IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-00648-COA JODY SLADE BUSH A/K/A JODY BUSH APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/07/2015 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM W HICH APPEALED: SCOTT COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: MARK SHELDON DUNCAN NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF FELONY LEAVING THE SCENE OF AN ACCIDENT AND SENTENCED TO TW ELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W ITH TW O YEARS SUSPENDED AND TW O YEARS OF POST-RELEASE SUPERVISION DISPOSITION: AFFIRMED - 06/06/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. Jody Slade B ush was convi c t e d o f f e l o ny leaving the s cene of a n accident. The accident occurred when the truck Bush was d riving l ef t the r oad and f

lipped late a t night in Scott County . Bush’s room m a te, Matthew Sm ith, was ejected f r om the truck and suf

f ered serious traum atic brain injuries. Following a j u r y trial and guilty v erdict, the circuit courtsentenced Bush to twelve y ears in the custody of the M ississippi Departm ent of Corrections

(MDOC), with two y ears suspended and two y ears of post-release supervision. ¶2. On appeal, Bush c laim s that he was deprived o f a f air trial because of two com m ents by the trial judge and inadequate jury instructions. He also argues that he is entitled to a new trial because one juror was a sleep at one point in the t rial. Bush f a i led to raise these issues in the trial court, and his argum ents are without m erit. Theref ore, we af f irm h is conviction and sentence. FACTS AND PROCEDURAL HISTORY ¶3. On Saturday , August 2, 2014, Bush and Sm ith went to Thom as Heard’s house f or a cookout. Heard lived i n a trailer on Old Highway 80 in L ake, Mississippi, with his sister, Alicia Parker. Heard and Bush were “best f riends.” ¶4. Bush drove to the cookout i n his blue Ford F-150. On their way to the cookout, Bush and Sm ith stopped a t a l iquor store and bought som e rum . Ther e w as som e conf lict in the testim o ny as to w hen Bush a nd Sm ith arrived at the cookout. B ush, Parker, and Jana Parks all testif ied that they arrived som etim e between 8 and 9 p .m ., whereas A shley Manis testif ied that they arrived later. ¶5. Bush testif

ied that he drank two cans of K ey stone Light, a “m ixed drink,” and a shot of r um f rom the bottle while at the cookout. Bush testif ied t hat he also ate a s teak, potatoes, and other f

ood at the cookout, and he claim ed t hat he was not intoxicated w hen he lef t the cookout. However, on cross-exam ination, Bush t estif ied t hat h e “didn’t keep up with how

2m

uch [ h e] was drinking” at t he cookout. Heard t estif ied that he did not pay attention to how

m uch alcohol Bush drank; however, he did not believe that Bush was intoxicated, and he had

no hesitation about B ush d riving. Parker s im ilarly testif ied that she “didn’t see [ Bush] drink” and was not concerned about his ability to drive when he lef

t. ¶6. Ma n i s a n d P a r k s both r ecalled that Bush drank a “ m edium t o heavy ” am ount of alcohol at the cookout. M anis testif ied that Bush drank tequila and took “several” drinks f rom a bottle of li q u o r . P a r k s also testif ied t hat Bush drank tequila straight f rom a bottle. M a n i s t e s tif

ied that she was “nervous” about Bush driving, especially when she saw hi m drive away

f rom Heard’s house “extrem ely f ast” with his “tires s pinning.” Parks sim ilarly testif i ed that she did not think that Bush should have been driving that night and that she and “several” others urged him not to dr i v e . P a r k s a lso testif i ed that Bush “ s pun out of the driveway . . . driving f

a st.” ¶7. Bush and Sm ith lef t the cookout around 11:30 p.m . to drive to Bush’s parents’ house. Bush was driving his truck. Bush testif ied that shortly

af ter they lef t Heard’s house, while driving on Old Highway 80, a tire on his truck blew out and he l o s t c o n t rol of the vehicle. According to Bush, Sm ith grabbed f or the steering wheel to try to control the truck, but the truck lef t the road, f

lipped, a n d c a me t o r e st on its s ide. Sm ith was e jected f r om the cab during the wreck. Bush rem em b e red Sm ith b eing ejected through the back window of the cab, but the back window w as still intact af ter the wreck. At trial, B ush claim ed that he was driving 55 to 60 m iles per hour when his tire blew out. The w reck occurred less than a m ile

