Michael Russell Arnold v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-01830-COA
MICHAEL RUSSELL ARNOLD
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEE
09/26/2000
HON. GEORGE B. READY
DESOTO COUNTY CIRCUIT COURT
DAVID CLAY VANDERBURG
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
ANN H. LAMAR
CRIMINAL - FELONY
DUI-3RD OFFENSE: SENTENCED TO SERVE A TERM
OF 1 YEAR IN THE MDOC; 2 YEARS OF POSTRELEASE SUPERVISION; PAY FINE IN THE AMOUNT
OF $2,000 AND ALL COSTS OF THE COURT
AFFIRMED- 2/26/2002
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
3/19/2002
BEFORE McMILLIN, C.J., BRIDGES, AND CHANDLER, JJ.
BRIDGES, J., FOR THE COURT:
¶1. Michael Russell Arnold was indicted in the Circuit Court of DeSoto County, Mississippi, for driving
under the influence, DUI, third offense, in violation of Miss. Code Ann. § 63-11-30(2)(c) (Rev. 1996).
Following a jury trial, Arnold was found guilty as charged. After proof was presented at the sentencing
hearing of Arnold's two previous DUI convictions, he was sentenced to one year in the custody of the
Mississippi Department of Corrections and two years of post-release supervision. Arnold was also ordered
to pay a fine of $2,000 plus court costs.
¶2. Arnold now appeals the jury decision, citing the following errors for this Court's review:
1. Whether the lower court erred in finding the appellant guilty of a third offense of DUI
when evidence at trial did not show that the appellant had convictions for a first and second
offense; and
2. Whether the lower court erred when it allowed hearsay testimony into evidence at trial
over the objection of the appellant.
FACTS
¶3. On August 30, 1999, between 10:00 p.m. and 11:00 p.m., Officer Preston Connell received a radio
dispatch that an informant had called in to the dispatcher to report seeing a driver of a truck on a public
roadway driving erratically and who had nearly run the informant off the road. Officer Connell was asked to
investigate the matter. He drove to the area where the driver was said to be located. Officer Connell
testified that he observed the driver of the truck in question crossing the center line of the roadway, running
off the edge of the road and onto the median and back, and generally driving in, what he determined to be,
a dangerous and reckless manner. Officer Connell then turned on his lights and siren and proceeded to
attempt to pull over the driver. Officer Connell testified that it was difficult getting the driver to pull over and
come to a complete stop, but he eventually managed to do so.
¶4. Officer Connell then approached the vehicle. He testified that he detected a strong odor of alcohol
emitting from the truck. He asked the driver, who was determined to be Arnold, to exit the vehicle. Officer
Connell stated that Arnold had a difficult time walking when he got out of the truck and that Arnold's
speech was slurred. Officer Connell testified that Arnold admitted to drinking a six-pack of beer around
8:00 that evening. Officer Connell then proceeded to administer field sobriety tests to Arnold to detect
whether or not he was intoxicated. After giving Arnold a barrage of tests, Officer Connell determined that
Arnold had failed the tests, according to his on-the-scene notes, and he then placed Arnold under arrest for
DUI.
¶5. Upon their arrival at the police station, Officer Connell asked Arnold to take a breath test in order to
ascertain his level of intoxication. Arnold did not refuse to take the test altogether, but he did not blow on
the machine in such a way that the results could be accurately determined. As such, according to police
policy, Officer Connell marked the test as "refused" because of his suspicion that Arnold was attempting to
beat the test by not blowing into the machine properly. Arnold denies this and asserts that he did the best he
could.
¶6. Arnold claims that he could not walk straight or perform some of the sobriety tests because he had
previously broken both of his legs and still had surgical pins in his legs. Additionally, Arnold asserts that his
speech could have been slurred because he has "teeth problems." He claims that he had been to the dentist
that morning around 8:30 or 9:00 and that his mouth could have still been numb from the local anesthetic he
received there. Arnold also changed his story from what he told Officer Connell, contending that he did not
drink a six-pack earlier in the evening that day, but rather only had two beers total. As well as all of these
defenses to his behavior that night, Arnold maintains that his girlfriend, who was a passenger in the truck
when he was pulled over, was trying to feed him while he was driving and that was the reason for his
swerving. Arnold also stated that the smell of alcohol could have come from some old beer cans in the back
of his truck that he was collecting to recycle.
