Ware v. State, No. 1999-KA-01122-COA.

• Decision Date: 27 February 2001
• Docket Number: No. 1999-KA-01122-COA.
• Citation: 790 So.2d 201
• Parties: Floyd WARE, Jr., Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

790 So.2d 201

Floyd WARE, Jr., Appellant v. STATE of Mississippi, Appellee.

No. 1999-KA-01122-COA.

Court of Appeals of Mississippi.

February 27, 2001.

Rehearing Denied April 17, 2001.

Certiorari Denied July 19, 2001.

Jerry L. Bustin, Forest, Attorney for Appellant.

Office of the Attorney General by John R. Henry Jr., Booneville, Attorney for Appellee.

Before SOUTHWICK, P.J., IRVING, and MYERS, JJ.

IRVING, J., for the Court:

¶ 1. Floyd Ware, Jr. appeals his conviction of DUI manslaughter and makes ten assignments of error which we recast for clarity and resolution. His assignments of error are a bit convoluted and contain several sub-issues which are not neatly woven together, but as best as we can tell it appears he complains of (1) the improper admission of gruesome photographs of the victims, (2) the improper admission of testimony from an accident reconstructionist, (3) collusion between the trial court and the prosecution in failing to disclose the non-availability of a blood sample taken from Ware which was analyzed for alcohol by the State and destroyed prior to Ware's indictment, (4) the failure of the trial court to properly instruct the jury and the denial of certain defense instructions, (5) the denial of an adequate suppression hearing because of confusion by a second judge as to what had transpired while the case was being handled by the first judge, (6) the sentence of twenty years with five suspended, on the basis that such sentence is tantamount to a life sentence because of his age and health, (7) the failure of the trial court to grant a new trial because of cumulative acts of misconduct on the part of the prosecutor, (8) the failure to grant a new trial because (a) one juror failed to respond during voir dire to a defense question regarding convictions about the use of alcohol, and (b) another juror testified in a post-trial motion hearing that she and other jurors wanted an answer to a question sent to the trial judge concerning the date of the destruction of the blood sample, (9) the use of a jury selection panel containing only three African Americans when more representative panels were available and the striking of those three by the prosecution, and (10) the trial judge's ordering open-ended restitution, denying bail pending appeal and placing Ware under house arrest.

¶ 2. We find no reversible error. Accordingly, we affirm Ware's conviction and sentence.

FACTS

¶ 3. The charge for which Ware was convicted arose out of a vehicular accident on May 17, 1998, in rural Scott County. Ware, John T. Graffenread, and Curtis Stowers were riding along Ringgold Road in Ware's pickup with Ware at the controls. Attached to the pickup was a trailer carrying three horses which the men had been riding earlier in the day.

¶ 4. As Ware approached the intersection of Ringgold Road and Highway 21, he failed to stop at a posted stop sign and proceeded through the intersection at about thirty miles per hour. A 1972 International Scout, traveling north on Highway 21, was approaching the intersection at the same time. Tommie Ferguson was driving the Scout which belonged to Glenda Sawyer, one of the passengers in the Scout. Glenda's husband, Tommy, was also a passenger in the Scout. All three of the Scout's occupants were seated in the front. When the two vehicles collided, Tommy and Glenda Sawyer were ejected from the Scout to their deaths.

¶ 5. Initially, Graffenread told investigators from the highway patrol that he was the driver of the pickup truck; consequently, he was taken to a local hospital for the purpose of giving a blood sample. While at the hospital, Graffenread changed his story and told the highway patrol officer that Ware had been driving the pickup truck at the time of the collision.

¶ 6. When Ware was confronted with Graffenread's turnabout, Ware admitted that indeed he had been driving the pickup truck. Ware then consented to giving a blood sample. The sample was drawn about two hours after the accident. It was kept in Patrolman James's home refrigerator for four days before being taken to the crime laboratory in Meridian on May 21, 1998. Patrolman James gave conflicting testimony about whether he thought Ware was drunk at the time Ware gave the blood sample. Patrolman James first said he thought Ware was drunk, that Ware smelled of alcohol and that his speech was slurred. After being pressed for an explanation as to why he did not arrest Ware, James then said he did not think Ware was drunk. Later in his testimony, he changed that assertion and said he believed Ware was drunk. Ware's blood sample was analyzed on June 3, 1998, and according to the forensic toxicologist who did the analysis, it revealed a blood alcohol content level of .16. Ware was not arrested and charged until October 13, 1998. The remaining portion of Ware's blood sample was destroyed by the State before Ware was indicted in February 1999.