3f

rom Heard’s house. ¶8. Bush testif

ied t hat he “rem e m

ber[ ed] com ing to” i n the dark o utside t he t ruck, but he did not rem e m

ber h ow he got out of the truck. B ush c l a i m ed that he y elled f or Sm ith but could n ot f

ind him

. Acc o r d i n g t o B u s h , h e also c o uld not f ind his cell p hone and did not know when another car m ight com e down the road. Bush testif ied that he lef

t the scene and walked back to Heard’s house to get help. ¶9. S oon af

ter the wreck occurred, Tay l or Goodwin and her boy f riend, Caleb She a r e r ,

cam e u pon the scene while driving south on Old Highway 80. Goodwin n oticed the truck’s lights and then saw the truck in the ditch. Shearer t estif ied t hat he saw a m an clim bing out of the truck as h e and Goodwin passed b y . When Goodwin a n d Shearer realized that the truck had wrecked, they stopped and turned a r ound to go back and help. B y t he t i me t h ey arrived back at the scene less than a m inute l ater, t he m a n that S hearer h ad seen clim bing out of the truck was gone. However, they imme d i a t e l y s a w Sm ith ly i ng on the ground about thi r t y f e e t behind t he truck. Goodwin t estif ied that there was suf

f icient l ight f

rom the wrecked truck f

or them t o see Sm ith. W hen t hey f ound h im , Sm ith was still alive, gasping f or breath and choking on blood. Goodwin called 911. ¶10. About twenty or thirty m inutes af ter Bush and Sm ith lef

t, the group at Heard’s house

s a w t h e l i ghts and heard the sirens of em ergency responders driving p ast o n O ld Highway 80. Parks and Parker lef

t the house in a car to see what had occurred. Ten or twenty m inutes later, Heard and M a nis f

ound Bush w alking back up the driveway t oward Heard’s house.

4Bush was “bleeding really bad” f rom a “big l aceration” on h is f orehead. Heard testif

ied that Bush’s coll a r bone w as swollen. Bush repeatedly stated, “Som ebody please go f ind Matt. I’m sorry . I think Matt’s dead.” Manis helped take Bush inside the house and tried to wash of f the b lood and stop the bleeding. 1 Manis testif ied t hat Bush t old h er that he had been driving 80 to 85 m iles per hour when he lost control of the t ruck, although Bush denied this and claim ed that Manis m isunderstood him

. ¶11. Som eone at the house called Parks and told her that Bush had returned. Parker and Parks then drove back to t he house, and P arks, w ho is a nurse, c leaned Bush’s laceration and bandaged it with S teri-strips and gauze. Parks e ncouraged Bush to go to the hospital, but he declined. Bush’s parents cam e to check o n him , but they later returned hom e, and Bush spent the night at Heard’s house. Parks t o l d o t hers at the house to keep Bush awake b ecause he could have suf

f ered a concussion; however, Parks testif ied that this was o nly a precaution, and she did not believe that Bush was a c t u a l l y c o n c u ssed. At trial, D r. Steven Hay ne testif i ed f or the def e nse that, b ased on his review of m edical records, he believed that Bush suf f e red a concussion and a cracked vertebra. ¶12. Parker testif

i ed t hat Bush seem ed to be “in shock” af ter he returned t o Heard’s house, and H eard t estif

ied t hat Bush seem ed “shocked” and said things that did not m ake sense. However, Parks and M a nis both testif ied t hat B ush w as a l ert a nd aware of where he was and

1 Manis testif

ied that s he had received training a n d h ad b een certif ied as an em ergency m edical responder f

or a volunteer f

ire departm ent.

