Patrick Jones v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-00407-COA
PATRICK JONES
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLANT
APPELLEE
12/14/1999
HON. KENNETH L. THOMAS
BOLIVAR COUNTY CIRCUIT COURT
RAYMOND L. WONG
OFFICE OF THE ATTORNEY GENERAL
BY: DEWITT T. ALLRED III
MICHAEL C. MOORE
DISTRICT ATTORNEY:
LAURENCE Y. MELLEN
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
12/14/1999: VEHICULAR HOMICIDE: DEFENDANT IS
SENTENCED TO (20) YEARS WITH (5) YEARS
SUSPENDED AFTER SERVING (15) YEARS;
DISPOSITION:
AFFIRMED - 04/09/2002
MOTION FOR REHEARING FILED: 5/3/2002
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE KING, P.J., IRVING, AND BRANTLEY, JJ.
IRVING, J., FOR THE COURT:
¶1. Patrick Jones appeals from a judgment of conviction entered by the Circuit Court of Bolivar County,
Mississippi following a jury verdict which found him guilty of negligently causing the death of another while
operating a vehicle under the influence of cocaine. In this appeal, Jones contends that the trial court erred in
admitting the results of his urine analysis and that the evidence is insufficient to support the verdict. He also
contends that the verdict is against the weight of the evidence and exhibits bias and prejudice against him
since, in his view, it is based solely upon suspicion and speculation. We disagree and affirm the judgment of
the trial court.
FACTS
¶2. While driving his loaded tractor trailer rig along Highway 61 North, just south of Shaw, Jones collided
with Emma Powell's automobile. More specifically, Jones struck Powell's vehicle from the rear as they were
both proceeding north in the outside lane of Highway 61 North which, at the point of impact, is a four-lane
highway. At the time of the collision, the weather was clear. There were no obstructions blocking the view
of northbound motorists. There were no skid marks indicating that Jones had applied his brakes prior to
impact. However, there were skid marks from Powell's vehicle, apparently caused by the weight of Jones
truck resting on the rear of her car while, at the same time, pushing her car down the road. Powell and
Jones were both injured and transported to the Bolivar Medical Center. Powell later died as a result of the
injuries she received.
¶3. Sergeant Bob McFadden with the Mississippi Highway Patrol's Traffic Enforcement Division
investigated the accident. After Powell was pronounced dead, McFadden administered a breath test to
Jones. This test was negative for alcohol, and McFadden did not request that a urine analysis be performed
on Jones.
¶4. Although McFadden did not request that a urine analysis be administered to Jones, one was
administered by hospital personnel as a part of the diagnostic treatment administered to Jones.(1) Clint
Robinson, an emergency room registered nurse, retrieved the urine sample from Jones, and Betty Cooper,
a medical technologist with Bolivar Medical Center, following hospital procedures, performed the analysis
on Jones's urine. This analysis determined that Jones had cocaine in his system. The results of Cooper's
cocaine analysis were confirmed, pursuant to standard hospital policy, by Memphis Pathology Laboratories
(MPL). However, no one from MPL testified. Over persistent objection from Jones, the trial court admitted
the results of the urine analysis, performed by Cooper, and the confirmation report performed by MPL.
Additional facts will be presented during the discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Admissibility of the Result of Urine Analysis
¶5. Jones contends, for several reasons, that it was error for the trial court to admit the result of his urine
analysis. First, he contends that the analysis was not performed by methods approved by the State Crime
Laboratory and the Commissioner of Public Safety as required by Mississippi Code Annotated § 63-11-19
(Rev. 1996). He next argues that Cooper, who performed the analysis, did not possess a valid permit
issued by the Mississippi State Crime Laboratory for making such analysis. Thirdly, he contends that the
confirmation report from MPL, which confirmed Cooper's findings, was hearsay and violated his right of
confrontation under the Sixth Amendment to the United States Constitution. Finally, he contends that the
urine sample existed as a result of a physician-patient relationship because it was taken as part of his care as
a patient and not at the direction of Sergeant McFadden as directed and authorized by Mississippi Code
Annotated § 63-11-19 (Supp. 2001). Since he never waived the physician-patient privilege, Jones asserts
that any analysis and testimony about the analysis should not have been allowed.
¶6. The State contends that the statute in question is superseded by the Mississippi Rules of Evidence and
that the rules are the paramount authority guiding the trial judge's decision on admissibility of evidence. The
State does not address the merits of Jones's hearsay argument concerning the confirmation report nor his
argument regarding the violation of the physician-patient privilege, arguing instead that these issues are
procedurally barred.