¶7. The State asserts that there was no evidence of food wrappers or any type of food at all in the truck
that night to prove that Arnold's girlfriend might have been feeding him. Moreover, the State contends that,
when a full inventory of the truck was taken after Arnold's arrest, there were no old empty beer cans found
anywhere inside the truck and none were listed on the inventory sheet to corroborate Arnold's story. Also,
the State argues that Arnold's broken legs had long since healed at the time of this incident and that he
would likely not still be walking in such an unbalanced fashion. Officer Connell, as well as the officer who
was called for backup that night, both testified that Arnold was not walking with a limp, as someone with a
broken or hurt leg might do, but rather, they determined that Arnold was swaying, using his truck to balance
himself, as an inebriated person would do. Furthermore, the State contends that Arnold would not have still
been suffering from a numb mouth due to local anesthetics from his dentist over twelve hours after he
received treatment.
¶8. After hearing the testimony of all witnesses, including that of Officer Connell and Arnold himself, the
jury found that Arnold was guilty of driving under the influence/third offense. Thereafter, Arnold was
sentenced to one year in prison and a $2,000 fine, plus court costs.
STANDARD OF REVIEW
¶9. "The relevancy and admissibility of evidence are largely within the discretion of the trial court and
reversal may be had only where that discretion has been abused." Weaver v. State, 713 So. 2d 860, 865
(Miss. 1997). See also Floyd v. City of Crystal Springs, 749 So. 2d 110, 113 (¶12) (Miss. 1999).
Where trial court error lies in the admission or omission of evidence, this Court will not reverse the trial
court's rulings "unless the error adversely affects a substantial right of a party." Id. at 113 (¶12).
LEGAL ANALYSIS
1. Whether the lower court erred in finding the appellant guilty of a third offense of DUI
when evidence at trial did not show that the appellant had convictions for a first and second
offense.
¶10. We reject the State's allegation that a procedural bar exists because this issue was not brought before,
and ruled on by the trial court in this case. The record clearly shows that the lower court heard Arnold's
complaints as to this issue both in his challenge to the indictment before trial and in his post-trial motion for
JNOV, or in the alternative, a new trial. Because the trial court heard arguments on these motions and
denied the same, this Court is perfectly capable of reviewing those rulings. Therefore, we will address the
issues as presented in Arnold's brief.
¶11. Our statute on DUI/third offense reads as follows:
For any third or subsequent conviction of any person violating subsection (1) of this section, the
offenses being committed within a period of five (5) years, such person shall be guilty of a felony and
fined not less than Two Thousand Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,
000.00) and shall be imprisoned not less than one (1) year nor more than five (5) years in the State
Penitentiary.
Miss. Code Ann. § 63-11-30(2)(c) (Rev. 1996) (emphasis added). We read the statute to say that any
third conviction of the crime of driving under the influence under Miss. Code Ann. § 63-11-30(1) (Rev.
1996), may be sentenced as a felony charge. There is nothing in the statute that we interpret to mandate that
the convictions be labeled, literally, as a "first offense," followed by a "second offense," followed by a "third
offense." Because the statutory language provides that there must be three convictions within five years,
without any further stipulations, we hold that Arnold was subject to be sentenced under this section
governing third offense DUIs, despite his arguments otherwise. Miss. Code Ann. § 63-11-30(2)(c) (Rev.
1996).
¶12. Moreover, in McIlwain v. State, the court ruled that "[i]t is only necessary that the defendant have
been convicted of [the] previous offenses . . . it is irrelevant whether McIlwain had been charged with a
D.U.I. First and a D.U.I. Second." McIlwain v. State, 700 So. 2d 586, 589 (Miss. 1997). The indictment
must only supply "enough information to the defendant to identify with certainty the prior convictions relied
upon by the State for enhanced punishment." Id. In McIlwain, as with the case at bar, it was clear from the
indictment that the defendant had been convicted of two prior charges of DUI. Id.
