author: KING, JUSTICE, FOR THE COURT:

text:
    Eddrick Willis CYRUS a/k/a Eddrick Cyrus a/k/a Eddrick W. Cyrus v. STATE of Mississippi
    NO. 2017-KA-00178-SCT
    Supreme Court of Mississippi.
    February 8, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: BENJAMIN ALLEN SUBER, GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA MARIE AINSWORTH
    BEFORE KITCHENS, P.J., KING AND COLEMAN, JJ.
   KING, JUSTICE, FOR THE COURT:

¶ 1. On December 13, 2016, a jury convicted Eddrick Cyrus of sale of less than two grams of a controlled substance. Cyrus appeals his conviction, arguing that the verdict was against the overwhelming weight of the evidence and that he is consequently entitled to a new trial. Because the verdict is not against the overwhelming weight of the evidence, this Court affirms his conviction.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 30, 2014, Cyrus sold heroin to Joshua Kizziah, a confidential informant making a controlled buy arranged by Agent Benji Hensarling. The buy was captured on a very clear video that depicted Cyrus giving Kizziah two bags in exchange for money. The video had a time stamp on it of "2001/02/14." Agent Hensarling testified that no one ever sets the clock on the video equipment. Kizziah gave the two bags to Agent Hensarling. Agent Hensarling testified that he placed the alleged heroin in a bag, heat sealed the bag, and placed it in the locked Metro Evidence locker. Sergeant Joe Kennedy testified that he observed Commander Adams retrieve the bag from the evidence locker. He testified that he then transported the bag to the Mississippi Forensics Laboratory. A drug analyst from the Forensics Lab testified regarding the Forensics Lab's chain of custody procedures. She determined that the bag contained heroin and the non-controlled substance diphenhydramine. Agent Hensarling testified that he retrieved the bag from the Forensics Lab after testing was completed and transported it back to the police station. The chain of custody form on the bag itself depicts only that Agent Hensarling placed the bag into the Metro Evidence locker on July 30, 2014. Sergeant Kennedy testified that the police often noted the chain of custody in a log book, rather than on the evidence itself, although that log book was never placed into evidence.

¶ 3. The State tried Cyrus in December 2016, and the jury found him guilty of the sale of less than two grams of a controlled substance. The court sentenced Cyrus to serve fourteen years without the possibility of parole, as a habitual and second and subsequent offender. Cyrus appeals his conviction, arguing that the trial court erred by denying his motion for a new trial because the verdict was against the overwhelming weight of the evidence for two reasons. He argues that the evidence does not support that the incident occurred on July 30, 2014. He also argues that the State failed to prove the chain of custody of the evidence.

ANALYSIS

¶ 4. In considering whether a verdict is contrary to the overwhelming weight of the evidence, this Court reviews the evidence in the light most favorable to the verdict to determine whether the verdict is so contrary to the overwhelming weight of the evidence that allowing it to stand would amount to an unconscionable injustice. Little v. State , 233 So.3d 288, 2017 WL 4546740 (Miss. Oct. 12, 2017). In reviewing the evidence in the light most favorable to the verdict, the Court must accept the evidence supporting the verdict as true. Gillett v. State , 56 So.3d 469, 504 (Miss. 2010). This Court will reverse a trial court's denial of a motion for new trial only when the trial court abused its discretion. Id.

¶ 5. Cyrus claims that since the date on the video indicates the year 2001, the State failed to prove that the transaction occurred on July 30, 2014. Both Agent Hensarling and Kizziah testified that the buy occurred on July 30, 2014. Agent Hensarling testified that no one ever set the time on the video equipment. Weighing witness testimony and determining credibility is the province of the jury. Osborne v. State , 54 So.3d 841, 846 (Miss. 2011). The jury clearly believed their testimony regarding the discrepancy. Additionally, the evidence bag indicated that Agent Hensarling placed it into the evidence locker on July 30, 2014. Viewing this evidence in the light most favorable to the verdict, it cannot be said that the verdict is so contrary to the overwhelming weight of the evidence that it amounts to an unconscionable injustice.

¶ 6. The test regarding the chain of custody is whether an indication or reasonable inference exists "of probable tampering with the evidence or substitution of the evidence." Tubbs v. State , 185 So.3d 363, 369 (Miss. 2016) (internal quotations omitted). A presumption of regularity applies to the actions of the public officers, and the defendant bears the burden of producing evidence that the chain of custody has been broken. Id. A mere suggestion of substitution does not meet this burden. Id. Moreover, it is unnecessary that every handler of the evidence testify. Id.

¶ 7. Kizziah testified that he gave to Agent Hensarling the bags he received from Cyrus. Agent Hensarling testified that he placed the bags in an evidence bag, heat sealed it, and placed it in the evidence locker. The evidence bag itself also reflects this. Sergeant Kennedy testified that he observed his commander remove the evidence, and that he transported it to the Forensics Lab. The Forensics Lab employee testified as to the Forensics Lab's chain of custody procedures and testified regarding handling the bags herself. Agent Hensarling testified that he retrieved the evidence from the Forensics Lab and returned it to the police station. Cyrus does not even appear to make a mere suggestion of impropriety in the chain of custody. Rather, he argues that the State failed to prove the chain of custody because no physical evidence of the chain of custody was produced, given that the evidence bag's chain of custody form was left mostly blank and that the log book was not entered into evidence. Cyrus does not point to any cases from this Court that hold that the chain of custody must be proven with physical evidence. It is clear that testimony by the evidence handlers may prove the chain of custody. See Tubbs , 185 So.3d at 369. Viewing the chain of custody testimony in the light most favorable to the verdict, it cannot be said that the verdict is so contrary to the overwhelming weight of the evidence that it amounts to an unconscionable injustice.

CONCLUSION

¶ 8. Cyrus's arguments are without merit. Cyrus's conviction was not against the overwhelming weight of the evidence, and this Court affirms his conviction.

¶ 9. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      The jury also viewed the very clear video and could have ascertained if the parties involved appeared fifteen years younger than they appeared in the courtroom.


source: Caselaw Access Project

author: BEAM, JUSTICE, FOR THE COURT: KITCHENS, PRESIDING JUSTICE, DISSENTING:

license: Public Domain

text:
    Joseph PATTON v. STATE of Mississippi
    NO. 2016-KA-01286-SCT
    Supreme Court of Mississippi.
    February 8, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
    EN BANC.
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. Joseph Patton was convicted of murder following a jury trial in the Warren County Circuit Court. Patton appeals his conviction, claiming his trial was rendered fundamentally unfair by the trial court's refusal to strike for cause two prospective jurors from the jury venire who said during voir dire examination they knew the decedent's son. Finding no merit in Patton's claim, we affirm Patton's conviction.

FACTS

¶ 2. In September 2015, Patton was living with his sixty-three-year-old uncle, Alfred Patton, in a mobile home in Warren County. On Tuesday, September 22, 2015, Alfred's next-door neighbor, William Thigpen, went to Alfred's trailer to check on him, having not seen Alfred in several days. Thigpen discovered Alfred's body inside the mobile home with an ax lodged in the throat. The body appeared to have been dead for several days.

¶ 3. Thigpen last saw Alfred alive on Friday, September 18. The Thursday night before, he and Alfred had watched a televised football game together at Alfred's trailer, and Patton also was present. Thigpen said Alfred had expressed to him on several occasions that Alfred did not like the circumstances of Patton living there.

¶ 4. Thigpen's live-in fiancé, Gabrielle Phillips, testified that Patton and Alfred had conflicts and that Alfred wanted Patton to move out. She recalled an argument Patton and Alfred had on Thursday, September 17, during which Alfred asked Patton to leave. Phillips said she heard Patton tell Alfred, "You keep on and one of these days you're going to regret it." Phillips said she last saw Alfred alive on Friday, September 18.

¶ 5. Phillips saw Patton on Saturday, September 19, and Patton spoke to her before going inside Alfred's trailer. He did not stay there long. She saw Patton again on Monday, September 21, between 4:00 and 4:30 p.m. They spoke to each other before Patton went inside Alfred's trailer. Phillips saw Patton come out of Alfred's trailer carrying a basket which Patton put in his car.

