Hardiman v. State, 1999-KA-00298-COA.

• Decision Date: 17 October 2000
• Docket Number: No. 1999-KA-00298-COA.,1999-KA-00298-COA.
• Citation: 776 So.2d 723
• Parties: Antonio HARDIMAN a/k/a Antonio G. Hardiman a/k/a Antonio Gus Hardiman a/k/a `Twon', Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

776 So.2d 723

Antonio HARDIMAN a/k/a Antonio G. Hardiman a/k/a Antonio Gus Hardiman a/k/a `Twon', Appellant, v. STATE of Mississippi, Appellee.

No. 1999-KA-00298-COA.

Court of Appeals of Mississippi.

October 17, 2000.

Rehearing Denied January 30, 2001.

B. Leon Johnson, Harvey Christopher Freelon, Jackson, Attorneys for Appellant.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., IRVING, AND PAYNE, JJ.

IRVING, J., for the Court:

¶ 1. Antonio Hardiman was tried and convicted on a two count indictment for vehicular homicide and aggravated driving while under the influence of alcohol. He was sentenced to serve a term of twenty years on count one and a term of twenty-five years on count two, sentences to run consecutively. Hardiman prosecutes this appeal from the denial of his motion for JNOV, or in the alternative for a new trial. He raises four issues on appeal. Those issues, taken verbatim from his brief, are:

I. The trial court erred in not granting the defendant a continuance to obtain medical records and expert medical advice.

II. The trial court erred in not issuing an order to compel release, prior to trial, of the medical records pertaining to Eric Golliday.

III. The trial court erred in not allowing the defendant time to retain an expert to explain the nature of the injuries suffered by Eric Golliday in the motor vehicle accident.

IV. The trial court erred in refusing the defendant's motion for a mistrial when the jury, after deliberating nearly six (6) hours, sent a note to the trial judge indicating it could not reach a decision.

FACTS

¶ 2. The facts, according to the State's case, showed that Megan Anthony was killed when an automobile driven by Hardiman veered into the wrong lane of travel and collided with an automobile driven by Megan's mother, Donna Anthony. Donna Anthony's oldest daughter, Brandi Anthony, and Brandi's boyfriend, Trinity Hardin, were also passengers in the Anthony vehicle. Trinity suffered severe facial injuries that required facial surgery and resulted in scarring and some impairment of his senses of sight and smell.

¶ 3. Eric Golliday and Bobby Willis were riding in the car with Hardiman at the time of the collision. Golliday and Willis both testified that Hardiman was drinking and driving at the time of the fatal accident. Golliday testified that he was seated in the front passenger seat, and Willis was seated on the driver's side in the rear. Both Golliday and Willis testified that Golliday was asked by James Meeks to drive Hardiman home in Meeks's car, and to then return the car to Meeks. Each of them also testified that Hardiman insisted on driving after Golliday seated himself in the driver's seat and prepared to drive.

¶ 4. It was Golliday's and Willis's testimony that Hardiman was in a hurry to get home and insisted that he knew the shortest and most direct route, and that it was only then that Golliday moved out of the driver's seat and allowed Hardiman to drive. Golliday and Willis testified that during the drive Hardiman was speeding and driving recklessly, and at one point drank from a bottle of alcohol that he had with him. Golliday and Willis both testified that they each pleaded with Hardiman to slow down prior to the collision.

¶ 5. At some point shortly after the collision, Hardiman exited the vehicle and left the accident scene. He was later found and arrested at his home. After his arrest he was taken to a hospital where a blood sample was drawn. Hardiman testified at trial that he left the scene of the accident to call 911. There was no phone record of Hardiman having placed a call to 911 on the evening of the accident. Hardiman's blood-alcohol level was .14 several hours after the accident.

¶ 6. The arresting officer, Deputy Denley, testified that after the accident Hardiman admitted to Denley that he was driving the automobile. According to Denley's testimony, "He [Hardiman]—was very clear about the fact. In fact, he asked me how the child that was involved in the wreck was doing." Denley testified that initially Hardiman made several statements in which he admitted being the driver of the automobile at the time of the accident and even agreed to give a taped statement to that effect. However, when Hardiman was asked if he was the driver during a tape recorded statement, he denied being the driver. Hardiman denied that he was driving the car when the fatal collision occurred.