¶7. We will discuss first Jones's last argument regarding the non-waiver of the physician-patient privilege
because if we rule that the physician-patient privilege precludes use of Jones's urine specimen, the State's
case unravels at the seams. However, we begin by reciting our standard of review of a trial judge's decision
to admit or deny evidence. That standard is an abuse of discretion standard. Johnston v. State, 567 So.
2d 237, 238 (Miss. 1990).
A. Physician-Patient Privilege
¶8. "Admission of evidence is within the discretion of the trial judge. That discretion must be exercised
within the scope of the Mississippi Rules of Evidence, and reversal will only be had when an abuse of
discretion results in prejudice to the accused." Parker v. State, 606 So. 2d 1132, 1137-38 (Miss. 1992).
¶9. The physician-patient privilege exists as a result of statutory enactment and court promulgated rules.
State v. Baptist Memorial Hospital-Golden Triangle, 726 So. 2d 554 (¶¶10, 11) (Miss. 1998); Miss.
Code Ann. § 13-1-21(1) (Supp. 2001); M.R.E. 503(b). Our supreme court has previously announced
quite clearly that the physician-patient privilege applies with equal force in criminal proceedings as it does in
civil cases. Cotton v. State, 675 So. 2d 308, 312 (Miss. 1996).
¶10. However, the physician-patient privilege is not an impenetrable fortress and contains a number of
statutory exceptions. In Baptist Memorial Hospital-Golden Triangle (BMH-GT), the State, as a part of a
criminal investigation of a homicide, issued a subpoena duces tecum and search warrant to BMH-GT for
medical records of patients who were admitted or treated at BMH-GT for cuts and lacerations inflicted on
any part of the patient's body from July 8-9, 1996. BMH-GT, citing Mississippi Code Annotated § 13-121, refused to honor the subpoena duces tecum. The trial court, relying upon the statutory physician-patient
privilege, as well as the one created by the rules of evidence, quashed both the search warrant and the
subpoena duces tecum. Baptist Memorial Hospital-Golden Triangle, 726 So. 2d at 556 (¶1).
¶11. On appeal, the Mississippi Supreme Court reversed the trial court. In reaching its decision, the
supreme court found some support in the fact that Mississippi Code Annotated § 45-9-31 requires medical
personnel to report to law enforcement personnel information regarding persons who have been treated for
injuries caused by gunshot or knifing. The court gave the following reasons for its decision:
The public interest in effective and efficient investigations into criminal activity outweighs the privacy
rights of the individuals who would be affected by the subpoena duces tecum and the search warrant.
****
Where there is an investigation into a serious and/or dangerous felony, public policy must override the
rights of an individual. The privilege is to encourage the full disclosure by patients of their symptoms
without fear of public disclosure. State v. Antill, 176 Ohio St. 61, 197 N.E. 2d 548, 551 (1964).
However, the needs of the patient to have his medical information remain confidential must be
balanced against "the interest of the public in detecting crimes in order to protect society." Id. Where
the evidence is necessary to the proper administration of justice, it is taken out of the physician-patient
privilege.
Baptist Memorial Hospital-Golden Triangle, 726 So. 2d (¶¶2, 21).
¶12. The record is silent as to how the State became aware that Jones had tested positive for cocaine.
Further the record does not indicate that a subpoena duces tecum or a search warrant was issued for the
test results. Therefore, we are left uninformed as to how the State came into possession of Jones's medical
records. We note, however, that, while Jones contends that the search and seizure were conducted
unlawfully, he does not contend that the records were voluntarily given to the State. The record does reflect
that five pages of a medical record were disclosed to Jones on April 8, 1999, and that on April 27, 1999,
the State made a supplemental discovery disclosure which included the names of Cooper and Robinson, the
two hospital employees involved in the retrieval and testing of Jones's urine specimen. The disclosure also
gave the substance of what Cooper's and Robinson's testimony would be. The record further reflects that
two days later, on April 29, 1999, Jones filed a motion to suppress and a motion in limine. In the motion to
suppress, Jones alleged (1) that blood and urine samples were taken from him by the Bolivar County
Hospital for use in the diagnosis and treatment of his injuries, (2) that in the criminal discovery furnished by
the State, the laboratory reports of his test at the Bolivar County Hospital for his treatment were included,
that he anticipated that the laboratory reports would be used at his trial, (3) that no search warrant was
included in the States discovery and that the taking of urine and/or the test results of the urine is a search
covered by the Fourth Amendment to the United States Constitution, (4) that the discovery did not disclose
a consent to search executed by the defendant and did not disclose a waiver of the medical privilege, and
(5) that the search and seizure were "conducted unlawfully and in violation of the Fourth and Fourteenth
Amendments to the United States Constitution, and of section 23 of the Constitution of the State of
Mississippi in that said acts on the part of the State of Mississippi constituted an unreasonable search and
seizure in violation of said provisions."
