IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES & PARKS

Transcription

1 E-Filed Document May :45: CA COA Pages: 16 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA MISSISSIPPI DEPARTMENT OF WILDLIFE, FISHERIES & PARKS APPELLANT VERSUS CANDACE WEBB, THOMAS HARPER AND KATHLEEN D. WEBB APPELLEES APPELLEE S, CANDACE WEBB, MOTION FOR REHEARING The Appellee, CANDACE WEBB, in accord with Miss. R. App. P. 40(a), moves this Court to reconsider the Opinion entered on April 18, For cause, the Appellee would respectfully state unto this Court the following, to-wit: I. On December 2, 2014, the Circuit Court of Harrison County, Mississippi, Second Judicial District entered a judgment in the amount of $466, in favor of Candace Webb ( Webb ) as Guardian of Shane Webb and against the Mississippi Department of Wildlife, Fisheries, and Parks ( MDWFP ). The award was based on significant personal injuries suffered by Shane Webb including brain damage that resulted in permanent Bell s Palsy.

2 Thereafter, MDWFP initiated an appeal to the Supreme Court of Mississippi. This appeal was assigned to the Mississippi Court of Appeals. On April 18, 2017, this Court rendered its Opinion (hereinafter referred to as Opinion ) reversing the judgment of the lower court and rendering judgment in favor of MDWFP. II. Miss. R. App. P. 40(a) articulates the procedure for a Motion for Rehearing and provides in part: The motion for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain; the motion for rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court. In the context of this Rule, Webb respectfully submits this Court s determination that the trial court s judgment [finding of reckless disregard] lacks credible and substantial evidentiary support is in error (Opinion p. 24). Furthermore, this Court s determination that the trial court erroneously applied the legal standard of reckless disregard is in error (Opinion p. 23). As set forth herein, this Court rejected the trial judge s finding of reckless disregard, which invariably, was a complete rejection of the trial judge s specific credibility finding that the testimony of Officer Delcambre and Officer Thrash as to a dangerous curve was neither truthful nor supported by any evidence, other than the anecdotal testimony of the officers. To find that the bend was dangerous, this Court had to accept the testimony of the officers. In doing so, it logically follows that this Court had to reverse the trial court s finding that the officers testimony was not credible. 2

3 III. This Court s Opinion omitted significant facts which supported the trial court s findings in this case. These facts provided overwhelming evidentiary support for the trial court s finding of reckless disregard. First and foremost, the trial court s observations of the officer s demeanor, their inability to answer straightforward questions, the lack of recall and numerous inconsistencies justifiably caused the trial judge to question the veracity of the officers. With the lack of credibility assigned to the testimony of the MDWFP Officers Delcambre and Thrash, the trial court concluded that Bend 2 was not a dangerous or blind bend as advocated by the officers. According to the trial court, the only evidence suggesting that Bend 2 was dangerous was the uncorroborated testimony of the officers. MDWFP offered no photographs depicting the dangerous condition of a blind curve, offered no measurements of the bend, offered no reports of previous accidents involving Bend 2 and offered no corroborating witnesses. In rejecting the officers testimony at face value, the trial court also noted the absence of signs warning approaching boaters of the dangerous or blind bend. 1 This Court s Opinion accepts in toto the officers testimony that Bend 2 was a dangerous or blind bend.... [W]e find that the officers here possessed the discretion to request that Bernius pull out of the hazardous and high-traffic area of the 1 If Bend 2 was dangerous as the officers contend, then why leave an operator of a boat who has just been chased down sitting in the dangerous bend as the officers sped off downstream. It is a non sequitur. 3