5what had occurred. Bush began sm oking cigarettes soon af ter he returned to t he h ouse. Bush testif i ed that he “just wanted to go sm oke a cigarette to calm [ his] nerves.” Parks testif ied that she eventually asked Bush, “W hat the heck were y ou thinking? W hy d id y ou leave [ Sm ith] there? ” According to Parks, Bush answered, “I’ve been drinking. I’m not getting a DUI. I’m not going back to jail.” 2 ¶13. Scott County Deputy Sherif f Coty May responded to the scene o f the wreck. By the tim e M ay arrived, e m ergency m e dical personnel were a lready attending to Sm ith. May noticed that there was b lood sm e ared on the i nside of the truck’s windshield and hand prints

on the driver’s side door, which led him to believe that a s e cond person had been in the truck when it crashed. M ay testif ied t hat he heard one of t wo wom en n ear t he road y ell out that there had been a second person in the vehicle, that s he was o n the phone with him , and that he was “okay .” May testif ied that at the tim e he was still assisting m edical personnel with Sm ith, so he was unable to stop and question the wom en. By the tim e the am bulance lef

t with Sm ith, the two wom en were gone, and May was unable to learn any thing e lse about the truck’s second occupant that night. Parks corroborated May ’ s testim ony . S he testif ied that she “y elled

. . . across t he p a s t u re” that “the driver [ was] saf e” but never t alked to May or gave any one the driver’s nam e. Parker testif ied that she thought that she told May that Bush

w a s the driver and that he was a t Heard’s house. However, May denied that Parker spoke to him , and there was nothing else to corroborate Parker’s claim

.

2 Bush denied say i ng this. 6¶14. The next day —Sunday , August 3 , 2 0 1 4—May notif ied Sm ith’s stepf

ather, Garry W i lson, that Sm ith had been in a wreck and was i n critical condition at the University of Mississippi Medical C enter ( UMMC) in J ackson. W ilson testif ied that the d octors treating Sm ith initially

did not expect him

to survive. 3 May

m et W ilson and gave him a cell phone that was f

ound at t he s cene. W ilson d id not b elieve that the phone looked like Sm ith’s phone, and h e also inf

orm ed M ay that the wrecked truck did n o t b e l ong to Sm ith. W ilson later looked through th e c o n t a c ts in the phone, a nd called “Dad,” which turned out to be Bush’s f ather, Lewis Bush (Lewis). ¶15. On Tuesday , August 5 , 2014, Bush and Lewis m et W i lson a t the trailer i n Pearl where Bush and Sm i th had been l iving. 4 W ilson t estif ied that Bush f

irst lied and claim ed that Sm ith had b orrowed his truck and that h e (Bush) had not been in the truck w hen it wrecked. W ilson f urther testif

ied that Bush t hen changed his story and adm i tted that he was in the truck but lied again and d e n i e d t h a t h e was driving at the tim e of the wreck. According to W ilson, Bush claim ed that Sm ith had driven because he (Bush) had a suspended license f rom a prior DUI. W ilson testif

ied that Bush f

inally adm i tted that he had been driving the truck at the

3 Sm i th sustained num e rous injuries in the crash, i ncluding traum atic brain injuries, and was airlif

ted t o UMMC. He was in a com a initially , and he was unable to s peak or f eed, b a t h e , o r otherwise care f or him self f

or m onths af

ter the crash. At trial, Sm ith’s docto r testif i ed t hat his m em ory and cognitive abilities h ad im p roved to som e extent, but he was still phy sically

disabled and required assistance with basic personal needs, and he was unlikely to recover to the point that h e could drive or o btain em ploy m ent. W ilson testif

ied that Sm ith had no m e m ory

of the crash or the events leading up to it.