¶ 6. Warren County Sheriff's Investigator Chris Satcher described the ax which killed Alfred as a 26-inch Estwing brand camping ax. Investigators found a matching head cover for the ax in the trash outside Alfred's trailer. Investigators learned that a local Home Depot sells this brand of ax and obtained an in-store video from the store which showed Patton purchasing this type of ax on Wednesday, September 16, 2015. Investigators also obtained a receipt from the transaction, which showed a debit card was used to purchase the item.

¶ 7. Meanwhile, at the scene of the homicide, investigators observed and photographed a Cobra beer bottle on the floor inside the trailer, along with a Seagram's gin bottle. Satcher said the gin appeared to contain a cloudy foreign substance, which experts later determined was diphenhydramine, an active ingredient in Benadryl and other over-the-counter sleep aids.

¶ 8. Satcher also inspected and gathered a pair of athletic shorts from one of the trailer's bedrooms. Inside the shorts, Satcher found a folded envelope containing a grainy white powder similar to a crushed pill, which experts determined contained diphenhydramine.

¶ 9. Also found in the shorts was a debit card; a Nationwide life insurance proposal for a sixty-three-year-old male with a $25,000 death benefit; a document addressed to Patton referencing the last four digits of Patton's social security number; and a receipt from a convenience store in Vicksburg, Mississippi. The receipt was for gasoline and one King Cobra 32-ounce beer, and was dated September 18, 2015. The transaction was made with the debit card found in the shorts, which matched the debit card number used to purchase the ax.

¶ 10. On the front deck of Alfred's home, Satcher recovered a few folded towels, garbage bags, and a gallon container of household bleach. From these items, Satcher recovered a receipt from a Family Dollar store dated September 18, 2015, with a time stamp of 3:36 p.m. Investigators also obtained a video from the Family Dollar store showing Patton purchasing the bleach.

¶ 11. When Patton developed as a person of interest on September 22, a BOLO ("be on the lookout") was issued. That same day, Vicksburg police spotted Patton's vehicle parked on Washington Street. As authorities approached the vehicle, Patton appeared, and he was arrested. Patton initially gave authorities Alfred's address as his residence, but in a subsequent interview, Patton claimed his address was 3133 Washington Street, the location where authorities found Patton's vehicle parked.

¶ 12. After obtaining a search warrant for Patton's vehicle, authorities found a small spiral notebook inside the vehicle. Written inside the notebook was a "to-do list" which included a list of items: "Clorox, garbage bags, Benadryl, blankets, and towels." Also found in Patton's vehicle was a term life-insurance policy death-benefit quote from Nationwide Insurance for a sixty-three-year-old male.

¶ 13. Investigators thereafter contacted several insurance companies and subpoenaed information about a term life policy issued by MetLife in the amount of $20,000 on the life of Alfred Patton. The policy was issued September 16, 2015, to Joseph Patton as the beneficiary. The subpoena production included MetLife's recorded telephone conversations with the party who had purchased the policy and showed the initial premium was paid with the same debit card found in the shorts recovered from Alfred's home. Also produced were records sent to an email address, purportedly Patton's.

¶ 14. When Patton was arrested on September 22, authorities seized a cell phone in his possession. Investigators obtained a search warrant for the phone's records and data. Investigators found a text message dated September 16 from MetLife thanking the recipient for signing up for texts.

¶ 15. At trial, Patton testified he moved in with Alfred after moving back from Texas, and that he paid Alfred $75 a week in rent. He said he did not have a bedroom in Alfred's trailer and slept on the couch. Patton said he got along with Alfred. But when Alfred drank, Alfred wanted to be left alone and would ask Patton to leave, which is what occurred on Thursday, September 17. Patton said there was no argument and he complied with Alfred's request, leaving before the end of the football game they were watching to go stay with a friend in Vicksburg. Patton denied ever going back to Alfred's house after Thursday night.

¶ 16. Patton denied killing Alfred. He said the athletic shorts belonged to Alfred and were found in one of the rooms in which Alfred slept. Patton said he did not know whose debit card was found in the shorts, but he had a debit card and Alfred had another. Patton said he and Alfred shared a third debit card, which according to Patton was the card used to buy the ax.

¶ 17. Patton said his papers were in Alfred's shorts because Alfred always got the mail. And regarding the powder found in the shorts and the substance in the gin, Patton said Alfred often took something to help him sleep.

¶ 18. Patton admitted buying the bleach, which he used for cleaning the home and doing the laundry. Patton also admitted to buying the ax because Alfred had asked him to chop down a tree in the yard to cover a week's rent.

¶ 19. Patton claimed the notebook found in his vehicle belonged to Alfred, who frequently used Patton's vehicle. Patton said he did not know whose handwriting was in the notebook, but it was not his (Patton's).

¶ 20. Patton also said that he never applied for any life insurance, and he did not know whose voice was on the phone recordings obtained from MetLife, but it was not his. Patton also told the jury that he often let Alfred use his email address, which he and Alfred shared. Patton admitted the cell phone found in his possession was his, but Alfred used the phone also because he did not have a home phone.

¶ 21. Patton was found guilty of murder. He appeals his murder conviction, claiming one assignment of error: his trial was rendered unfair by the trial court's denial of a request to strike for cause two prospective jurors who each said they knew Alfred's son.

¶ 22. Additional facts will be related as necessary in our discussion of Patton's claim.

DISCUSSION

Whether Patton's trial was rendered unfair by trial court's refusal to strike for cause two prospective jurors who said during voir dire examination they knew the decedent's son.

¶ 23. The record shows that, during voir dire, when asked by defense counsel whether anyone knew certain members of the Patton family, potential jurors Cedric Wyatt, juror number 153, and a Mr. Carter, juror number 139, both advised they knew the decedent's son, Alfred Jr.

¶ 24. Wyatt said he used to work with Alfred Jr., and Wyatt's brother was friends with Alfred Jr. Defense counsel asked Wyatt, "Would you have a problem-would it cause you some problem to sit here?" Wyatt answered, "No."

¶ 25. Carter said, "Yeah, I worked with Alfred [Jr]." Defense counsel commented, "Well, you're going to have to face him at work again, correct, when you go back to work?" Carter indicated affirmatively. Defense counsel then asked, "Would it cause you some problems, how you voted in this case, if you saw him again?" Carter replied, "You'd have to ask him that." Defense counsel said, "No. I mean cause you problems." Carter replied, "No."

¶ 26. After voir dire examination, defense counsel requested that Wyatt and Carter be removed for cause. The trial court denied both requests. Carter thereafter was struck with the defense's last peremptory challenge, and Wyatt ended up on the jury after the defense had exhausted its peremptory challenges.

¶ 27. We point out that the record shows there was some confusion on Patton's part during jury selection. According to the record, Patton participated in the selection process with his attorney assisting. After the State tendered twelve jurors, Patton struck the first eight chosen by the State, at which point Patton's attorney said, "You don't get but 12." Patton indicated that he did not understand. The trial court then explained to Patton how the process worked.

¶ 28. Afterward, Patton elected to accept the last juror he had previously struck with his eighth peremptory challenge, and the trial court allowed Patton to do so. The selection process continued, and Patton used his last peremptory challenge to strike Carter.

¶ 29. Patton contends on appeal that there was an implied prejudice in this instance which the trial court should have recognized and acted upon, striking both potential jurors for cause. Citing Scott v. Ball , 595 So.2d 848 (Miss. 1992), and other cases, Patton submits this Court has indicated that not only is implied prejudice present in cases where a close relationship between jurors and parties or witnesses, but there is a presumption of impaired impartiality also is present in such instances. Patton thus contends it was error for the trial court to refuse the challenges for cause as to Wyatt and Carter because of the presumption of prejudice and other factors. Accordingly, Patton requests a new trial.

¶ 30. We disagree. "[U]nder Mississippi law, any person not disqualified under Mississippi Code Annotated Section 13-5-1, who will make oath that he or she is impartial, is competent to sit as a juror in a criminal case." Archer v. State , 986 So.2d 951, 958 (Miss. 2008) (citing Miss. Code Ann. § 13-5-79 (Rev. 2002) ). "The trial judge whose duty is to see that a competent, fair, and impartial jury is empaneled, is empowered with broad discretion to determine whether a prospective juror can be fair and impartial-notwithstanding the juror's admission under oath that he or she will be." Id. at 958-59. This Court has held that "a juror who may be removed on challenge for cause is one against whom a cause for challenge exists that would likely [a]ffect his competency or impartiality at trial." Evans v. State , 725 So.2d 613, 653 (Miss. 1997). Whether a potential juror can be fair and impartial is a judicial question reserved for the trial judge and will not be disturbed unless clearly wrong. Archer , 986 So.2d at 957 (citing Dennis v. State , 555 So.2d 679, 682 (Miss. 1989) ; Walls v. State , 371 So.2d 411, 413 (Miss. 1979) ). "No general rule can be stated which would control every conceivable situation with respect to a juror's qualifications[; e]ach case must be decided on its own merits in light of the facts before the court." Walls , 371 So.2d at 413 (citing Odom v. State , 355 So.2d 1381 (Miss. 1978) ). We also reiterate this Court's rule "that no reversible error results when the trial court fails to sustain a challenge for cause, and the juror(s) at issue is ultimately excused with a peremptory challenge." Sewell v. State , 721 So.2d 129, 135 (Miss. 1998).

