Bearden v. State

• Decision Date: 05 October 1995
• Docket Number: No. 92-KA-00215-SCT,92-KA-00215-SCT
• Citation: 662 So.2d 620
• Parties: Richard D. BEARDEN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 620

662 So.2d 620

Richard D. BEARDEN v. STATE of Mississippi.

No. 92-KA-00215-SCT.

Supreme Court of Mississippi.

Oct. 5, 1995.

V.W. Carmody, Stanfield Carmody & Clark, Jackson, for appellant.

Michael C. Moore, Attorney General, Deirdre McCrory, Special Ass't Attorney General, Jackson, for appellee.

Before HAWKINS, C.J., and SULLIVAN and SMITH, JJ.

HAWKINS, Chief Justice, for the Court:

Bearden was convicted May 7, 1991, in the Justice Court of Sunflower County of the crime of driving under the influence of intoxicating liquor. He appealed this conviction to the circuit court of Sunflower County, and was again convicted in a non-jury trial before a circuit judge February 10, 1995, and fined $500. We affirm.

FACTS

In the early morning hours of April 7, 1991, Bearden was involved in a two-car accident on Highway 49 near Inverness in Sunflower County. The first person to arrive at the scene of the accident was emergency medical technician David Beacham. At the trial, Beacham testified that:

I observed Mr. Bearden sitting there--he was sitting in his car in the driver's seat. Uh--he had a large abrasion I believe it was on his forehead. And I did my assessment of him, and I determined that he had no threat to his life at that time.... I escorted Mr. Bearden to the ambulance. He ambulated on his own. Once I got him in the ambulance, I did a complete secondary survey, and when I put him in the ambulance, I could detect there was a strong odor of alcohol in the ambulance.

As to Bearden's appearance, Beacham stated that, "Well, he was in quite a bit of pain. His eyes were red; his speech was slurred; but to say that he was intoxicated, I can't say that. I can say there was the presence of alcohol smell itself." Bearden was taken by ambulance to South Sunflower County Hospital.

Mississippi Highway Patrol Trooper Tim Pyles arrived at the scene after Bearden had left and interviewed Ruth Pittman, the driver of the other car involved in the accident. Pyles also examined Bearden's car and found it to smell strongly of alcohol. He later concluded that Pittman was driving her car south on Highway 49 when the north-bound Bearden crossed over into her lane and collided with her just across the center line.

After concluding his examination of the accident site, Pyles went to the hospital to talk to Bearden:

I asked Mr. Bearden if there was anybody else in the car. He told me no. There was a strong smell of alcoholic beverage coming from Mr. Bearden. His eyes were red and runny, dilating; speech was very slurred. I asked Mr. Bearden if he would consent to having blood taken to do a blood alcohol test, and he answered, no, I will not.

Later, Bearden changed his mind and agreed to have some blood drawn for a blood alcohol test. After he signed a consent form so stating, a lab technician took the sample using a blood alcohol test kit. Pyles took Bearden's blood, sealed it in the test kit, and kept it in his possession until he mailed it to the State Crime Lab in Jackson. Soon after the blood sample was taken, Pyles issued Bearden a citation for driving under the influence of alcohol. Pyles specifically testified that Bearden committed this offense in Sunflower County, Mississippi, and that he based his belief that Bearden was intoxicated on Bearden's slurred speech and the strong smell of alcohol.

There was some dispute at the trial as to whether Pyles made an actual arrest. On direct examination Pyles stated that he arrested Bearden. However, this testimony contradicts statements given by Pyles under questioning by Judge Evans:

Q. Officer, at what point did you inform Mr. Bearden that you were charging him or put him under arrest? Just tell me what you went through.

A. After I followed [sic] the accident report, which is a uniform accident report, in talking to Mr. Bearden, I asked him if he would consent to giving blood, and he said, no, and I said, that's fine. I left the room and came back. He said that he would consent to giving blood. After his blood was taken, I told Mr. Bearden that he was charged with driving under the influence of alcohol. I had already determined that I was going to charge him with driving--

Q. Well, did you actually place him under arrest or just inform him that he was going to be charged?

A. I informed him that he was going to be charged. I had already asked the doctors if they were going to keep him.

Q. Had he told you at that time that he was driving the car?

A. Yes, sir, he had, in questioning about the accident and following the accident report.

Q. And you never placed him under arrest and put him in jail or anything like that; just issued, I assume, this citation?