¶13. Both prior crimes are to be charged under Miss. Code Ann. § 63-11-30(1) (Rev. 1996). See
Drennan v. State, 695 So. 2d 581, 584 (Miss. 1997). Both of Arnold's prior convictions fulfilled that
requirement. The indictment goes with the jury into their deliberations, along with all of the evidence
presented at trial. Additionally, the first conviction is to be punished according to Miss. Code Ann. § 6311-30(2)(a) (Rev. 1996), and the second conviction is to be punished according to Miss. Code Ann. § 6311-30(2)(b) (Rev. 1996). Although there is minimal information in the record as to Arnold's two prior DUI
convictions, there is nothing in the record to suggest that any statutory mandates were not followed in this
case. We can find no authority that would indicate that simply because Arnold's prior convictions may not
have been labeled as "first offense" and subsequently, "second offense," we should rule that his third
conviction should not be punished as a felony under Miss. Code Ann. § 63-11-30(2)(c) (Rev. 1996).
¶14. Further discussion needs to be made concerning Arnold's two prior convictions. Mississippi case law
provides specific instructions detailing that "[t]he State has to prove the prior charges and convictions of the
defendant in order to meet its burden and obtain a conviction for a felony DUI." Weaver v. State, 713 So.
2d 860, 865 (Miss. 1997). See also Nicholson v. State, 761 So. 2d 924 (¶ 16) (Miss. Ct. App. 2000). It
is necessary that a jury be shown proof of two prior convictions of DUI before it could rightfully convict the
defendant with a third violation, thereby subjecting him to an enhanced sentence. Weaver, 713 So. 2d at
865; Nicholson, 761 So. 2d at (¶ 16).
¶15. To prevent undue prejudice from arising, many circuit courts have standing rules for DUI cases in
which the prior convictions are accepted prior to trial, and for purposes of the statute admitted. However,
the jury does not hear the details of the prior convictions, thus conforming to the rules of evidence. Arnold's
prior convictions were treated in this way by the court, and it is disingenuous of Arnold to take advantage
of the court's scrupulous efforts to avoid prejudice against him. It is for this reason we must affirm.
2. Whether the lower court erred when it allowed hearsay testimony into evidence at trial
over the objection of the appellant.
¶16. The testimony at issue here is that of Officer Connell regarding the information he received from the
radio dispatcher telling him of the complaint called in by an anonymous caller about Arnold's erratic driving.
Arnold claims that this is rank double hearsay and should never have been admitted. We find that this
testimony was admitted without error and that this issue contains no merit.
¶17. The law provides that "if the significance of a statement is simply that it was made and there is no issue
about the truth of the matter asserted, then the statement is not hearsay." Mickel v. State, 602 So. 2d
1160, 1162 (Miss. 1992) (citing Cooper v. State Farm Fire and Cas. Co., 568 So. 2d 687, 701 (Miss.
1990)). In Swindle v. State, which involved an agent testifying that an unidentified informant told him of the
defendant's whereabouts on the day the defendant was arrested, the court found that such information was
not hearsay and that "the agent could give an explanation as to his presence at the scene." Swindle v. State,
502 So. 2d 652, 657 (Miss. 1987). "[A]n informant's tip is admissible to the extent required to show why
an officer acted as he did and was at a particular place at a particular time." Id. at 657-68. Further, "[i]t is
elemental that a police officer may show that he has received a complaint, and what he did about the
complaint without going into the details of it." Id. at 658.
¶18. Also, in a recent case involving the same facts as our instant case, where police officers were testifying
as to information they received from a dispatcher which originated from an anonymous witness to the crime,
this Court ruled that the testimony of the officers was permissible as long as it only went to show that the
officers responded to the complaint and how they came to be present at the scene at that particular time.
Parker v. State, 724 So. 2d 482 (¶7) (Miss. Ct. App. 1998).
¶19. In the case at bar, the trial judge instructed the jury that:
[t]he call that came in can only be considered to show you why they were out there. It's not proof of
anything about whether [Arnold] is or isn't driving under the influence. Does everybody understand
that? Does anybody have any problems with that?
The jurors responded to those questions in the negative indicating that they understood the purpose of the
testimony. We agree with the ruling of the trial judge and find that the statements made by Officer Connell,
regarding the information he received from the dispatcher, were not offered by the State to prove the truth
of the matter asserted. In other words, the State was only looking to show why Officer Connell was in the
area at the time that he observed Arnold's erratic driving and pulled him over, ultimately arresting him for
DUI.
¶20. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY OF CONVICTION
OF DUI, THIRD OFFENSE, AND SENTENCE OF ONE YEAR IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TWO YEARS OF POST-RELEASE
SUPERVISION AND FINE OF $2,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO DESOTO COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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