¶ 31. At the outset, we note the case Bell v. State , 725 So.2d 836 (Miss. 1998). There, the defendant, convicted of capital murder, claimed the trial court had erred in denying his challenges for cause as to five jurors because of their relationships to the victim or to law enforcement. Id. at 845. The first potential juror's husband was a retired police officer, and the juror had worked with the victim's mother for about six months. Id. The second potential juror's father had been a deputy sheriff. Id. The third potential juror had a business relationship with the victim's father, and while doing business with the father-who knew the juror had been selected to be on the panel-was told by the father he was glad he (third potential juror) had been selected, because "we need good jurors." Id. The fourth potential juror's wife knew the victim's mother through work and also went to church with the victim. Id. The juror also had sent a card to the victim's family after the victim's death. Id. The fifth potential juror owned an auto-parts business where the victim's father had done some business over the years, and had hunted with the father occasionally. Id. at 845-46.

¶ 32. The trial court in Bell declined to excuse any of the five potential jurors for cause, and the defendant used five of his allotted twelve peremptory challenges to strike them. The defendant claimed on appeal the trial court's decision essentially deprived him of the full twelve peremptory challenges allowed because it compelled the defendant to use five of the twelve on those who should have been excused for cause. The Bell Court rejected this claim.

¶ 33. Bell first reiterated the wide discretion a trial judge has in determining whether to excuse prospective jurors for cause. Next, in finding the trial court did not abuse its discretion, Bell noted Mhoon v. State , 464 So.2d 77, 81 (Miss. 1985), superseded by statute on other grounds, see Bevill v. State , 556 So.2d 699, 713 (Miss. 1990). In Mhoon , this Court reversed a defendant's capital murder conviction where twelve members of a thirty-nine member jury pool either were policemen or were related by blood or marriage to current or former members of law enforcement; also, a uniformed policeman served as foreman of the jury. Mhoon found that a "statistical aberration" had occurred with the jury pool, and the "unique factual situation" of the "unusual case" before it manifested "too great a risk" of potential "undue influence over the opinions of other jurors ...." Bell pointed out that, while Mhoon had found a significant problem with the jury pool which necessitated reversal of the defendant's conviction, the Mhoon Court also stated, "there is no reason why an officer or an officer's relative should not serve on a jury if otherwise qualified to follow the law and the evidence." Bell , 725 So.2d at 846 (quoting Mhoon , 464 So.2d at 81 ).

¶ 34. The Bell Court, addressing those potential jurors who had "disclosed acquaintances and business relationships with relatives of the deceased[,]" found that each one had "declared, under oath, that their relationships would not prevent them from following the court's instructions and applying it fairly to the facts of the case." Id. Bell added:

While the judge's voir dire may not have probed as deeply as Bell thinks the questions should have into these jurors' ability to try the case fairly, Bell, of course, had the opportunity to pursue any questions through his attorney's examination of the jurors. He did not choose to do so.

Id. Bell said, "Mere acquaintance or even family relationships with parties or those related to parties is not sufficient to require that a juror be excused for cause." See id. (citing Rush v. State , 278 So.2d 456 (Miss. 1973) (in which this Court found no error in the trial court's decision not to excuse for cause a prospective juror who knew the defendant and had obtained a money judgment against him, when the prospective juror stated he could put the relationship out of his mind and try the case on the facts and the law) ).

¶ 35. We find that to be the case here. The relationship(s) and/or association(s) disclosed by Wyatt and Carter with the victim's son were not-on this record-enough to say the trial court should have excused either prospective juror for cause. The record does not tell us what type of working or employment relationship either prospective juror had (previously or presently) with the son, as there was no further inquiry into either matter beyond that related above. But any fault with this omission, as Bell instructs, does not lie with the trial court. The record clearly illustrates that the defense could have examined these relationships further if it had chosen to do so. See, e.g. , id. at 846.

¶ 36. Further, Scott and the other cases Patton relies upon on appeal are distinguishable. In Scott , this Court reversed for a new trial a medical-malpractice judgment in favor of a doctor after finding that Batson violations had occurred with the jury selection process. Scott , 595 So.2d 848. While Scott also found error in the trial court's failure to exclude a potential juror whose family had been treated occasionally by the doctor over a period of ten years, Scott did not find this error constituted reversible error, noting at the outset of the opinion that only "the [ Batson ] issue requires reversal." Id. at 849.

¶ 37. In addressing the challenge for cause issue, Scott said:

To the extent that any juror, because of his relationship to one of the parties, his occupation, his past experience, or whatever, would normally lean in favor of one of the parties, or be biased against the other, or one's claim or the other's defense in the lawsuit, to this extent, of course, his ability to be fair and impartial is impaired.

Id. Scott , however, coupled this statement with the following:

It should also be borne in mind that jurors take their oaths and responsibilities seriously, and when a prospective juror assures the court that, despite the circumstance that raises some question as to his qualification, this will not affect his verdict, this promise is entitled to considerable deference. Harding v. Estate of Harding , 185 So.2d 452, 456 (Miss. 1966) ; Howell v. State , 107 Miss. 568, 573, 65 So. 641, 642 (1914).

595 So.2d at 849.

¶ 38. Scott cautioned that in cases in which a physician is a party, the trial court "must be sensitive to the qualification of a juror" who has been treated by him or her, "or whose family members have at one time or another been patients" of his or hers, especially in smaller towns and less populated areas. Id. Scott explained, "Mississippians in less populated areas enjoy a close, fraternal relationship with their doctors, and regardless of a prospective juror's complete sincerity in his belief of his ability to be fair, it is only human nature that in most cases he will be more reluctant to return a verdict against the physician." Id. at 851.

¶ 39. We do not find the same type of intimate or personal relationship here.

¶ 40. In Taylor v. State , 656 So.2d 104 (Miss. 1995), upon which Patton also relies, this Court held the trial court erred in refusing to remove for cause the brother of an assistant district attorney who worked in the office of the district attorney prosecuting the case against the defendant. The brother was selected as a juror in the case after the defendant already had exercised all of the peremptory challenges allotted.

Finding the issue as one of first impression, the Taylor Court cited as persuasive authority People v. Macrander , 828 P.2d 234, 242 (Colo. 1992), which states:

[A] prospective juror who is related within the third degree by blood, adoption, or marriage to a deputy district attorney presently serving on the staff of the elected district attorney responsible for the criminal prosecution is related to an "attorney of record" for purposes of a challenge for cause....

Id. at 110. Taylor reiterated that, "[o]ne of the purposes of challenges, for cause and peremptory, is to eliminate jurors who have expressed or implied prejudices, or who may be put in an embarrassing position despite protestations to the contrary." Id. Taylor said, "[c]ertainly, a juror who is the brother of an assistant district attorney is in such a position[,]" and that "he is close to his sister and is her neighbor makes the problem more acute." Id. at 111. Accordingly, this Court held that the trial court in Taylor erred in not excusing that particular juror for cause.

¶ 41. But as with Scott , the type of relationship found in Taylor is not found here.

¶ 42. Lastly, Patton cites Poe v. State , 739 So.2d 405, 409 (Miss. Ct. App. 1999), in which the defendant had claimed on appeal that the trial court's decision to exclude certain veniremen had a " Batson -like effect." Rejecting the claim, the Court of Appeals first pointed out that Batson claims involve peremptory challenges, not excusals for cause. Id. at 409. The Court of Appeals next found no abuse of discretion in the trial court's decision to remove for cause a potential juror who went to school with the defendant, was friends with the defendant's brother, and whose best friend had dated the defendant. Id. Poe also found no abuse of discretion in the trial court's decision to remove a potential juror whose son was a first cousin to the defendant. Id.

