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COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/22/2012. TRIAL JUDGE: HON. WILLIAM E. CHAPMAN, III.
FOR APPELLANT: CHRISTOPHER MICHAEL FALGOUT ANDY DAVIS.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS.
BEFORE RANDOLPH, P.J., PIERCE AND KING, JJ. WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.
NATURE OF THE CASE: CRIMINAL - FELONY
RANDOLPH, PRESIDING JUSTICE.:
¶1. Brad Hardy appeals his conviction in the Circuit Court of Rankin County of two counts of manslaughter by culpable negligence and one count of aggravated boating under the influence of alcohol resulting from a boating collision. He was sentenced to forty-four years, with twenty-six to serve. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2. Brad Hardy crashed his boat at high speed into two docked boats, up a river embankment, and onto a campsite occupied by adults and children on Memorial Day weekend in 2010. A jury trial was held from October 15, 2012, through October 17, 2012.
¶3. The State presented the following pertinent evidence through numerous witnesses and exhibits:
¶4. Virginia Martin testified that, on the day of the fatal collision, she was camping on the Pearl River across from the impact area, a short distance from Dead Man's Curve. She testified that she " heard a really loud boat coming and turned around." She saw Hardy's " small boat going really fast, and [Hardy] was standing up driving it, which is a no-no. . . . Hardy came around Dead Man's Curve and just turned . . . and hit the bank and went up onto the bank . . . . He hit some boats, and then hit the bank, went up on the bank, and the boat landed between two trees on the other side of the river." Martin testified that she saw " hundreds" of boats that weekend, and witnessed no other boat being operated in that manner. She further testified that Hardy " turned in and went straight towards [the campsite] across from us." She said Hardy never warned the campers by yelling or waiving his arms. Martin said that Hardy did not appear to have " any difficulty whatsoever in operating the boat." On cross-examination, Martin reaffirmed that Hardy did not have any problems operating the boat. She also testified that she could see from " above his knees up, because he was standing up and holding the steering wheel." She testified that she overheard a little girl on the bank scream " you killed my daddy."
¶5. Officer Steven Westerfield of the Department of Wildlife and Fisheries (DWF) testified that, while at Ratliff's Ferry, he received at call at 7:15 p.m. about a boat collision upriver. When he arrived on the scene, he noticed a green boat and a yellow boat. The deceased, Mikael Hardy and Roger Gibson, were in the yellow boat. He testified that the river bank was six feet high. He found Hardy's blue boat twelve feet inland. On the bank, Westerfield found another victim, William Hulett, bleeding severely. After managing to send Hulett with another officer to get medical assistance, Westerfield identified the defendant as the operator of the blue boat. Westerfield testified that " [t]he throttle position was in the wide open position." The throttle was " pushed all the way forward as far as it could go . . . [i]t was maxed out. It could not go any faster." Westerfield observed damage to a tree eight feet above the ground level. The boat had reached a height of fourteen feet above water level and was twelve feet inland. Westerfield measured the distances, and the boats, tree, and fatalities were photographed.
¶6. Westerfield also found " visible alcoholic beverage containers" in Hardy's boat. He testified that empty beer cans littered the boat. As Westerfield approached Hardy, he " smell[ed] a strong alcoholic odor coming from [Hardy]." Westerfield requested a field sobriety test, but Hardy refused. Hardy stated that he had returned from getting alcohol, and admitted to consuming six beers. Westerfield then detained Hardy and took him to Ratliff's Ferry to administer a breathalyzer test to Hardy. Hardy blew .09 at 8:39 p.m. Westerfield " observed that [Hardy] had been drinking and that he was impaired." Westerfield testified that if he witnessed " someone driving the defendant's boat in a standing position," he " would cite that subject for reckless operation." Hardy's boat " was designed to be operated sitting
down." Westerfield's report was introduced into evidence. In his report, he had checked " alcohol use," " careless/reckless" operation, " excessive speed," and " steering system" as causes of the collision, since Hardy stated that he " lost control of the steering and that the boat took a right turn." On cross-examination, Westerfield said he presented the case to the grand jury because " there were two fatalities, one man was maimed . . . alcohol was involved . . . careless, recklessness, excessive speeds." Sea-Tow was called to remove the boats. He testified that it was not policy to " leave [boats] in the river," for they had to be removed for " public safety." The boats were stored at Sportsman's Marina. Westerfield testified that he did not know how long the boats were kept, but found out later they were sold. He testified that he " did not give permission nor [did] my department" to sell the boats. Westerfield identified four pictures in evidence that reflected the damage to the steering cable of Hardy's boat. On redirect, Westerfield testified that the actual cause of the collision was " excessive speed." He testified that there was no evidence of throttle failure. On the accident report, Westerfied had checked the " over 40 mph" box, the highest speed available on the report. Westerfield testified that he did not cite Hardy for any boating violations because they " have to happen in my presence."
¶7. Teresa Gibson, the wife of the deceased Roger Gibson, testified that she had witnessed Hardy " run over" her husband. Immediately before witnessing her husband's death, she testified that she " heard [Hardy] coming" and heard " [Hardy] speeding." After hearing Hardy approaching, she turned toward the river. She witnessed Hardy operating the boat. " I seen him with a can in his hand." She testified that Hardy was " full throttle" and never slowed down. When Hardy reached the bank, she testified that the boat went airborne " over my head and behind me . . . . When he landed behind me, it was still full throttle." Gibson testified that, after Hardy's boat had landed, Hardy asked " what had he just did." She testified that her daughter was burned by metal from one of the boats. She testified her husband died instantly. On cross-examination, she repeated that the boat " was full throttle," and was " still full throttle" when the boat " landed behind [her]." She testified that the boat never slowed down.
