OF JUDGMENT: 10/07/2015
COUNTY CIRCUIT COURT HON. MARCUS D. GORDON TRIAL JUDGE
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LAURA HOGAN TEDDER
DISTRICT ATTORNEY: MARK SHELDON DUNCAN
IRVING, P.J., FAIR AND WILSON, JJ.
Jody Slade Bush was convicted of felony leaving the scene of
an accident. The accident occurred when the truck Bush was
driving left the road and flipped late at night in Scott
County. Bush's roommate, Matthew Smith, was ejected from
the truck and suffered serious traumatic brain injuries.
Following a jury trial and guilty verdict, the circuit court
sentenced Bush to twelve years in the custody of the
Mississippi Department of Corrections (MDOC), with two years
suspended and two years of post-release supervision.
On appeal, Bush claims that he was deprived of a fair trial
because of two comments by the trial judge and inadequate
jury instructions. He also argues that he is entitled to a
new trial because one juror was asleep at one point in the
trial. Bush failed to raise these issues in the trial court,
and his arguments are without merit. Therefore, we affirm his
conviction and sentence.
AND PROCEDURAL HISTORY
On Saturday, August 2, 2014, Bush and Smith went to Thomas
Heard's house for a cookout. Heard lived in a trailer on
Old Highway 80 in Lake, Mississippi, with his sister, Alicia
Parker. Heard and Bush were "best friends."
Bush drove to the cookout in his blue Ford F-150. On their
way to the cookout, Bush and Smith stopped at a liquor store
and bought some rum. There was some conflict in the testimony
as to when Bush and Smith arrived at the cookout. Bush,
Parker, and Jana Parks all testified that they arrived
sometime between 8 and 9 p.m., whereas Ashley Manis testified
that they arrived later.
Bush testified that he drank two cans of Keystone Light, a
"mixed drink, " and a shot of rum from the bottle
while at the cookout. Bush testified that he also ate a
steak, potatoes, and other food at the cookout, and he
claimed that he was not intoxicated when he left the cookout.
However, on cross-examination, Bush testified that he
"didn't keep up with how much [he] was
drinking" at the cookout. Heard testified that he did
not pay attention to how much alcohol Bush drank; however, he
did not believe that Bush was intoxicated, and he had no
hesitation about Bush driving. Parker similarly testified
that she "didn't see [Bush] drink" and was not
concerned about his ability to drive when he left.
Manis and Parks both recalled that Bush drank a "medium
to heavy" amount of alcohol at the cookout. Manis
testified that Bush drank tequila and took
"several" drinks from a bottle of liquor. Parks
also testified that Bush drank tequila straight from a
bottle. Manis testified that she was "nervous"
about Bush driving, especially when she saw him drive away
from Heard's house "extremely fast" with his
"tires spinning." Parks similarly testified that
she did not think that Bush should have been driving that
night and that she and "several" others urged him
not to drive. Parks also testified that Bush "spun out
of the driveway . . . driving fast."
Bush and Smith left the cookout around 11:30 p.m. to drive to
Bush's parents' house. Bush was driving his truck.
Bush testified that shortly after they left Heard's
house, while driving on Old Highway 80, a tire on his truck
blew out and he lost control of the vehicle. According to
Bush, Smith grabbed for the steering wheel to try to control
the truck, but the truck left the road, flipped, and came to
rest on its side. Smith was ejected from the cab during the
wreck. Bush remembered Smith being ejected through the back
window of the cab, but the back window was still intact after
the wreck. At trial, Bush claimed that he was driving 55 to
60 miles per hour when his tire blew out. The wreck occurred
less than a mile from Heard's house.
Bush testified that he "remember[ed] coming to" in
the dark outside the truck, but he did not remember how he
got out of the truck. Bush claimed that he yelled for Smith
but could not find him. According to Bush, he also could not
find his cell phone and did not know when another car might
come down the road. Bush testified that he left the scene and
walked back to Heard's house to get help.