4 Bush and Sm ith had been room m ates f or o nly a short t im e. This w as the f irst t im e W i lson had m et Bush. 7tim e of

the wreck. 5 ¶16. W i lson called May that evening and told him about his conversation with B ush. May did not k now that Bush had been i n the truck or driving bef ore W ilson t old him

. A f

ew day s later, M ay went to Heard’s house, where Bush was s t ill stay ing. Bush went to t he sherif f ’s depar tm ent with May and gave a statem e nt. A Scott County grand jury indicted Bush f or f el o n y l e a v ing the s cene of an accident. See Miss. Code Ann. § § 63-3-401 & -405 (Rev. 2013). The case proceeded to trial on October 5-7, 2015. ¶17. Testif

y ing in his own def

e nse, Bush stated that af

t er t he wreck, he was unable to f ind Sm ith o r a cell phone. H e claim ed that he wa s i n g r e a t p a i n and “was seeing lights and rainbows.” H e claim ed that he lef t the scene because he did not know if any other cars would drive past, and Heard’s house was “t h e only place [ h e] knew” to g o. He testif ied that he returned to H eard’s house to f ind help f or Sm ith. Bush denied that he was intoxicated; as noted above, h e testif

ied t h a t he only had two beers, a m i xed d rink, and a s hot of rum , although he also testif

ied that h e “didn’t keep up with how m uch [ he] was drinking.” Bush testif i ed that he went to t he e m ergency room on Monday , August 4, 2014, because the pain in his shoulder worsened. He then r eturned to Heard’s house f or a f e w mo r e d a y s u n til sherif f ’s deputies cam e to talk to him

. Bush claim ed that he did not c ontact law enf orcem ent because he assum ed that they knew that he was the driver and would seek him out.

5 Lewis and B ush testif

ied that Bush n ever denied that he was in the truck or driving the truck at the tim e of

the wreck. 8¶18. May testif ied at trial that there was an inhabited residence near the wreck that Bush would have passed by directly on his way b ack t o Heard’s house. M a y a l s o testif ied that there were f

i ve other inhabited residences on the opposite side of the road between the scene of the wreck a nd Heard’s house. All of these hom es were closer to the s cene than Heard’s house. ¶19. At the close of the evidence, th e jury f ound Bush guilty of f

e lony leaving the scene of an a ccident. T he circuit court sentenced Bush t o twelve y e ars i n MDOC custody , with two y ears suspended and two y ears of post-release supervision. ¶20. Bush’s trial counsel f ailed to f ile any post-trial m otions and f ailed to f ile a notice of appeal. Trial counsel f

i led a “ Petition f

or Appeal In Form a Pauperis,” but even that pleading, which was not a notice of a ppeal, wa s f

i l e d mo r e than thirty day s af ter the circuit court entered its f

inal j udgm ent of conviction and sentence. The Clerk of the S upr e me C o u rt issued a notice to trial counsel to show cause why the appeal s h o u l d n o t b e dism issed as untim e ly

. Trial counsel f ailed to respond t o the show-cause notice; however, the Of f ice of the S tate Public Def

ender ( O S PD) did r espond. OSPD acknowledged that trial counsel f ailed

to perf ect the appeal and requested leave to f i le an out-of

- tim e appeal. T he Suprem e Court entered an order granting leave to f ile an out-of

-tim e appeal. See M .R.A.P. 4 cm t. ¶21. As noted above, B ush r aises two issues on appeal. Fir s t , h e c l aim s that he was prejudiced due to two com m ents by the trial judge—one during voir dire a nd one during the trial—and allegedly

inadequate jury

instructions. Second, he argues that he is entitled to a

9new trial because a juror was asleep at one point i n the trial. W e a ddress these i ssues below. DISCUSSION I. Jury Instructions and Judicial Com m ents ¶22. B u sh phrases his f irst issue on appeal a s “whether the jury instruc t i o n s , i n c l u d i n g judicial com m ents, f

