James Michael Pulido v. City of Oxford, Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KM-01277-COA
JAMES MICHAEL PULIDO A/K/A MICHAEL
JAMES PULIDO
APPELLANT
v.
CITY OF OXFORD, MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
7/28/2006
HON. ANDREW K. HOWORTH
LAFAYETTE COUNTY CIRCUIT COURT
JASON LEE SHELTON
BELA J. CHAIN
CRIMINAL - MISDEMEANOR
CONVICTED OF CARELESS DRIVING AND
DUI FIRST OFFENSE AND SENTENCED TO
FORTY-EIGHT HOURS TO SERVE IN THE
LAFAYETTE COUNTY DETENTION CENTER
AFFIRMED: 01/22/2008
BEFORE KING, C.J., BARNES AND ISHEE, JJ.
KING, C.J., FOR THE COURT:
¶1.
Michael James Pulido was convicted of careless driving and driving under the influence in
the Municipal Court of Oxford, Mississippi. He appealed these convictions to the Circuit Court of
Lafayette County, Mississippi, which affirmed the convictions. Pulido appeals this decision, as well
as the circuit court’s denial of his JNOV motion, and motion for a new trial, raising the following
issues: (1) whether the Lafayette County Circuit Court erred in finding it had jurisdiction to hear the
appeal from the Oxford Municipal Court; (2) whether the circuit court erred in finding there was an
adequate evidentiary foundation for Officer Libby Lytle’s testimony; and (3) whether the circuit
court erred in failing to allow inquiry into whether the sobriety testing equipment was properly
calibrated and functioning at the time of Pulido’s arrest. Finding no reversible error in the trial
court’s decision, we affirm.
FACTS
¶2.
On the night of November 14, 2004, Oxford Police Officer Libby Lytle observed Pulido
weaving in and out of the driving lanes on Jackson Avenue in Oxford, Mississippi. Officer Lytle
testified that she stopped Pulido’s truck. Upon reaching the truck, she observed Pulido’s “bloodshot
glassy, dilated pupils,” and noted his slurred speech. Officer Lytle testified that she perceived the
strong odor of an intoxicating beverage coming from inside of Pulido’s truck.
¶3.
Officer Lytle asked Pulido to get out of the truck. Office Lytle observed that Pulido lacked
balance getting out of his elevated truck. Officer Lytle then conducted three field sobriety tests – the
horizontal gaze nystagmus test, the one-legged stand test, and the walk and turn test. Officer Lytle
testified that Pulido was only able to complete three of the eight assigned tasks in the walk and turn
test and thus failed that test. Officer Lytle testified that it appeared that Pulido might injure himself
during the one-legged stand and therefore she stopped in the middle of that test. However, he
completed only one of the four tasks given in this test.
¶4.
At this point, Officer Lytle believed that Pulido was intoxicated and placed him under arrest.
She took Pulido to the Lafayette County Detention Center to take an Intoxilyzer test. While in route,
Pulido indicated his refusal to take the Intoxilyzer test and, at the detention center, he again refused
the test. Pulido was convicted of driving under the influence and careless driving in the municipal
court. He appealed this conviction to the Lafayette County Circuit Court. The circuit court found
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Pulido guilty of driving under the influence, first offense, and careless driving. He has timely
appealed that conviction.
I. Whether the Lafayette County Circuit Court erred in finding that it had jurisdiction to hear
the appeal from the Oxford Municipal Court.
¶5.
Pulido argues that the failure of the Oxford Municipal Court to comply with Rule 12.02 of
the Uniform Rules of Circuit and County Court deprived the Lafayette County Circuit Court of
jurisdiction to hear his appeal. The relevant portion of Rule 12.02 provides:
It shall be the duty of the judge from whose judgment the appeal is taken to deliver
to the clerk of the circuit court, within 10 days after the appeal bond and cost bond,
as required herein, are given and approved, a certified copy of the record in the case
with all of the original papers in the case.
URCCC Rule 12.02 (A).
¶6.
Pulido filed his notice of appeal on February 24, 2005. A copy of the record was not filed
with the circuit court until October 20, 2005. Beyond question, this filing is not in compliance with
Rule 12.02. The record before this Court offers no explanation for that failure.
¶7.
