Mayfield v. State, 90-KA-448

Decision Date31 December 1992
Docket NumberNo. 90-KA-448,90-KA-448
Citation612 So.2d 1120
PartiesGeorge MAYFIELD v. STATE of Mississippi.
CourtMississippi Supreme Court

Jim Waide, Tupelo, for appellant.

Michael C. Moore, Atty. Gen., Jackson; John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

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

McRAE, Justice, for the Court:

Today's decision repeats the sad and oft-told story of one who found tragedy at the bottom of a bottle of cheer. Appellant George Mayfield and his friends embarked on a pleasure outing in Mayfield's automobile. Mayfield agreed to drive because, despite a blood-alcohol level of 0.21, he was the most sober member of the group. A wreck occurred in which two of his friends perished. Mayfield was charged and convicted in the Circuit Court of Union County of two counts of vehicular homicide (hereinafter referred to as "aggravated D.U.I.") 1 and sentenced to ten years imprisonment in the custody of the Mississippi Department of Corrections. He appeals, assigning the following as error:

I. The trial court erred in granting an instruction on aggravated D.U.I. where Mayfield had been indicted and tried on a charge of manslaughter;

II. Mayfield's two-part conviction violates the state and federal prohibitions against double jeopardy;

III. The manslaughter statute under which Mayfield was charged is unconstitutionally vague;

IV. The trial court erred in refusing to continue Mayfield's preliminary hearing so that he might subpoena witnesses;

V. The trial court erred in refusing to dismiss Mayfield's manslaughter indictment since the legislature did not intend one who kills another through drunk driving to be charged with the greater offense of manslaughter.

Finding that Mayfield committed only one act in violation of Mississippi's aggravated D.U.I. statute, we reverse his count-two conviction on grounds of double jeopardy. The conviction on the first count is affirmed.

FACTS

On the night of April 29, 1989, George Mayfield and several friends set out from Mayfield's home in Tupelo, Mississippi, to attend a concert in Memphis, Tennessee. The party traveled in a Ford Escort owned and driven by Mayfield. Mayfield, by his own admission, was drunk.

Around 8:00 p.m., truck driver Joe Reece was traveling west on a two-lane segment of Highway 78. According to Reece's testimony, a Ford Escort ignored a "yield" sign and pulled into Highway 78 immediately in front of him at the intersection of Highway 78 and Old Highway 78. Reece stated that he avoided hitting the Escort only by swerving and by bringing his truck almost to a stop. He blew his horn, whereupon the two passengers in the back seat of the Escort turned around, laughed, and made obscene gestures. Angered, Reece began to pursue the Escort to get its tag number. He was unable to catch up with the car despite having increased his speed to about seventy-five miles an hour. Reece observed that the Escort was "all over the highway" and almost struck a bridge abutment at one point. Reece stated that he reached down to get his C.B. radio microphone in order to call the police. "When I looked back up," Reece testified,

I could see another truck coming; and ... they had lost it; and they were all the way over in this lane; and they went back over on the right and lost it in the gravel and shot back across in front of the truck; and I thought they was going to get the truck head on.

So I went ahead and started stepping on my brakes trying to stop; but if they hit the truck head on, I didn't want to be in the accident. So, as I started stopping, they went back in front of the truck and didn't hit it head on. Whenever they went back across in front of the truck I lost them. The headlights of the other truck coming at me, it took my sight. All I could see was sparks when they hit the side of the tractor trailer and the trailer.

Darryl Carpenter was driving the eighteen-wheeler Peterbilt involved in the accident. He testified that he first saw the on-coming Ford Escort when it was about 100 feet away. Carpenter stated that the Escort

was passing another truck; and he was in my lane. I hit the brakes; but I seen I was going to [hit] him head on, so I went to the right hand shoulder and tried to avoid him. He still connected with my trailer, tractor tires, and spun up under my trailer.

Reece stopped at the scene of the accident and notified the Myrtle Police Department by radio. He saw two bodies, obviously dead, lying across the center lane of the highway. He also observed "plastic and beer cans and stuff laying on the road." The driver and a front-seat passenger crawled out of the car and started throwing beer cans into the ditch.