¶ 43. That Poe found no abuse of discretion in the trial court's decision(s), simply goes to the Court of Appeals' limited standard of review with regard to such matters. See again , Walls , 371 So.2d at 413 ("No general rule can be stated which would control every conceivable situation with respect to a juror's qualifications[; e]ach case must be decided on its own merits in light of the facts before the court.").

¶ 44. For our purposes here, there was no showing that either prospective juror had a close personal relationship with the victim's son, just that they had worked together, and that Wyatt's brother was friends with the son. Consistent with Bell , and not inconsistent with either Scott , Taylor , or Poe , the relationships disclosed here are, by themselves, insufficient to disturb the trial court's judgment that both prospective jurors on their oaths could be impartial in Patton's trial.

¶ 45. For these reasons, Patton's claim that the trial court erred by failing to strike Carter and Wyatt for cause, is without merit.

CONCLUSION

¶ 46. We affirm Patton's conviction and sentence for murder.

¶ 47. AFFIRMED.

RANDOLPH, P.J., COLEMAN, MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND KING, J.

KITCHENS, PRESIDING JUSTICE, DISSENTING:

¶ 48. I respectfully dissent. I would find that the trial court abused its discretion by denying Patton's request to strike prospective jurors Wyatt and Carter for cause. Patton was on trial for the brutal ax murder of his uncle, and it is manifest from the voir dire examination, in which numerous venire members expressed knowledge of the facts of the case or had some connection to persons involved, that the crime was notorious and news of it had spread throughout the county. Carter, on whom the defense exercised a peremptory strike, said that he had worked with the murder victim's son and would have to face him when he returned to work. Wyatt, who was selected for the jury because the defense had exhausted its peremptory strikes, said that he previously had worked with the victim's son, and also that his brother and the son were friends. While both Carter and Wyatt said that they would have no problem serving, neither expressly said that he could be fair and impartial.

¶ 49. The defendant's right to a trial by an impartial jury is guaranteed by the Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution. U.S. Const. amend. VI ; Miss. Const. Art. 3, § 26. The circuit court has considerable discretion in determining whether to strike a juror for cause. Scott v. Ball , 595 So.2d 848, 849 (Miss. 1992). Nonetheless, "[t]he circuit judge has an absolute duty ... to see that the jury selected to try any case is fair, impartial and competent." Id. at 850. To that end, the circuit judge must "scrupulously guard the impartiality of the jury and take corrective measures to insure an unbiased jury." Id.

¶ 50. We have recognized that a juror's ability to be impartial may be impaired to the extent that the juror's relationship to a party, bias against a party, occupation, past experience, or other factors would cause him to lean in favor of one party or the other. Id. When a venire person assures the court that, despite such circumstances, he or she can be fair and impartial, the court may give that assurance significant deference. Id. Nonetheless, despite a potential juror's promise under oath that he or she can be impartial, the trial court is fully vested with discretion to excuse the potential juror if the court believes he or she could not try the case impartially. Coverson v. State , 617 So.2d 642, 646 (Miss. 1993).

¶ 51. I would find that the trial court abused its discretion by failing to excuse Wyatt and Carter for cause. Both of these potential jurors communicated that they worked or had worked with the victim's son, and Wyatt also said that his brother and the son were friends. Thus, it was reasonable for the defense to challenge them for cause on the basis of their relationships with the victim's son. Because it is readily conceivable that coworkers would afford each other some degree of loyalty, a potential for bias against Patton certainly existed. Regarding Wyatt, that potential was compounded by the fact that his brother was a friend of the victim's son. This Court has recognized that, when a reasonable challenge is made and other jurors against whom no challenge is made are available, the trial court's discretion to deny the challenge is "considerably narrowed." Scott , 595 So.2d at 850. Further, neither of the potential jurors expressly said that he could be fair and impartial; rather, each merely said that serving would not be a problem. See Billiot v. State , 454 So.2d 445, 457 (Miss. 1984) (a juror's promise to "try" to follow the court's instruction was insufficient). Because the defense's for-cause challenges were manifestly reasonable, other potential jurors against whom no challenge had been made were available, and the challenged jurors never said they could be fair and impartial, I would find that the trial court abused its discretion by denying his for-cause challenges to them. And because Wyatt served on the jury, I would reverse and remand for a new trial. The risk of this juror's being less than impartial in this particular case, either consciously or subconsciously, was obvious, and it easily could have been avoided.

WALLER, C.J., AND KING, J., JOIN THIS OPINION.

      It is not clear from the record whether Wyatt or Carter currently were working with the victim's son at the time of trial. Based on their initial responses, both prospective jurors seemed to say they had worked with victim's son in the past. Although, when asked by defense counsel about having to face the son when Carter returned to work, Carter indicated that would be the case.

      See Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding that the Equal Protection Clause forbids the government from exercising peremptory challenges to exclude jurors on account of their race); and Edmonson v. Leesville Concrete Co. , 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (holding that Batson principles apply to civil cases between private litigants).

      One cannot complain on appeal of the failure to excuse a juror for cause unless the appellant exhausted all his peremptory challenges. Billiot v. State , 454 So.2d 445, 457 (Miss. 1984). The defense did use a peremptory strike on Carter. But because the majority addresses the trial court's exercise of discretion regarding both Wyatt and Carter, I do likewise. Although the error regarding Carter is not reversible because he was excused, Wyatt served on the jury and the trial court reversibly erred by failing to strike him.

      As noted by the majority, the record is ambiguous on whether Carter was working with the victim's son at the time of the trial or had worked with him in the past.

      In Flowers v. State , 240 So.3d 1082, 1127-28, 2017 WL 5076152 at *31 (Miss. November 2, 2017), a majority of this Court recognized the danger of co-worker bias, finding that a venire person's working with a member of the defendant's family was a race-neutral reason for exercising a peremptory strike.


author: KITCHENS, PRESIDING JUSTICE, FOR THE COURT: COLEMAN, JUSTICE, DISSENTING:

text:
    MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES, AND PARKS v. Candace WEBB, Thomas Harper, and Kathleen D. Webb
    NO. 2015-CT-00578-SCT
    Supreme Court of Mississippi.
    March 15, 2018 Rehearing Denied June 14, 2018
    STEPHEN G. PERESICH, JOHANNA M. McMULLAN, ATTORNEYS FOR APPELLANT
    JOE SAM OWEN, ROBERT P. MYERS, JR., ATTORNEYS FOR APPELLEES
    EN BANC.
    ON WRIT OF CERTIORARI
   KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. On August 22, 2009, two officers with the Mississippi Department of Wildlife, Fisheries, and Parks (MDWFP) observed Donald Bernius speeding on the Tchoutacabouffa River in Harrison County, Mississippi. Prior to effecting a stop, the officers ordered Bernius to move his boat to what they contended was a safer location on the river; but Bernius fled in the opposite direction. Bernius's vessel collided with a boat operated by Christopher Webb. The collision killed Webb and seriously injured Shane Webb. Two hours after the collision, Bernius's blood-alcohol content was .25 percent. Kathleen Webb, individually and on behalf of Christopher Webb's wrongful-death beneficiaries, and Candace Webb, as Shane Webb's guardian, filed a lawsuit pursuant to the Mississippi Tort Claims Act (MTCA) against the MDWFP, arguing that the officers had acted in reckless disregard for the safety of others. The Circuit Court of the Second Judicial District of Harrison County, following a bench trial, agreed and ruled in favor of the Webbs. The Mississippi Court of Appeals reversed and rendered a judgment in favor of the MDWFP, finding that the evidence did not demonstrate that the officers had acted with reckless disregard. We granted Candace Webb's Petition for Writ of Certiorari . Finding that the Mississippi Court of Appeals misapplied the applicable standard of review and substituted its judgment for that of the trial court, we reverse the judgment of that court and reinstate and affirm the judgment of the Circuit Court of the Second Judicial District of Harrison County.

