Scarborough v. State

• Decision Date: 27 March 1972
• Docket Number: No. 46687,46687
• Parties: Charles T. SCARBOROUGH, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 475

261 So.2d 475

Charles T. SCARBOROUGH, Jr. v. STATE of Mississippi.

No. 46687.

Supreme Court of Mississippi.

March 27, 1972.

Rehearing Denied May 15, 1972.

Charles T. Scarborough, Jr., pro se.

A. F. Summer, Atty. Gen., by Timmie Hancock, Sp. Asst. Atty. Gen., Jackson, for appellee.

SUGG, Justice:

Appellant was convicted of DWI in justice of the peace court and on appeal and trial de novo in the Circuit Court of Oktibbeha County was again convicted and sentenced to pay a fine of $200 and serve thirty days in jail, the jail sentence being suspended.

On the night of September 26, 1970 the appellant was arrested on a charge of driving while intoxicated. Highway Patrolman, Virgil Luke, noticed a line of cars driving slowly approximately 40 miles per hour on Highway 82 between Starkville and Mayhew Junction. By passing, he managed to get behind the lead car which was driven by appellant. He noticed it crossing the center line several times and decided appellant was not in sufficient control of the car. After causing appellant to stop his car the patrolman requested appellant to exhibit his drivers license. Appellant riffled through his wallet and dropped several papers onto the ground. When these were picked up, the patrolman called him to the back of the car to protect him from the flow of traffic and noticing that the appellant was not steady on his feet and smelled of alcohol, he placed him under arrest.

Thereupon the appellant became upset, told the arresting officer he was crazy and in the words of the officer, 'called me a lots of other names.' Fearing that he might become unmanageable, the patrolman radioed for additional patrolmen to help if it proved necessary. No other highway patrol cars were in the vicinity so he asked a policeman to meet him at the city limits. When they arrived at the county jail three other officers met them. The appellant used profanity directed toward the arresting officer while being escorted from the patrol car to the jail, and threatened him with a charge of police brutality. Appellant was placed in jail and held there incommunicado until morning.

At the trial in circuit court all four officers testified that the appellant was under the influence of intoxicating liquor.

Appellant testified in his own behalf stating that he and his wife had a late supper about 8:30 p.m.; that about 10:00 p.m. he drove slowly to West Point and drank two eight ounce glasses of beer at the Southern Inn. He further testified that he went to Mize's Lounge around 11:00 p.m. and ordered a glass of beer which he sipped until about 11:30 p.m., which is closing time.

Mrs. Ricks, an employee of Mize's Restaurant in West Point, testified that she served appellant one glass of beer and that he left about 11:30 p.m. and was sober at the time he left. The wife of appellant testified that her husband left home at approximately 10:00 p.m. and that he had not had any alcohol at the time he left. Appellant then introduced two character witnesses who testified that his general reputation in the community in which he lived was good.

Appellant argues five assignments of error as follows:

(1) The prosecution suppressed the evidence by not giving the appellant the opportunity to call disinterested witnesses of his choosing so that they could render a judgment as to appellant's sobriety;

(2) The appellant was convicted on perjured testimony given by the police and known to be perjured by the prosecuting attorney (3) The trial court erred when it admitted a portion of Officer Williams' testimony in the evidence;

(4) The prosecution suppressed evidence by not giving the appellant the opportunity to call a doctor so that a blood test could be made; and

(5) The prosecution suppressed evidence by intimidating a defense witness and then releasing this witness from jail before his time was up without notifying the appellant or appellant's attorney.

Assignments of error numbered (1) and (4) will be discussed later in the opinion.

By his second assignment of error, appellant charges that perjured testimony was given by the police and such fact was known by the presecuting attorney. Apparently, appellant is complaining about a variance in the testimony of Officers Williams and McLemore at the trial in justice of the peace court and trial in the circuit court. The record does not reflect what the testimony of the officers was at the first trial.

No objection was made at the second trial based on a variance in the testimony; therefore, appellant has not preserved the assigned error for review on appeal.

