Longstreet v. State

• Court: Mississippi Supreme Court
• Writing for the Court: DAN M. LEE; ROY NOBLE LEE; McRAE; McRAE
• Citation: Longstreet v. State, 592 So.2d 16 (Miss. 1991)
• Decision Date: 27 November 1991
• Docket Number: No. 90-KA-0474,90-KA-0474
• Parties: Danny LONGSTREET v. STATE of Mississippi.

Page 16

592 So.2d 16

Danny LONGSTREET v. STATE of Mississippi.

No. 90-KA-0474.

Supreme Court of Mississippi.

Nov. 27, 1991.

Dissenting Opinion of Justice McRae

Dec. 18,1991.

Robert T. Laster, Jr., Carothers Fedric & Laster, Grenada, for appellant.

Mike C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and PITTMAN, JJ.

DAN M. LEE, Presiding Justice, for the Court:

This appeal derives its factual basis from a tragic set of circumstances which underscores the horror of an unfortunate, yet familiar societal menace. Three people are dead. The quality of life for a fourth person, the appellant (who received a 27-year penitentiary sentence), is severely diminished. Once again, an overindulgence in alcohol is adjudicated the culprit.

Danny Longstreet was indicted on three counts of manslaughter ¹ for the deaths of James H. McNeer, Bessie Mae McNeer and Amy Michele Anthony. Following a trial by a jury of his peers, Longstreet was found guilty on all three counts, and the court sentenced Longstreet to three (3) consecutive nine (9) year terms to the Mississippi Department of Corrections. Feeling aggrieved, Longstreet now appeals his convictions to this Court alleging error in the admission of a blood alcohol test result which revealed that Longstreet had a blood alcohol content of .13. ² Finding no error in the admission of Longstreet's blood alcohol test result, we affirm his convictions for the crime of manslaughter and corresponding sentences.

FACTS

On the early afternoon of May 20, 1989, Danny Longstreet was traveling alone in a 1975 blue Pontiac from Greenwood to Grenada on Highway 8. Mr. James H. McNeer and Mrs. Bessie Mae McNeer were on the front seat of their 1982 Ford Grenada traveling in the opposite direction. Two of the McNeers' granddaughters were on the back seat, and a third child, Amy Michele Anthony, was seated in the middle on the back seat.

Just west of the city limits of Grenada, Danny Longstreet's blue Pontiac collided head-on with the McNeers' Ford Grenada. One of five eyewitnesses described the collision as follows:

A. I looked up, and there was a car come over in my lane about a hundred yards ahead of me. And he never moved back over and never run off the road or nothing. He just got in my lane and was coming straight toward us. He got within four or maybe five car lengths from us, and I seen he wasn't moving, and so I run off the road, and he hit the car behind us head-on.

It was a cloudy day, but the road condition was dry. At the place of impact, the highway was straight and level. Mr. James H. McNeer, age 62, and his wife, Mrs. Bessie Mae McNeer, age 63, both of Holcomb, were killed instantly. Amy M. Anthony, of Grenada, a 14 year old friend to the McNeers' granddaughters, lived for approximately three hours before she died in a Memphis hospital. The McNeers' granddaughters survived the crash.

At this point, we find little or no benefit in recounting the tragic details of the collision and its aftermath. Therefore, we summarize much of the trial testimony as follows.

For his defense, Longstreet presented evidence to suggest that mechanical failure in the front end of his vehicle was the cause for the head-on collision. The State presented the testimony of five (5) eyewitnesses who observed events which preceded the collision as well as the collision itself. While some of the testimony corroborated Longstreet's allegation of mechanical trouble in the front end of his Pontiac, there was also compelling eyewitness testimony which indicated that Longstreet was driving in an intoxicated condition. ³

For the question that we consider today, our focus in on the testimony of Officer Charles Rose, a state trooper who testified at the hearing on Longstreet's motion to suppress the results of the blood alcohol test.

Officer Rose was among the first to arrive at the scene of the accident, and he investigated for approximately an hour to an hour and a half before he went to the Grenada Lake Medical Center where Longstreet was being treated for minor injuries. When Officer Rose arrived at the hospital to see Longstreet, he knew that Longstreet was the driver of the blue Pontiac which collided head-on with the McNeers' Ford. He also knew that Mr. and Mrs. McNeer were dead and that the children were in very serious condition. Furthermore, Officer Rose observed certain characteristics which made him suspect that Longstreet had been drinking.

Q. What information did you have with respect to alcohol at the time?

A. I believe there was a beer can in the vehicle, and at the hospital I noticed the pupils of his eyes were dilated. He had slurred speech.