FACTS AND PROCEDURAL HISTORY

¶ 2. The following recitation of the facts is repeated from the decision of the Mississippi Court of Appeals:

On August 22, 2009, MDWFP conservation officers Barry Delcambre and Michael Thrash witnessed Donald Bernius speeding in a boat on the Tchoutacabouffa River. The officers each navigated their separate patrol boats into the river to investigate and stop Bernius. Bernius saw the officers and came to an initial stop in the middle of the river.
According to the officers' testimony at trial, they recognized that their boats and Bernius's boat were stopped in a "dangerous area" of the river. The officers testified that this particular area of the river, known as Bend 2, has blind spots where boaters heading from either direction cannot see other boaters approaching from the opposite direction. The officers explained that, as a result of stopping and approaching Bernius, the three boats were situated in a position so as to occupy most of the width of the river, which, according to the officers, created an eminent [sic] hazard for other boaters. As a result, Officer Delcambre instructed Officer Thrash to have Bernius move to the nearby straightaway down the river to provide a safer location for them to question Bernius. Officer Delcambre proceeded ahead of Officer Thrash and Bernius with the intention of blocking oncoming traffic.
Officer Thrash ordered Bernius to follow them out of Bend 2 into the straightaway, and Bernius agreed to comply with the instructions. Officer Thrash then proceeded to the straightaway after Officer Delcambre so that Bernius could follow him. According to Officer Thrash, Bernius followed him a short distance, and then Bernius abruptly turned his vessel 180 degrees and fled in the opposite direction. Officer Thrash then signaled to Officer Delcambre, and the officers pursued Bernius.
At the same time, John Joachim was traveling down the river in his boat in the opposite direction from Bernius. Joachim provided in his statement that he observed Bernius speeding and recklessly driving on the wrong side of the river. As Bernius's boat approached, Joachim had to use evasive maneuvers to avoid a collision with Bernius. After passing Joachim's boat, Bernius collided with a boat operated by Christopher [Webb]. The collision resulted in Christopher [Webb's] death and injuries to Shane [Webb], who was a passenger in Christopher [Webb's] boat.
Neither Officer Delcambre nor Officer Thrash witnessed the collision. Once the officers arrived at the scene of the accident, they began rescue procedures, tended to the injured, alerted authorities, and assisted Bernius out of the water. Bernius was treated at Biloxi Regional Medical Center. Approximately two hours after the accident, a blood sample was drawn from Bernius, which indicated a .25 percent blood-alcohol concentration (BAC) level. Bernius later pled guilty to boating under the influence (BUI) and causing death and injury. Bernius is currently serving a twenty-year sentence in prison. As the record reflects, prior to the incident, Bernius was a paraplegic and wheelchair bound.
In connection with the boating accident, the Mississippi Department of Marine Resources (MDMR) investigated Officer Delcambre's and Officer Thrash's conduct. After interviewing Officer Delcambre and listening to an interview of [Dexter] Bouie, the passenger in Bernius's boat, the MDMR determined that Officers Delcambre and Thrash "acted completely within the scope of their duties ...." The MDMR concluded "that the only people responsible for this boating accident were the people involved in the actual accident." The Webbs subsequently filed suit against the MDWFP under the MTCA, claiming that Officers Delcambre and Thrash acted with reckless disregard for the safety of others when they failed to detain Bernius and instructed him to move to a safer location.
At a bench trial held on February 18 and 19, 2014, Officers Delcambre and Thrash testified to their knowledge and understanding of the MDWFP's Standard Operation Procedures (SOPs) for handling BUI situations. Both officers testified that, in their initial contact with Bernius, his demeanor and handling of his vessel, among other things, failed to indicate he was impaired. Officer Thrash specifically testified that, at the time, he had no reasonable suspicion to believe Bernius was intoxicated.
Officers Delcambre and Thrash testified that their first priority during their initial contact with Bernius was to ensure the safety of other boaters and citizens on the river. Officer Delcambre explained, "On that particular day[,] due to the river traffic and the fluctuations of the traffic coming north and south up the river where we encountered Bernius there in [B]end [2], due to the nature of where we [were] ... I made the judgment to move around the bend for the safety of the people and everybody involved on the river."
...
The circuit court ultimately held that, "considering the totality of the circumstances and the applicable law, as well as the admissions of the officers, the officers acted in this case with reckless disregard." ... The circuit court explained:
[The officers] did not exercise any of the care or consideration [that] they were required to do in their dealings with Bernius. They clearly intended that Bernius continue to operate his boat without any restrictions from them and without their having made any inquiries as to his reckless operation, speeding, physical abilities, or use of alcoholic beverages. They "intended to do the act that caused harm to come to the [p]laintiff."
The circuit court ultimately rendered a judgment for the Webbs. The circuit court conducted a damages hearing on November 5, 2014, and awarded damages in the amount of $1,400,000 to the guardianship of Shane, and damages of $100,000 to Kathleen, individually and on behalf of Christopher's wrongful-death beneficiaries. After applying the MTCA's statutory cap on damages, the circuit court ultimately entered a final judgment to the guardianship of Shane in the amount of $466,666.67, and to Kathleen, individually and on behalf of Christopher's wrongful-death beneficiaries, in the amount of $33,333.33.

Miss. Dep't of Wildlife, Fisheries, and Parks v. Webb , 248 So.3d 823, 825-28, 2017 WL 1396686, **2-4 (Miss. Ct. App. Apr. 18, 2017).

¶ 3. The Mississippi Court of Appeals held that "the circuit court's judgment lacks credible and substantial evidentiary support." Id. at 835, at *11. The court continued: "[t]he evidence failed to show that the officers' conduct 'evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that high risk and the high probability of harm involved.' " Id. (quoting Bradley v. McAllister , 929 So.2d 377, 380 (Miss. Ct. App. 2006) ).

STANDARD OF REVIEW

¶ 4. The applicable standard of review follows:

"A circuit court judge sitting without a jury is afforded the same deference as a chancellor." City of Jackson v. Sandifer , 107 So.3d 978, 983 (Miss. 2013) (citing City of Jackson v. Powell , 917 So.2d 59, 68 (Miss. 2005) ). This Court leaves undisturbed a circuit court's findings following a bench trial unless the findings "are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied." Sandifer , 107 So.3d at 983 (quoting Powell , 917 So.2d at 68 ). The circuit court's findings "are safe on appeal where they are supported by substantial, credible, and reasonable evidence."
City of Jackson v. Law , 65 So.3d 821, 827 (Miss. 2011) (quoting City of Ellisville v. Richardson , 913 So.2d 973, 977 (Miss. 2005) ). "Although reasonable minds might differ on the conclusion of whether or not the officer in question acted in reckless disregard, it is beyond this Court's power to disturb the findings of the trial judge if supported by substantial evidence." Richardson , 913 So.2d at 978 (citing City of Jackson v. Brister , 838 So.2d 274, 277-78 (Miss. 2003) ).

City of Jackson v. Lewis , 153 So.3d 689, 694 (Miss. 2014). "In a bench trial, when the trial judge sits as the finder of fact, he [or she] has the sole authority for determining the credibility of witnesses." Brister , 838 So.2d at 279 (citing Yarbrough v. Camphor , 645 So.2d 867, 869 (Miss. 1994) ).

DISCUSSION

¶ 5. The Mississippi Tort Claims Act insulates employees of a governmental entity, "acting within the course and scope of their employment," from liability for any claim while that employee is "engaged in the performance or execution of duties or activities relating to police ... protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury ...." Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2012).

¶ 6. This Court has held that " '[r]eckless disregard' ... denotes 'more than mere negligence, but less than an intentional act.' " Lewis , 153 So.3d at 693 (quoting Law , 65 So.3d at 826 ). " 'Our case law indicates "reckless disregard" embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act.' " Miss. Dep't of Pub. Safety v. Durn , 861 So.2d 990, 995 (Miss. 2003) (quoting City of Jackson v. Lipsey , 834 So.2d 687, 692 (Miss. 2003) ). Moreover, " 'reckless disregard usually is accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.' " Durn , 861 So.2d at 995 (quoting Maye v. Pearl River Cty. , 758 So.2d 391, 394 (Miss. 1999) ). Reckless disregard occurs "when the 'conduct involved evinced not only some appreciation of the unreasonable risk involved, but also a deliberate disregard of that risk and the high probability of harm involved.' " Durn , 861 So.2d at 995 (quoting Maldonado v. Kelly , 768 So.2d 906, 910-11 (Miss. 2000) ).

