222 So. 3d 326
Miss. Ct. App.2017Background
- On Aug. 2, 2014, Jody Slade Bush drove a pickup that left the road and flipped; passenger Matthew Smith was ejected and suffered severe traumatic brain injuries.
- Witnesses disagreed on Bush’s intoxication and speed; some observed heavy drinking and fast driving at departure; Bush testified he had a few drinks and a tire blew out causing the crash.
- After the wreck, Bush left the scene, went back to a friend’s trailer, received medical attention for his own injuries, and did not immediately notify police; others found Smith near the wreck and called 911.
- Law enforcement later learned Bush was the driver; he was indicted and convicted by a jury of felony leaving the scene of an accident and sentenced to 12 years (2 suspended) plus 2 years post-release supervision.
- Bush’s trial counsel failed to file timely post-trial motions or a notice of appeal; the Supreme Court granted leave for an out-of-time appeal.
- On appeal Bush challenged (1) two comments by the trial judge and alleged deficient jury instructions, and (2) a juror observed sleeping during trial; the issues were not raised contemporaneously at trial.
Issues
| Issue | Plaintiff's Argument (Bush) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Alleged judicial comments during voir dire lowered burden of proof | Judge asked jurors if they could give defendant a "preponderance" burden, implying lower standard | Comments were isolated, unobjected-to, and the judge later properly instructed on presumption of innocence and proof beyond reasonable doubt | Waived for lack of objection; no reversible error — jurors presumed to follow correct final instructions |
| Judge’s courtroom remarks during cross-examination amounted to peremptory instructions | Judge told prosecutor the facts (that Bush drove and left) and to "get to it," which preempted jury fact-finding | Remarks were limiting the scope of questioning, not peremptory instructions; facts were undisputed and final instructions correctly stated law and defense theory | Waived; remarks not prejudicial and did not improperly limit defense or negate jury role |
| Failure to give certain standard jury instructions (general criminal instruction, unanimity) | Omission caused confusion given judge’s earlier comments and prejudiced Bush | Neither instruction was requested or objected to; jury was instructed on presumption and burden of proof; comment not prejudicial | Procedurally barred and without merit; no duty to give instructions not tendered by parties |
| Sleeping juror during trial | A juror was seen sleeping/snoring during testimony; Bush argues this warrants new trial | Trial counsel noted juror but did not move to remove or request alternate; failure to seek relief below waives appellate review | Waived for failure to move to remove and preserve record; no on-the-record findings to review; no reversible abuse of discretion shown |
Key Cases Cited
- Moody v. State, 841 So. 2d 1067 (Miss. 2003) (presumption that jury follows trial court's instructions)
- Church v. Massey, 697 So. 2d 407 (Miss. 1997) (sleeping juror is a matter of great concern)
- Birkhead v. State, 57 So. 3d 1223 (Miss. 2011) (failure to seek relief at trial waives appellate review)
- Jones v. State, 149 So. 3d 1060 (Miss. Ct. App. 2014) (voicing concern about sleeping juror without moving to remove does not preserve issue)
- Wilson v. State, 956 So. 2d 357 (Miss. 2006) (trial court not required to give instructions not requested by parties)
- Carpenter v. State, 132 So. 3d 1053 (Miss. Ct. App. 2013) (reiterating concern about sleeping jurors)