Porter v. State, 95-KA-1324-COA.
| Decision Date | 24 August 1999 |
| Docket Number | No. 95-KA-1324-COA.,95-KA-1324-COA. |
| Citation | 749 So.2d 250 |
| Parties | Robert PORTER, Jr., Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Helen E. Morris, Cleveland, Attorney for Appellant.
Office of the Attorney General by Dewitt T. Allred, III, Attorney for Appellee.
EN BANC:
MODIFIED OPINION ON MOTION FOR REHEARING
DIAZ, J., for the Court:
¶ 1. The original opinion is withdrawn, the motion for rehearing is granted, and the following opinion is substituted.
¶ 2. Robert Porter, Jr., has appealed the judgment of the Circuit Court of the Second Judicial District of Bolivar County in which that court adjudicated him to be guilty of the crime of felony DUI and sentenced him to serve a term of four years in an institution under the supervision and control of the Mississippi Department of Corrections. Porter presents five issues for our review and resolution, which five issues we quote verbatim from Porter's brief:
Except for Porter's second issue, we resolve all other issues adversely to him. The evidence in the record clearly supports the jury's verdict that Porter was driving under the influence. However, because it was plain error for the circuit court to allow Porter to be convicted and sentenced for a felony under the enhanced DUI statute rather than for a second offense misdemeanor under the provisions of the statute in effect at the time of his arrest, we reverse his conviction of felony DUI but affirm his conviction of misdemeanor DUI and remand for re-sentencing.
¶ 3. At approximately 10:00 o'clock on the morning of May 13, 1995, Officers Carl Norwood and Jeff Carruth, patrolmen with the Cleveland Police Department, responded to a call at the SuperValu Store in the City of Cleveland. Someone had reported that a man had pulled a gun on a woman in the front of the store. When Officers Norwood and Carruth arrived at the SuperValu Store, they were unable to locate either the woman who reported the incident or anyone at the store who knew about the incident. The two officers resumed their regular patrol by traveling south on U.S. Highway 61.
¶ 4. As they approached the intersection of Lee Street and Highway 61, a man and a woman in a gray car gestured for the officers to stop. Officer Norwood parked the police car in the southeast corner of the intersection. The woman, who was driving the car, told the two officers that she had earlier notified the police that a man pulled a gun on her at the SuperValu store. The woman identified the man as the appellant, Robert Porter, Jr. As the woman began describing Porter's Chevrolet pickup to the officers, she looked south on Highway 61, pointed, and said, "There's the truck right there, and he's driving it."
¶ 5. Porter drove his old Chevrolet pick-up truck off the highway and parked it next to the officers' police car. When Porter got out of his truck, the officers asked him if he had a gun, to which Porter replied that he did not. As the officers approached him, they smelled a strong odor of an alcoholic beverage on Porter's breath. They asked the dispatcher to run Porter's driver's license number. The dispatcher's response was that Porter's driver's license had been suspended. The two officers arrested Porter and transported him to the Cleveland police station. After they had arrived at the police station, Norwood and Carruth waited twenty minutes, as required by law, before Norwood advised Porter about his right to refuse to submit to an intoxilizer test. Porter submitted to the intoxilizer analysis of his blood alcohol content, which analysis determined that it was .164%.
¶ 6. The grand jury returned an indictment against Porter for felony DUI, of which we quote the following portion because of its relevance to our resolution of the key issue in this case:
Robert Porter, Jr., ... did unlawfully, wilfully and feloniously drive a vehicle while under the influence of intoxicating liquor, to-wit: over ten one-hundredths percent (.10%) or more by weight volume of alcohol, being a third or subsequent violation, after having been previously convicted of DUI three or more times in the last ten years, the prior convictions being:
DATE OF COURT CONVICTION Municipal Court, Cleveland 07/25/88 Mississippi, # 16-A, Case 1000 Municipal Court, Cleveland 11/14/88 Mississippi, # 16-A, Case 1200 Municipal Court, Cleveland 10/30/89 Mississippi, # 16-A, Case 1323 Circuit Court, 2nd Judicial Dist., 06/18/92 Bolivar County Cause # 7529
¶ 7. After the jury had been impaneled but before the State called its first witness, Porter moved ore tenus "to strike the prior convictions and dismiss the indictment [because] the prior convictions were not properly ... charged in the indictment so as to trigger the felony offense provision of the implied consent law." The assistant district attorney cited Section 63-11-30(7) to support the indictment, and the trial court denied Porter's motion to strike and to dismiss the indictment. Next, the State moved in limine "that the defense be prohibited from bringing out any testimony as to the fact that the use of alcohol did not impair [Porter's] ability to drive the vehicle in any way." Porter's counsel "vehemently" objected because Porter's defense would be "totally" crippled without such evidence. Nevertheless, the trial court granted the State's motion in limine.
¶ 8. The State called Cleveland police officers Norwood and Carruth to establish the facts which led to their arrest of Porter on the morning of May 13, 1995, and the result of the intoxilizer test administered by Officer Norwood, which was .164% blood alcohol content. The State's final witness was Mississippi Highway Patrol Trooper John N. Watson, who served as the implied consent specialist for the Greenwood Highway Patrol District. Trooper Watson testified that as a certified implied consent specialist, he had tested the intoxilizer located in the Cleveland Police Department Headquarters on April 25, 1995, May 2, 1995, and June 14, 1995, and found the intoxilizer to be functioning within the acceptable tolerance for analysis. Watson explained that to be acceptable, the result of the intoxilizer test must be within .005% of the known value of the solution used to test the intoxilizer.
¶ 9. After the State rested, Porter's counsel moved for a directed verdict on the ground that the State had failed to meet its burden of proof, and the trial court denied the motion. Porter testified in his behalf. Porter admitted that he had drunk a half-pint of Calvert the night before, and he further acknowledged that alcohol from his drinking the night before might well remain in his blood the next morning. On redirect examination, Porter testified that when he stopped at the intersection of Highway 61 and Lee, he "was operating [his] vehicle in a normal manner."
¶ 10. Among the reasons which Porter assigned for a new trial in his motion for JNOV or, in the alternative, motion for a new trial was: "The foreperson of the jury, Kennedy Johnson, failed to disclose to the Court and the parties that he is a former law enforcement officer of the Mound Bayou Police Department when asked concerning the juror's or the juror's spouse's involvement in law enforcement." The trial court denied Porter's motion for JNOV or, alternately, a new trial without further hearing.
¶ 11. For his first issue, Porter chooses to assert that the indictment did not properly set forth his prior convictions "so as to trigger the felony offense provision" of section 63-11-30 of the Mississippi Code. Porter cites Brewsaw v. State, 168 Miss. 371, 151 So. 475 (1933), to support his argument that when the accused is being prosecuted for a misdemeanor enhanced to the status of a felony because of prior convictions of the same misdemeanor, the indictment must charge and proof must show: (1) that the accused had been convicted of a first offense, and (2) that after being convicted of the first offense, he committed the second offense and was convicted as such, and (3) after the successive offenses and convictions in the order aforesaid, he committed the third, or felonious, offense. Not only Brewsaw, but also Page v. State, 607 So.2d 1163 (Miss. 1992), and Ashcraft v. City of Richland, 620 So.2d 1210 (Miss.1993), would support Porter's argument but for the fact that...
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