¶ 7. The Alcohol Boating Safety Act provides: "It is unlawful for any person to operate a watercraft on the public waters of this state who ... [i]s under the influence of intoxicating liquor ...." Miss. Code Ann. § 59-23-7(1)(a) (Rev. 2013). Mississippi Code Section 59-21-83 provides that:

No vessel shall be operated within this state in a reckless or negligent manner or at a rate of speed greater than is reasonable and prudent under the then existing circumstances or when the operator is so physically or mentally incapacitated as to be incapable of safely operating such vessel, or while the operator is under the influence of intoxicating liquor or narcotics ....

Miss. Code Ann. § 59-21-83 (Rev. 2013).

¶ 8. The Mississippi Department of Wildlife, Fisheries, and Parks issued Standard Operating Procedures (SOPs) for enforcing the Alcohol Boating Safety Act on February 20, 2006, which were to "[s]upersede[ ] all prior departmental [d]irectives on this subject." SOP 04.01 requires custodial arrests for "[v]iolations of the Alcohol Boating Safety Act" and provides that for other violations, "a citation should be issued at the scene ...." SOP 04.01, in the case of a custodial arrest, sets forth procedures for the officers to undertake in securing the vessel.

¶ 9. SOP 07/03 states that, in order "to establish probable cause, an Officer must ... [h]ave a reasonable belief that an operator of a watercraft is under the influence; and ... [m]eticulously follow the procedures necessary to form probable cause, to establish probable cause, and/or prima facie intoxication." (Emphasis in original.) The SOP 07/03 continues:

Since BUI applies to operators of watercraft, which are underway, this will mean that the effort to establish probable cause for BUI will begin after an Officer's stopping of a watercraft, which is underway.
Generally, for an Officer to stop a vessel that is underway, you must have observed that vessel being operated in a negligent or reckless manner, or observe the vessel or its operator in violation of some other law or regulation (i.e. too many occupants in the boat, improper [personal flotation devices], etc.)[.] However, an Officer may stop a boat for a routine safety check and then for a reasonable belief that the operator might be under the influence which begins the process for establishing probable cause for BUI[.]
NOTE: An Officer may not use a safety check as an excuse to stop any watercraft for the sole purpose of attempting to establish probable cause for BUI.
Once a vessel has been stopped, the Officer may then ascertain if there is further probable cause to suspect that the operator or the vehicle is under the influence of alcohol, drugs, or a controlled substance. Evidence to warrant proceeding to the screening/intoxication interview include:
1. Slurred speech;
2. Poor balance (not as convincing on water due to wave action);
3. Bloodshot eyes; and
4. Other behavioral anomalies that suggest the individual is not in complete control of his or her faculties.

(Emphases in original.)

¶ 10. The trial court ruled that, while "both officers stated that they were going to move into the straightaway and then determine why Bernius had been reckless and speeding and then go into the BUI format," neither officer pointed to anything "(statute, SOP, rule, case law, etc.) which would indicate that this was an acceptable or permissible procedure." The trial court ruled:

In this case, SOP 4.01 provides that citations are to be issued "at the scene." That SOP does not provide that the officers may direct the offending operator to continue to operate his vessel prior to issuing a citation. Specifically, it does not provide for directing an operator to move his vessel to another location. Movement of the boat is permitted only on a custodial arrest and then that movement is not made by the offending operator. SOP 07/03 defines "probable cause" and states that "the effort to establish probable cause for BUI will begin after an Officer's stopping of a watercraft ...." The word "will" is mandatory, not permissive. SOP 07/03 then provides that after stopping a vessel, "the Officer may then ascertain if there is further probable cause ..." and gives a list of evidence to consider to determine whether to proceed to "the screening/intoxication interview ...." These provisions indicate that the officer is required upon stopping a vessel to begin his efforts to establish probable cause for BUI and that the officer may determine that there is further probable cause by considering the four (4) factors listed. If those four (4) factors exist, the officer then must proceed to the screening interview.

The trial court continued that Officers Thrash and Delcambre "decided without hesitation to direct Bernius to continue to operate his boat to travel to the straightaway before either determining why Bernius was reckless and speeding or whether the use of alcohol could be ruled out."

¶ 11. The Court of Appeals disagreed with the trial court's interpretation of the SOPs, concluding that, "due to public interest in the officers' safety when conducting a stop, we find that the officers here possessed the discretion to request that Bernius pull out of the hazardous and high-traffic area of the river." We cannot agree with the conclusion of the Court of Appeals because the trial court's interpretation of the MDWFP's SOPs was not manifestly wrong, clearly erroneous, and it did not demonstrate the application of an erroneous legal standard. The Court of Appeals may have disagreed with the trial court's conclusions. But, with respect, that is not enough to reverse the trial court's judgment.

¶ 12. The Court of Appeals correctly observed that "Mississippi precedent establishes that a violation of a SOP does not alone establish reckless disregard." Webb , 248 So.3d at 833, 2017 WL 1396686, *9 (citing City of Jackson v. Presley , 40 So.3d 520, 524 (Miss. 2010) ). Trial courts must " 'look to the totality of the circumstances when analyzing whether someone acted in reckless disregard.' " Lewis , 153 So.3d at 694 (quoting Richardson , 913 So.2d at 977 ).

¶ 13. The appeals court found that "Officer Thrash admitted that, during the alleged stop, he did not ask Bernius or his passenger whether they had consumed," but that "he could not tell if Bernius's speech was slurred because he only heard Bernius say 'Okay' in response to the command for Bernius to follow the officers to the straightaway." Webb , 248 So.3d at 830, 2017 WL 1396686, *6. Moreover, Officer Thrash testified that he did not have reasonable suspicion that Bernius was under the influence: "Bernius 'was seated on his boat and appeared to have good posture,' and [Officer Thrash] was never close enough to Bernius to observe if his eyes were bloodshot.... Bernius exhibited no behavior anomalies suggesting that Bernius was not in complete control of his faculties." Id. The Court of Appeals continued:

Officer Delcambre testified that, because of the blindspot located in the bend where he and Officer Thrash stopped Bernius, he was not close enough to Bernius's boat to be able to assess Bernius's mental, physical, or sensory faculties. Officer Delcambre explained, "We never engaged [Bernius] in slurred speech. I never engaged him in a conversation. I never engaged him in any of that. My main objective at the point where we made contact was to get him out of the bend of the river." Officer Delcambre instructed Officer Thrash to tell Bernius to follow the officers around the bend so they could safely question Bernius regarding his excessive speeding and reckless operation of the boat.

Id. at 831-32, at 7. Both Officers Thrash and Delcambre testified that a "blind spot" existed in the bend of the river where Bernius was stopped. In analyzing the totality of the circumstances, the Court of Appeals relied solely on the testimony of Officers Thrash and Delcambre. But it ignored the determination by the trial court that the testimony of Officers Thrash and Delcambre lacked credibility. "In a bench trial, when the trial judge sits as the finder of fact, [s]he has the sole authority for determining the credibility of witnesses." Brister , 838 So.2d at 279 (citing Yarbrough , 645 So.2d at 869 ).

¶ 14. Officer Keith Lewis Bond, a conservation officer with the MDWFP, prepared a report following the accident which was submitted to the district attorney. He stated in that report that Officers Thrash and Delcambre had, prior to stopping Bernius, "initiated blue lights and siren in an attempt to stop Bernius as he passed falling in behind him southbound as he ignored their signals." Both Officers Thrash and Delcambre attempted to discredit this report during the bench trial. Officer Thrash stated that "when [Bernius] saw me he decelerated his boat and began to stop. So in my opinion he did not ignore my blue lights and sirens." Officer Delcambre testified that the sentence in the report indicating that Bernius had ignored the blue lights and siren was not correct. The trial court found that "[t]he officers pursued Bernius down the straightaway between Bends 3 and 4, around [B]end 3, and eventually got Bernius stopped just before Bend 2."

¶ 15. Joshua Lord, who was boating on August 22, 2009, helped Officers Thrash and Delcambre in getting Bernius to shore and in searching in the water for the deceased victim. Lord testified, without objection, that he had heard Officer Delcambre state to other MDWFP officers that Officer Delcambre had "stop[ped] the boat because his passenger was propped up on his back holding him up keeping him able to drive." Officer Delcambre, during the bench trial, denied that he had told anyone that he had observed Bernius being propped up in the boat by his passenger, Dexter Bouie.

