lying on an affidavit or sworn statement given to law enforcement.  In order to be convicted of perjury, two witnesses must testify to the truth of matter about which you swore falsely, or at least one witness must testify, along with corroborating circumstances.

The penalties for perjury can be severe.  If you are convicted of perjury for lying on the trial of any capital or felony offense, you can be imprisoned for not less than ten years.  In any other case, you can be imprisoned for a term of no more than ten years.

It is also a crime to “suborn” perjury, which means to get someone else to lie for you in a case, matter, or proceeding.  Subornation of perjury can get you imprisoned for a term of up to ten years as well.

I should have seen it coming.  Yesterday I discussed aiding and abetting, and accessory before the fact.  Naturally I was asked the completely logical question of “Is there such a thing as accessory after the fact?”  Absolutely, there is.

Section 97-1-5 of the Mississippi Code Annotated defines accessory after the fact, stating as follows:

Every person who shall be convicted of having concealed, received, or relieved any felon, or having aided or assisted any felon, knowing that such person had committed a felony, with intent to enable such felon to escape or to avoid arrest, trial, conviction or punishment, after the commission of such felony, on conviction thereof shall be imprisoned in the penitentiary not exceeding five years, or in the county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both; and in prosecution for such offenses it shall not be necessary to aver in the indictment or to prove on the trial that the principal has been convicted or tried.

1. that a felony has been committed
2. that you ”concealed, received, relieved, aided or assisted a felon, knowing that such person had committed a felony,” and
3. that this assistance or aid was rendered “with the intent to enable such felon to escape or avoid arrest, trial, conviction or punishment after the commission of such felony.”

Mangum v. State, 762 So.2d 337 (Miss. 2000).  Notice this distinction:  You can’t be guilty of accessory after the fact to a misdemeanor offense in Mississippi.  Federal law, however, makes no distinction between felonies and misdemeanors.  18 U.S.C. § 3.

In Mississippi, “aiding and abetting” and “accessory before the fact” are how you can be charged with a crime when you didn’t even do it.  

If you “help” someone to commit a crime, that is, you know of someone’s plan to commit a crime, and you do something to help them commit it, you have “aided and abetted” them.  Even if you were not present when the crime was committed, if the government can show that you had knowledge of the crime before or after the fact, and you assisted in it through advice, actions, or financial support, then you can be charged with aiding and abetting.    ”Accessory Before the Fact” is closely-related.  The government must show that you planned, arranged for, or counseled or commanded another person to commit a felony, but were not present when the felony was committed by the other person.  These two crimes are also known as “accomplice liability.”

Examples of aiding and abetting:

• driving the getaway car
• watching and doing nothing to stop your friends from assaulting someone
• filling illegal prescriptions for a relative

Examples of accessory before the fact:

• buying and/or supplying the weapon used in the robbery
• telling the burglar which doors are unlocked 

In 2005, the Mississippi Supreme Court explained the distinction in these two crimes, holding that ”Aiding and abetting and acting as an accessory-before-the-fact are two wholly distinct crimes. The primary difference is that if a person is actually or constructively present at the offense, due to his participation, he is an aider and abettor; if not present, he is an accessory-before-the-fact.” Dilworth v. State, 909 So.2d 731, 734 (Miss. 2005). 

If you aided and abetted in the commission of the offense, it is the law that you are “just as guilty under the law as if [you] had committed the whole crime with [your] own hand.” Id.  And you can be punished the same as well.

This law firm will aggressively defends all criminal matters, no matter how the government says you are involved.  Call Clarence immediately for the best possible results.

Back to the basics with this one.

A misdemeanor is defined under Mississippi law as  “a criminal offense punishable by a maximum possible sentence of confinement for one year or less, a fine, or both.”  Uniform Circuit and County Court Rule 6.01.  The Mississippi Legislature has defined a felony as ”any violation of law punished with death or confinement in the penitentiary.”  Miss. Code Ann. § 1-3-11.

These definitions, one provided by the courts and one provided by the legislature, don’t exactly compliment each other.  But, in general, a felony is any crime for which a person can be imprisoned for one or more years in a state or federal prison, and a misdemeanor is any other lesser crime.  Any incarceration resulting from a misdemeanor conviction will probably be served in a local county jail or detention center, and longer incarceration resulting from a felony conviction will probably be served at one of the state facilities maintained by the Mississippi Department of Corrections. 

The distinctions between a felony and a misdemeanor come up in many different areas of the law, including sentencing hearings, expungements, use of prior convictions to enhance subsequent punishments, etc.  And, of course, federal criminal law is different than Mississippi state law in many of these areas. 

If you’ve been accused of a crime, felony or misdemeanor, state or federal, you need to know your options before making any life-changing decisions.  Contact us for a free review of your case.