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Dartez v. State

Court of Appeals of Mississippi

December 11, 2018

KALEIGH ANN DARTEZ A/K/A KALEIGH DARTEZ APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 08/14/2017

          HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. LISA P. DODSON JUDGE.

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

          DISTRICT ATTORNEY: JOEL SMITH

          BEFORE LEE, C.J., FAIR AND WILSON, JJ.

          WILSON, J.

         ¶1. Kaleigh Dartez had a blood-alcohol concentration of at least .219 percent when she wrecked her car while traveling on Kiln-Delisle Road after 3 a.m. on November 14, 2014. Dartez's passenger, Zackary Whitfield, was killed in the wreck, and Dartez was indicted, convicted, and sentenced for aggravated DUI. On appeal, Dartez argues that (1) her indictment was defective because it did not allege a specific act of negligence, (2) the jury instructions were erroneous because they did not identify a specific act of negligence, (3) the jury instructions on negligence were erroneous and confusing, (4) the jury's guilty verdict was against the overwhelming weight of the evidence, and (5) she was entitled to an acquittal because her indictment mistakenly referenced the wrong subsection of the DUI statute.

         ¶2. Dartez's first two arguments fail in light of this Court's recent holding that under the aggravated DUI statute "[t]he State is not required to prove a specific act of negligence, only that the death was caused in a negligent manner." Friston v. State, 243 So.3d 198, 205 (¶34) (Miss. Ct. App. 2017), cert. denied, 246 So.3d 71 (Miss. 2018). In addition, we hold that the jury was fairly and adequately instructed, the jury's verdict was not against the overwhelming weight of the evidence, and Dartez's indictment clearly informed her of the nature of the charges. Accordingly, Dartez's conviction and sentence are affirmed.

         FACTS AND PROCEDURAL HISTORY

         ¶3. On November 14, 2014, around 4 a.m., Harrison County deputy sheriff Brandon Hendry was on his way home after his shift. As Hendry drove down Kiln-Delisle Road, he saw a man and a woman, later identified as Dartez, standing near a large delivery truck, which was stopped in the road with its hazard lights flashing. Hendry stopped and turned on his car's blue lights, which also activated the car's two video cameras. One camera records video in front of the car with audio from the officer's body microphone; the other camera records video and audio in the backseat of the car.

         ¶4. The man, a truck driver, told Hendry that he had come upon Dartez standing in the middle of the road, dazed and injured. Dartez's head was bleeding. Hendry also noticed that Dartez's speech was slurred, and "[s]he had an overwhelming odor of some sort of alcoholic or intoxicating beverage." Hendry did not see any signs of a car wreck. Indeed, he could not even see Dartez's car, but he inferred that there must have been a wreck nearby. Hendry asked Dartez whether anyone else was in the car with her, but Dartez said that she did not know. Dartez stated several times that her car was still at the bar and denied that she had been driving or in a wreck. Dartez asked to sit down in the back of Hendry's patrol car. Hendry allowed her to do so while he used a spotlight to search for a wrecked vehicle. Approximately 100 feet up the road, Hendry spotted a severely damaged Toyota Camry. The car was in tall, thick brush about fifty feet off the road.

         ¶5. With some difficulty, Hendry was able to crawl through the brush to the car. The car was on its side, and its windshield was broken. Zackary Whitfield's body was on the ground outside the car, and Hendry quickly determined that Whitfield was deceased. At that point, Hendry did not know who had been driving the car. However, he believed that the car belonged to Dartez because the personal items in it appeared to belong to a woman. He also noticed that "[t]he driver's seat was fairly close to the steering wheel."

         ¶6. Paramedics Robert Pino and Joseph Cutshall arrived and examined Dartez, who was still in the back of Hendry's patrol car. The patrol car's interior camera recorded their interactions with Dartez. The paramedics also testified at trial. To help assess what types of injuries Dartez might have sustained, they asked her where she had been in the car. Dartez told them that she had been driving. Dartez also had a large cut over her right eye and blood on her face. Dartez was able to answer questions about where and who she was, but she was unable to tell Pino what day it was. Dartez told them that she had been driving and that she had drunk six beers that night. A nurse at the hospital testified that Dartez smelled of alcohol and stated that she had been drinking prior to the wreck. Dartez's blood-alcohol concentration was .219 percent approximately three hours after the wreck when her blood was drawn at the hospital. Dartez tested negative for controlled substances.

         ¶7. Zack Berger testified that on November 13, 2014, he and Whitfield had dinner and then had drinks at two bars before meeting friends at Grog's Bar in Diamondhead. Whitfield had driven them there in his truck. Whitfield and Berger arrived at Grog's between 11:30 p.m. and midnight and stayed until around 3 a.m. When they started to leave, Whitfield initially said that he would drive Berger and another friend to his house in his truck. However, Whitfield then said that he was going to ride to his house with Dartez. Whitfield asked Berger to drive his truck, and Berger agreed. Berger did not actually see Whitfield or Dartez get into Dartez's car. Nor did Berger see who was driving Dartez's car. Berger drove away from Grog's before Dartez and Whitfield.

         ¶8. Jodi Taylor and Amber McCaffrey testified that they met Whitfield and Berger at Grog's Bar around midnight or 1 a.m. They had seen Dartez and a friend of hers at another bar earlier in the night, and Dartez and her friend arrived at Grog's shortly after they did. Taylor and McCaffrey were not drinking, but everyone else in the group was drinking beer. They all left the bar around 3 a.m. Taylor and McCaffrey were going to McCaffrey's house. The others were going to Whitfield's house. Taylor saw Dartez and Whitfield get into Dartez's car, with Dartez in the driver's seat and Whitfield in the passenger's seat. Taylor asked Dartez if she was "okay to drive," and Dartez said that she was. The sheriff's office obtained video of the parking lot at Grog's. The video was played at trial, and Taylor identified herself, Dartez, and Whitfield.

         ¶9. Sergeant Glenn Roe of the Harrison County Sheriff's Office testified, without objection, as an expert in accident reconstruction. Roe responded to the wreck, took pictures of the scene, and marked the location of evidence for collection. He also took measurements of the scene and diagramed it to scale. Specifically, Roe examined the location of the car and Whitfield's body, skid marks on the road, and tire tracks made once the car left the road. Roe testified that as the car entered a curve, it crossed the center line. The driver then overcorrected and lost control. The car ...


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