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Laney v. State

Court of Appeals of Mississippi

November 26, 2013

Kimberly Ann LANEY a/k/a Kim Laney, Appellant
v.
STATE of Mississippi, Appellee.

Page 140

Kimberly Ann Laney, appellant, pro se.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before IRVING, P.J., ISHEE and FAIR, JJ.

IRVING, P.J.

¶ 1. On August 19, 2009, a Newton County jury convicted Kimberly Ann Laney of driving under the influence causing manslaughter (DUI manslaughter). The circuit court sentenced Laney to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). Laney filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court denied. On December 6, 2011, Laney filed a motion requesting permission to proceed with an out-of-time appeal, which the court also denied.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On October 7, 2007, Thomas Dairo and Laney were involved in a car accident in Newton County, Mississippi, in which Dairo was killed. Laney was severely injured and spent several weeks in the hospital recovering. At the time of the accident, law enforcement officials could not determine whether Dairo or Laney was driving the car. Laney could not remember whether or not she was driving. Several months after Laney was released from

Page 141

the hospital, she was arrested and charged with DUI manslaughter for Dairo's death.

¶ 4. At trial, Dairo's ex-wife, Tracy Dairo, testified that she and Dairo had been divorced for five years, but that she maintained a relationship with him for the sake of their daughter. Law enforcement officers from the Mississippi Highway Patrol contacted Tracy, informed her that Dairo had been in a car accident, and requested that she drive to Mississippi from her home in Alabama to identify Dairo's body. After identifying Dairo's body, Tracy and her daughter went to visit Laney in the hospital. According to Tracy, Laney confessed to her that she was driving the car when the accident occurred. Also, Tracy testified that Dairo did not like to drive and that whenever Dairo got into a car, his custom was to remove his shoes. Tracy's account of Dairo's pattern while riding in a car matched the evidence found at the scene of the car accident. Tracy stated that Dairo's and Laney's lifestyles included heavy alcohol consumption and drug use, and she felt that the two of them had been " under the influence of multiple things, and ... that's how they had crashed."

¶ 5. Trooper Gary Seale, with the Mississippi Highway Patrol, testified that he was the first highway patrolman to arrive at the scene of the accident. Trooper Seale testified that even though he was not the accident reconstructionist in this case, he was certified as an accident reconstructionist. When he arrived at the scene, he was greeted by a deputy from the Newton County Sheriff's Office. After some discussion with the deputy, Trooper Seale inspected the scene and went to the ambulance to briefly interview Laney. According to Trooper Seale, when he got into the ambulance, he noticed " a strong smell of an alcoholic beverage in the back of the vehicle," which he believed to be coming from Laney. When Trooper Seale asked Laney what happened and if she was driving the vehicle when they crashed, Laney responded that she did not remember.

¶ 6. After briefly speaking with Laney, Trooper Seale went back to the vehicle. He noticed a woman's purse in the driver's seat and a pair of men's tennis shoes on the floorboard on the front passenger side. He noted that Dairo was not wearing shoes. After walking the " path of the crash" and noticing several beer containers, he began taking pictures of the scene. Trooper Seale called Sergeant Michael Cain, also with the Mississippi Highway Patrol, and " told him that he needed to come and look at this as a possible vehicular[-]manslaughter case." Trooper Seale told Sergeant Cain that he smelled alcohol coming from Laney and that he believed that she was driving the vehicle at the time of the accident. Trooper Seale also admitted that it was not uncommon for individuals involved in an accident like this to not remember the details of the accident.

¶ 7. Sergeant Cain served as the accident reconstructionist for this case. He testified that he was called to the accident scene because it " met the criteria for a crash team member to respond." When Sergeant Cain arrived at the scene, Trooper Seale informed him that " the driver" had been taken to the hospital. Trooper Seale told Sergeant Cain that alcohol was involved in the crash. Sergeant Cain went to the hospital and tried to talk with Laney, but she could not respond to his questions because she was heavily medicated. He noticed the smell of alcohol on Laney's breath, and instructed one of the nurses attending to Laney to extract a blood sample. Once he got the results of ...


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