Lepine v. State

• Decision Date: 17 February 2009
• Docket Number: No. 2007-KA-02197-COA.,2007-KA-02197-COA.
• Citation: 10 So.3d 927
• Parties: Charles P. LEPINE, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

10 So.3d 927

Charles P. LEPINE, Appellant, v. STATE of Mississippi, Appellee.

No. 2007-KA-02197-COA.

Court of Appeals of Mississippi.

February 17, 2009.

Rehearing Denied June 16, 2009.

George T. Holmes, Jackson, attorney for appellant.

Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.

EN BANC.

LEE, P.J., for the Court.

PROCEDURAL HISTORY

¶ 1. Charles Lepine was convicted in the Circuit Court of Pearl River County of aggravated driving under the influence (DUI) and sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended. Lepine appeals his conviction and sentence alleging the following errors: (1) the amendment of the indictment was erroneous; (2) the trial court erred by denying a continuance after receiving late discovery from the State; (3) an evidentiary foundation was not laid for the blood-alcohol-content test results; (4) the trial court erred in allowing opinion evidence from the State's witness; (5) the trial court erred by failing to qualify the defense witness as an expert; (6) the trial court erred by denying the motion for a mistrial following the State's disregard of the trial court's ruling on the inflammatory argument; (7) the State failed to present sufficient evidence on all elements of aggravated DUI, and the verdict was not supported by the weight of the evidence; and (8) the trial court gave an erroneous jury instruction misstating the law on the duty of motor vehicle operators.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On February 22, 2003, Lepine drove some family members and friends to a Mardi Gras parade in Terrytown, Louisiana. The group, which traveled in Lepine's 1985 Buick station wagon, consisted of Lepine and the following nine passengers: Lepine's wife, Ellen; his two sons, Adam (age sixteen) and Lance (age seven months); his daughter, Rachael; his grandson, Chandler Hill; and his friends: Kenneth Verrett, Sr.; Kenneth Verrett, Jr. (age one month); Frank Verrett; and Gina Stockstill.

¶ 4. Lepine ingested alcohol during the afternoon and then began driving the group home to Hancock County, traveling on U.S. Highway 43 South. At about 7:30 p.m., while navigating a curve in Pearl River County, Lepine lost control of the vehicle. The station wagon left the roadway, hit a culvert, flipped, and landed 379 feet away from the point at which it left the road. Four people died as a result of the accident, including Kenneth Verrett, Sr.; Frank Verrett; and babies—Kenneth Verret, Jr. and Lance Lepine.

¶ 5. Lepine appeared to be visibly intoxicated to the officers who responded to the accident. Officer Roy Jacobson testified that he was the first officer at the scene. When he arrived, emergency medical personnel requested that he remove Lepine from the scene because he was causing a disturbance. Officer Jacobson testified that Lepine refused to leave, and when Officer Jacobson placed his hands on him, Lepine broke away and struck him in the face, neck, and shoulder. With assistance, Officer Jacobson was able to place Lepine under arrest. Officer Jacobson testified that Lepine appeared to be under the influence of alcohol because an odor of alcohol emanated from him.

¶ 6. Officer Joe Johnson testified from his observations at the scene that Lepine had an odor of an alcoholic beverage coming from him, had slurred speech, and glassy eyes, and after being read his Miranda rights, Lepine stated: "I have been drinking and now I've killed my baby." Police recovered a beer can from the floor of the station wagon. The results of a blood-alcohol-content test performed two hours after the accident showed that Lepine's blood-alcohol content (BAC) was .09 percent, which is over the legal limit. Officer Jacobson testified that Lepine had nothing to eat or drink between the time of the accident and the time of the blood test.

¶ 7. Lepine testified. He claimed that he had consumed three beers over the course of the afternoon in Terrytown, but he had stopped drinking at 3:30 p.m. Lepine said that he began the return trip two hours after consuming the last beer. During the return trip, he ate two hot dogs. Lepine testified that he was traveling at about fifty-five or sixty miles per hour before the accident. Lepine said that he lost control of the car after swerving to miss an approaching car that had crossed the center line. He denied that he had been driving drunk, and he denied that he had assaulted Officer Jacobson.

¶ 8. Edith Meaux testified that she was traveling north on U.S. Highway 43 when she witnessed the accident. She saw Lepine's oncoming car veer off the road, hit a culvert, go airborne, and flip over. Meaux testified that there were no other cars on the road at the time.

