Thomas v. MISSISSIPPI DEPT. OF PUB. SAFETY, No. 2003-CA-00417-COA.

• Decision Date: 21 September 2004
• Docket Number: No. 2003-CA-00417-COA.
• Citation: 882 So.2d 789
• Parties: Cheryl Eaton THOMAS, on Behalf of the Lawful Heirs of Lonzo Lavern THOMAS, Appellant v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY and Albert Johnson, Appellees.
• Court: Mississippi Court of Appeals

882 So.2d 789

Cheryl Eaton THOMAS, on Behalf of the Lawful Heirs of Lonzo Lavern THOMAS, Appellant v. MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY and Albert Johnson, Appellees.

No. 2003-CA-00417-COA.

Court of Appeals of Mississippi.

September 21, 2004.

T. Mack Brabham, McComb, attorney for appellant.

John Gordon Roach, McComb, attorney for appellees.

EN BANC.

CHANDLER, J., for the Court.

¶ 1. Mr. Willie Thomas was issued a speeding ticket by Mississippi Highway Patrol Officer Albert Johnson for traveling ninety-two miles per hour in a fifty-five mile-per-hour zone. Mr. Thomas's son Lonzo was in the car at the time. Approximately twelve minutes after the ticket was issued, Mr. Thomas, who was intoxicated at the time, wrecked his vehicle, causing fatal injuries to his son. Lonzo's heirs sued the Mississippi Department of Public Safety ("MDPS") and Officer Johnson for not checking Mr. Thomas for driving under the influence. The Circuit Court of Pike County, Mississippi, granted judgment in favor of MDPS and Officer Johnson. Cheryl Thomas, the mother and legal heir of Lonzo, appeals, raising the following issues:

I. DID OFFICER COLLINS COMMIT PERJURY, AND IF SO, DOES THIS PERJURY MANDATE A NEW TRIAL OR A DIRECTED VERDICT IN FAVOR OF THOMAS?

II. WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE DECISION OF THE LOWER COURT?

III. DID THE TRIAL COURT APPLY AN INCORRECT LEGAL STANDARD

AS TO CHERYL THOMAS'S BURDEN OF PROOF?

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. At 4:50 p.m., Officer Albert Johnson was headed north on Highway 51 when he clocked Mr. Willie Thomas ("Mr. Thomas") headed south going ninety-two miles per hour in a fifty-five mile-per-hour zone. Mr. Thomas's 15-year-old son, Lonzo, a spina bifida patient who was paralyzed from the waist down, was in the car with him. Officer Johnson turned around, pursued Mr. Thomas for approximately two to two and a half miles, and eventually stopped Mr. Thomas in Mrs. Mary Ann Montgomery's yard. At this time, Mr. Thomas's blood alcohol concentration ("BAC") was greater than .1825, but Officer Johnson claimed that he never smelled alcohol on Mr. Thomas and had no reason to check him for driving while intoxicated. Mr. Thomas told Officer Johnson that he had stopped in this yard to buy some tick hounds from a male friend. Mrs. Montgomery told Officer Johnson that her husband was dead, she did not have any dogs for sale, and she wanted him off her property. Officer Johnson wrote the speeding ticket, told Mr. Thomas to leave the premises, and both he and Mr. Thomas left.

¶ 4. Mr. Thomas left Mrs. Montgomery's premises, drove eight miles, and wrecked his van, producing injuries to Lonzo that eventually caused his death. Mr. Thomas sustained minor injuries. At 5:07 p.m., someone discovered the wreck and called the hospital.

¶ 5. James Carlton, a emergency medical technician ("EMT"), came in the first ambulance to arrive at the scene of the accident, at 5:15 p.m. He testified that he could definitely smell alcohol on Mr. Thomas's breath, even though he never got close to Mr. Thomas's mouth. Gina Davis, a paramedic, was in the second ambulance, which arrived at the scene at 5:25 p.m. and left at 5:33 p.m. She stated that she could smell alcohol on Mr. Thomas's breath and the smell was fairly strong. Todd Pounds, an EMT who was with Ms. Davis, prepared the ambulance record and wrote in the record, "Patient smells strongly of alcoholic beverage." At 6:02 p.m., Mr. Thomas was admitted to the emergency room, where the emergency room physician examined him and wrote, "Breath smells of alcohol." He stated that he would not take documenting the presence of alcohol lightly.

¶ 6. At the hospital, Cheryl Thomas, Lonzo's mother and Mr. Thomas's wife, stated that she could smell alcohol strongly in the emergency room where Mr. Thomas was being treated. Cheryl and the rest of the family waited in a room, where Cheryl demanded that a blood alcohol test be taken of Mr. Thomas. Officer Collins administered the test and allegedly stated that Mr. Thomas "reeked of alcohol." The test was administered at 6:20 p.m. and showed a BAC of .1825.

¶ 7. Cheryl Thomas ("Thomas", subsequently referring to all of Lonzo Thomas's heirs) sued MDOC and Officer Johnson for failure to check Mr. Thomas for driving under the influence. The trial court, applying the Mississippi Tort Claims Act, Miss.Code Ann. § 11-46-9 (Rev.2000), found that Officer Johnson's failure to check Mr. Thomas's sobriety did not rise to the level of reckless disregard required for Thomas to recover against the State.

