Smith v. Miss. Dep't of Pub. Safety
| Decision Date | 10 May 2022 |
| Docket Number | 2021-SA-00020-COA |
| Citation | 348 So.3d 993 |
| Parties | Carl SMITH, Appellant v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEYS FOR APPELLANT: DENNIS L. HORN, LEIGH KATHRYN PAYNE HORN, Madison
ATTORNEY FOR APPELLEE: MICHAEL ERIC BROWN
BEFORE WILSON, P.J., McDONALD AND SMITH, JJ.
McDONALD, J., FOR THE COURT:
¶1. Carl Smith (Carl) appeals the Hinds County Circuit Court's judgment affirming the Mississippi Employee Appeals Board's (MEAB) decision that upheld Carl's termination from his position with the Mississippi Department of Public Safety (MDPS). Having reviewed the record and arguments by the parties, we affirm the circuit court's decision that there was substantial evidence to support the termination.
Facts
¶2. Carl began working with the MDPS in 1999. By 2016, he had risen to the rank of Master Sergeant with the Mississippi Bureau of Investigations (MBI), a division of the Mississippi Highway Safety Patrol (MHSP), which is a division of the MDPS. Carl was also a major in the Army National Guard, which he joined in 1997 after serving in the Marines from 1992 to 1997.
¶3. Carl married his wife, Kendyl, on August 12, 2014. They lived with her daughter (his stepdaughter), P.D.,1 and their daughter, K.S., in Mississippi until May of 2016 when Carl was detailed by the Guard to Arlington, Virginia. Carl left for Virginia, and Kendyl and the children followed him shortly thereafter.
¶4. According to Carl, when he and Kendyl were dating, Kendyl told him about her prior abuse of a medication, Adderall. After she assured him that she no longer had a drug-abuse problem, they married. However, after their move to Virginia, Carl said he saw Kendyl taking more than her prescribed dose of Adderall on several occasions. According to Carl, she also tried to visit different doctors to secure more Adderall after her prescriptions ran out.2
¶5. Kendyl became dissatisfied with their life in Virginia, and her mental state declined due to her addiction to Adderall. After gaining employment at a bank and working for a day, she and the children returned to Mississippi on October 13, 2016. Carl only learned that she and the children had left when he returned from work that day.
¶6. The marriage deteriorated after this in spite of the parties’ attempts to reconcile. Although Carl was in Virginia, he admitted that he had Kendyl followed in Mississippi and discovered several instances of her infidelity with different men. At the time, Carl had both a State-issued cell phone through the MBI and his personal cell phone with him. Carl admitted that after learning of Kendyl's infidelity, he called her and sent her multiple angry texts from both his State-issued cell phone and his personal cell phone. He felt Kendyl was misleading him because her unfaithfulness contradicted her words of love to him.
¶7. During this time, Carl sent Kendyl text messages from both phones and messages through a messaging app. He also sent emails and posted items concerning her on Facebook. The texts were full of expletives, demeaning language ("Idiot, you are the sorriest [expletive deleted] human being I've ever [expletive deleted] met.") and veiled threats ( ). Carl said that he hated her and her whole "[expletive deleted]" family. In another text, he said that the MHSP could not do anything to him because he was on his own phone and on military leave: "I don't belong to them." Numerous times, Kendyl would not answer his calls, and the record contained pages of numerous repetitive calls, reflecting the harassing nature of Carl's communications. At one point, Kendyl messaged Carl to take down the accusations against her that he had put on Facebook, to which he responded that she should just kill herself and do their daughter a favor before she is exposed to diseases. Despite her request, Carl continued to post on Facebook that Kendyl had been unfaithful, saying,
¶8. On February 28, 2017, Carl sent an email to Kendyl's father, Dwight Myrick; her mother; and her sister in which he essentially expressed his frustration and anger with Kendyl. In this email, he referred to several instances of Kendyl's infidelity and accused her of neglecting their child. He said that he had Kendyl followed and learned that she was visiting areas associated with high drug trafficking.