4 river. (emphasis ours) (Opinion p. 23). The effect of this finding by this Court was to trump the trial judge s specific credibility findings as to the officers and the specific finding that MDWFP failed to prove that the curve or bend was a dangerous or blind bend. This Court has scrupulously adhered to years of precedent that it is not the function of an appeal court to reverse the findings of a trial judge in a non-jury trial on the issue of witness credibility. There is no basis for this reviewing court to substitute its judgment for the trial judge by now finding that Bend 2 was a blind and dangerous bend in the river. This erroneous finding of fact is a fundamental and fatal flaw in this Court s Opinion. IV. The trial court s determination that the officers lacked credibility was set forth in detail in the Findings and Conclusions and was based upon interactions which occurred in the presence of the trial judge. The below testimonial excerpts underscore the officers lack of credibility: While Officer Delcambre denied smelling alcohol on Bernius breath at the accident scene, Officer Bond testified that Delcambre stated he smelled alcohol on the breath of Bernius. Delcambre testified that the statement attributed to him within Bond s report was false (R ) (Appellant s R.E ). While Delcambre denied stating that he observed Bouie propping up Bernius as the two fled down the river, Joshua Lord, an independent witness, testified he heard Delcambre state the reason he stopped Bernius was because Bouie was propping up Bernius (R. 1098) (Appellant s R.E. 047). While Delcambre and Thrash denied that Bernius was fleeing or that the officers were pursuing Bernius, according to Bond both officers informed 4

5 him of these events which were then incorporated into the MDWFP Report to the District Attorney (Appellant s R.E ) (Tr ). While both Delcambre and Thrash testified that they observed no indications of Bernius intoxication at Bend 2, Bernius BAC was measured at.25% (3 times the present legal limit) hours after the collision. Bond testified such a level of intoxication severely impairs a person rendering him unable to stand, articulate, and lose hand/eye coordination. It is also likely to severely impair all mental, physical and sensory functions. (R. 1098) (Appellant s R.E. 047) (Tr. 348). When questioned why he did not move Bernius boat to a nearby pier for protection from boater traffic and the allegedly dangerous Bend 2, Thrash testified it would have been too dangerous to conduct the stop at the pier as he might have broken a finger due to a boater s wake. ( First, suffice it to say that Thrash s testimony concerning this possibility is not credible. ) (R. 1102) (Appellant s R.E. 051) Thrash did acknowledge the pier would have provided protection from boat traffic. Based upon the above excerpts of the officers testimony and the opportunity the trial judge had to observe the demeanor of the officers during the protracted direct and cross examinations, the trial judge found that the officers testimony was not credible. In fact, the trial judge specifically referred to the officers repeated and unsolicited references to Bend 2 as dangerous blind curve as a well-rehearsed mantra. The issue of the officers lack of credibility permeated the entire trial. This Court, sitting as an appellate court, should not supplant its credibility findings for those of the trial court. Thomas v. Miss. Dept. of Public Safety, 882 So.2d 789 (Miss. Ct. App. 2004), Gavin v. State, 473 So.2d 952 (Miss. 1985), citing Culbreath v. Johnson, 427 So.2d 1705 (Miss. 1983). For this Court to reach the opinion that the bend was a hazardous and high-traffic area of the river it had to accept the officer s testimony as credible which effectively 5

6 supplants the finding of the trial judge that the testimony of the officers was not credible. V. The trial court authored a well-reasoned and lengthy 26 page opinion carefully and methodically discussing the evidentiary and legal support for the finding of reckless disregard. Suffice it to say, the officers lack of credibility was only the tip of the iceberg. Omitted from any discussion at oral argument and this Court s Opinion, are key events leading up to the stop at Bend 2. The officers were moored at Bend 4 which allowed them to view oncoming boat traffic rounding Bend 5 and headed down river. Such boat traffic would necessarily travel directly into Bend 4 and in front of the officers location. According to the officers, as the Bernius vessel rounded Bend 5 it was traveling at a high rate of speed and in such a reckless manner that the operator did not have control of the boat. The boat was skipping on top of the water (Appellant s R.E ). Moreover, Officer Delcambre testified that he heard yelling, like partying yelling coming from the Bernius boat (Tr ). More importantly, before the Bernius vessel rounded Bend 4, directly in front of Delcambre and Thrash, the officers activated their blue lights, yet Bernius ignored the blue lights and fled around the bend and down river at a high rate of speed. Officers Delcambre and Thrash initiated their blue lights and siren in an attempt to stop Bernius 6

