Gebben v. State, 2010–KA–01593–COA.

• Decision Date: 07 March 2013
• Docket Number: No. 2010–KA–01593–COA.,2010–KA–01593–COA.
• Parties: Dominic GEBBEN, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

108 So.3d 956

Dominic GEBBEN, Appellant

v.STATE of Mississippi, Appellee.

No. 2010–KA–01593–COA.

Court of Appeals of Mississippi.

June 5, 2012.

Rehearing Denied Nov. 27, 2012.

Certiorari Denied March 7, 2013.

John Anthony Piazza, attorney for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.

Before IRVING, P.J., CARLTON and MAXWELL, JJ.

MAXWELL, J., for the Court:

¶ 1. Dominic Gebben drove his vehicle around a stopped school bus and ran over five-year-old Nathan Key, killing the young child. The school bus's red warning lights were activated and its stop sign extended when Gebben fatally struck Nathan, who had just exited the bus and was crossing the street. Gebben fled the scene and hid his vehicle in some nearby woods. A jury in the Jones County Circuit Court found Gebben guilty of culpable-negligence manslaughter and fleeing the scene of an accident. On appeal, Gebben raises several errors primarily challenging the circuit court's refusal to transfer venue to another county and its rulings concerning jury instructions, both given and refused. Finding no reversible error, we affirm.

FACTS

¶ 2. On December 11, 2009, five-year-old Nathan and his two older siblings, Tessa (nine) and Lewis (eleven), rode the school bus home from North Jones Elementary School. Gebben, driving eastbound in a maroon Nissan Pathfinder, followed directly behind the bus on a two-laned road in Jones County. At the first stop on the route, Gebben came to a complete stop behind the bus. The bus driver activated the bus's red warning lights and extended its stop sign. After several children had exited, the school bus, with its yellow warning lights activated, eased forward a short distance (no more than thirty yards) to its next stop—the Key residence. When the bus stopped across from the Keys' driveway, Gebben's Pathfinder again came to a complete stop behind the bus. The bus driver allowed one driver in the westbound lane to pass. The bus driver again activated the bus's red lights and extended its stop sign before opening the door for the three Key children to exit.

¶ 3. Leading the trio, Lewis exited the school bus and walked in front of the bus, safely crossing the street. But as Nathan attempted to cross next, Gebben swung his Pathfinder onto the wrong side of the road to go around the bus. His Pathfinder struck Nathan, knocking him backward. Rather than stop, Gebben ran the SUV over Nathan, then immediately fled.

¶ 4. Nathan's mother, Lori Key, was several cars behind her children's bus. She watched Gebben's Pathfinder drive around the bus. She then saw two of her children kneeling at the edge of the road and realized something had happened. After getting out of her vehicle, Lori's “first observation [was] a little pair of black boots, and then I knew it was Nathan.” Lori ran to her young son, who was critically injured, lying on the edge of the road near her mailbox.

¶ 5. Tony Shaw—who was two cars back from Gebben—pursued the SUV to attempt to record its license plate number. Gebben sped toward an intersection and turned right on Hoy Road. Shaw continued pursuit. Gebben pulled into a driveway, then backed out and reversed course. As he headed toward Shaw, Shaw honked and pointed his finger at Gebben to stop. Gebben “looked him straight in the face then gunned it again,” heading back to the intersection. Shaw eventually caught up to Gebben, who turned onto a dead-end road, then drove through a field and into the woods. Gebben abandoned the Pathfinder in the woods approximately 300 yards from the paved road. Shaw parked his vehicle and waited for law enforcement to arrive.

¶ 6. Responding to Shaw's directions, Jones County Sheriff's Deputy Jerry Hutcheson discovered Gebben running from the woods toward a trailer. Deputy Hutcheson commanded Gebben to come toward him, and Gebben complied. According to Deputy Hutcheson, as Gebben walked up to him, Gebben was “saying my brakes went out, I couldn't stop, how's the kid.” And he “kept rambling on about [how] he couldn't stop and all.” Officer Hutcheson advised Gebben of his Miranda rights and arrested him. Gebben then told Officer Hutcheson he had “left to go get some cigarettes and his brakes [were] out.” Gebben claimed “he knew it before he started” and that “he shouldn't have even [driven] the vehicle.” Gebben added that “he should have just hit the bus instead of going around it.”