airly announced the law and p roperly instructed the jury s o as to assure the jury reached a just a n d f a ir verdict.” W e start with t he t wo “judicial c om m ents” about which Bush com

plains and t hen m ove on to alleged def iciencies in the jury i nstructions. W e begin by noting that Bush did not object to either of the judge’s com m ents. Theref ore, the issue is waived f

or purposes o f appeal. 6 P rocedural b ar notwithstanding, t hese a rgum ents are also without m erit. ¶23. Near the beginning of v oir dire by the c ourt, the transcript s hows t hat t he trial judge asked potential jurors the f ollowing question: “ Can y ou giv e him the burden of the proof preponderance [ sic]? ” 7 At the tim e, Bush did not object or a sk the judge f or c l arif ication, but he now argues that “[ t]he j ury was then and there m i s-instructed to a m uch lower burden of proof and

. . . a sked by the t rial judge i f they would com m it to that lessened burden o f proof .” A s sum ing the transcript a ccurately ref lects the judge’s com m ent, the contention that i t

am ounts to prejudicial error is w ithout m erit. T he j ud g e h a d j ust finished accurately

6 See, e.g. , Moody v . State , 8 41 So. 2d 1067, 1075 (¶15) ( Miss. 2003); Shelton v. State , 445 So. 2d 844, 846 (Miss. 1984); Hollins v. State , 99 So. 3d 237, 240 (¶8) (Miss. Ct. App. 2012); Shephard v. State , 66 So. 3d 687, 691 (¶13) (Miss. Ct. App. 2011).

7 “Sic” is indicated in the of f icial transcript. 10instructing the potential jurors on the def endant’s “presum

ption of i nnocence” an d t

h e S t ate’s burden to “prove this charge bey ond a reasonable doubt.” T he judge w ent on to state that he would give the jury instructions on the law, which the jury would be required to f ollow. At the close of the evidence, the judge again instructed t he j ury on the presum ption o f innocence and t h e r e q u i r e m ent of proof bey ond a reasonable doubt. “It is presum ed that the jury f o l lows the judge’s instructions.” Moody , 841 S o. 2d at 1076 (¶18). W e presum e that the jurors in this case f

ollowed t he clear instructions given to them at the close of the e vidence,

not an unclear a n d u n - objected-to com m ent two day s earlier during voir dire. See id. at (¶19). ¶24. B u s h a l s o i n s i s t s t

h a t , d u r i n g c r o s s - e x a

m i n a t ion of his girlf

riend, Mitra Ghaf

arianpoor , “the tria l judge m ade two statem ents w hich could o nly be viewed a s com m e n ts on the evidence w hich were perem p tory in nature and instruct[ ed] the jury to f i nd certain elem ents as f a cts.” In support of

this claim , Bush points to the f ollowing exchange, which occurred when the prosecutor w as questioning Ghaf arianpoor about w hether she had r eceived a voice

m ail f rom Bush’s sister in the hours af ter the wreck: THE COURT: J ust a m inute. You know the i ssues in this case is whether this f ellow here was driving that pickup and - - MR. MCMURTRY: No, sir. No, that’s not an issue. THE COURT: W ell, he was driving the truck. MR: MCMURTRY: W ell, that’s one of the elem ents - - THE COURT: A nd he lef t the scene. Now that’s the issue. N ow, I want y ou