¶ 9. The jury convicted Lepine of aggravated DUI, but it acquitted him of simple assault of a law enforcement officer.

DISCUSSION

I. WHETHER THE AMENDMENT OF THE INDICTMENT WAS ERRONEOUS.

¶ 10. Lepine contends that the trial court erred by allowing the amendment of his indictment. Lepine originally was indicted on four counts of aggravated DUI, one count for each victim's death. However, it was pointed out to the trial judge that the accident had occurred prior to the 2004 amendment to Mississippi Code Annotated section 63-11-30(5) which allowed for a separate conviction for each death caused by the drunk driving. At the time of Lepine's offense, the aggravated DUI statute had been interpreted by the supreme court to criminalize the act of drunk driving rather than the act of killing. Mayfield v. State, 612 So.2d 1120, 1128 (Miss.1992). Therefore, Lepine could only be convicted of a single count of aggravated DUI although he had killed four people. Id. The trial court permitted an amendment to Lepine's indictment to reflect the law that was in existence at the time of the crime and to charge Lepine with one count of aggravated DUI for the deaths of all four victims.

¶ 11. On appeal, Lepine argues that the amendment was impermissible because it was one of substance and not one of form. "In Mississippi, issues of law are reviewed de novo by appellate courts." Cridiso v. State, 956 So.2d 281, 285(¶ 8) (Miss.Ct.App.2006) (citing Jones v. State, 912 So.2d 973, 975(¶ 8) (Miss.2005)). "Because a determination of whether an amendment is one of form or one of substance is a question of law, a court's decision to allow the amendment of an indictment `deserves a relatively broad standard of review.'" Id. An amendment is permissible if it "does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case." Wilson v. State, 935 So.2d 945, 948(¶ 9) (Miss.2006) (quoting Miller v. State, 740 So.2d 858, 862(¶ 13) (Miss.1999)). Uniform Rule of Circuit and County Court 7.09 states, in pertinent part, that an indictment can only be amended "if the defendant is afforded a fair opportunity to present a defense and is not unfairly surprised." Lepine contends that he was unable to defend against count one of the amended indictment, which charged him with all four deaths, because it could not be determined whether the jury found him guilty of one death or for the aggregate of all four deaths. Lepine claims that this was impermissible under the statute.

¶ 12. Contrary to Lepine's argument, the jury could have found him guilty of the single count of aggravated DUI if it believed him responsible for only one of the deaths or for all four deaths. Mayfield, 612 So.2d at 1127. Lepine's defense was that he had not been driving under the influence of alcohol; he testified that he had consumed only three beers hours earlier, and he testified that he had not negligently operated the vehicle. However, Lepine never disputed that he caused the deaths of his passengers; at the trial, it was undisputed that the wreck was the cause of the death of all four victims. Therefore, the amendment did not materially alter Lepine's defense.

¶ 13. Lepine also argues that the indictment was both multiplicitous and violated double jeopardy because it charged all four deaths in one count. There is duplicity in criminal pleadings when there is joinder of two or more distinct and separate offenses in the same count. United States v. Robin, 693 F.2d 376, 378 (5th Cir.1982) (citing C. Wright, Federal Practice and Procedure: Criminal § 142 at 469). Under the statute in effect at the time of the accident, a defendant is guilty of aggravated DUI, whether he caused one death or many, based upon the single act of causing death by negligently operating a vehicle while intoxicated. Miss.Code Ann. § 63-11-30(5) (Rev. 2002); Mayfield, 612 So.2d at 1127. Therefore, the indictment was proper under the law as it existed at the time of the offense. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN DENYING A CONTINUANCE AFTER RECEIVING LATE DISCOVERY FROM THE STATE.

¶ 14. Lepine avers that he was not advised until a few days before the trial that the State's toxicology expert was going to offer an opinion on retrograde extrapolation, which refers to the estimation of the BAC of an individual at a given time based on rates of absorption and dissipation over a period of time.¹ At a hearing on pretrial motions, Lepine requested that the retrograde extrapolation testimony be excluded or, alternatively, a continuance. The court denied the motion to suppress and the motion for a continuance, but it allowed the defense the opportunity to voir dire the State's expert outside the presence of the jury. The trial court previously had granted Lepine's request for funds with which to consult a toxicology expert.

¶ 15. Lepine's argument that he should have received a continuance after the trial judge denied his motion to suppress is without merit. Lepine was given notice of the retrograde extrapolation...