7 as he passed falling in behind him southbound as he ignored their signals. (emphasis ours) (Appellant s R.E ). Based upon the testimony and the official internal reports of MDWFP admitted in evidence, the trial judge determined that Bernius was fleeing and that the officers pursued Bernius from Bend 4, through Bend 3 and that the pursuit ended at Bend 2 (Tr ). MDWFP and its officers, for obvious reasons, denied they were pursuing Bernius or that Bernius was ignoring the blue lights. ( They [MDWFP] back away from the statement in Bond s report that Bernius was ignoring the blue lights and siren. ) 2 (R. 1094) (Appellant s R.E. 043). Based upon the above, the trial court determined that it was reckless disregard for the officers to direct an individual, who had a BAC of.25 and who had been pursued while recklessly operating his vessel at a dangerously high rate of speed, to follow the officers to a different area of the river to undergo the appropriate BUI screening. The trial court further reasoned it was reckless disregard to expect such an individual to voluntarily follow law enforcement officers without the officers maintaining control of the boat or the individual. ( They [Delcambre and Thrash] did not tow Bernius; did not ascertain whether he was capable of safely following their command to follow them around the bend; and did not ask whether Bouie, the passenger, could operate the boat instead of Bernius. Both officers accelerated away from Bernius leaving him stationed in a supposedly dangerous curve while the officers 2 This is yet another instance of contradictory testimony which caused the trial court to question the credibility of Officers Delcambre and Thrash. 7

8 moved several hundred feet downstream from Bernius. Both officers abandoned Bernius and neither officer bothered to lead the way while the other officer followed Bernius to observe him and determine whether Bernius was able to operate the boat properly. (R. 1104) (Appellant s R.E. 053). In fact, Thrash was unaware that Bernius had turned upriver and was fleeing until Delcambre signaled him. Clearly, there is substantial and credible evidentiary support for the trial court s finding of reckless disregard. VI. The trial court also based its finding of reckless disregard upon the officers admitted violations of MDWFP Standard Operating Procedures ( SOP s ). While it is true that a violation of an SOP is a factor in determining reckless disregard and is not solely dispositive of the issue, the officers admitted violation of MDWFP SOP s is yet another factor that supported the trial court s finding after considering the totality of circumstances that existed. MDWFP SOP 07/03 requires the officers to establish probable cause for a BUI once the vessel is stopped. Thrash admits he was required to consider intoxication as a possible cause of Bernius reckless operation of the vessel, yet admits he did not consider Bernius possible intoxication before directing Bernius to drive down river (Tr. 120, 139) (Appellee s R.E. 31, 34). Considering that Delcambre and Thrash admitted it would be reckless to allow an intoxicated individual to operate a vessel on the waterways for any distance and that they were aware of the risk posed by such, the 8

9 failure to consider intoxication, much less exclude this possibility before directing Bernius to drive his boat down river, further supports the trial court s finding of reckless disregard. 3 This is especially so given the context of events immediately preceding the stop at Bend 2. Those events, which were witnessed by the officers, included Bernius operating his boat at a high rate of speed, in an uncontrolled manner, and loud voices described as partying yelling coming from the boat. It is also significant that Bernius had fled from the officers for a considerable distance before coming to a stop. This refusal to consider and exclude possible boating under the influence before directing Bernius to operate his vessel around another bend for several hundred feet is a conscious and reckless decision to ignore the SOP. 4 3 This Court s Opinion states 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. Opinion p. 6. Yet, this Court overlooks the actual testimony of the Officers on this particular point. The officers did nothing during the initial stop to determine whether Bernius was under the influence. Bernius simply said okay to a command to move down river. Neither officer boarded Bernius boat; got close enough to that boat to see its contents; had any conversation with either Bernius or Bouie; or made any observations about Bernius speech, eyes, or such. Thrash says the full extent of his contact of Bernius at the stop was five (5) to ten (10) seconds. Delcambre made no assessment at all at the stop, being there only seconds. (R. 1090) (Appellant s R.E. 039)(Appellee s R.E , 50) 4 During oral argument counsel for Candace Webb drew analogy to an officer pursuing a vehicle on an interstate being operated at a dangerously high rate of speed in a reckless and uncontrollable manner and the officer pulls to the side of the vehicle, never exits his vehicle and directs the driver to follow the officer to the next exit. 9