The timely notice of appeal by the appellant is jurisdictional, and the failure to give that
notice in a timely manner does in fact deny jurisdiction to the appellate court. In re Estate of Ware,
573 So. 2d 773, 774 (Miss. 1990); Byrd v. Biloxi Reg’l Med. Ctr., 722 So. 2d 166, 168 (¶10) (Miss.
Ct. App. 1998).
However, the purely ministerial act of transmission of the record is not
jurisdictional. Even if this Court were to find that act to be jurisdictional, the required result would
be to dismiss the appeal for lack of jurisdiction, and thereby let stand the conviction and sentence
of the municipal court. Such a tortured result would only punish the would-be appellant and not the
party who failed to comply with the rules.
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¶8.
Pulido also argues that when the abstracts of the court record were provided by the municipal
court, they were so inaccurate and flawed that the circuit court was deprived of proper jurisdiction
of the case. The record sent from the municipal court included a copy of Pulido’s 2002 DUI charge,
which had been dismissed by Circuit Court Judge Howorth a few months before he heard the appeal
of the 2004 DUI charge.
¶9.
The inadvertent inclusion of extraneous matters in the record likewise does not raise an issue
of jurisdiction. At best, such an inclusion might raise a question of possible prejudice. However,
Judge Andrew Howorth noted that the documents related to each charge were readily
distinguishable, and we find the inclusion of the extra material was therefore without prejudice.
II. Whether the circuit court erred in finding there was an adequate evidentiary foundation
for Officer Lytle’s testimony.
¶10.
Pulido argues that Officer Lytle’s testimony regarding the field sobriety tests should have
been stricken because there was no evidentiary foundation laid that she was qualified to administer
such tests or competent to analyze the tests results. He also argues that Officer Lytle’s statement that
he was “definitely intoxicated” was a scientific conclusion and should have been excluded as
impermissible expert testimony.
¶11.
Under Rule 702 of the Mississippi Rules of Evidence, expert testimony, whether fact or
opinion, “requires scientific, technical, or other specialized knowledge beyond a randomly selected
adult.” Palmer v. Volkswagen of Am., Inc., 904 So. 2d 1077, 1092 (¶64) (Miss. 2005). However,
Rule 701 provides that lay witnesses may testify about opinions as long as the inferences are “ (a)
rationally based on the perception of the witness, (b) helpful to the clear understanding of the
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testimony or the determination of a fact in issue, and (c) not based on scientific, technical or other
specialized knowledge within the scope of 702.” M.R.E. 702.
¶12.
This Court has previously allowed police officers, not designated as experts, to offer their
opinions of whether a suspect was under the influence. In Christian v. State, 859 So. 2d 1068, 1071
(¶8) (Miss. Ct. App. 2003), the defendant refused the Intoxilyzer test in jail. The police officers,
however, were able to testify that they smelled an “odor of alcohol coming from the vehicle,” as well
as witnessed the defendant’s “belligerent and threatening behavior towards himself and other officers
at the jail.” Id. The Court held that, under Rule 701 of the Mississippi Rules of Evidence, the
officers could testify about their personal observations of the defendant and they did not have to be
tendered as experts to testify. Id. at (¶10). The officers were even allowed to testify as to the
ultimate issues of the case, as long as the opinions or inferences were otherwise admissible. Id.
¶13.
In Graves v. State, 761 So. 2d 950, 955 (¶12) (Miss. Ct. App. 2000), this Court held:
Field sobriety tests, including the only permissible use of the HGN test, rely upon
common experiences to develop an opinion whether a person is intoxicated or not.
These tests are based upon coordination and the ability to concentrate, with simple
exercises such as reciting alphabet, walking, or standing on one leg. These tests only
require the officer to observe the actions of the person or whether he was slurring,
stumbling, or staggering and testify to them in court. Accordingly, an officer should
not have to be rendered an expert to give opinion testimony regarding the
administration of these common sense tests.
¶14.
Officer Lytle administered three field sobriety tests – the walk and turn, the one-legged stand,
and the horizontal glaze nystagmas tests (HGN). She testified about the results of the walk and turn
and the one-legged stand tests only, avoiding testimony on the HGN test as a result of Young v. City
of Brookhaven, 693 So. 2d 1355, 1360-61 (Miss. 1997) (limiting use of HGN tests results to only
serve as probable cause to arrest and administer Intoxilyzer or blood tests).
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¶15.
