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Thomas ex rel. Thomas v. Mississippi Dept. of Public Safety9/21/2004
Mr. Willie Thomas was issued a speeding ticket by Mississippi Highway Patrol Officer Albert Johnson for traveling ninety-two miles per hour in a fifty-five mile-per-hour zone. Mr. Thomas's son Lonzo was in the car at the time. Approximately twelve minutes after the ticket was issued, Mr. Thomas, who was intoxicated at the time, wrecked his vehicle, causing fatal injuries to his son. Lonzo's heirs sued the Mississippi Department of Public Safety ("MDPS") and Officer Johnson for not checking Mr. Thomas for driving under the influence. The Circuit Court of Pike County, Mississippi, granted judgment in favor of MDPS and Officer Johnson. Cheryl Thomas, the mother and legal heir of Lonzo, appeals, raising the following issues:
I. DID OFFICER COLLINS COMMIT PERJURY, AND IF SO, DOES THIS PERJURY MANDATE A NEW TRIAL OR A DIRECTED VERDICT IN FAVOR OF THOMAS?
II. WAS THERE SUFFICIENT EVIDENCE TO SUPPORT THE DECISION OF THE LOWER COURT?
III. DID THE TRIAL COURT APPLY AN INCORRECT LEGAL STANDARD *791 AS TO CHERYL THOMAS'S BURDEN OF PROOF?
2. Finding no error, we affirm.
FACTS
3. At 4:50 p.m., Officer Albert Johnson was headed north on Highway 51 when he clocked Mr. Willie Thomas ("Mr. Thomas") headed south going ninety-two miles per hour in a fifty-five mile-per-hour zone. Mr. Thomas's 15-year-old son, Lonzo, a spina bifida patient who was paralyzed from the waist down, was in the car with him. Officer Johnson turned around, pursued Mr. Thomas for approximately two to two and a half miles, and eventually stopped Mr. Thomas in Mrs. Mary Ann Montgomery's yard. At this time, Mr. Thomas's blood alcohol concentration ("BAC") was greater than .1825, but Officer Johnson claimed that he never smelled alcohol on Mr. Thomas and had no reason to check him for driving while intoxicated. Mr. Thomas told Officer Johnson that he had stopped in this yard to buy some tick hounds from a male friend. Mrs. Montgomery told Officer Johnson that her husband was dead, she did not have any dogs for sale, and she wanted him off her property. Officer Johnson wrote the speeding ticket, told Mr. Thomas to leave the premises, and both he and Mr. Thomas left.
4. Mr. Thomas left Mrs. Montgomery's premises, drove eight miles, and wrecked his van, producing injuries to Lonzo that eventually caused his death. Mr. Thomas sustained minor injuries. At 5:07 p.m., someone discovered the wreck and called the hospital.
5. James Carlton, a emergency medical technician ("EMT"), came in the first ambulance to arrive at the scene of the accident, at 5:15 p.m. He testified that he could definitely smell alcohol on Mr. Thomas's breath, even though he never got close to Mr. Thomas's mouth. Gina Davis, a paramedic, was in the second ambulance, which arrived at the scene at 5:25 p.m. and left at 5:33 p.m. She stated that she could smell alcohol on Mr. Thomas's breath and the smell was fairly strong. Todd Pounds, an EMT who was with Ms. Davis, prepared the ambulance record and wrote in the record, "Patient smells strongly of alcoholic beverage." At 6:02 p.m., Mr. Thomas was admitted to the emergency room, where the emergency room physician examined him and wrote, "Breath smells of alcohol." He stated that he would not take documenting the presence of alcohol lightly.
6. At the hospital, Cheryl Thomas, Lonzo's mother and Mr. Thomas's wife, stated that she could smell alcohol strongly in the emergency room where Mr. Thomas was being treated. Cheryl and the rest of the family waited in a room, where Cheryl demanded that a blood alcohol test be taken of Mr. Thomas. Officer Collins administered the test and allegedly stated that Mr. Thomas "reeked of alcohol." The test was administered at 6:20 p.m. and showed a BAC of .1825.
7. Cheryl Thomas ("Thomas", subsequently referri
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