Price v. State

• Decision Date: 03 August 1999
• Docket Number: No. 98-KA-00147-COA.,98-KA-00147-COA.
• Citation: 752 So.2d 1070
• Parties: Robert PRICE a/k/a Robert L. Price, Jr., a/k/a Robert Lewis Price, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

752 So.2d 1070

Robert PRICE a/k/a Robert L. Price, Jr., a/k/a Robert Lewis Price, Appellant, v. STATE of Mississippi, Appellee.

No. 98-KA-00147-COA.

Court of Appeals of Mississippi.

August 3, 1999.

Rehearing Denied November 9, 1999.

Certiorari Denied February 3, 2000.

James A. Williams, Meridian, Attorney for Appellant.

Office of the Attorney General by Dewitt T. Allred, III, Attorney for Appellee.

BEFORE McMILLIN, C.J., IRVING, AND PAYNE, JJ.

IRVING, Judge, for the Court:

¶ 1. Robert L. Price was indicted in the Circuit Court of Lauderdale County on or about March 21, 1997 on a charge of felony DUI. On December 1, 1997, Price's motion for a bifurcated trial was granted and the matter was set for trial on the charge of driving under the influence only. On December 2, 1997, a jury found Price guilty on the principal charge of DUI. At a separate hearing conducted on December 22, 1997, the trial judge found that Price had been twice convicted of the offense of driving under the influence of alcohol within the past five years within the meaning of Miss.Code Ann. Section 63-11-30(2) (Rev. 1996), and was therefore guilty of the offense of felony DUI, third or greater offense, and subject to sentencing as provided in Miss.Code Ann. Section 63-11-30(2)(c) (Rev.1996). He then sentenced Price to serve a term of five years in the custody of the Mississippi Department of Corrections and to pay a fine of $2,000, an appearance bond fee of $50 and court costs of $246. Price was further ordered to report to the Lauderdale County Circuit Court within thirty days of release to arrange for payment of court assessments or risk contempt of court. Lastly, Price was ordered to actively participate in and successfully complete the program of alcohol treatment and rehabilitation provided by Mississippi Department of Corrections. This appeal is taken from that judgment with the following issues, taken verbatim from Price's brief, assigned as error:

ISSUES

I. WHETHER THE DEFENDANT WAS ARRESTED WITHOUT PROBABLE CAUSE WHEN THE OFFICER STOPPED HIM AFTER FAILURE TO DIM BRIGHT HEADLIGHT BEFORE DARK AND ALL EVIDENCE ACQUIRED THEREAFTER SHOULD BE SUPPRESSED AND UNDER THE TOTALITY OF THE CIRCUMSTANCES THERE WAS NO PROBABLE CAUSE.

II. WHETHER DEFENDANT WAS DENIED A FAIR TRIAL BY JURY BECAUSE THE JURY WAS INSTRUCTED ON IMPLIED CONSENT, THE DEFENDANT DID NOT TESTIFY AND HIS SILENCE WAS THE SUBJECT OF INSINUATION AT CLOSING ARGUMENT BY THE STATE.

III. WHETHER THE COURT MADE IMPROPER COMMENT AND EMPHASIS ON THE EVIDENCE OF REFUSAL TO TAKE THE INTOXILYZER WHEN IT GAVE AN INSTRUCTION ON THE IMPLIED CONSENT LAW.

IV. WHETHER TESTIMONY ELICITED BY THE STATE OF OTHER CRIMES DENIED DEFENDANT

A FAIR TRIAL AND DUE PROCESS OF LAW.

V. WHETHER THE DEFENDANT WAS DENIED A FAIR TRIAL BY THE INTRODUCTION OF THE RESULT OF THE ALCOSENSOR FIELD TEST FOR ALCOHOL.

VI. WHETHER THE EVIDENCE OF DRIVING UNDER THE INFLUENCE WAS SUFFICIENT TO SUPPORT THE VERDICT.

FACTS

¶ 2. Lauderdale County Deputy Sheriff Frankie Springer was performing routine patrol duty on A.C. Brown Road on the evening of September 20, 1996, when he met a pickup truck being driven by Robert L. Price. According to Springer, the headlights on the pickup were on high beam, and the driver failed to dim the lights to oncoming traffic. Consequently, Deputy Springer turned his patrol car around and followed the pickup when the driver made a left turn off A.C. Brown Road onto Blizzard Road. Springer testified that he followed the pickup for a distance of approximately 500 feet. Springer's testimony was that while he followed the pickup he observed it travel along the grass line of the left side of the paved road for a distance of about 100 feet, then back to the right side of the road and down the center of the road two or three times before he activated his blue lights and stopped the pickup at 7:34 p.m. He then exited his patrol car, walked to the driver's side of the pickup, and asked the driver to see his driver's license. Price stated that he had no license. Springer then asked Price for his social security number. Price complied by giving Springer Price's social security number.