10 VII. This Court s Opinion seems to have totally disregarded critical admissions of Officers Delcambre and Thrash. Both officers admitted that they did not have the authority to deviate from the mandates of the MDWFP SOP s, including SOP and SOP 07/03. Officer Thrash testified as follows: (Tr. 100). Q: Did you have the authority to create your own exception to the guidelines? A: No, sir. Q: Did you have authority to deviate from the guidelines? A: No, sir. According to Delcambre and Thrash, there were required to meticulously adhere to these mandates and failure to do so would be reckless. Knowing that they were required to meticulously follow the SOP s and that there were no exceptions, Delcambre and Thrash admitted to making a conscious decision to ignore the mandates. This Court has now determined that the officers were in error. They had the right to deviate from the SOP s without offering any evidence beyond their own testimony that a dangerous curve existed. Once the officers stopped Bernius for reckless driving and failing to maintain control of his vessel, they directed him to continue to operate his vessel down river without first determining the cause of the conduct and evaluating whether he was 10

11 capable of lawfully operating his vessel in a safe manner. 5 (... Thrash specifically admitted that the guidelines do not carve out exceptions that allow Bernius to continue to operate his boat before following the necessary screening steps. The parties agree that there are no exceptions to the SOP s. ) (emphasis ours) (R. 1091) Appellant s R.E. 040). Notwithstanding the stipulation of the parties that the officers were required to meticulously adhere to the SOP s and that there were no exceptions to the SOP s, this Court s Opinion judicially creates such an exception.... [A] review of SOP 4.01 reflects no provision prohibiting officers from requesting a boater pull to a safe area to conduct a traffic stop. The Opinion attempts to provide justification for an admitted violation of the SOP. Such a justification or exception is contrary to the trial testimony of the officers and should not be the basis for rejecting the trial court s findings. More importantly, the traffic stop had already occurred. The stop of Bernius triggered the absolute duty to follow the SOP and the screening protocol. 5 The versions of events that actually occurred at Bend 2 stop vacillate wildly. At one point Thrash argued he did not conduct a stop because of wave action and that Bernius boat never came to a complete stop, but was floating down river (Tr. 101) (Appellee s R.E. 18). Thrash also testified that he did stop Bernius. Q:... Didn t you stop Bernius? A: Yes, sir, we stopped Bernius. (Tr. 101) (Appellee s R.E. 18) On another occasion, the officers testified that they never had an opportunity to perform a stop as they intended to do so only after relocating Bernius down river. Yet, this Court s Opinion indicates the officers actually began conducting a stop at Bend 2 and that Thrash actually considered whether Bernius was intoxicated. However, Officer Thrash testified that his interaction with Bernius during the stop failed to give him reasonable suspicion that Bernius may have been under the influence. The record reflects that, when Officer Thrash commanded Bernius to follow the officers around the bend to the straightaway to conduct the stop, Bernius remained in control of his boat and followed the officers a short distance before fleeing. Opinion p. 14. The fact of the matter is, Thrash never considered intoxication at Bend 2 although the SOP s required him to do so. 11

12 VIII. Although this Court s Opinion finds the trial court s determination of reckless disregard lacks credible and substantial support in the record, the trial court enumerated fifteen admissions from Officers Delcambre, Thrash and Bond which supported the finding of reckless disregard: Officer Thrash: 1. It is reckless not to consider whether an operator has consumed alcoholic beverages before allowing that person to continue to operate a boat. He never considered it here. 2. If Bernius had said that Bernius had been drinking, he may have allowed Bernius to continue to operate Bernius boat, but it would have violated the SOP to do so. 3. He would have issued a citation for reckless operation, but did not do so here (due to the decision to move the boats before doing anything). 4. He should have had a heightened awareness concerning any potential physical incapacity as he saw the wheelchair and colostomy bag. 5. It is reckless to disregard the statute. He did not enforce any of the provisions of the statute in this case. Officer Delcambre: 1. It was reckless for him not to be concerned whether Bernius was under the influence of alcohol at the time that Bernius was stopped. 2. He was not concerned at the time of the stop if Bernius had been drinking and this was reckless. 3. He agrees that Bernius was a physically incapacitated operator because Bernius was a paraplegic. 4. He does not know what he would have done if Bernius had said at the time of the stop that Bernius had been drinking alcohol. 5. The Webb boat had no protection from the Bernius boat at the time of the accident. 12