11to get to it instead of

. . . . Bush a sserts that these s tatem e nts by the judge a m o u n t e d to “two d e f acto perem

ptory instructions.” Again, however, Bush d id not o bject to the judge’s com m ents, so the issue is waived. ¶25. Moreover, the trial judge was only instructing the prosecutor to lim it his questions to the m aterial f

actual issues in the case. The prosecutor argued that Ghaf arianpoor had m ade inconsistent statem ents about the voice m ail, which w ent to her “credibility ,” but the judge ruled that “there [ was] no credibility issue at all,” and t hat the m atter o f the voice m ail was “irrelevant.” The trial judge then instructed the prosecutor to “get on with this case.” ¶26. In context, the judge’s com m ents cannot be interpreted as perem p tory instructions or prejudicial to Bush. T he evidence at t rial, including Bush’s o wn t estim ony , was undisputed that Bush was d

r iving and that he did leave t he scene. At the close o f the evidence, the court f ully and f airly instructed the jury

on Bush’s theory of def

ense, including instructing that a person is not guilty of f

elony leaving the scene of an accident if he “lef t the scene to f

ind help

or aid f or him self o r another.” The trial j u d g e’s brief ref erence to two obvious and undisputed f

acts—in t he course of a ruling lim iting the S tate’s c r oss - e x a m ination of a def ense witness—was n ot an im proper com m ent on Bush’s theory of the def e nse. Bush was able to p resent h i s def

ense w ith proper instruct ions and without a ny im p roper lim itation. Bush’s com

plaint about the trial judge’s com m ent is without m erit. ¶27. Finally , Bush com plains that the trial judge did n ot give two “standard instructions,”

12one that provides general instructions f or j uries in crim i nal cases and one on t he requirem ent of a unanim ous verdi c t

. See Mississippi Judicial College, Mississippi Model Jury Instructions , Criminal § 1:2 & 1:23 ( 2 0 1 6 )

. Bush argues that these standard instructions

were needed to r educe conf usion created by the trial judge’s com m ents. However, we have already d eterm ined above that the trial judge’s c om m ents w ere not im proper or prejudicial,

an d t he jury was f

airly and accurately instructed on the presum ption of i nnocence and the State’s burden of proof

. Moreover, Bush did not request either of these instructions at trial

or object when they were n ot given. Indeed, neither instruction w a s mentioned during the charge conf

erence or at a ny o t her point. Accordingly , t his issue is procedurally barred 8 and without m erit. II. Sleeping Juror ¶28. B u s h argues on appeal that he is entitled to a new t rial because a juror w as allowed

to rem ain on the jury af

ter he was observed sleeping during a witness’s testim ony . 9 During W i lson’s cross-exam ination, Bush’s attorney (Mr. Cam p ) noticed that a juror w as asleep. He asked f or perm ission to approach the bench and the f ollowing sidebar occurred: MR. CAMP: I think we have a juror that’s asleep.

8 See, e.g. , W

ilson v. State , 956 So. 2d 357, 363 (¶14) (Miss. 2006) (“A t rial court is not required to sua s ponte instruct the jury or suggest jury instructions in addition to what the parties tender.

. . . [ I]t i s n o t error when a trial c ourt does not [ give a n]

. . . i nstruction [ that] was not presented by

either party .”).

9 W e review a t rial judge’s decision excusing or declining to excuse a juror f or abuse of discretion only

. Jones v. State , 149 So. 3d 1060, 1070 (¶55) (Miss. Ct. App. 2014). 13MR. MCMURTRY: I disagree , J u d ge. I think he m ight be sleepy , but he’s

not asleep. MR. CAMP: W ell, he was snoring a second ago. . . . THE COURT: W hich one is asleep? MR. CAMP: I think the gentlem an in the y ellow. H e m ay have w o k e n up now. I don’t know. THE COURT: I think he was asleep this m orning. MR. CAMP: I don’t know. THE COURT: I’ll wake him up. MR. CAMP: Okay

. THE COURT: The juror is asleep. Have a seat. The trial judge instructed the juror: “You’re going t o have to stay awake or send the bill to this baldheaded f

ellow over here.” W hat exactly the judge m eant is not clear f rom context. But in any event, there was no f urther discussion o f t he juror, and Bush never r equested that the juror be replaced with an alternate. ¶29. Bush notes that “ [ t]he Mississippi Suprem e Court has stated that a s leeping juror is

a m atter of ‘great concern’ to the courts.” Carpenter v. S tate , 132 So. 3d 1053, 1059 (¶17) (Miss. Ct. App. 2013) (citing C h u r c h v. Massey , 697 So. 2d 407, 414 ( Miss. 1997)). That is true, but it is also well-settled that a trial judge will not be put in error on an issue that was

never presented to the judge f or a decision. Thus, if

the def endant never asks a trial judge

to rem ove the sleeping juror during trial, he i s procedurally barred f rom raising the issue on