¶13. The trial judge overruled the motion to suppress. However, we do not know the basis for the trial
judge's decision since the record does not contain an order or opinion disposing of the motion. We must
therefore make our decision without the benefit of the trial judge's reasoning.
¶14. Our case is different from Baptist Memorial Hospital-Golden Triangle in that here, unlike in BMHGT, there is no statute that requires Bolivar Medical Center to disclose the medical records to the State.
However, even though there is no statute requiring Bolivar Medical Center to voluntarily turn the records
over to the State, Mississippi's Implied Consent Law requires that "[t]he operator of any motor vehicle
involved in an accident that results in a death shall be tested for the purpose of determining the alcohol
content or drug content of such operator's blood, breath or urine." Miss. Code Ann. § 63-11-8 (Rev.
1996). Also, "[a]ny 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 . . . to a chemical test or tests of his breath for
the purpose of determining alcohol concentration. Miss. Code Ann. § 63-11-5 (Supp. 2001). Further, "[a]
person shall give his consent to a chemical test or tests of his breath, blood or urine for the purpose of
determining the presence in his body of any other substance which would impair a person's ability to
operate a motor vehicle." Id. Therefore, there can be no doubt that Officer McFadden could have
requested that Bolivar Medical Center perform either a blood or urine analysis of Jones's blood, and had he
done so, Jones would not have any basis to complain. The question then becomes whether, in the absent of
such a request, the State is precluded by the physician-patient privilege from using the results of an analysis,
the denial of which would result in the State being unable to successfully prosecute a very serious offense.
We answer this question in the negative.
¶15. One of the primary elements of Jones's crime requires proof that he was under the influence of
cocaine. Although the urine specimen and test were not taken at the direction of a law enforcement officer,
the specimen and resulting test results are the only source of evidence that Jones was driving under the
influence of cocaine. A breath test was given to Jones by the officer, yet the breath test did not detect
cocaine use. Without the results of the urine specimen and test, the State could not prove that Jones was
under the influence of cocaine when he collided with Powell's automobile. Thus, to ensure the proper
administration of justice, the medical records regarding the analysis of Jones's urine specimen must be
removed from the protection of the physician-patient privilege.
¶16. Having determined that the medical records regarding the test conducted by Bolivar Medical Center,
in the interest of the proper administration of justice, have to be removed from the protection of the
physician-patient privilege, we hasten to add that our holding in this regard should not be interpreted as
giving medical personnel the authority to voluntarily turn over medical records, except as mandated by law,
to law enforcement officials. Since the record in this case does not inform us that Jones's records were
voluntarily turned over to the State, nothing we say in this opinion should be interpreted as permitting the
State to obtain, without proper process of law, medical records which are covered by the physician-patient
privilege. We simply hold that on the facts presented here, it was not error to allow the result of the drug
analysis, along with the testimony of the hospital employees who took the urine specimen and performed the
analysis. We reach this conclusion because there is nothing in the record indicating that the medical records,
which were allowed, concerned any other aspect of Jones's medical treatment. The medical records were
limited to the drug analysis that was performed on his urine specimen.
B. The Absence of Approved Procedures and Permit
¶17. Mississippi Code Annotated § 63-11-19 (Supp. 2001) provides in pertinent part as follows:
A chemical analysis of the person's breath, blood or urine, to be considered under the provisions of
this section, shall have been performed according to methods approved by the State Crime
Laboratory created pursuant to Section 45-1-17 and the Commissioner of Public Safety and
performed by an individual possessing a valid permit issued by the State Crime Laboratory for making
such analysis. The State Crime Laboratory and the Commissioner of Public Safety are authorized to
approve satisfactory techniques or methods, to ascertain the qualifications and competence of
individuals to conduct such analyses, and to issue permits which shall be subject to termination or
revocation at the discretion of the State Crime Laboratory.