¶8. Officer Randy Newell testified that Hardy stated " [a]ll we were doing was having fun; I was just trying to spray them and have fun; I didn't mean to hurt anybody." Later, Newell heard Hardy make a similar statement while at the University of Mississippi Medical Center. Hardy stated, " All I was doing was trying to spray them; we were just having fun; I didn't mean to hurt anybody." Newell testified that all three boats were taken to Sportsman's Marina. Newell testified that the marina is a gated area, and he did not have any reason to believe the boats would not be secure there.
¶9. Luke Estes testified that Hardy's campsite was on the other side of the river, close enough that " you could holler back and forth." Estes testified that " [Hulett] was sitting beside me to my right," and " Teresa [Gibson] was to my left . . . children were playing in the water." Estes heard a boat and saw Hardy coming up the river. Estes testified that he saw Hardy turn and " start angling straight toward us." Hardy " just kept at the same speed, a fast speed." Hardy " went straight to the camp." Estes testified that he " thought [Hardy] was going to spray
them or something." Estes testified that " I was looking at him, and he just had this look on his face like nothing was wrong . . . . I was looking dead at him," thinking " what's he doing . . . By the time I realized he wasn't going to turn, he had run over me." Estes testified that Hardy never yelled and " never let off the boat, never hollered, no motion at all." Hardy " was just planed out, coming on in."
¶10. Estes also was struck by Hardy's boat. Afterwards, he saw " a hunk of meat missing" from Hulett's arm. Estes testified that " you could put your fist in there." Estes also testified that he saw empty beer cans in Hardy's boat. After seeing that Mikael and Roger were dead, Estes approached Hardy. Hardy asked Estes " what have I done." Estes replied " you just run over Roger and your daddy . . . . You killed both of them, . . . that's probably manslaughter 2."
¶11. Hulett testified that, earlier in the day, Gibson had sprayed water into Hardy's and Mikael's boats. Hulett testified that Gibson was on a jet-ski at the time. Gibson had maneuvered the back of the jet-ski toward Hardy's and Mikael's boats and " gassed on it and sprayed some water [20-30 gallons] in the boat." Disgusted, Hardy stated that " he wasn't never coming back to the river." Hardy then went downriver, toward Ratliff's Ferry. Later that evening, Hulett was at the campsite with Gibson, Estes, Teresa, and Mikael, along with several children. Hulett heard somebody yell " here he comes." Hulett heard the boat and turned to run. He said he " made several steps before [Hardy's boat] struck me." Hulett testified that he was a carpenter, but he is no longer able to work as a carpenter because his " left arm is disabled" from the incident. On cross-examination, Hulett testified that, after the boat came to rest, " [t]he motor was racing . . . and then the motor said 'whaam,' and everything got quiet." Hardy then looked at Hulett and asked " what happened."
¶12. Officer William Hudson testified that Hardy stated " that he was going to go in and spray them or splash them."
¶13. Jason Register witnessed the tragedy alongside Virginia Martin, across the river. He testified that he " witnessed a guy coming around Dead Man's Curve at a high rate of speed. He go in front of us and made a sharp right and was heading to the bank. I thought he was pulling up and slowing down, but he never did. He just went up on the bank." Register testified that he had never seen any boats come around Dead Man's Curve in that manner before. Register said he witnessed Hardy standing in the boat. Register testified that Hardy never yelled and never made any motions with his arms to signal trouble. Finally, Register testified that Hardy did not appear to have any problems operating the boat.
¶14. After the State rested and the trial court overruled Hardy's motion for a directed verdict, Hardy called several witnesses. Captain Calvin Fulton testified that he first viewed the boat on June 1, 2010. He went to Sea-Tow to view the boat as part of an interview with a reporter for a local TV news report. Fulton described the area where the boat was as a " kind of impound yard." He testified that he told the reporter in the interview that there was " a possibility that there was a steering malfunction." Fulton testified that he informed the reporter that " whether that fault was pre-impact or post-impact was yet to be determined." Fulton testified that there was no response when he tried to turn the steering wheel. Fulton testified that he did not find out that the boats were no longer at Sea-Tow until sometime later. On cross-examination, Fulton testified that the " steering cable is
like a straw . . . . When a straw has a hard impact, it makes a kink." Fulton then pointed out the " kink" in the steering cables as seen in the picture exhibits. Fulton testified that he teaches " accident reconstruction" classes.
¶15. Major Jerry Carter testified about the Boating Accident Report Data (BARD). He testified that the report " indicated a possible steering malfunction." However, the report listed " alcohol use" and " navigation rules violation" as the two causes of the incident. When asked to explain " navigation rules violation," Carter testified that it meant speeding and operating the boat in a reckless manner.
¶16. Officer Chris Harris testified that the department was " not denying that Sea Tow sold [Hardy's] boat." But, Harris testified that he did not give them permission to sell the boat. When asked to clarify, he said that the " boats were sold without the knowledge of the Department of Wildlife and Fisheries."
¶17. The jury found Hardy guilty of two counts of culpable negligence manslaughter and one count of aggravated boating under the influence of alcohol. Hardy was sentenced to eighteen years for each count of manslaughter and eight years for aggravated boating for a total of forty-four years, of which eighteen were suspended, leaving twenty-six years to serve. Hardy appeals those convictions.
¶18. Hardy raises numerous points of error, restated as follows:
I. Whether the trial court erred in denying the motion to dismiss for law enforcement misconduct and/or gross negligence.
II. Whether Hardy was denied his ...