Q. Did you smell anything about his breath?

A. I didn't attempt to smell his breath.

Even though Officer Rose suspected that Longstreet had been drinking alcohol, the officer asked Longstreet for his consent to draw a blood sample for a blood alcohol and drug screen test. At the pre-trial suppression hearing, Officer Rose described Longstreet's consent to the blood sample.

Q. What happened with respect to Danny Longstreet at the Grenada Lake Medical Center?

A. I asked for consent to draw blood for blood alcohol and drug screen.

Q. Who did you ask to give that consent?

A. I asked Danny Longstreet.

Q. How did you ask him?

A. I just asked him if he would give consent for a blood test to determine his blood alcohol content.

Q. What did he say?

A. He gave consent.

Q. And how did he--do you have anything that shows that he gave consent?

A. YES. I have a form signed by Longstreet in the presence of Registered Nurse Jean Aldy, which drew the blood.

Registered Nurse Jean Aldy drew the blood sample. She testified that she could smell alcohol on Longstreet and that his demeanor was, "loud, obnoxious and belligerent."

Officer Rose did not arrest Longstreet at the hospital. Longstreet was not arrested until the grand jury returned an indictment which was several weeks after the results of the blood test revealed a blood alcohol content of .13. Officer Rose testified that it was common practice to await the blood alcohol test results from the crime lab in Jackson before seeking an indictment in such cases.

At the pre-trial suppression hearing, Longstreet challenged the validity of his consent to the blood sample since he was unaware that he had a constitutional right to refuse Officer Rose's request to withdraw a sample of blood. The trial judge ruled against Longstreet, and the test results were admitted into evidence at trial. The trial judge found that notwithstanding any question concerning the validity of Longstreet's consent, that Officer Rose had probable cause to withdraw a sample of Longstreet's blood for alcohol analysis and drug screen testing.

ANALYSIS

Longstreet's contention on appeal is that the consent which he gave for the blood sample is invalid under this Court's holding in Penick v. State, 440 So.2d 547 (Miss.1983). Therefore, Longstreet alleges error in a ruling of law by the trial judge wherein the results of his blood alcohol test were admitted into evidence. Our review on questions of law is de novo. Harrison County v. City of Gulfport, 557 So.2d 780, 784 (Miss.1990); Cole v. National Life Ins. Co., 549 So.2d 1301, 1303 (Miss.1989); Boggs v. Eaton, 379 So.2d 520, 522 (Miss.1980).

Initially, it should be noted that the State argues that Longstreet has not preserved his one issue for appeal. In this light, the State asserts that since Longstreet did not use the term "Fourth Amendment," at the suppression hearing, then he has not preserved a search and seizure question for this Court's review. The State's contention has no merit. Despite Longstreet's use or not of the magic words, "Fourth Amendment," or "Section 23," there is no doubt that Longstreet is seeking protection of his right to be free from unreasonable searches and seizures as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution of 1890. His objection is extremely apparent from the context. Hooker v. State, 516 So.2d 1349, 1354 (Miss.1987). Longstreet's allegation of error is preserved for our review, and now on to the merits of the case.

In Penick v. State, this Court reiterated the rule that in this State, valid consent to an otherwise illegal search must be accompanied by a knowledgeable waiver of a person's constitutional right not to be searched. Penick v. State, 440 So.2d 547, 551 (Miss.1983) (emphasis added). See Quan v. State, 185 Miss. 513, 520, 188 So. 568, 569 (1939) ("A party, when he knows that a proposed search would be illegal, may waive the illegality and consent to the search; and when he does he may not thereafter complain of its illegality."); Smith v. State, 133 Miss. 730, 736, 98 So. 344, 345 (1923) (in order to waive rights, one must be cognizant of rights in premises). In other words, for a search which is based on consent alone, it is necessary that the person searched be aware of the right to refuse under the law. Penick, 440 So.2d at 550, 551. Penick held that in the absence of a knowledgeable waiver, such search violated section 23 of the state constitution. ⁴ Penick, 440 So.2d at 551. Specifically, Longstreet alleges that Officer Rose's failure to inform him that he had a right to refuse the request for a blood sample taints the consent which he gave thereby rendering the test results inadmissible.

Blood alcohol tests have a substantial history in Fourth and Fifth Amendment constitutional law as well as in state constitutional considerations interpreted by this Court. We begin with the basics and build from there.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court recognized that blood alcohol tests, although substantially invasive, are not violative per se of the accused's rights to be free from unreasonable searches...