¶18. As stated, Jones relies upon the dictates of the quoted statute and Johnston to undergird his argument
that the results of the urine analysis were invalid and should not have been allowed because the procedures
for the analysis had not been approved by the State Crime Laboratory and the Commissioner of Public
Safety and because Cooper did not possess a permit issued by the State Crime Laboratory. Additionally,
Jones contends that the results should not have been admitted because the requirement of authentication or
identification of the cocaine was not met. Consequently, he contends that the results of the analysis as well
as all testimony connected therewith, including Cooper's, should not have been allowed.
¶19. Johnston involved an appeal of a DUI conviction predicated upon the test results of an intoxilyzer
machine. The Mississippi Supreme Court, in reversing and remanding Johnston's conviction because the
State failed to prove the intoxilyzer machine had been properly calibrated, quoted approvingly from the
statute:
A chemical analysis of a person's breath, blood, or urine is deemed valid only when performed
according to approved methods; performed by a person certified to do so; and performed on a
machine certified to be accurate. Certification of the machines must take place at least quarterly. Miss.
Code Ann. § 63-11-19 (1972). These safeguards insure a more accurate result in the gathering of
scientific evidence through intoxilyzers and are strictly enforced. Where one of the safeguards is
deficient the State bears the burden of showing that the deficiency did not affect the accuracy of the
result.
Johnston, 567 So. 2d at 238.
¶20. We do not find Johnston helpful to the resolution of the issue presented here because Johnston dealt
primarily with compliance procedures for ensuring the accuracy of intoxilyzer machines. As reflected in the
passage quoted above, Johnston does instruct that a chemical analysis of a person's blood is "deemed"
valid only when performed according to approved methods and by a person certified to do so. However,
we do not read Johnston to say that the result of a chemical analysis of a person's blood is inadmissible if it
is not done by a permittee of the State Crime Laboratory in accordance with methods approved by the
State Crime Laboratory. For sure, such an analysis would not be deemed as valid as one performed by a
permittee in accordance with methods approved by the State Crime Laboratory. In such cases, the
procedures used in the analysis must pass a test of reasonableness.
¶21. The case of Cutchens v. State, 310 So. 2d 273 (Miss. 1975), addresses the question of
reasonableness regarding a blood test performed by a person without a permit issued by the State Board of
Health. We find that this case offers significant guidance toward the resolution of our issue.
¶22. In Cutchens, the Mississippi Supreme Court was confronted with a fact situation almost identical to
the one we have here. There, the appellant contended that the results of a blood analysis were invalid
because "the chemical analysis of his blood was not performed by an individual possessing a valid permit
issued by the State Board of Health for making such analysis under section 63-11-19." Cutchens, 310 So.
2d at 277. In disposing of the appellant's contention, the Cutchens court held that "[t]he tests authorized by
the Implied Consent Law are not exclusive . . . . This section does not limit the evidence of chemical tests to
the chemical tests provided for by the Act, but permits the production of 'any other competent evidence'
bearing on the question of intoxication." Id. at 277-78.
¶23. We note, however, that the Cutchens court, in reaching its decision, relied primarily on section 63-1139(2) of the Mississippi Code of 1972 as annotated and amended which has since been repealed. That
section, as it existed then, provided that "[n]o provisions of this chapter [chapter containing the provisions
of the Implied Consent Law] shall be construed as limiting the introduction of any other competent evidence
bearing upon the question whether or not the person was under the influence of intoxicating liquor." Miss.
Code Ann. § 63-11-39(2) (repealed 1991).
¶24. We further note that the Cutchens court, although relying primarily on the statutory language of the
now repealed section, also cited Schmerber v. California, 384 U.S. 757 (1966), which applied a test of
reasonableness to the procedures utilized in tests designed to measure the blood-alcohol level of persons
charged with crimes. Id. at 278. After quoting an extensive passage from Schmerber, the Cutchens court
opined:
Since the tests authorized in the Implied Consent Law are not the exclusive tests that may be used to
determine the blood-alcohol level in the body of a person, the question then presents itself, was a
reasonable test performed on Cutchens?
Id.
Finally, the court in Cutchens concluded its consideration of the issue with a discussion of the qualifications
of the persons involved in performing the blood analysis, and held as follows:
It is unquestioned that Cutchens' blood was withdrawn and the test performed by persons qualified to
perform such functions. No question is raised as to the procedures used by Mrs. Shows and Dr.
