Fogleman v. State
| Decision Date | 12 January 2021 |
| Docket Number | NO. 2020-KA-00260-COA,2020-KA-00260-COA |
| Citation | 311 So.3d 1221 |
| Parties | Jeremy Shane FOGLEMAN a/k/a Jeremy Fogleman a/k/a Jeremy S. Fogleman, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
BEFORE WILSON, P.J., McDONALD AND LAWRENCE, JJ.
McDONALD, J., FOR THE COURT:
¶1. On July 8, 2015, Edward Frederickson was mortally injured when an orange Camaro, being pursued by the Gulfport police, ran a red light and broad-sided Frederickson's vehicle. Frederickson's vehicle was pushed into another vehicle being driven by Cassandra Walker, who was also injured as a result. Jeremy Fogleman was charged with two counts of failing to stop for a law enforcement officer (one for causing Frederickson's death and one for causing Walker's injuries) and one count of possession of methamphetamine that was found in the Camaro. A Harrison County Circuit Court jury found Fogleman guilty of all charges, and the circuit court sentenced him to forty years of incarceration for Frederickson's death; ten years of incarceration for Walker's injuries, set to run consecutively; and three years of incarceration for the drug charge to run concurrently—all in the custody of the Mississippi Department of Corrections. Fogleman appeals, claiming, among other things, that he was not the driver of the Camaro; he also challenges the sufficiency of the evidence, the lawfulness of the seizure of the drugs, and the adequacy of the jury instructions. Finding no error, we affirm Fogleman's convictions and sentences.
Facts
¶2. On February 17, 2016, a Harrison County grand jury indicted Fogleman on four counts: failing to stop for a law enforcement officer and causing the death of Frederickson in violation of Mississippi Code Annotated section 97-9-72(4) (Rev. 2014); failing to stop for a law enforcement officer and causing injury to Walker in violation of subsection 3 of the same statute; possession of methamphetamine, a Schedule II controlled substance, in violation of Mississippi Code Annotated section 41-29-139(c)(1) (Supp. 2014); and perjury for falsely testifying at a preliminary hearing that he was not the driver of the vehicle that collided with and killed Frederickson and injured Walker.1 Early in the proceedings of the case, the circuit court judge granted Fogleman's request to represent himself; however, Fogleman also had appointed counsel who assisted throughout the pre-trial hearings and the trial. The trial on the first three counts began on February 4, 2020, during which the following facts were presented.2
¶3. At approximately 12:30 a.m. on July 8, 2016, Gulfport Police Officer Nicholas Kehoe saw the driver of an orange Camaro rev the engine and spin the wheels while leaving a stop sign.3 Kehoe, referring to this as a "burnout," thought this was careless driving and decided to follow and stop the vehicle.4 Kehoe initiated his dash cam, which recorded the events that followed. It took Kehoe a few seconds to catch up to the Camaro because it was speeding. At the next stoplight at the intersection of Pass Road and 28th Avenue, Kehoe pulled up behind the Camaro and saw that it did not have a license plate displayed. The speeding and failure to display a license plate confirmed Kehoe's decision to make the traffic stop, and as the Camaro turned the corner onto Pass Road, Kehoe activated his blue lights and siren. Instead of stopping, the Camaro sped off, reaching speeds in excess of 100 miles per hour on streets with 35-mile-per-hour speed limits.
¶4. As the Camaro, followed by Kehoe's patrol car, reached the intersection of 8th Avenue and Pass Road, Kehoe said he turned off his lights and sirens for safety reasons, thinking that this may cause the Camaro to slow down. The Camaro did not stop at the red light but proceeded through the intersection, hitting Frederickson's Chevy Malibu on the driver's side and pushing it into the rear of Cassandra Walker's Nissan Murano, which had just made a left turn from Pass Road. All of this was captured on Kehoe's dash cam.
¶5. The driver and passenger in the Camaro, which had deployed its airbags, exited their vehicle. The dash cam clearly showed the Camaro door being opened and the driver, allegedly Fogleman, getting out. Officer Kehoe ordered him to show his hands, which the driver did by turning and placing them on the roof of the car. Kehoe ordered the driver to the ground. He complied, but it was obvious his leg was weak because he stumbled to the ground and rolled over on his stomach. The passenger cannot be seen in the dash-cam footage, except for fleeting moments, but according to Sandridge, the alleged passenger, he too complied and went to the ground. The dash cam continued to show how the driver then rolled over, and lay behind a sign until emergency personnel arrived and placed him on a stretcher to take him to the hospital. A photo of Fogleman on the stretcher was entered into evidence. Sandridge was not injured and remained at the scene.