¶ 16. The accident occurred at 4:15 p.m. (16:15) and Bernius's blood was drawn at 6:30 p.m. (18:30), two hours and fifteen minutes later. The report from the Mississippi Crime Laboratory indicates that Bernius's blood-alcohol content was .25%. Both Officers Thrash and Delcambre agreed that "an individual with a .25 BAC has severe impairment of all mental, physical and sensory function." Officer Delcambre stated that a person with such impairment "couldn't stand up, couldn't articulate, you know, in speech, could mean no hand or eye coordination."

¶ 17. The trial court stated that "the fact that Bernius was ultimately determined to have a BAC of .25% does not mean that the officers knew or should have known of that at the time they stopped Bernius," but that such determination does "call into question the officers' observations (or lack thereof) of Bernius." The trial court mentioned Officer Delcambre's testimony "that a BAC of .25% is a severe impairment and that a person with that BAC is unable to stand, cannot articulate, and has no hand/eye coordination." The court continued: "[i]t raises a question in the Court's mind about the accuracy of the officers' observations of Bernius or perhaps the accuracy of their testimony." The court found that Lord's testimony that, "after the accident, he heard Delcambre tell other officers that they stopped Bernius because the passenger was propping Bernius up and that the two men were back to back," called into question the veracity of Officer Delcambre's testimony denying having said that.

¶ 18. Officer Bond's report also stated that Officer Delcambre and Lord "stated that they could smell the distinct odor of an intoxicating beverage on Bernius's breath" as the pair of them extracted the paraplegic (Bernius) from the water and into Officer Delcambre's boat following the accident. Lord testified at the bench trial that "the smell was very strong coming off of [Bernius's] breath of alcohol." Officer Delcambre testified at the bench trial "[i]t's false" in reference to the MDWFP report prepared by Officer Bond. Lord described Bernius's behavior as, "[i]n one word, wasted." The trial court found that Lord's testimony was credible, noting that "Lord is not affiliated with any party in this case and did not know either Bernius or Delcambre." The trial court continued that "[t]here was no plausible reason, in fact, no reason at all given as to why Lord's testimony should be questioned concerning this statement."

¶ 19. Officer Thrash testified that, when he and Officer Thrash began the process of getting Bernius to stop his boat, "at the time we were in that dangerous bend and we needed to get out of that dangerous bend to a long straightaway, and at that time we would have conducted an interview, but at that time he [gave] us no reasonable suspicion to believe that he had been drinking." Officer Thrash then agreed that he and Officer Delcambre had stopped Bernius not only to "determine why he was driving recklessly" but also "to rule out the use of alcohol ...." Officer Delcambre testified that "we had at least two-thirds of the river blocked and in a dangerous bend and the blind spot. So if somebody had come around from that straightaway and around that [blind spot] right there one of the three boats more than likely would have been hit." The trial court found that "the only evidence that Bend 2 was really either blind or dangerous is the testimony of Thrash and Delcambre" and that such testimony amounted to nothing more than "well-rehearsed mantra." The court further questioned the veracity of the officers' testimony by pointing out that:

[i]f these officers really believed that Bend 2 was a blind, dangerous curve and was as dangerous as they would like for this Court to believe, they cannot truly believe that it was safe or reasonable to order an acknowledged reckless operator to drive his boat through that dangerous area unfettered in any manner.

According to the trial court, "[t]he photographs do show a sharp curve as Bend 2, but the points of reference in the photographs do not lend themselves to any real assessment that Bend 2 is a blind curve or a dangerous curve."

¶ 20. Officer Thrash testified that it was impossible to have moved Bernius's boat to or near a pier close in proximity to the place at which Bernius's boat had been stopped in Bend 2 because if "you have two boats side by side and a boat comes by you at full speed the wake action could actually break your arm or fingers ... while you're sitting there trying to conduct an interview." He stated, however, that the danger of a collision due to the blind curve of Bend 2 would have been avoided entirely by moving the boats to or close to the nearby pier. The trial court found that Thrash's testimony concerning the possibility that an arm or finger could be broken due to the wake of passing boats was "not credible." The trial court observed that "these officers are experienced enough to avoid breaking a finger simply because a boat is docked at a pier." She continued: "[t]hese are experienced officers who dock boats every day. They were both, in fact, at a pier or dock when they first saw Bernius and yet there is no report of any finger breaking incident occurring there."

¶ 21. We cannot discard the trial court's finding that the testimony of Officers Thrash and Delcambre was not credible because substantial, credible, and reasonable evidence in the record contradicts the officers' testimony. The trial court ultimately found that:

[w]hether the officers knew that Bernius was intoxicated or not and whether they should have known or not, Thrash and Delcambre admittedly appreciated the unreasonable risk to others on the River in allowing a person to recklessly operate a boat and/or to operate at an unreasonable speed. They acknowledged that there was a probability of harm to others if they permitted such a person to operate a boat in that manner. Yet they not only permitted Bernius to continue to operate his boat, they directed him to do so.

In reversing and rendering the trial court's judgment, the Court of Appeals ignored substantial, credible, and reasonable evidence adduced in the bench trial which supported the trial court's finding that Officers Thrash and Delcambre acted with reckless disregard for the safety of others.

CONCLUSION

¶ 22. It is possible that reasonable minds could differ on the question of whether Officers Thrash and Delcambre acted in reckless disregard for the safety of others. But, despite substantial evidence adduced at trial supporting the thorough finding by the Circuit Court of the Second Judicial District of Harrison County that Officers Thrash and Delcambre acted in reckless disregard for the safety of others, the Mississippi Court of Appeals disagreed with the court's conclusion and substituted its own findings of fact. Accordingly, we reverse the judgment of the Mississippi Court of Appeals and reinstate and affirm the judgment of the Circuit Court of the Second Judicial District of Harrison County.

¶ 23. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CIRCUIT COURT OF THE SECOND JUDICIAL DISTRICT OF HARRISON COUNTY IS REINSTATED AND AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., KING, BEAM AND CHAMBERLIN, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION. ISHEE, J., NOT PARTICIPATING.

COLEMAN, JUSTICE, DISSENTING:

¶ 24. The plaintiffs bore the burden of producing evidence that the law enforcement officers in the case sub judice acted with reckless disregard. Even in light of our highly deferential standard of review, the plaintiffs failed to produce evidence that the officers in question appreciated the risk of the suspect fleeing or consciously disregarded any risk. A review of the trial court's order indicates that the trial judge based her judgment in favor of the plaintiffs on a rejection of the defenses offered by the Department rather than sufficient, affirmative proof offered by the plaintiffs to show reckless disregard on the part of the officers. In doing so, the trial court erred by reversing the burden of production. Accordingly, the trial court erred in granting judgment in favor of the plaintiffs, and I, with respect, dissent.

Standard of Review

¶ 25. "A circuit court judge sitting without a jury is afforded the same deference as a chancellor."

City of Jackson v. Lewis , 153 So.3d 689, 693 (¶ 4) (Miss. 2014). Accordingly, we will not disturb a circuit court's findings following a bench trial where the findings are supported by substantial, credible, and reasonable evidence. Id. However, we must reverse the circuit court's findings where they are manifestly wrong or clearly erroneous, or the court applied an erroneous legal standard. Id. "Although reasonable minds might differ on the conclusion of whether or not the officer in question acted in reckless disregard, it is beyond this Court's power to disturb the findings of the trial judge if supported by substantial evidence." Id. (citing City of Ellisville v. Richardson , 913 So.2d 973, 978 (¶ 15) (Miss. 2005) ). We review questions of law de novo. Richardson , 913 So.2d at 977 (¶ 13).

Analysis

¶ 26. The plaintiffs bore the burden of proving that Officers Delcambre and Thrash acted with reckless disregard. Hinds County v. Burton , 187 So.3d 1016, 1022 (¶ 17) (Miss. 2016). Therefore, the plaintiffs had to prove, by a preponderance of the evidence, both that the officers appreciated the risk of the suspect fleeing the scene and causing another accident and that they deliberately disregarded the risk and "high probability" of harm resulting therefrom. City of Jackson v. Lewis , 153 So.3d 689, 693-694 (¶ 5) (Miss. 2014). In short, plaintiffs failed to produce sufficient evidence to prove their claim.

¶ 27. Plaintiffs, in their case-in-chief, called four witnesses: Officer Thrash, Officer Delcambre, Master Sergeant Keith Bond of the Department of Wildlife, Fisheries, and Parks, and Joshua Lord. Of the four, only Officers Thrash and Delcambre had personal knowledge of the events surrounding the stop of Bernius and the factors that weighed in the decision of the officers to order Bernius to follow them to a straightaway in the river. Master Sergeant Bond testified about the contents of the report of the accident prepared by the Department, and Lord witnessed the aftermath of the underlying collision. Via none of the witnesses did the plaintiffs produce evidence that Officers Thrash and Delcambre acted with reckless disregard as the phrase is defined above.