¶ 7. Hardiman's sole defense at trial was that Eric Golliday was driving the vehicle at the time of the accident. Prior to trial, Hardiman filed an application for subpoena duces tecum to discover Golliday's medical records. At the hearing on Hardiman's motion, the trial judge asked Golliday to voluntarily waive his privilege of confidentiality with regards to his medical records. Golliday refused, and the court declined to order the records released over Golliday's objection.

¶ 8. Hardiman was allowed to examine Golliday's medical records, in camera, on the morning of his trial. Golliday's medical records contained contradictory statements by the treating physician regarding whether Golliday was the driver or passenger. There were also notations about chest and abdominal pain which Hardiman claimed may have been consistent with someone getting hit by the steering wheel while driving a vehicle. Hardiman moved for a continuance in order to further explore these aspects of Golliday's medical records. The motion was denied, and the case proceeded to trial.

¶ 9. Hardiman produced five witnesses who testified in his behalf. Two of the five witnesses were individuals who were at the scene when Hardiman and his riders departed Meeks's place. One of the individuals was Meeks's girlfriend. She testified that Meeks had solicited Golliday to drive Hardiman home because Hardiman was too intoxicated to drive himself. The other individual was a young woman Hardiman tried to persuade to accompany him home. Both of these females testified that Golliday was behind the wheel on the last occasion that they remembered seeing the vehicle, but neither could say for certain who was driving when the car actually departed.

¶ 10. Another female witness testified that she was pregnant with Hardiman's child at the time of the accident. She also claimed that on the day following the accident she was part of a conversation with Golliday and Willis in which she heard Golliday say that he was driving at the time of the crash, but that he was not going to take the blame.

¶ 11. The State produced Bobby Willis in rebuttal. Willis refuted the testimony of Hardiman's pregnant girlfriend and testified that the pregnant girlfriend had actually tried to convince Golliday to admit to being the driver because she did not want her baby to grow up without a father.

¶ 12. At the close of all the evidence, Hardiman's request for peremptory instruction was denied. The jury retired to deliberate at 2:48 p.m., and at 3:33 p.m. submitted several written questions to the circuit judge.

BY THE COURT: Go on the record and state that the court received a request from the jury stating that they wanted the testimony of Sherry Blanch, the testimony of Eric Golliday and Mr. Willis in regards to vehicles avoiding on country road and Willis Road. They also ask a question: Why was Antonio in such a hurry to get home? And we would like the dispatcher sheets. And I'm writing them a note back saying: The information and testimony that you have requested is not available. You will have to base your verdict on the testimony and evidence that was presented in open court.

¶ 13. At 5:24 p.m. the jury submitted another question to the court and requested drinks and snacks:

BY THE COURT: The court has before it a note from the jury which states: May we have someone to read the testimony given per Ariel in regards as to her returning to quote, the house or going to the car? P.S. We need drinks and snacks, please. So I would—of course, the answer is: No, that testimony is not available to be read back to them. And that's how I'm going to respond. And yes, we will get you food and drinks.

¶ 14. At 7:02 p.m. the jurors indicated they were deadlocked and could not reach a verdict. The trial judge thereafter gave the so-called Sharplin instruction, and the jury resumed its deliberations. Hardiman made a motion for a mistrial. The motion was overruled. At 8:33 p.m. a juror needed medication from home, and at 8:45 p.m. the jury submitted another question to the court:

BY THE COURT: Court will come back to order. I'll state I've got another note from the jury. It reads: Can we have—we have a question of can we have a hang [sic] jury? And I'm going to send them a note back advising them to please reread Instruction No. 10, which is the Sharplin instruction.

¶ 15. After the trial judge instructed the jury to reread the Sharplin instruction, the defendant's second motion for a mistrial was overruled. At 10:45 p.m., approximately eight hours after it began its deliberations, the jury returned with separate verdicts of guilty of manslaughter and guilty of aggravated driving under the influence. A poll of the jury reflected the verdicts returned were unanimous.

Analysis of Issues Presented

I. Did the trial court err: (a) in not compelling the pretrial release of Golliday's medical records, (b) in not granting a continuance, and (c) in not allowing time for retention of a medical expert?

¶ 16. Since Hardiman's first three issues are all interrelated, they will be discussed together. The crux of Hardiman's complaint appears to be that he should have been able to examine Eric Golliday's emergency room records prior to the morning of trial. Since he was not allowed to do so, he contends that a continuance should have been granted in order to allow him time to retain an expert to explain the nature of the injuries Golliday received in the accident, and to interview the emergency room physicians who...