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Bush v. State

Court of Appeals of Mississippi

June 6, 2017

JODY SLADE BUSH A/K/A JODY BUSH APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 10/07/2015

         SCOTT 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

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          WILSON, J.

         ¶1. 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.

         ¶2. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶3. 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."

         ¶4. 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.

         ¶5. 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.

         ¶6. 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."

         ¶7. 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.

         ¶8. 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.

         ¶9. 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 called 911.

         ¶10. 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.[1] 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.

         ¶11. 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 vertebra.

         ¶12. 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."[2]

         ¶13. 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.

         ¶14. 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.[3] 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 ...


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