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
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
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:
DISPOSITION:
MOTION FOR REHEARING FILED:
12/14/1999
HON. KENNETH L. THOMAS
BOLIVAR COUNTY CIRCUIT COURT
RAYMOND L. WONG
OFFICE OF THE ATTORNEY GENERAL
BY: DEWITT T. ALLRED III
LAURENCE Y. MELLEN
CRIMINAL - FELONY
12/14/1999: VEHICULAR HOMICIDE:
DEFENDANT IS SENTENCED TO 20 YEARS
WITH 5 YEARS SUSPENDED AFTER
SERVING 15 YEARS;
AFFIRMED - 04/09/2002
05/03/2002 - DENIED;
AFFIRMED - 05/06/2003
CERTIORARI FILED:
MANDATE ISSUED:
ON MOTION FOR REHEARING
EN BANC
IRVING, J., FOR THE COURT:
¶1.
The motion for rehearing is denied. However, the original opinion issued herein is withdrawn and
this opinion substituted.
¶2.
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
¶3.
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.
¶4.
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
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Jones. This test was negative for alcohol, and McFadden did not request that a urine analysis be performed
on Jones.
¶5.
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
¶6.
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
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.
3
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.
¶7.
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.
¶8.
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.
¶9.
Physician-Patient Privilege
"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).
¶10.
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
4
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).
¶11.
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 § 131-21, refused to honor the subpoena duces tecum. The trial court, relying upon the statutory physicianpatient 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).
¶12.
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 at (¶¶2, 21).
5
¶13.
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.
¶14.
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 State*s 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."
6
¶15.
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.
¶16.
Our case is only slightly different from Baptist Memorial Hospital-Golden Triangle in that here,
unlike in BMH-GT, there is no statute that requires Bolivar Medical Center to disclose the medical records
to the State. However, we do not read the decision in BMH-GT to turn on the fact that the medical
personnel were required by statute to report to law enforcement personnel information regarding persons
who had been treated for injuries caused by gunshot or knifing. Rather, the decision turned on the public
interest in the proper administration of justice, for the decision plainly holds that "[w]here 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 at (¶¶2, 21).
¶17.
Neither do we read the decision in McDuff v. State, 763 So. 2d 850 (Miss. 2000), as preventing
the result we reach here. In McDuff, the Mississippi Supreme Court held that section 63-11-8 of the
Mississippi Code of 1972 as annotated and amended is unconstitutional to the extent that it allows the
results of a defendant's blood test into evidence when the blood is drawn in the absence of consent,
probable cause, a warrant or incident to a lawful arrest. Id. at 855, 857 (¶¶16, 21).
¶18.
In McDuff, the defendant lost control of her vehicle, crossed the center line and struck an on-
coming vehicle, resulting in the death of the driver of the on-coming vehicle. McDuff was treated at the
scene and transported to the Regional Medical Center in Memphis, Tennessee. Prior to her being
transported, a law enforcement officer gave the treating E.M.T. a blood alcohol kit and requested that
McDuff's blood be drawn at the hospital so that it could be tested for alcohol and drugs. While at the
7
hospital, blood was drawn from McDuff for diagnostic purposes, but two tubes of blood were drawn
pursuant to the request from the law enforcement officer. Id. at 852 (¶¶2-5)
¶19.
The Mississippi Supreme Court reversed and remanded McDuff's conviction for negligently causing
death while driving under the influence of alcohol, holding that the blood drawn at the request of law
enforcement could not be used because of the absence of probable for having it drawn. However, the
court further held that on retrial, the State would be permitted to use the blood which was drawn by the
hospital for diagnostic purposes. Id. at 857 (¶21).
¶20.
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.
¶21.
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
8
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.
¶22.
The Absence of Approved Procedures and Permit
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.
¶23.
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.
¶24.
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
9
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.
¶25.
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.
¶26.
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.
¶27.
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
10
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.
¶28.
We note, however, that the Cutchens court, in reaching its decision, relied primarily on section 63-
11-39(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).
¶29.
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. Cutchens, 310 So. 2d 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:
11
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.
¶30.
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).
¶31.
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
12
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.
¶32.
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.
¶33.
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.
¶34.
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
13
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.
¶35.
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.
¶36.
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.
14
C.
¶37.
Admission of the Confirmation Report
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.
¶38.
"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.
¶39.
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
15
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.
¶40.
Denial of Motion for Directed Verdict
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.
¶41.
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).
¶42.
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.
¶43.
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
16
the verdict to stand would sanction an unconscionable injustice. Consequently, we affirm Jones's conviction
and sentence.
¶44. 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 AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.
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