¶6. Officer Kehoe checked on Frederickson, who had been thrown to the passenger side of his vehicle and was unresponsive. Kehoe also checked on Walker, who initially said she was not in need of medical assistance. Nonetheless, she, Frederickson, and Fogleman were all transported to Gulfport Memorial Hospital.
¶7. At the hospital, Fogleman was diagnosed with alcohol intoxication, a closed-head injury, contusion, drug abuse, and a scalp laceration
. Although he was released to the police that night, Fogleman was called back to the hospital after x-rays revealed that he had a fractured tibia. Walker suffered aggravation of a prior back injury and bruising to her left side and ankle.5 But Frederickson did not fare well. He suffered multiple injuries, including but not limited to multiple head injuries, causing bleeding on his brain, a neck fracture, broken ribs, a punctured lung, pelvic injuries, and injuries to his internal organs. He was ultimately airlifted to Mobile where his course of treatment was unsuccessful, and he died on July 15, 2015.
¶8. Fogleman claimed that not he, but Sandridge, was driving the Camaro at the time of the collision. Fogleman testified that he had arranged to sell the Camaro to Sandridge and had picked Sandridge up that night to complete the sale. Fogleman said he had met Sandridge through a "customer of his,"6 who introduced the two over the phone a couple of weeks before the accident. Sandridge told Fogleman that he was interested in buying a "muscle" car and Fogleman took Sandridge's number.
¶9. Fogleman previously had discussions with Bayside Motors about buying the Camaro, but they could not come to an agreement. Several days later, while on his way to look at another car to potentially sell to Sandridge, Fogleman went by Bayside again and saw that the Camaro was still there. Bayside was about to send it to auction, and Fogleman got a good deal on it. Fogleman said he called Sandridge, and Sandridge agreed to buy it from him.
¶10. So Fogleman said he purchased the car from Bayside on July 7, 2016, and went to meet Sandridge at an address that Sandridge had given him. Fogleman found him in an apartment with several other people who were obviously taking drugs. Fogleman showed Sandridge the car. Sandridge asked to test-drive the car, but Fogleman refused, fearing that Sandridge might damage the clutch or just take off with the car. Sandridge agreed to buy it but said he would not have the money until later. So Fogleman went to Taco Bell and bought food for himself, Sandridge, and the others in the apartment.
¶11. After they had eaten, Fogleman said he proceeded to take Sandridge to another address to get the purchase money. On the way, Fogleman said they stopped to check out a red Mustang that Fogleman was interested in buying. Fogleman said they bought some gas at the Shell station nearby. The receipt from that purchase is time and date stamped "July 7, 2015, 11:47:55." Fogleman then drove to Angel's Auto Sales, where he checked out the truck he was interested in. They left Angel's and Sandridge gave Fogleman directions to a house that Fogleman believed was Sandridge's parents’ house. Sandridge went in and came back with an envelope containing $20,000. Fogleman and Sandridge had agreed that Sandridge would pay the remaining $8,000 balance in two weeks. Fogleman put the money in Taco Bell bag and put it in the side pocket of the driver's seat.
¶12. According to Fogleman, the two shook hands on the deal and switched places in the Camaro north of Interstate 10. Fogleman asked Sandridge to drop him off at a hospital in Biloxi, so Sandridge started driving down Highway 49. Fogleman said that they ended up on Pass Road. Sandridge pulled over and started "fumbling with something around by his waist," which made Fogleman nervous. Fogleman said Sandridge revved the engine, popped the clutch, and spun out. Fogleman testified that apparently Officer Kehoe had seen this. Fogleman told Sandridge that the police were behind them, and Sandridge got nervous. They stopped at a light, and then Sandridge sped off, "running the car full out." After they pulled away from the police car, Fogleman said Sandridge pulled a gun from his waist. Fogleman said he told Sandridge to stop as they neared the 8th Avenue intersection. Fogleman saw a car coming through the intersection but he did not know who had the green light. Fogleman said it seemed like Sandridge was trying to stop and swerved to the left, but Sandridge still hit the car.
¶13. Fogleman said he hit his head on the windshield, and his leg hit the dashboard, breaking his tibia. According to Fogleman, Sandridge got out of the driver's side with the gun he had and walked over to a field. Meanwhile, Fogleman said he got out from the passenger side and hobbled over to the Malibu, but he could not see anyone inside. He hobbled back to the Camaro and...
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