¶9. Myrick contacted the MHSP to complain about the harassing text messages and emails that Carl had sent to him and others, including Kendyl. Based on this complaint, on March 1, 2017, Major Jimmy Herzog from the MBI appointed Captain LeCarus D. Oliver to investigate the allegations. Oliver met with Myrick to gather more information. Following this meeting, Myrick forwarded Oliver the email Carl had sent to him in addition to several of the texts between Carl and Kendyl.
¶10. Oliver also interviewed Krystle Goforth, a friend of Kendyl's, who provided Oliver with a text that she had received from Carl that was sent from his State-issued cell phone. In it Carl accused her of helping Kendyl to engage in her illicit affairs. He detailed what his investigator had learned, how some man picked Kendyl up at the library, and how she went somewhere with this man until one in the morning. According to the message, Kendyl then went to a drug neighborhood for an hour. Carl told Goforth that he was a criminal investigator and that he intended to make sure that everyone who helped Kendyl "pays for it." He stated, Goforth told Oliver that she felt threatened by Carl.
¶11. Carl and Kendyl divorced in May 2017 while Carl was still in Virginia. However, they continued to have contact thereafter, including texts from Carl that Kendyl felt were harassing. Carl continued posting troublesome messages on social media directed toward Kendyl.
¶12. On May 25, 2017, Kendyl filed charges against Carl in the Justice Court of Attala County, Mississippi, for telephone harassment. The affidavit for these charges signed by Kendyl stated that Carl "did wilfully and unlawfully by means of telecommunication make obscene, lewd, harassing, and profane language with intent to abuse, threaten, and harass a party to a telephone conversation from October 2016 to May 2017."
¶13. Kendyl told Carl about the justice-court charges that she had filed while he was driving to Mississippi to visit her and the children for the weekend. Prior to his arrival, Carl talked to an investigator from the Attala County Sheriff's Department who told him to go to the sheriff's department and that he would be allowed to bond out. But upon his arrival, Carl was arrested and detained at the Leake County Jail for twenty-four hours.
¶14. After this, Carl texted Kendyl, threatening to file charges against her for keying his truck if she did not drop the charges she had filed against him. He told her that she could face a year in jail and have to pay back $5,500 in damages, Kendyl filed additional charges against Carl for these harassing communications as well.3
¶15. Shortly after their divorce, Kendyl went to a rehabilitation center in Navarre, Florida, for treatment of her Adderall addiction. During her three-week stay at the center, Carl filed a petition in chancery court to obtain custody of his daughter. The petition was granted, and Carl was awarded custody of K.S. in July 2017. After Carl obtained custody of K.S., he brought her from Mississippi to live with him in Virginia.
¶16. After completing rehab, Kendyl returned to Mississippi. Although she still struggled with her addiction issues upon her return, Kendyl said she managed to completely end this habit by November 2017. The couple reconciled, and Kendyl returned to Virginia to live with Carl.
¶17. Carl's National Guard deployment ended on December 31, 2017, and the family returned to Mississippi. Carl and Kendyl remarried on January 23, 2018. During their remarriage, another child was born on November 13, 2018.
¶18. While the justice-court charges were pending, Oliver continued his investigation of Myrick's complaint. Carl was instructed to surrender his State-issued cell phone,4 from which another MBI agent, Captain Carl P. Green, extracted data. Oliver confirmed that some of the messages had been sent from Carl's State-issued cell phone. He also learned that the SIM card had been removed or exchanged with another SIM card at some point. MBI personnel were not allowed to switch SIM cards in their State-issued phones. Carl later admitted that he had taken the SIM card out of the State-issued phone to temporarily replace it with Kendyl's SIM card because her phone had not been working at the time. Carl did not produce the laptop as ordered, saying that it was in his personal storage and that he had no possession of it. However, the letter ordering Carl to produce the laptop specifically stated that if he had a problem retrieving the laptop from storage to notify MDPS, and it would assist Carl in obtaining it.
¶19. Oliver also obtained the justice-court charges and supporting materials (copies of the texts and posts) and documents related to Carl's arrest and conviction, along with the text messages that Carl sent Kendyl following his arrest on those charges. Oliver prepared and submitted a report of his investigation to his superiors.
¶20. On January 11, 2018, MBI sent Carl a "Notice Letter" with an attached "Narrative Statement of Charges," citing him for violating his duties as...
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