¶ 3. While Price was still sitting in the pickup, Springer walked back to his patrol car and radioed for information on Price's social security number. Springer testified that information came back that Price's driver's license was suspended. Springer then asked Price to step out of the pickup. It was at that time that Springer noticed the odor of alcohol on Price's breath. It was Springer's testimony that Price "had trouble walking," "staggered a couple of steps" and "did not walk straight." Price's "speech was very slow and slurred, and his eyes were very red."

¶ 4. According to Springer, "The evidence I saw through my five senses led me to believe he was under the influence of alcohol." Springer asked Price to submit to a portable alcosensor breath test. Price complied by taking the test twice. The first test yielded no results. The second test showed a registration of .16. As a result of the second test, Springer placed Price under arrest for suspicion of DUI.

¶ 5. Springer testified that he needed to make arrangements to have the pickup moved off the road following his arrest of Price. There was a passenger in Price's truck, but the passenger was also unlicensed and appeared to Springer to have been drinking. The passenger was able to walk a few yards down the road and secure a licensed driver to move the truck.

¶ 6. Springer transported Price to the courthouse where Deputy Sheriff Gail Anthony asked Price twice to submit to a test on the Intoxilyzer 5000. Price refused both requests, the last refusal was at approximately 8:30 p.m. Anthony testified that Price's eyes "were red, very red" and that she noticed the smell of alcohol coming from Price.

¶ 7. Price filed a motion to suppress the results of the alcosensor breath test, and the motion was granted by the trial judge. However, the results were allowed into evidence during rebuttal when one of Price's witnesses testified that neither test yielded any results.

ANALYSIS OF ISSUES PRESENTED

I. Probable Cause for Price's Arrest

¶ 8. Price argues that under the facts and circumstances set forth at the suppression hearing there existed no probable cause to get him out of his vehicle, nor was there probable cause to pursue him for not dimming lights. Thus, he reasons, all of the evidence obtained as a result of the arrest must be suppressed and his conviction reversed, resulting in his discharge.

¶ 9. The standard of review for suppression hearing findings is whether or not substantial credible evidence supports the trial court's findings considering the totality of the circumstances. Magee v. State, 542 So.2d 228, 231 (Miss.1989); Nicholson v. State, 523 So.2d 68, 71 (Miss. 1988); Ray v. State, 503 So.2d 222, 224 (Miss.1986). The appellate review should disturb the findings of the lower court only where there is an absence of substantial credible evidence supporting it. Id. at 223-24.

¶ 10. At the suppression hearing, the trial judge, after hearing testimony from Deputy Springer and Price, ruled as follows:

Based upon the testimony that I have heard, based upon the officer who observed the Defendant failing to dim his headlights just before dusk, then he continued to follow him, as he should have, and observed improper lane usage, as a result of those two, he stopped him. And then he smelled alcohol in the car, he asked him to get out and he smelled alcohol on his breath. His eyes were red. He staggered as he walked back to the officer's car. He administered a field sobriety test, which is not admissible. So that is really the only thing before the Court. There are no oral or written statements that the Defendant has given. So the Court finds that there was probable cause to stop the Defendant. And, really, there is nothing else to rule on.

¶ 11. It is clear to this Court, considering the totality of the circumstances, that there was substantial credible evidence to support the trial court's ruling. Finding no absence of substantial credible evidence, the findings of the lower court will not be disturbed. This assignment of error is overruled.

II. Instruction on Implied Consent, Admission of Price's Refusal to Take the Intoxilyzer Test and Comments Made by the Prosecution during Closing Argument

¶ 12. Price contends the court's instruction on implied consent, admission of his refusal to submit to the intoxilyzer test and comments made by the prosecution during closing argument constituted impermissible comments on his failure to testify.

A. The Instruction on Implied Consent

¶ 13. The instruction drawing Price's ire is as follows:

The Court instructs the jury that under the laws of the State of Mississippi, a person who operates a motor vehicle over the public roads of this state has given his or her implied consent to submit to the test administered using the Intoxilyzer 5000 to determine the persons blood alcohol content.

¶ 14. Miss.Code Ann. § 63-11-5 (Rev. 1996) provides in part: "Any person who operates a motor vehicle upon the public highways, public roads and streets of this state shall be deemed to have given his consent, subject to the provisions of this chapter, to a chemical test or tests of his breath for the purpose of determining alcohol concentration." It necessarily follows as a corollary of the implied consent given in the aforementioned statute that it was proper to instruct the jury concerning the implied consent given therein.

¶ 15. Price's argument here is that the instruction is not an accurate statement of the law because the statute authorizing implied consent does not limit itself to the Intoxilyzer 5000 and that granting the instruction amounted to a comment on the evidence by the court. Price further argues that the instruction emphasized one piece of evidence over the rest and helped the State by implication...