Gibson v. State, 56915

• Decision Date: 18 February 1987
• Docket Number: No. 56915,56915
• Citation: 503 So.2d 230
• Parties: Kevin Neal GIBSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 230

503 So.2d 230

Kevin Neal GIBSON v. STATE of Mississippi.

No. 56915.

Supreme Court of Mississippi.

Feb. 18, 1987.

David B. Clark, Florence, for appellant.

Edwin Lloyd Pittman, Atty. Gen., Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, C.J., and DAN M. LEE and GRIFFIN, JJ.

GRIFFIN, Justice, for the Court:

This case, concerning manslaughter, comes to the Court from the Circuit Court of Rankin County. There, a jury convicted the appellant, Kevin Neal Gibson, who then received a sentence of eight years. On appeal, Gibson contends that the lower court erred when it failed to grant him a directed verdict as well as when it admitted into evidence the results of a blood test for alcohol. We affirm.

On September 19, 1981, at approximately 1:45 A.M., Danny Ray Alford was a passenger in a van, travelling on Interstate 20 East, near the Jackson Municipal Airport exit. Having just passed a man standing next to a four-wheel drive truck, parked on the highway's shoulder, Alford looked in a side mirror, witnessing a "car gradually easing off the road with the lights up," and then a collision. At trial, Alford stated, "I know that something went up [in the air] and by the time we got stopped and backed up, the man was laying on the side of the intersection," later found to be thirty-seven feet, six inches from the point of impact. Alford and the van's driver, smelling gasoline, then began searching for the second vehicle, finding it in a nearby ditch. They removed its only occupant, Kevin Neal Gibson.

Immediately thereafter, Officer Bill F. Talley of the Pearl Police Department arrived at the scene. He found Gibson, "hollering, cussing, trying to get up off the ground and the paramedics were trying to keep him on the ground, trying to attend his wounds." At this point, Talley noticed the odor of alcohol on Gibson's breath. Calling for a blood collection kit from headquarters, Talley followed the ambulance, carrying Gibson, to the University Medical Center in order to obtain a blood sample for analysis.

At the hospital, Talley first noticed that the kit was beyond its expiration date. He then discarded the vials, contained in the kit, allowing emergency room nurse Martha Monaghan to use the hospital's own vials for the collection. The respective expiration dates of the two replacement vials used for the sample were November, 1982, and January, 1983.

Thereafter, the vials were sealed in the kit's styrofoam box, and delivered to Officer Thomas Seth Laird, also of the Pearl Police Department. He stored the evidence over the weekend in his home's refrigerator, tendering it to the Mississippi Crime Laboratory the following Monday. Analysis showed a blood alcohol content of .19%.

In Gibson v. State, 458 So.2d 1046, 1047 (Miss.1984), this Court reversed the appellant's initial conviction, finding that the "State [had] failed to lay a proper foundation for the admission into evidence of the results of the blood alcohol test." Specifically, we referred to the expiration date, 12 80, appearing on the styrofoam box, the previous record silent as to the presence of replacement vials, contained therein. This appeal then follows the remand and a second conviction. Significantly, the District Attorney, attentive to our first decision, introduced evidence of the replacement vials at the second trial, showing the jury that the expired kit's contents had no effect on the results of the blood test.

I.

Gibson argues that the trial judge erred when he failed to grant a directed verdict, maintaining there is no credible evidence to support a conviction for manslaughter. In particular, he notes the state's failure to prove (1) any physical contact between the two vehicles, (2) the cause of death, and (3) the appellant's negligence.

Consistently, this Court has stated that in passing on a motion for a directed verdict, all of the evidence on behalf of the state must be taken as true, together with any reasonable inferences, and, if there is sufficient evidence to support a verdict of guilty, the motion for a directed verdict must be overruled. Harper v. State, 463 So.2d 1036, 1040 (Miss.1985); Thompson v. State, 457 So.2d 953, 955 (Miss.1984); Shelton v. State, 445 So.2d 844, 848 (Miss.1984); Jackson v. State, 440 So.2d 307, 310 (Miss.1983); Forbes v. State, 437 So.2d 59, 60 (Miss.1983); Bayse v. State, 420 So.2d 1050, 1054 (Miss.1982); Wilks v. State, 408 So.2d 68, 70 (Miss.1981); Bullock v. State, 391 So.2d 601, 606 (Miss.1980).

At trial, Alford testified that he had witnessed a collision between a vehicle "easing off the road" and a four-wheel drive truck, parked on the asphalt shoulder. He added that no other vehicle passed the accident scene between the time of the collision and his search for Gibson's automobile, prompted by the smell of gasoline. Both vehicles displayed extensive physical damage, with tire tracks, and debris, evident from the alleged point of impact to the resting places of the automobile and truck, 520 feet and 514 feet, respectively. Certainly, this was sufficient to show physical contact between the vehicles.