Soon after the wreck occurred, Taylor Goodwin and her
boyfriend, Caleb Shearer, came upon the scene while driving
south on Old Highway 80. Goodwin noticed the truck's
lights and then saw the truck in the ditch. Shearer testified
that he saw a man climbing out of the truck as he and Goodwin
passed by. When Goodwin and Shearer realized that the truck
had wrecked, they stopped and turned around to go back and
help. By the time they arrived back at the scene less than a
minute later, the man that Shearer had seen climbing out of
the truck was gone. However, they immediately saw Smith lying
on the ground about thirty feet behind the truck. Goodwin
testified that there was sufficient light from the wrecked
truck for them to see Smith. When they found him, Smith was
still alive, gasping for breath and choking on blood. Goodwin
About twenty or thirty minutes after Bush and Smith left, the
group at Heard's house saw the lights and heard the
sirens of emergency responders driving past on Old Highway
80. Parks and Parker left the house in a car to see what had
occurred. Ten or twenty minutes later, Heard and Manis found
Bush walking back up the driveway toward Heard's house.
Bush was "bleeding really bad" from a "big
laceration" on his forehead. Heard testified that
Bush's collarbone was swollen. Bush repeatedly stated,
"Somebody please go find Matt. I'm sorry. I think
Matt's dead." Manis helped take Bush inside the
house and tried to wash off the blood and stop the
bleeding. Manis testified that Bush told her that he
had been driving 80 to 85 miles per hour when he lost control
of the truck, although Bush denied this and claimed that
Manis misunderstood him.
Someone at the house called Parks and told her that Bush had
returned. Parker and Parks then drove back to the house, and
Parks, who is a nurse, cleaned Bush's laceration and
bandaged it with Steri-strips and gauze. Parks encouraged
Bush to go to the hospital, but he declined. Bush's
parents came to check on him, but they later returned home,
and Bush spent the night at Heard's house. Parks told
others at the house to keep Bush awake because he could have
suffered a concussion; however, Parks testified that this was
only a precaution, and she did not believe that Bush was
actually concussed. At trial, Dr. Steven Hayne testified for
the defense that, based on his review of medical records, he
believed that Bush suffered a concussion and a cracked
Parker testified that Bush seemed to be "in shock"
after he returned to Heard's house, and Heard testified
that Bush seemed "shocked" and said things that did
not make sense. However, Parks and Manis both testified that
Bush was alert and aware of where he was and what had
occurred. Bush began smoking cigarettes soon after he
returned to the house. Bush testified that he "just
wanted to go smoke a cigarette to calm [his] nerves."
Parks testified that she eventually asked Bush, "What
the heck were you thinking? Why did you leave [Smith]
there?" According to Parks, Bush answered,
"I've been drinking. I'm not getting a DUI.
I'm not going back to jail."
Scott County Deputy Sheriff Coty May responded to the scene
of the wreck. By the time May arrived, emergency medical
personnel were already attending to Smith. May noticed that
there was blood smeared on the inside of the truck's
windshield and hand prints on the driver's side door,
which led him to believe that a second person had been in the
truck when it crashed. May testified that he heard one of two
women near the road yell out that there had been a second
person in the vehicle, that she was on the phone with him,
and that he was "okay." May testified that at the
time he was still assisting medical personnel with Smith, so
he was unable to stop and question the women. By the time the
ambulance left with Smith, the two women were gone, and May
was unable to learn anything else about the truck's
second occupant that night. Parks corroborated May's
testimony. She testified that she "yelled . . . across
the pasture" that "the driver [was] safe" but
never talked to May or gave anyone the driver's name.
Parker testified that she thought that she told May that Bush
was the driver and that he was at Heard's house. However,
May denied that Parker spoke to him, and there was nothing
else to corroborate Parker's claim.
The next day-Sunday, August 3, 2014-May notified Smith's
stepfather, Garry Wilson, that Smith had been in a wreck and
was in critical condition at the University of Mississippi
Medical Center (UMMC) in Jackson. Wilson testified that the
doctors treating Smith initially did not expect him to
survive. May met Wilson and gave him a cell phone
that was found at the scene. Wilson did not believe that the
phone looked like Smith's phone, and he also informed May
that the wrecked truck did not belong to Smith. Wilson ...