Richbourg v. State, 96-KA-01074-COA.
| Decision Date | 22 June 1999 |
| Docket Number | No. 96-KA-01074-COA.,96-KA-01074-COA. |
| Citation | 744 So.2d 352 |
| Parties | Randall RICHBOURG a/k/a Randall Wade Richbourg, Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Thomas M. Brahan, Aberdeen, Attorney for Appellant.
Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.
BEFORE McMILLIN, P.J., COLEMAN, AND SOUTHWICK, JJ.
COLEMAN, J., for the Court:
¶ 1. The appellant, Randall Richbourg, was convicted of driving under the influence (DUI) first offense in the Justice Court of Monroe County, which conviction he appealed to the Circuit Court of Monroe County. Pursuant to a bench trial in that court, the trial judge found Richbourg guilty and sentenced him to pay a fine of $250 and court assessments of $127 to the Monroe County Justice Court Clerk. The circuit court also sentenced Richbourg to serve 48 hours in the Monroe County Jail but suspended the time to serve in jail and thus effectively reduced Richbourg's jail sentence to the time he had already served after his arrest. Richbourg filed a motion for new trial, which the circuit court denied. In his appeal from the circuit court's order finding that Richbourg was "guilty as charged of driving under the influence of intoxicating liquor in violation of Section 63-11-30(1)(a) [of the Mississippi Code]," Richbourg assigns the following four issues, which we quote verbatim from his brief:
Our analysis of Richbourg's first and fourth issues results in our reversing and rendering the circuit court's order of Richbourg's conviction of DUI first offense.
¶ 2. Around 5:30 or 6:00 o'clock on the morning of February 25, 1995 Randall Richbourg began driving a 1995 Geo Prizm automobile, which he had rented, from a Howard Johnson's motel in Kansas City, Missouri, toward his home in Panama City, Florida. Richbourg spent the previous night partying to celebrate his having successfully completed twenty-one days of apprenticeship training as a boiler maker at the National Apprenticeship School in Kansas City. He had placed some unopened cans of beer which remained from the previous night's celebration in the trunk of the Geo. He stopped for lunch about 11:30 that morning in St. Louis. There he drank one beer. When Richbourg reached Memphis, he unintentionally turned south on Interstate 55. After he realized his error, Richbourg, who was reading an old Mississippi highway map, turned east and was traveling on Mississippi State Highway No. 8 in Monroe County.
¶ 3. The Prizm which Richbourg was driving collided with another vehicle in the intersection of Highway 8 with U.S. Highway 45 Alternate. Trooper Larry Conn, then a twenty-three day veteran with the Mississippi Highway Patrol, was dispatched to the intersection of Highways 8 and 45 Alternate at 4:14 p.m. When Trooper Conn arrived on the scene, he observed some cans of beer in the Geo which Richbourg had been driving, and he smelled alcohol "about the person" of Richbourg. The impact of the two vehicles apparently caused a forty-five pound dumbbell which Richbourg kept in the trunk to rupture several cans of the beer. The trunk contained no cooler in which the beer cans could have been placed.
¶ 4. Based on these perceptions, Trooper Conn conducted a horizontal gauge nystagmus (HGN) test on Richbourg, the result of which was "a total of six clues, ... the most [that could be gotten] on that test." Based on the result of the HGN test, Trooper Conn asked Richbourg to blow into his portable "AlcoSensor," but Richbourg refused to do so. Trooper Conn then asked Trooper Bailey, who had also arrived by that time, "to transport Mr. Richbourg to [the] Monroe County Jail while [Trooper Conn] finished up the accident." After Richbourg arrived at the jail in Trooper Bailey's custody, Richbourg again refused to submit to an intoxilyzer test at the jail. Richbourg's refusal to submit to the intoxilyzer test resulted in his being charged with DUI in violation of Section 63-11-30(1)(a), which provides: "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...." Miss.Code Ann. § 63-11-30(1)(a) (Rev.1996).