By his third assignment of error, appellant complains that the circuit judge was in error in overruling his objection to a question as leading. The record shows the following:

Q. About eleven years. Mr. Williams, were you available there at the jail in case Officer Luke had any trouble with this subject?

BY MR. JORDAN: Now we object to the question as leading.

BY THE COURT: Objection overruled.

A. Would you repeat the question?

Q. Were you available there in case Officer Luke had any trouble with this subject that you would assist him?

A. Right, sir.

The question objected to was leading, but it was harmless error, and was cured by appellant on cross-examination when he brought out the fact that the arresting officer did not need any help in handling the appellant on the night of the arrest.

By his fifth assignment of error, the appellant claims that the prosecution intimidated a defense witness, William Estes, but has gone completely out ot the record to argue this assignment of error. He had knowledge, at the time of the trial, of the facts he argues to this Court in support of his assignment of error. Appellant did not raise this question on his trial; therefore, it is not properly before this Court on appeal.

Appellant's first and fourth assignments of error present the most serious questions. While being transported to jail by the arresting officer, appellant's request that a blood test be made was denied. After being placed in jail his request to use the telephone was ignored.

It was shown that it was not the practice to force or allow any prisoner to have a blood test when arrested for driving while intoxicated. The evidence also shows it was the practice to hold persons charged with intoxication several hours before they were allowed to use a telephone.

It is a matter of common knowledge that time sobers a drunk up since the level of alcohol in the blood decreases with each passing hour. The critical stage in proceedings against anyone charged with intoxication, is immediately after the arrest. To limit such a person's access to an attorney or friends until after a certain number of hours have passed is in effect denying him effective means to prepare a defense.

This practice will become particularly acute when the Mississippi Implied Consent Act goes into effect April 1, 1972. The Legislature included within the act a provision giving an accused the right to an additional test conducted by anyone of his choice who is qualified. Mississippi Code 1942 Annotated, section 8175-18 (Supp.1971). If such a practice is allowed to continue, it would in fact nullify the statute and frustrate the intention of the Legislature.

The question clearly presented is whether or not the action of the police officers amounted to a suppression of evidence that would constitute a denial of fundamental fairness and be shocking to the universal sense of justice.

This case differs from Capler v. City of Greenville, 207 So.2d 339 (Miss.1968), in that the appellant in Capler did not make a request to use a telephone. The Fifth Circuit held in Capler v. City of Greenville, Mississippi, 422 F.2d 299 (1970) that the appellant was not deprived of due process because there was no prosecutional suppression of evidence so as to bring into play Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Other states have held that holding a prisoner incommunicado and unreasonably ignoring his requests for assistance in procuring tests amounts to a denial of due process of law.

In State v. Munsey, 152 Maine 198, 127 A.2d 79 (1956) the Maine Court stated:

We do not think the rights of the respondent are to be ascertained from an examination of the statute. Rather are they determined by the constitutional guarantee that one may be deprived of his liberty only by due process of law. 'Due process of law is another name for governmental fair play.' In re Stanley, 133 Me. 91, 95, 174 A. 93, 95. Fair play requires, for example, that a respondent in a criminal case must be given a reasonable opportunity to employ and consult with counsel before trial. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4. We think that for the same basic reasons a respondent charged with operation of a motor vehicle while under the influence of intoxicating liquor is entitled to a reasonable opportunity to attempt to procure the seasonable taking of a blood sample for test purposes. What is reasonable will of course depend on the circumstances. When the respondent is detained under arrest, the opportunity afforded him must be consistent with safe custody. Under ordinary circumstances, a respondent who is orderly and cooperative will be permitted to use the telephone to communicate with a qualified doctor of his own selection. In many places of temporary detention it is the practice of the officers to call a doctor at the request of the respondent. These is never certainty that these efforts will be successful or that a doctor will be procured in time to make an effective test. If all reasonable efforts fail and no blood sample is in fact procured, no rights of the respondent are infringed for his right is not to have a test sample taken but only to have a reasonable opportunity to attempt to gather the desired evidence. When the respondent is held incommunicado and his requests for assistance in procuring a doctor are unreasonably...