14appeal. See Birkhead v. State , 5 7 So. 3d 1223, 1236-37 (¶¶46-48) (Miss. 2011); J ones , 149 So. 3d at 1068-70 (¶¶44-55). As a general m atter, a sleeping juror is of great concern to this Court and the Suprem e Court; howeve r , b a s ed o n B ush’s f a ilure to request r em oval of the juror at a ny point d

uring the trial, we can only assum e that t his particular s leeping juror was of no great concern to Bush or his counsel. ¶30. This case is sim ilar to Jones

. There, b oth the def endant’s attorney and the trial judge noticed one or t wo jurors sleeping m ore than once durin g t h e t r i a l, and the def endant’s attorney s u ggested t hat one of the jurors m ight need to be replaced. However, the trial judge reserved ruling o n the issue, stating that he w ould wait u ntil the end of the trial to determ ine whether rem oval was necessary

. See id. at 1068-69 (¶¶44-47). The def endant never m ade

a m otion to rem o ve t he sleeping juror, and this Court h eld that his f ailure to d o so barred h im f rom raising t h e issue on appeal. See id. a t 1069-70 (¶¶47-55). The C o u rt rejected the def endant’s argum ent that “the trial judge’s f ailure to [ rem ove a juror] s ua sponte entitle[ d] him to a new trial.” I

d. at 1069 (¶48). W e explained that “m e rely v oicing concerns” about

a s leeping j u r o r w a s insuf f icient to preserve the issue f o r appeal; rather, a n on-the-record

m otion to remo v e t h e j uror was required. I d. at 1070 (¶53). Because the def endant f ailed

to m ake such a m otion, there were “no on-the-record f indings” on the issue, nor did “we have the benef it of the [ trial] court’s reasoning f or keeping [ the juror] on t he panel.” Id. at (¶54). T h e r ef ore, there w as “no d ecision to review f or an abuse of discretion.” I d. at (¶55). We held that the def

endant had waived the issue and was not entitled to a new trial. Id.

15¶31. The result is the sam e in this case. Bush d id not ask that the juror be rem oved, so we

can only assum e t hat he did n o t o b ject to this juror rem aining on the panel. Furtherm ore, because Bush did not m ake a m o tion to rem ove the juror, there are no f indings as to how long

t h e juror was asleep, nor do we know the trial judge’s reasoning f or allowing the juror to

rem ain on the panel. On this r ecord, Bush is not e ntitled to a new trial s im ply because the trial judge did not r e m o ve the juror sua sponte. Rather, Bush waived the issue b y f ailing to request that relief

in the trial court. CONCLUSION ¶32. T h e i s s u e s r a i sed by B ush on appeal are procedurally barred and without me r i t

. Theref ore, his conviction and sentence are af f i rm e d

. ¶33. T H E J U D G M E N T O F T H E S C O T T C O U N T Y C I R C U IT C O U R T O F CONVICTION OF FELONY L EAVING THE S CENE OF AN ACCIDENT AND SENTENCE OF T WELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI D E P A R T M E N T O F C O R R E C T I O N S , W I T H T W O Y E A R S S U S P E N D E D A N D T W O YEARS OF POST-RELEASE SUPERVISION, IS A FFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY. L E E , C . J . , I R

V I N G A N D G R I F F I S , P . J J . , BARNES, ISHEE, C ARLTON, F A I R , GREENLEE AND WESTBROOKS, JJ., CONCUR.

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