¶ 7. Investigator Robby Suber later interviewed Gebben at the Jones County Sheriff's Office. A video of this interview was admitted into evidence. After again waiving his Miranda rights, Gebben initially maintained that faulty brakes had caused him to go around the school bus. He admitted coming to a complete stop behind the bus at the first stop, but claimed he was unable to stop behind the bus a short distance away at its second stop. Gebben claimed because of an issue with the brake line, he had to “down shift” or “gear down” on his manual transmission SUV to try to stop. He insisted it was a “horrible” decision to drive knowing his brakes were broken. When pressed by the investigator that his version did not square with eyewitness reports, Gebben changed his story. He admitted he was going to go around the bus and was “aggravated” the bus was going slow. Gebben acknowledged he had come to a stop, “sat there,” then got “agitated” and drove around the bus. Later in the interview, Gebben again claimed—even though he was “mad” and “wanted to go around”—he “could have still stopped” if his brakes had been working properly.

¶ 8. At trial, the State offered a video recording taken from inside the bus on December 11, 2009. The video did not show Gebben's Pathfinder striking Nathan. But it captured Gebben's SUV coming to a complete stop behind the school bus. It also showed Gebben turn his tires turn to the left, then swing around the bus. The State also called multiple eyewitnesses to the incident.

¶ 9. Suresia Patrick, the bus driver, testified the bus's red lights were on and its stop sign extended out when Gebben passed the bus and ran over Nathan. Patrick explained that Gebben's vehicle “threw” Nathan. It “just went over [Nathan] and rolled him to the back. And [Gebben] kept going,” leaving Nathan lying on the roadside. Patrick did not see Gebben's brake lights illuminated when he ran over Nathan. Kimberly Ridgeway, whose car was directly behind Gebben's, testified she saw Gebben's vehicle come to a complete stop both at the first stop and at the Key residence. She was certain the lights and stop sign on the bus were working properly. After Gebben's Pathfinder had stopped for “probably two, three seconds,” Ridgeway saw Gebben's tires turn to the left. “Shortly after that, [Gebben] went around” the bus. Ridgeway did not recall seeing Gebben's brake lights after he ran over Nathan. Shaw, whose truck was directly behind Ridgeway's car, also testified he saw Gebben's vehicle come to a complete stop at the Key residence. He remembered Gebben's vehicle was “turned cater-cornered ... kind of like [Gebben] was trying to pass” the bus. Shaw recalled “[a]fter the first child crossed the road the maroon Pathfinder just—all of a sudden you could hear the gas, you know, him accelerating, and he just went around ... the bus.” Shaw then saw Gebben's vehicle strike Nathan “and there was tumbling up under.” And Gebben “kept going and ... didn't stop. [He] didn't try to slow down. [He] didn't brake or anything.” Shaw added that he saw Gebben's brake lights engage after Gebben had passed the bus and “was back in [his] normal lane of traffic.” Jennifer Foster, whose car had just passed the school bus heading the opposite direction, saw Gebben's Pathfinder strike Nathan through her rear-view mirror. Gebben's vehicle “kind of pushed [Nathan] up towards under the mailbox.... And then [Gebben] proceeded to continue to drive on and run the child over.” She, too, did not recall seeing brake lights from Gebben's vehicle. Foster got out of her car to help and saw a lady leaning over Nathan screaming his name. Foster described that blood was coming out of Nathan's nose and ear, and there was a big pool of blood on the ground under his head.

¶ 10. The State called Dr. Adele Lewis, who had performed the autopsy on Nathan, as an expert witness in forensic pathology. Dr. Lewis testified the cause of Nathan's death was injuries inflicted by a vehicle.

¶ 11. The jury convicted Gebben of culpable-negligence manslaughter and fleeing the scene of an accident. The circuit court sentenced him to twenty years' imprisonment for manslaughter and two years for fleeing, to be served consecutively. On appeal, Gebben argues the circuit court erred by:

(1) denying his request for a change of venue;

(2) giving jury instruction S–5 on the elements of culpable-negligence manslaughter;

(3) refusing his proposed jury instructions defining “simple negligence” and “culpable negligence”;

(4) refusing his proposed jury instruction on the lesser non-included offense of unlawfully passing a school bus;

(5) denying his motion for a judgment a notwithstanding the verdict or, in the alternative, a new trial; and

(6) admitting photographs of the victim's body into evidence.

DISCUSSION

I. Venue

¶ 12. Gebben argues the circuit court erred by denying his request for a change of venue. He claims that, due to media publicity and negative public sentiment in Jones County, he did not receive a fair trial by an impartial jury.

A. Relevant Facts

¶ 13. Almost three weeks prior to trial, Gebben filed a sworn application to transfer venue. Citing both “community attitudes” and “pretrial publicity in the local newspaper in Laurel, Mississippi,” Gebben argued he could not receive a fair trial in Jones County. He attached twenty-four articles published from December 12, 2009 to April 22, 2010.¹ The majority were from the Laurel Leader–Call. Others were published in either the Review of Jones County or on an NBC-affiliated...