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
LEE, C.J., FAIR AND WILSON, JJ.
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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."
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.
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.
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
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 ...