¶ 28. Without question, at the time of the underlying incident, Officer Thrash was less experienced. The stop of Bernius was the first time he participated in stopping a boater for what turned out to be boating under the influence. Officer Thrash acknowledged that Bernius operated the boat prior to the initial stop in a manner which indicated a lack of control and recklessness. He denied knowing at the time of the stop that Bernius's blood alcohol level was elevated. After the initial stop, when Thrash pulled his boat up next to Bernius's, Bernius appeared to have good posture and did not speak in a way that Thrash could appreciate that he was slurring words. Officer Thrash testified that, other than the initial manner described above in which Bernius operated his boat coming around the river bend, he observed no signs or "behavioral anomalies" indicating Bernius did not have control of his faculties. Regarding the decision to order Bernius to follow the officers out of the river bend and to a straightaway, Thrash testified as follows:

Well, at the time we were in that dangerous bend and we needed to get out of that dangerous bend to a long straightaway, and at that time we would have conducted an interview, but at that time he gave us no reasonable suspicion to believe that he had been drinking.

Officer Thrash consistently denied that, at the time he ordered Bernius to follow, he had reasonable suspicion that Bernius had been drinking. He testified that, had Bernius not attempted to flee, he and Officer Delcambre would have questioned him and, if during questioning, he had exhibited signs of having consumed alcohol, investigated accordingly. Officer Thrash testified that he had made other stops for reckless operation and found that the boat operator had consumed no alcohol.

¶ 29. The testimony of Officer Delcambre resembled that of Officer Thrash. Officer Delcambre agreed that Bernius sped and operated his boat in a reckless manner before the stop. Officer Delcambre confirmed that the initial stop was very brief, about fifteen seconds, and that the boats never came to a complete halt but continued to move at "idle speed." Officer Delcambre did not interact with Bernius, but he did instruct Officer Thrash to order Bernius out of the bend and into a straightaway. Officer Delcambre steadfastly testified that at the time of the very brief stop, the stop was occasioned by Bernius's reckless operation of his craft and that no reasonable suspicion of boating under the influence of alcohol arose.

¶ 30. The trial judge's opinion characterized the Department's defense as resting "solely on their position that the boats were stopped in a dangerous bend of the River, that they were blocking a portion of the River...." The trial judge rejected the defense as not credible. She did not believe Officers Thrash's and Delcambre's testimony that the bend in the river was a dangerous place to stop. Of course, as the finder of fact, the trial judge is the arbiter of witness credibility. However, the plaintiff bore the burden of proof, Hinds County v. Burton , 187 So.3d 1016, 1022 (¶ 17) (Miss. 2016), not the Department. It is not enough that the trial court rejected what it viewed as the sole defense of the Department. The plaintiff must offer evidence that shows the officers acted with reckless disregard.

¶ 31. The trial judge relied heavily on the undisputed fact that Bernius's blood alcohol content later was determined to be .25 percent, but neither Officer Thrash nor Officer Delcambre knew at the time of the stop what his blood alcohol level later would prove to be. Officer Thrash testified that Bernius sat upright and with good posture. The plaintiffs failed to produce any evidence that the officers had reason to believe Bernius was intoxicated at the time of the stop. Nowhere in the record is evidence by the plaintiffs that shows either officer directed Bernius to continue operating his boat despite reaching a belief that Bernius was intoxicated. Accordingly, the Department's operating procedures, upon which the plaintiffs rely as evidence of reckless disregard, do not support the verdict, because it is undisputed that the officers never formed a reasonable suspicion that Bernius was intoxicated until well after the stop. The finding of the trial judge that the Department did not contest that its officers had failed to follow the operating procedures lacks evidentiary support. Both officers testified consistently that, because they had no reasonable suspicion that Bernius was intoxicated, the operating procedures governing boating under the influence never came into play.

¶ 32. The trial judge faults the officers for allowing Bernius to continue to operate his boat in order to move into a straightaway. However, in the absence of evidence that the officers had reason to believe Bernius was intoxicated, in my opinion, such a decision does not constitute reckless disregard, which would require that the officers appreciated the risk of Bernius again operating his boat recklessly and that they acted in disregard of that risk. City of Jackson v. Lewis , 153 So.3d 689, 693-694 (¶ 5) (Miss. 2014). The facts of the case sub judice can be contrasted with those of Turner v. City of Ruleville , 735 So.2d 226 (Miss. 1999). There, the plaintiff alleged that a police officer had failed to stop an obviously intoxicated driver from driving. Id. at 227 (¶ 2). The trial court granted the city's motion under Mississippi Rule of Civil Procedure 12(b)(6) to dismiss, but the Supreme Court reversed. We wrote, "[T]he facts pled do allege that he wrongfully and intentionally allowed a visibly intoxicated Smith to continue driving. By this alleged act, the officer allegedly showed a reckless or wanton or willful disregard for the safety of other drivers on the road, including Turner." Id. at 230 (¶ 19). In today's case, sufficient evidence did not exist to support a finding that Bernius was visibly intoxicated at the time of the initial stop. Where in Turner , the trial court erred in dismissing the complaint because the plaintiff had alleged that the officer knew of the risk of the driver's intoxication and allowed him to drive anyway, in the case sub judice there is no evidence that the officers acted in similar disregard of a known risk. Lewis , 153 So.3d at 693-694 (¶ 5).

¶ 33. Also persuasive is the reasoning of the Mississippi Court of Appeals in Thomas v. Mississippi Department of Public Safety , 882 So.2d 789 (Miss. Ct. App. 2004). In Thomas , a highway patrolman stopped a driver for speeding and issued a speeding ticket. Id. at 791 (¶ 3). After the stop, the driver drove eight miles and wrecked his van; the wreck fatally injured the driver's son. Id. at 791 (¶ 4). The decedent's wrongful-death heirs filed suit against the Department of Public Safety, contending that the failure of the patrolman to check the driver for driving under the influence caused the accident. Id. at 791 (¶ 7). Although three witnesses at the scene of the wreck testified that they smelled alcohol on the driver's breath, the highway patrolman who performed the stop denied smelling alcohol on the driver at the time of the stop. Id. at 791 (¶¶ 3, 5). The trial court found that the patrolman's actions did not rise to the level of reckless disregard, and the Court of Appeals affirmed. The Court of Appeals reasoned, in part, as follows:

There was evidence in phase one of the DUI detection process that suggests that Mr. Thomas was sober. When Officer Johnson pursued Mr. Thomas, he noted that a proper turn signal for a left turn was executed. Officer Johnson also observed Mr. Thomas properly turn into Mrs. Montgomery's residence and safely stop. When Mr. Thomas drove on the road leading to Mrs. Montgomery's residence, his speed was forty to forty-five miles per hour, not an excessive speed. Officer Johnson testified that evading an arrest is not necessarily an indication of intoxication. He also testified that in his sixteen years as a highway patrolman he has stopped numerous people for speeding who are not under the influence and that he should look at other things before deciding that a driver might be intoxicated.

Id. at 795 (¶ 19). The facts upon which the Court of Appeals relied are similar to the facts of the case sub judice . In today's case, the officers testified that boaters who are sober regularly are stopped for reckless boating, and they both testified that they did not observe any signs that Bernius was intoxicated during the brief stop.

¶ 34. For the foregoing reasons, the plaintiffs' proof at trial did not suffice to show that Officers Thrash and Delcambre acted with reckless disregard when they instructed Bernius to follow them to a different part of the river. I would reverse the trial court's judgment against the Department of Wildlife, Fisheries, and Parks.

      The trial court observed that "[t]his case ... is not a pursuit case ... and no party suggests that the Court should review or consider the ten (10) pursuit factors." See Lewis , 153 So.3d at 694 ). According to the trial court, "[t]he actual pursuit in this case had ended when Bernius stopped before Bend 2. He was then being detained by Thrash and Delcambre and was under their direction and control. When [Bernius] turned around and sped away, neither Thrash nor Delcambre was in pursuit." The trial court continued: "[t]he parties agree that the Court is to consider the totality of the circumstances in arriving at a determination of whether there is reckless disregard in this matter."