ANALYSIS

I. DID OFFICER COLLINS COMMIT PERJURY, AND IF SO, DOES THIS PERJURY MANDATE A DIRECTED VERDICT IN FAVOR OF THE PLAINTIFF OR A NEW TRIAL?

¶ 8. MDPS called Officer Collins as a witness. On appeal, Thomas claims that Officer Collins committed perjury. Thomas and her family claim that Officer Collins told them that Mr. Thomas "reeked of alcohol," but on the witness stand he repeatedly and consistently testified that he did not smell alcohol on Mr. Thomas's person or breath. Officer Collins also testified that Gina Davis had told him that she did not smell alcohol emanating from Mr. Thomas at the accident scene, even though Gina Davis testified on the stand that Mr. Thomas smelled alcohol.

¶ 9. Officer Robert Harrell, who conducted a search warrant of Mr. Thomas's van two days after the accident, read into evidence the affidavit for search warrant that he signed. It states in part:

Sergeant Collins told affiant that he arrived at the scene of the accident, he went to check the injuries of the driver of the vehicle, Mr. Thomas M. Thomas. When Sergeant Collins questioned Mr. Thomas, he smelled a faint odor of an alcohol [sic] beverage on his person. Sergeant Collins then asked the Emergency Medical Technician if she smelled an alcoholic beverage on Mr. Thomas. The EMT concurred with Sergeant Collins that she smelled an alcoholic beverage on Mr. Thomas.

On this evidence, Thomas's counsel moved for a directed verdict, which the court denied.

¶ 10. On appeal, Thomas urges this Court to grant a new trial. The determination of whether a new trial should be granted on the basis of newly discovered evidence (i.e., perjury) must be made, by the trial court, on a case-by-case basis, taking into account all relevant facts and circumstances. Smith v. State, 492 So.2d 260, 263 (Miss.1986) (superseded by statute on other grounds). The determination as to whether the newly discovered evidence is such as will probably change the result if a new trial is granted is to be determined by the trial court in its discretion. Id. (citing Townsel v. State, 228 Miss. 110, 120, 87 So.2d 481, 485 (1956)). Our scope of inquiry on appeal is to determine whether the trial court abused its discretion in making this determination, as well as making the determination of whether the allegations were sufficiently proven. Id. (citing Howell v. State, 354 So.2d 1124, 1127 (Miss.1978)).

¶ 11. We are unable to grant a new trial on the basis of Officer Collins' testimony because the plaintiff must be able to show (1) that any such perjury was sufficiently proven and (2) the result of a new trial would be different from the one reached. Williams v. State, 669 So.2d 44, 54 (Miss.1996) (citing Moore v. State, 508 So.2d 666, 668-69 (Miss.1987)). In this case, Thomas has difficulty proving that Officer Collins committed perjury in the first place. The Mississippi Court of Appeals defined the standard in which a new trial should be granted on the basis of perjury in Golleher v. Robertson, 830 So.2d 694, 697 (¶ 11) (Miss.Ct.App.2002). It stated:

To warrant the granting of a new trial on the ground of newly discovered evidence, it must appear that the evidence is such as will probably change the result if a new trial is granted, that it has been discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative, or impeaching." Meeks v. State, 781 So.2d 109(¶ 8) (Miss.2001).

In this case, the trial judge allowed Officer Collins and Officer Harrell to be fully examined and cross-examined. His testimony not to have smelled alcohol against the conflicting affidavit is impeachment, not perjury, and the affidavit stating that he detected a faint smell of alcohol makes it cumulative with other witnesses who testified that they smelled alcohol on Mr. Thomas's breath. The trial judge himself stated that he was troubled by Officer Collins' testimony, indicating that it had little if any effect on his decision.

¶ 12. To argue that Officer Collins committed perjury, Thomas invokes Pierce v. Heritage Properties, Inc., 688 So.2d 1385 (Miss.1997). In Pierce, the plaintiff perjured several stages of discovery, including in depositions and at trial. Indeed, the Pierce court emphasized the fact that the plaintiff had repeatedly lied under oath and made it clear that their holding was limited to only exceptional fact situations: "[T]he focus must be on the intentional nature, as well as the pattern, of the plaintiff's conduct, which included deliberately proving false statements in three discovery mechanisms: the answers to interrogatories, the request for production of documents, and the deposition testimony." Pierce, 688 So.2d at 1389 (citing Smith v. Cessna Aircraft Co., 124 F.R.D. 103, 107 (D.Md.1989)). In this case, we do not have a pattern of perjury on the part of Officer Collins. Although Officer Collins stated seven times on the witness stand that he did not smell alcohol on Mr. Thomas, he could have believed in good faith that this testimony was true, even if it is inconsistent with his affidavit. After all, the trial was held nearly two years after the date of the accident, and he could have forgotten what his observations were. A person who claims that a witness has committed perjury must prove it by clear and convincing evidence....