¶ 7. A blood sample was also drawn from Ferguson. Like the sample drawn from Ware, this sample also was kept in Patrolman James's refrigerator before being transported to the crime laboratory. This sample also was analyzed on June 3, 1998, and according to the forensic toxicologist who performed the analysis, it was negative for alcohol. The remaining portion of Ferguson's blood sample was retained, but as stated, the remaining portion of Ware's sample was destroyed. The State's explanation for treating the two samples differently was that Ferguson's sample was retained for further testing for drugs. The crime lab employee who did the analysis testified that the crime lab was not aware that the samples were involved in a court case and that Ware's sample was destroyed after six months because the lab treated it simply as a traffic related matter.

¶ 8. The packaging containing the samples for both Ware and Ferguson had been opened and resealed in the Meridian crime laboratory before they were received and analyzed in the Jackson laboratory. The forensic toxicologist who analyzed the samples said that it was standard procedure for the Meridian laboratory to open evidence packages as a part of its inventory process. No explanation was offered as to why the samples were not analyzed in Meridian or why they were taken there in the first place if they were not, or could not, be analyzed there.

¶ 9. Highway Patrol Investigator James testified that, when he questioned Ware at the hospital concerning how the accident occurred, Ware stated that as he approached the intersection he looked up, saw that it was too late to stop, and proceeded through the intersection in hopes that there would not be any traffic. At trial, Ware gave a different version in which he claimed that he prepared to stop in time and applied the brakes but that the weight and momentum of the trailer and horses carried the pickup truck into the intersection.

¶ 10. With regard to his alcohol consumption, Ware testified on direct examination that he had not consumed any alcohol on the day of the accident and denied that he was drunk. On cross-examination, however, he admitted that he may have had one beer during the course of the day, but maintained his position that he was not drunk. When pressed to explain how he could register .16 blood alcohol content, Ware explained that heavy drinking the night before the accident and the single beer he may have drunk before the horse ride could provide the explanation. However, he steadfastly denied that he was drunk. Ware also testified that he had not been told of his blood alcohol content level until he was arrested in October.

¶ 11. Graffenread testified that he did not see Ware drink any alcohol during the horse ride but admitted that he and Ware were not together the entire time; therefore, he could not say for certain that Ware had not been drinking. Graffenread also testified that Ware did not appear to be drunk at any time during the day. Graffenread further testified that he did not tell Patrolman James that Graffenread was driving the pickup. He testified that Patrolman James assumed as much, and at that point, he did not tell him anything different.

¶ 12. Another witness who had been at the horse riding also testified that he did not see Ware drink any alcohol and that Ware did not appear to be drunk, yet he also was unable to say for certain that Ware had not been drinking because he had not been with Ware the entire day. A mechanic called by Ware testified on direct examination that the brakes on Ware's pick-up were not sufficient to stop the pick-up while pulling a trailer carrying three horses. On cross-examination, the mechanic explained, however, that his testimony was only meant to apply in a "sudden stop" situation. The mechanic went on to explain that if the driver had notice of an upcoming stop and slowed the pickup in preparation for the stop, then the brakes were sufficient to stop the vehicle.

ANALYSIS OF ISSUES PRESENTED

1. Admission of Photographs of the Victims

¶ 13. Ware argues that the introduction of accident scene photographs of the victims was error because (1) the fact that death occurred as a result of the accident had been stipulated; (2) all of the other physical elements of the accident scene had been introduced by photographs; therefore, there was no need to show the bodies and (3) the bodies were particularly mangled, bloody, and gruesome, and the photographs had no probative value, serving only to prejudice the jury.

¶ 14. This Court will not reverse a trial court's decision to allow the admission of photographs into evidence absent an abuse of discretion by the trial court. Holland v. State, 705 So.2d 307, 350 (Miss. 1997) (citing Givens v. State, 618 So.2d 1313, 1317 (Miss.1993)). The trial court judge found that the photographs were gruesome but held that they were admissible under the circumstances because the jury was entitled to know the facts surrounding the collision and its effect on the victims. The judge...