Gibson also argues that an autopsy is the "only sure means" to determine the cause of death. Its absence then required the trial judge to find for Gibson, as there was no evidence of criminal agency. Yet, in King v. State, 251 Miss. 161, 176, 168 So.2d 637, 643 (1964), the Court stated,

The law does not require an autopsy or medical evidence to establish death. These facts are ordinarily proved by witnesses who saw the deceased after his death and who testified that the deceased was dead. The criminal agency or cause of death is usually shown by witnesses who saw the homicide, or by circumstances sufficient to establish the crime to the exclusion of every other reasonable hypothesis.

See also, Miskelley v. State, 480 So.2d 1104, 1107 (Miss.1985); Ford v. State, 226 So.2d 378, 380 (Miss.1969). Likewise, in Goldman v. State, 406 So.2d 816, 820 (Miss.1981), the Court said, "Death of a victim and criminal agency may be established by circumstantial evidence and by reasonable inferences to be drawn from such evidence." Williams v. State, 434 So.2d 1340, 1343 (Miss.1983); McCraw v. State, 260 So.2d 457, 461 (Miss.1972).

Here, Jimmy L. Roberts, Rankin County Coroner, testified that he removed the decedent to a local funeral home for examination, and based on his observations, the "immediate cause of death was head injuries." Additionally, the four-wheel drive truck sustained rear-end damage, immediately following Alford's pass, during which he saw the decedent, standing near the driver's door. Indeed, the victim's presence, thirty-seven feet from the point of impact is in line with Alford's observation that someone or something was hurled into the air by the force of the collision. With no other facts on which to base an alternative "reasonable hypothesis," the circumstances of the wreck are sufficient to provide the cause of death.

Lastly, Gibson contends that the State failed to prove his negligence as the cause of the accident, as required by Miss.Code Ann. Sec. 97-3-47 (1972). This Court has previously defined culpable negligence in vehicular manslaughter cases as "negligence demonstrating a reckless disregard for the value of human life...." McGrew v. State, 469 So.2d 95, 96 (Miss.1985). See also, Burge v. State, 472 So.2d 392, 395 (Miss.1985); Goldman v. State, 406 So.2d 816, 819 (Miss.1981); Gandy v. State, 373 So.2d 1042, 1046 (Miss.1979); Howard v. State, 346 So.2d 918, 921 (Miss.1977). Although the driver's intoxication, by itself, is insufficient to warrant a conviction for manslaughter, Dickerson v. State, 441 So.2d 536, 540 (Miss.1983), "it may be considered as an element constituting gross and careless disregard for the value of human life." McGrew, 469 So.2d at 97. Yet, "in order for the influence of intoxicating liquors to be a factor in showing criminally culpable negligence it must contribute proximately both to the establishment of such negligence and to the resultant death." Cutshall v. State, 191 Miss. 764, 772, 4 So.2d 289, 292 (1941). See also, Gandy v. State, 355 So.2d 1096, 1098 (Miss.1978); McNamee v. State, 313 So.2d 392, 395 (Miss.1975); Frazier v. State, 289 So.2d 690, 692 (Miss.1974). For example, in Gandy, 355 So.2d at 1098, this Court found a causal connection between the defendant's intoxication and his head-on collision with another vehicle, when he travelled in the wrong lane of traffic. Accord, Yazzie v. State, 366 So.2d 240, 243 (Miss.1979).

The case at issue is quite similar. Here, there was unrefuted testimony that the decedent's vehicle, wholly off the highway and displaying its taillights, was struck at its rear by Gibson's automobile, which had eased off the road along a straight and level stretch of Interstate 20. Moreover, Gibson smelled of alcohol, slurred his speech, and evidenced a .19% level of blood alcohol. Based upon the above, this was sufficient to establish Gibson's culpable negligence for the jury.

II.

Gibson contends that the trial court erred when it admitted the results of his blood test for alcohol, charging that (1) absent his arrest or consent, the blood sample constituted an unreasonable search and seizure, (2) the sample's established chain of custody was insufficient, and (3) the State failed to lay the proper foundation for the test results, thereby barring their introduction into evidence.

In two previous cases, this Court has permitted the collection of a blood sample, absent a suspect's arrest or consent, where there existed at the time of the seizure probable cause to make a search. In Ashley v. State, 423 So.2d 1311, 1313 (Miss.1982), the Court stated,

The facts in possession of the officer at that time were that Ashley was driving an automobile which had run into the rear end of another automobile which was stopped at a traffic signal, that an occupant of the stopped automobile had been killed...