Hume. We therefore hold that the test was reasonable and the results thereof admissible as other
competent evidence under section 63-11-39(2).
Id.
¶25. Although section 63-11-39(2), which expressly authorized admission of "any other competent
evidence" bearing upon the issue of whether a person was intoxicated, has been repealed, it is not debatable
that, in DUI cases, evidence regarding intoxication is not limited to evidence presented by the State from
persons who hold a State Crime Laboratory permit to analyze blood, urine and breath samples. Mississippi
Code Annotated § 63-11-13 (Rev. 1996) makes clear that test results from persons performing analyses at
the behest of the accused may be admitted. The pertinent portion of this section reads:
The person tested may, at his own expense, have a physician, registered nurse, clinical laboratory
technologist or clinical laboratory technician or any other qualified person of his choosing administer a
test, approved by the State Crime Laboratory created pursuant to section 45-1-17, in addition to
any other test, for the purpose of determining the amount of alcohol in his blood at the time
alleged as shown by chemical analysis of his blood, breath or urine.
Miss. Code Ann. § 63-11-13 (Rev. 1996) (emphasis added).
¶26. While section 63-11-13 addresses tests offered by the accused, it seems to us that it would constitute
an anomaly in the law to allow the accused to present evidence of test analyses done by persons other than
those licensed by the State Crime Laboratory, while, at the same time, preventing the State from using such
analyses. Additionally, we find that the language in section 63-11-13, regarding "any other test" is
comparable to the language in section 63-11-39(2) which was repealed. As previously observed, section
63-11-39(2) authorized admission of "any other competent evidence" bearing upon the issue of whether a
person was intoxicated. Clearly "any other test," properly administered under appropriate procedures and
designed to determine the alcohol or drug content of one's blood or urine, constitutes other competent
evidence. We therefore find that the trial court did not err in refusing to exclude the results of the urine
analysis done by Cooper simply because she did not hold a valid permit from the State Crime Laboratory.
¶27. Having determined that no per se exclusion applies to the test analysis done by Cooper, we look to
see, as did the Cutchens court, whether the procedures utilized were reasonable. In this regard, we first
point out that Jones makes no complaint about the reasonableness of the procedures, having chosen instead
to place all of his bets on a per se exclusion. Nevertheless, as stated, we must look to see if the procedures
utilized were reasonably designed to produce credible results.
¶28. Clint Robinson, an emergency room registered nurse employed with the Bolivar Medical Center, after
identifying a copy of Jones's medical records, testified that he took a urine specimen for a drug screen from
Jones and delivered it to the hospital laboratory for the purpose of having a drug screen performed. He
further testified that he had been a registered nurse since 1995 and had been employed with Bolivar
Medical Center since he became a registered nurse.
¶29. Betty Ann Cooper, the person who analyzed Jones's urine specimen, testified that she was a medical
technologist employed with the Bolivar Medical Center Laboratory. She had been employed there for nine
years. Prior to her employment with Bolivar Medical Center, she had worked for thirty years as a medical
technologist. She holds a bachelor of science degree in medical technology from the University of
Tennessee as well as Delta State University. She identified the test that she performed on Jones's urine
specimen as the triage drugs of abuse screening test. She had performed this specific test hundreds of times.
She testified that each triage test kit comes with instructions and that she had read the instructions. She
further testified that, pursuant to standard hospital policy, her findings have to be confirmed and that in
Jones's case, the findings were confirmed by MPL. Cooper identified the confirmation test performed by
MPL as being the thin layer chromatography. The laboratory report prepared by Cooper on Jones's urine
specimen was admitted into evidence as exhibit 14, and the confirmation report prepared by MPL was
admitted as exhibit 15.
¶30. Dr. Steven Hayne, the pathologist for the State Department of Public Safety, was qualified as an
expert in the areas of forensic, clinical and anatomical pathology. Dr. Hayne reviewed the laboratory report
prepared by Cooper and the report prepared by MPL. He testified that both reports indicated that cocaine
was present in Jones's urine specimen. He explained that the threshold level for a positive indication of
cocaine, in the methodology employed in the triage test, would be three hundred nanograms per deciliter.
He further explained that the thin layer chromatography test is a qualitative test rather than a quantitative test
but that it can be used as a semi-quantitative test. He testified that the thin layer chromatography test is
more sensitive than the triage screening test. Finally, he explained the methodology of the thin layer
chromatography test.
