Gebben v. State
| Docket Number: | 2010-KA-01593-COA Linked Case(s): 2010-KA-01593-COA ; 2010-CT-01593-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-05-2012 Opinion Author: Maxwell, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Manslaughter & Fleeing scene of accident - Change of venue - Section 99-15-35 - Culpable negligence instructions - Lesser non-included offense instruction - Section 63-3-615(1) - Sufficiency of evidence - Photographs Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton, Russell and Fair, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 07-21-2010 Appealed from: JONES COUNTY CIRCUIT COURT Judge: Billy Joe Landrum Disposition: CONVICTED OF COUNT I, CULPABLE - NEGLIGENCE MANSLAUGHTER, AND COUNT II, FLEEING THE SCENE OF AN ACCIDENT, AND SENTENCED TO TWENTY YEARS FOR COUNT I AND TWO YEARS FOR COUNT II, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Anthony J. Buckley Case Number: 2010-61-KR2 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Dominic Gebben |
JOHN ANTHONY PIAZZA |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Manslaughter & Fleeing scene of accident - Change of venue - Section 99-15-35 - Culpable negligence instructions - Lesser non-included offense instruction - Section 63-3-615(1) - Sufficiency of evidence - Photographs |
| Summary of the Facts: | Dominic Gebben was convicted of culpable negligence manslaughter and fleeing the scene of an accident, after driving his vehicle around a stopped school bus and running over and killing a young child. The circuit court sentenced him to twenty years’ imprisonment for manslaughter and two years for fleeing. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Change of venue Gebben argues the circuit court erred by denying his request for a change of venue. He claims that, due to media publicity and negative public sentiment in Jones County, he did not receive a fair trial by an impartial jury. Section 99-15-35 provides that a circuit court may change the venue in any criminal case to a convenient county if the defendant makes a satisfactory showing that, by reason of prejudgment of the case, or grudge or ill will to the defendant in the public mind, he cannot have a fair and impartial trial in the county where the offense is charged to have been committed. The application for a change of venue must be in writing, sworn to by the prisoner, made to the court, or to the judge thereof in vacation, and it must be supported by the affidavits of two or more credible persons. If the defendant complies with the statute, a presumption arises that an impartial jury cannot be obtained in the county in question. The State then has the burden to rebut this presumption. Assuming Gebben strictly complied with the statute and successfully raised the presumption of prejudice, the State rebutted the presumption. Gebben called no witnesses at the hearing on his motion to transfer venue. The State called two witnesses, who were both disinterested persons, unlike the arguably interested individuals who filed affidavits on Gebben’s behalf. And both of the State’s witnesses testified that in their opinions a fair and impartial jury could be impaneled in Jones County. In addition, the transcript shows the venire was asked numerous times during voir dire by the court, the State, and defense counsel if they could be fair and impartial. No one on the seated jury indicated at any point that he or she could not be fair and impartial, because of media coverage or otherwise. Issue 2: Culpable negligence instructions A criminal defendant is entitled to jury instructions that present his theory of the case even if the supporting evidence is weak, inconsistent, or of doubtful credibility. However, the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Gebben argues the jury instructions on the elements of manslaughter were improper because the instructions allowed the jury to consider whether faulty brakes were the proximate cause of the accident. Gebben suggests the instructions lacked an evidentiary basis. Though he equivocated, Gebben at several times told law enforcement that faulty brakes caused the accident. At one point, he claimed in a videotaped interview admitted into evidence that he had made a “horrible decision” to drive his truck knowing the brakes were broken. And even though he was aggravated and wanted to go around the bus, he “could have still stopped” had his brakes functioned properly. The jury was properly instructed that Gebben’s culpable negligence in some form must have caused the victim’s death. Issue 3: Lesser non-included offense instruction Gebben argues the circuit court erred by refusing his proposed instruction on the misdemeanor offense of unlawfully passing a school bus. In criminal prosecutions, a defendant is entitled to a jury instruction for an offense of lesser severity that is “included” in the principal charge. A lesser offense is deemed “included” in a more serious offense if the more serious offense includes all elements of the lesser offense, and it is thus impossible to commit the greater without also committing the lesser. A more recent development is the concept that a defendant may be entitled to a jury instruction on an uncharged offense that is not included in the principal charge. The overwhelming majority of states hold that it is improper to instruct the jury on an offense that, although related to the principal offense charged, is not included in the principal offense. Mississippi is one of the small minority of states that requires the giving of lesser non-included offense instructions. Under Mississippi’s approach, a defendant is generally entitled to an instruction on an offense lesser in severity than the principal charge, so long as the lesser offense arises from the same operative facts as the greater offense and has an evidentiary basis. The trial court must grant the instruction if—viewing the evidence in the light most favorable to the accused—a reasonable jury could find the defendant guilty of the lesser offense but not guilty of the greater offense. There is no dispute Gebben’s proposed charge of unlawfully passing a school bus is not a lesser included offense of culpable-negligence manslaughter. However, the requested instruction on the traffic regulation tracked section 63-3-615(1), concerned the same operative facts underlying Gebben’s manslaughter charge, and was supported by the evidence. The issue is whether the jury could have reasonably found Gebben guilty of this traffic offense but at the same time acquitted him of culpable-negligence manslaughter. Viewing the evidence in a light most favorable to Gebben, and according him the benefit of all reasonable inferences, no reasonable jury could have found Gebben guilty of only the misdemeanor violation of passing a school bus and not culpable-negligence manslaughter. Thus, there is no reversible error in the circuit court’s refusal of an instruction on the lesser traffic regulation. Before Gebben passed the school bus and fatally struck the young child, the bus’s red warning lights and stop signs were activated and children were exiting. Furthermore, Gebben, who had been driving behind the school bus, had stopped behind the school bus as it was unloading other children just moments earlier. The video from the bus shows Gebben come to a stop behind the bus, then turn his SUV to the left and accelerate past the bus. It is uncontested that, after Gebben drove around the school bus and hit the child with his SUV, Gebben did not stop. Instead, he drove his vehicle over the child’s body, then fled the scene and abandoned his SUV in some nearby woods. Issue 4: Sufficiency of evidence Gebben acknowledges that the facts of this case are largely undisputed. He does not contest that he unlawfully passed a school bus or that the victim died as a result. His argument, instead, is that reasonable jurors could only have found he committed ordinary negligence—not culpable negligence. Viewing the evidence in a light most favorable to the State, the jury could have reasonably concluded that Gebben acted with a reckless indifference to the value of human life and that his conduct was tantamount to wilfulness. Issue 5: Photographs Gebben argues the circuit court erred by admitting certain close-up photographs of the victim’s external injuries, because the photographs were prejudicial and cumulative of testimony as to cause of death. A photograph has a meaningful evidentiary purpose when it aids in describing the circumstances of the killing; describes the location of the body or cause of death; or supplements or clarifies witness testimony. The mere fact that the manner of a victim’s death is undisputed does not necessarily negate the probative value of a photograph of the victim’s body. The inquiry is whether the photographs have a meaningful evidentiary purpose. Though it was undisputed that Gebben ran over the child, these photographs aided in describing the circumstances of the child’s death — showing that Gebben’s tires rolled directly over his body. They supplemented testimony of Dr. Lewis, who performed the autopsy, that the victim’s cause of death was injuries inflicted by a vehicle—the only testimony directly on this point at Gebben’s trial. Thus, the photographs are neither cumulative nor unfairly prejudicial. |
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