Mississippi Highway Patrol Staff Sergeant Mickey Baker testified that he investigated the accident. He stated that Mayfield was driving with a suspended driver's license at the time of the accident, that the Escort's inspection sticker was out of date, and that a bottle of Mescal Tequila was found on the back floorboard of the car. According to Baker, Mayfield's blood-alcohol level registered 0.21 when tested at the hospital subsequent to the accident. After being qualified as an accident reconstruction expert, Baker testified that Mayfield was traveling in excess of the posted speed limit when the wreck occurred.

Mayfield testified in his own behalf. According to his account, he volunteered to drive to Memphis because he was less drunk than the others. (He admitted, however, that his blood-alcohol level tested at 0.21 subsequent to the accident). Although he described the sequence of events in much the same way as the truck driver witnesses, he insisted that he ran off the road because the truck behind him failed to dim its lights. He stated that he lost control of his car after his wheels slipped off the edge of the pavement.

On cross-examination, Mayfield conceded that he had two prior D.U.I. convictions, one in 1985 and one in February, 1989, only two months before the fatal accident.

To substantiate Mayfield's claim that the accident happened because his right tires slipped off the pavement just before meeting the Peterbilt (and not because of his drinking), the defense put on evidence that Mayfield's car was out of alignment at the time of the accident, causing it to pull to the right. Accident reconstructionist Baker testified, however, that "the shoulder of the road in this area is at or near level with the road surface. A person should have been able to drive his car off the shoulder and back onto the shoulder without any problem with his car."

James Gilder and Jo Ellen Powell died in the crash.

LAW

I.

DID THE TRIAL COURT ERR IN GRANTING AN INSTRUCTION ON AGGRAVATED D.U.I. WHERE MAYFIELD HAD BEEN INDICTED AND TRIED ON A CHARGE OF MANSLAUGHTER?

Mayfield was tried on an indictment which charged the defendant with two counts of manslaughter by culpable negligence pursuant to Miss.Code Ann. Sec. 97-3-47 (1972):

COUNT I

That GEORGE W. MAYFIELD, ... on or about the 29th day of April, 1989, ... did unlawfully and feloniously, without authority of law, kill and slay a human being, to-wit James H. Gilder, Jr., by his culpable negligence when he, the said GEORGE W. MAYFIELD, did cause the motor vehicle which he was driving or operating and in which the said James H. Gilder, Jr., was riding as a passenger to crash into a truck, in violation of the provisions of Section 97-3-47 of the Mississippi Code of 1972, Annotated, as amended; and,

COUNT II

That the aforesaid GEORGE W. MAYFIELD, on or about the 29th day of April, 1989, ... did unlawfully and feloniously, without authority of law, kill and slay a human being, to-wit Jo Ellen Powell, by his culpable negligence when he, the said GEORGE W. MAYFIELD, did cause the motor vehicle which he was driving or operating and in which the said Jo Ellen Powell was riding as a passenger to crash into a truck, in violation of the provisions of Section 97-3-47 of the Mississippi Code of 1972, Annotated, as amended; and all contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Mississippi.

At the close of the trial, the court granted a lesser-included-offense instruction, quoted here in part:

S-14

If you find that the State has failed to prove any one or more of the essential elements of the crime of manslaughter under either Count I or Count II you must find the defendant, GEORGE W. MAYFIELD, not guilty of manslaughter under Count I and Count II, and you will proceed with your deliberations to decide whether the State has proved from the evidence in this beyond a reasonable doubt all the elements of the lesser crime of vehicular homicide under Count I and Count II.

The crime of vehicular homicide as charged in this case is distinguished from the crime of manslaughter by the absence or failure of the State to prove culpable negligence.

Instruction S-14 is based on Miss.Code Ann. Sec. 63-11-30(4) (1988) which states:

Every person who operates any motor vehicle in violation of the provisions of subsection 1 of this Section, and who in a negligent manner causes the death of another ... shall, upon conviction, be guilty of a felony, and shall be committed to the custody of the State Department of Corrections for a period of time not to exceed five (5) years. 2

The "subsection 1" to which Sec. 63-11-30(4) refers states:

It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; ... or (c) has ten one-hundredths percent (.10%) or more by weight volume of alcohol in the person's blood.

The jury found Mayfield not guilty of manslaughter by culpable negligence but guilty of two counts of aggravated D.U.I.

According to Mayfield, the crime of aggravated D.U.I. proscribed in Sec. 63-11-30(4) is a crime separate and distinct from the crime of manslaughter by culpable negligence. Mayfield asserts that since...

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