13 Officer Bond: 1. A person with a.25% BAC constitutes a serious risk of injury or death to those on the River. 2. It is reckless not to enforce the reckless operation law, especially on a Saturday afternoon the summer on this River. 3. It is reckless disregard for an officer not to determine why someone has been operating recklessly. 4. The officers should rule out whether someone was impaired or under the influence. 5. It is mandatory that the officers enforce the laws and it is reckless disregard not to enforce the BUI laws. (R ) (Appellant s R.E ) The above were admissions of the Defendant s officers. These matters were not in dispute at trial. This Court, as a reviewing Court, should not disregard these key admissions but rather accept them as true and defer to the trial court on whether the admissions are supportive of a finding of reckless disregard. See City of Jackson v. Brister, 838 So.2d 274 (Miss. 2003). IX. This Court s Opinion errantly holds that the trial court misapplied the legal standard of reckless disregard. Based upon the trial court s rather lengthy opinion it is beyond any reasonable debate the trial judge was knowledgeable of the standard required for reckless disregard. The trial judge s finding included an analysis of relevant cases. The trial court correctly applied the standard to the facts as she determined and interpreted them. Webb would respectfully submit that this Court has applied the legal standard of reckless disregard to an alternate set of facts, not the facts developed during the trial. 13

14 X. As this Court is aware, reckless disregard is dependent upon the totality of the circumstances of the underlying facts. Thomas ex rel. Thomas v Miss. Dep t of Pub. Safety, 882 So.2d 789, 796 (Miss. Ct. App. 2004). The underlying facts were determined by the trial court based upon the evidence presented. This Court should not cast away the factual determinations of the trial court rendering them meaningless, but rather view them with the appropriate deference required on appeal. This Court has substituted its own findings for that of the trial judge. The trial court acknowledged that she was required to consider the totality of the circumstances in determining whether the officers acted with reckless disregard. In considering all of the circumstances, she not only examined the events which occurred at the stop at Bend 2 and thereafter, but the events that started at Bend 5, as well as the admitted violations of SOP s. The trial court also considered the officers lack of credibility, as well as their self-professed need to relocate a suspected intoxicated operator from an allegedly dangerous bend to a straightaway down river. While this Court accepts the officers version that there was an absence of any indication of intoxication, the officers admitted that once Bernius was relocated down river, they were going to screen for possible intoxication. The trial court recognized the inconsistency of this testimony. 14

15 XI. After receiving all of the evidence, the trial court made a detailed finding of fact. The trial judge specifically determined that the officers were well aware of the SOP s and the attendant risks of failing to follow those SOP s, as well as allowing the reckless operation of a boat to continue on this river. The officers made a decision to ignore the requirements imposed upon them and subjected the innocent boating public to risk of bodily injury and death. These facts as determined by the trial court clearly illustrate that the officers acted with reckless disregard. It is respectfully submitted this Court should reconsider and withdraw its current Opinion in this case and affirm the Final Judgment as to Liability and Damages entered by the Circuit Court of Harrison County, Mississippi, Second Judicial District. RESPECTFULLY SUBMITTED, this the 2 nd day of May, CANDACE WEBB, APPELLEE BY: /s/ JOE SAM OWEN (MS Bar No. 3965) /s/ ROBERT P. MYERS, JR. (MS Bar No. 9007) JOE SAM OWEN (MS Bar No. 3965) ROBERT P. MYERS, JR. (MS Bar No. 9007) OWEN, GALLOWAY & MYERS, P.L.L.C TH AVENUE OWEN BUILDING POST OFFICE DRAWER 420 GULFPORT, MS TEL: (228) FAX: (228) jso@owen-galloway.com rpm@owen-galloway.com 15

16 CERTIFICATE OF SERVICE I, JOE SAM OWEN, of the law firm of Owen, Galloway & Myers, P.L.L.C. do hereby certify that I have this day electronically filed a true and correct copy of the above and foregoing Appellee s, Candace Webb, Motion For Rehearing using the MEC system which sent notification to Thomas M. Matthews, III, Esquire at matthewthomasmj@bellsouth.net and to Stephen G. Peresich, Esquire at stephen.peresich@pmp.org. I hereby certify I have also mailed a true and correct copy of the above and foregoing to the Honorable Lisa P. Dodson, Circuit Court Judge, Post Office Box 1461, Gulfport, Mississippi SO CERTIFIED, this the 2 nd day of May, /s/ JOE SAM OWEN (MS Bar No. 3965) /s/ ROBERT P. MYERS, JR. (MS Bar No. 9007) 16