¶ 5. Richbourg's first issue is that the trial judge improperly allowed Trooper Conn to testify about his administering the HGN test to Richbourg and the results of that test. While this case was tried on July 29, 1996 before the Mississippi Supreme Court released its opinion in Young v. City of Brookhaven, 693 So.2d 1355 (Miss.1997), that case determines our resolution of this issue. While the supreme court affirmed Young's conviction of the operation of a vehicle while intoxicated in violation of Section 63-11-30(1)(c), that court held that the HGN test could not "be used as scientific evidence to prove intoxication or as a mere showing of impairment." Young, 693 So.2d at 1360-61. "[T]he only allowable use for the test results" is "to prove probable cause to arrest and administer the intoxilizer or blood test." Id. at 1361. The supreme court's reason for so holding was that it found that "the HGN test is not generally accepted within the scientific community...." Id. at 1360. The court concluded:
We deliver a stern warning concerning using the HGN test for reasons other than to establish probable cause. The State cannot use the results of the HGN test merely as an indicator to show that the defendant was "under the influence of intoxicating liquor" to prove the requisite elements of Miss.Code Ann. § 63-11-30(1)(a). Furthermore, the State cannot attempt to introduce the HGN test as scientific evidence to show degree of intoxication.
¶ 6. The general rule is that decisions of the Mississippi Supreme Court are presumed to have retroactive effect. Morgan v. State, 703 So.2d 832, 839 (Miss. 1997). Only where "`retroactive enforcement would cause serious disruption of the administration of justice and where the prior rule was not infected by a serious absence of fundamental fairness'" will decisions of our supreme court not be retroactively applied. Id. (quoting Cain v. McKinnon, 552 So.2d 91, 92 n. 1 (Miss. 1989)). Accordingly, this Court resolves Richbourg's first issue favorably to him and reverses the circuit court's overruling Richbourg's objection to Trooper Conn's testimony about his administering the HGN test to him.1
¶ 7. The appellant's fourth issue is that "[t]he trial judge's verdict was not supported by substantial credible evidence." We forego review of Richbourg and the State's arguments on this issue because the very nature of this issue requires that we conduct an independent review of the entire record. See Yates v. State, 685 So.2d 715, 718 (Miss.1996) () (citation omitted). However, this Court understands that the following standard of review must be honored in our "independent review of the entire record":
In considering a motion for directed verdict, the reviewing court must consider evidence introduced in light most favorable to State, accepting all evidence introduced by the State as true, together with all reasonable inferences therefrom; if there is sufficient evidence to support a guilty verdict, motion for directed verdict must be overruled. If the evidence presents an issue for determination by the jury, then the case must be submitted to the jury and will not be disturbed, if evidence and those inferences support the guilty verdict. In fact, evidence favorable to the defendant is disregarded during the consideration of whether to grant a motion for a directed verdict. The standard of review in determining the correctness of a trial judge's ruling on a motion for directed verdict is essentially the same.
Yates v. State, 685 So.2d 715, 718 (Miss. 1996).
¶ 8. Our review and analysis of the evidence contained in the "entire record" of this case is governed by two ground rules. The first rule is that this Court disregards evidence favorable to the defendant. While we assume that Richbourg's testimony is entirely favorable to him, we will nevertheless analyze it to determine if any portion of his testimony is favorable to the State. The first rule requires that we scrutinize the testimony of Trooper Conn for all evidence favorable to Richbourg's guilt of driving under the influence. Young establishes the second ground rule, which is that we cannot consider Trooper Conn's testimony about his administering the HGN test to Richbourg or his interpretation of the results of that test, since Richbourg elected not to take the intoxilizer test.
¶ 9. During his direct examination by the State, Trooper Conn testified that "there were some Budweiser cans there [in the trunk of Richbourg's leased Geo]." Trooper Conn further testified that there was "the odor of intoxicating beverage about [Richbourg's] person." The trooper explained that other than the HGN test, "the only other test [he] would have had Mr. Richbourg to perform would be the one leg stand and the walk and turn." Trooper Conn explained that he did not ask Richbourg to perform either of these tests "[d]ue to the dangerous intersection at the time." Instead the trooper "just asked Mr. Bailey [another trooper] if he...
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