As to the walk and turn test, Officer Lytle testified that she first explained and demonstrated
the test to Pulido. She asked him if he had any questions and then she directed him to begin the test.
PROSECUTOR:
OFFICER LYTLE:
¶16.
Can you tell us whether or not you demonstrated that [walk and turn]
test to Mr. Pulido.
Basically what I had him do was stand on the line with his right foot
in front of his left and stand in that position until I asked him to do
the test. He was not able to stand there during the instruction[s]. I
had to ask him to get back in the position. At that point in time I
demonstrated the test to him, told him to walk nine steps down the
line touching heel to toe on each and every step, keeping his hand
down to his side and count out loud each step. When he gets to the
turn around and come back touching heel to toe for nine steps and do
not stop until he has completed.
Officer Lytle further testified that she looked for a specific number of things Pulido was
supposed to accomplish during the test. Pulido indicated five clues of impairment on the test, out
of a total of eight clues.
¶17.
Next, Officer Lytle testified about the one-legged stand test.
PROSECUTOR:
Describe[ the one-legged stand] test for the court.
OFFICER LYTLE:
Basically [. . . I ask him to get] in position with his hands
down at his side, his feet close together, raise whatever foot
he wants, six inches off the ground with his toes pointed out.
[I] [m]aintain the individual on his toes, [and I ] want him to
count out loud from 1001, 1002 so forth and so on until I tell
him to stop. At that point in time he started doing the test and
he used his arms for balance throughout the test. He put his
foot down at 3 and 6 and against at 8 and I stopped the test
when he almost fell over and he was swaying during the test
as well.
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¶18.
Officer Lytle testified that Pulido got three out of the four clues wrong on the test. Each of
the tests administered by Officer Lytle, consistent with this Court’s holding in Graves, relied upon
her observation and did not require qualification as an expert.
¶19.
Trial courts exercise sound discretion over the admissibility of testimony. City of Natchez
v. Jackson, 941 So. 2d 865, 870 (¶11) (Miss. Ct. App. 2006). There must be prejudice or harm or
an adverse affect of a substantial right of a party before this Court will reverse a case based on the
admission or exclusion of evidence. Palmer, 904 So. 2d at 1091 (¶65). This Court does not find
that the trial court erred in admitting Officer Lytle’s testimony of the field sobriety test results. This
issue is without merit.
¶20.
As an additional point of error, Pulido argues that Officer Lytle should not have been able
to offer her opinion on his tests performance because he had recently undergone surgery, thus, he
would not have performed the same on the tests as a regular, healthy person. In Wright v. City of
Water Valley, 832 So. 2d 1241, 1244 (¶8) (Miss. Ct. App. 2002), this Court held that the law does
not require a police officer to ask a suspect about any medical impairments that would prevent the
person from performing the field sobriety test. Likewise, this argument is also without merit.
¶21.
Finally, Pulido asserts that he was prejudiced by his refusal to submit to the Intoxilyzer test.
There is no evidence in this record to support this assertion. The trial judge found, separate and apart
from Pulido’s refusal to take the Intoxilyzer test, that the evidence established his impairment. This
argument is without merit.
III. Whether the circuit court erred in failing to allow inquiry into whether the sobriety testing
equipment was properly calibrated and functioning at the time of Pulido’s arrest.
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¶22.
Pulido asserts that the circuit court erred by not allowing him to question Officer Lytle
regarding whether the Intoxilyzer test she would have used was properly calibrated and functioning
at the time of Pulido’s arrest. Because no Intoxilyzer test was given, and no Intoxilyzer test results
were offered to establish Pulido’s guilt, the question of whether the machine was properly calibrated
was irrelevant. The trial court has discretion over the admissibility and relevancy of evidence, and
absent an abuse of that discretion, this Court will not disturb that decision. Towner v. State, 837 So.
2d 221, 226 (¶13) (Miss. Ct. App. 2003). We find no error in the trial court’s decision and this issue
is without merit.
¶23. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT OF
CONVICTION OF CARELESS DRIVING AND DRIVING UNDER THE INFLUENCE,
FIRST OFFENSE, AND FINE OF $59 FOR CARELESS DRIVING AND $1,000 FOR
DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCE TO SERVE
FORTY-EIGHT HOURS IN THE LAFAYETTE COUNTY DETENTION CENTER IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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