A. Yes, sir.

The citation issued to Bearden was an uniform driving under the influence traffic ticket. The heading of the ticket reads in part "State of Mississippi County of Sunflower." The location is listed as "Inverness," the district is listed as "2," and the highway/street is listed as "49." The citation asserts "That the aforesaid person [Bearden] did unlawfully and willfully operate a motor vehicle within this state: Under the influence of intoxicating liquor in violation of Section 63-11-30(1)(a); Miss.Code Ann. (1972)." The citation goes on to say, "Further, affiant states that he or she has probable cause to believe, and does believe, the person named above committed the offense herein set forth, contrary to law." Trooper Pyles signed the ticket directly beneath this language in a blank labeled, "AFFIANT/OFFICER'S SIGNATURE." Finally, underneath Pyles's signature the citation states, "SWORN TO BEFORE ME, THIS THE 9 DAY OF April, 1991." Below this is a blank labeled "(NAME AND TITLE)" signed by Elaine Campbell with the word "Clerk" handwritten beneath her signature.

April Frierson, medical lab technician, drew Bearden's blood. At the trial she testified in some detail as to the procedure she followed in getting Bearden's sample and in transferring it to the Highway Patrol. Frierson also stated that on the night that she took his blood sample Bearden was in severe pain and, "had a very bad attitude. Also, there was a smell of alcohol."

Anna Ezell, a supervisor at the Mississippi Crime Laboratory, was certified as an expert at the trial and testified about the techniques used by the Crime Lab to analyze blood samples. According to Ezell, following standard operating procedures, she performed a number of tests on Bearden's blood sample. When asked if this procedure had been approved by the Mississippi Highway Patrol, she spoke the words "It's been approved" before she was interrupted by a defense counsel objection. Ezell also testified about the procedures used to care for the lab's alcohol testing machines:

Q. (By Prosecuting Attorney Jane McWilliams) Ms. Ezell, tell us what procedures have been done on the machinery in the last few months.

A. Uh--this instrument, unlike the breath instruments, which are maintained and checked quarterly, and we check it, I think, every thirty days, but this instrument is actually and physically within the Crime Lab, and the performance is checked every time a sample is run.

Q. Did you check this machine before you ran this sample?

A. Yes, I did. With every run, three control standards are run in the beginning, but before any suspect sample is run, we run three standards to make sure it's working right and then every five cases that is run, the standards are checked to insure that the instrument is performing properly, so there is continuing check on the function of this instrument.

According to Frierson the Crime Lab's tests showed Bearden's blood sample to have an ethyl alcohol content of 0.15 percent.

At the end of the trial, Judge Evans found Bearden guilty of driving under the influence and levied a $500 fine and court costs. Bearden appealed to this Court on March 6, 1992.

LAW

I. PROBABLE CAUSE

The first issue raised by Bearden on appeal is whether the arresting officer lacked sufficient probable cause to legally arrest him. However, before this Court can address the question of the legality of Bearden's arrest, it must first determine whether Bearden was in fact arrested. "An arrest is not consummated until there has been a taking of possession of a person by manual caption, or submission on demand; and although a manual touching is unnecessary unless there is resistance to an arrest, there must be restraint of a person to establish an arrest." Bayse v. State, 420 So.2d 1050, 1051-52 (Miss.1982) (quoting Fondren v. State, 253 Miss. 241, 175 So.2d 628 (1965)). The need for the restraint of the person arrested is also developed in the definition of arrest found in the second edition of American Jurisprudence.

To effect an arrest, there must be actual or constructive seizure or detention of the person arrested, or his voluntary submission to custody, and the restraint must be under real or pretended legal authority. There can be no arrest where there is no restraint or where the person sought to be arrested is not conscious of any restraint.

5 Am.Jur.2d Arrest § 1 (1962).

Here, Pyles and Bearden met for the first time at the hospital. Pyles talked to Bearden about the accident and requested a blood sample. After Bearden refused, Pyles asked a few questions and left the room. Pyles then returned to the room and asked another question. At that point, Bearden agreed to give a blood sample. After the lab technician took the sample, Pyles told Bearden that he was charged with driving under the influence and issued Bearden a citation.

The record is devoid of any evidence of Pyles placing Bearden in "actual or constructive seizure or detention" or of Bearden's "voluntary submission to custody." Simply put, under the doctrines of Bayse and Fondren, this "arrest" was not consummated. It follows that if there was no arrest, Bearden's assignment of error premised on an improper arrest must fail.

Next, Bearden claims that the medical records which documented...