¶31. On the facts presented, we find that the test was administered by a person qualified by experience,
training and education. Clearly Cooper, with forty years of experience in performing the analysis which was
performed in this case, is more than qualified by experience and training. Additionally, as previously
observed, she is also qualified by educational achievement, having a bachelor of science degree in medical
technology. While Jones's counsel vigorously cross-examined both Cooper and Dr. Hayne, he did not
question the procedures utilized by Cooper in performing the analysis. Additionally, while counsel
questioned both Cooper and Dr. Hayne about the threshold level for a positive indication for the presence
of cocaine, according to the methodology employed in the triage test, he did not question the credibility of
the test as a diagnostic instrument for the detection of drugs in the human system. Consequently, we hold
that the test was reasonable and the results admissible.
C. Admission of the Confirmation Report
¶32. The State asserts that the MPL confirmation report was not objected to in a timely manner, yet the
record reflects that counsel for Jones timely objected twice during the course of the trial. First, it was
objected to as hearsay upon being marked as an exhibit. Second, upon admission into evidence, it was
objected to on Sixth Amendment grounds.
¶33. "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted." M.R.E. 801(c). Furthermore, without the
testimony of a sponsoring witness with personal knowledge of the facts contained therein, a report is
inadmissible, rank hearsay. Balfour v. State, 598 So. 2d 731, 749 (Miss. 1992). Thus, the confirmation
report was inadmissible hearsay. Additionally, admission of such a report violates Jones's Sixth Amendment
right to confrontation because Jones had no opportunity to cross-examine the conclusions of the Memphis
laboratory.
¶34. Although we have determined that the confirmation report was improperly admitted, this Court must
conclude that the admission was harmless error because admission of the initial test performed by Cooper
contained the same evidence, proof of cocaine in Jones's urine. There is no evidence in the record
contradicting Cooper's findings. Indeed, Dr. Hayne testified concerning the analysis performed by Cooper
and agreed that the test employed by Cooper was an acceptable drug screening test. Even if the
confirmation report had not been admitted, the jury was entitled to consider and rely upon the results of the
analysis done by Cooper. While we cannot say without any doubt that the confirmation report did not have
any bolstering effect of the State's evidence, we are confident that Cooper's and Dr. Hayne's testimony
alone was sufficient to support the jury's verdict. While Jones had no obligation to offer any evidence
contradicting Cooper's findings, if such was available, he most surely must bare the consequence of not
placing anything before the jury for them to consider in light of the State's evidence.
2. Denial of Motion for Directed Verdict
¶35. Jones frames his issue as error of the trial court in denying his motion for a directed verdict but argues
both sufficiency and weight of the evidence issues. He sets forth three arguments under this issue. First, the
analysis of the urine and the person testing the urine were invalid for the reasons as set forth above. Second,
the use of the confirmation report from Memphis Pathology Laboratory was inadmissible as hearsay and a
denial of the defendant's rights under the Sixth Amendment to the U. S. Constitution. Third, there was no
waiver of the physician-patient privilege.
¶36. The standard for evaluating a directed verdict is well established in our jurisprudence. Once the jury
has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be
discharged short of a conclusion on our part that given the evidence, taken in the light most favorable to the
verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was
guilty. Sullivan v. State, 749 So. 2d 983 (¶24) (Miss. 1999 ). This Court will reverse only where one or
more elements of the offense are not proven. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993).
¶37. On the other hand, a reviewing court will not reverse and remand for a new trial on the basis that the
verdict is against the overwhelming weight of the evidence unless it can conclude that allowing the verdict to
stand will sanction an unconscionable injustice. McClain, 625 So. 2d at 781.
¶38. We have already determined that Cooper's analysis of Jones's urine was properly admitted. That
analysis shows that Jones had cocaine in his system at the time of the accident. The jury in this case listened
to all of the testimony and concluded that the State had made its case. We cannot say that a reasonable,
hypothetical juror could not find beyond a reasonable doubt that the defendant was guilty or that allowing
the verdict to stand would sanction an unconscionable injustice. Consequently, we affirm Jones's conviction
and sentence.
¶39. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF
CONVICTION OF VEHICULAR HOMICIDE AND SENTENCE OF TWENTY YEARS WITH
FIVE YEARS SUSPENDED AFTER SERVING FIFTEEN YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO BOLIVAR COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
1. It is not made clear in the record as to how the State became aware of the urine analysis that was
performed by Bolivar Medical Center.
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