Justin Brent Turner v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-00184-COA
JUSTIN BRENT TURNER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
01/23/2007
HON. MARCUS D. GORDON
LEAKE COUNTY CIRCUIT COURT
JOHN M. COLETTE
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
MARK SHELDON DUNCAN
CRIMINAL - FELONY
CONVICTED OF COUNT I, DUI
MANSLAUGHTER, AND SENTENCED TO
SERVE TWENTY-FIVE YEARS WITH FIVE
YEARS SUSPENDED AND FIVE YEARS OF
POST-RELEASE SUPERVISION; COUNT II,
DUI MANSLAUGHTER, AND SENTENCED
TO TEN YEARS WITH FIVE YEARS
SUSPENDED AND FIVE YEARS OF POSTRELEASE SUPERVISION, WITH THE
SENTENCE IN COUNT II TO RUN
CONSECUTIVELY TO THE SENTENCE IN
COUNT I, ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED: 09/30/2008
BEFORE KING, C.J., BARNES AND ISHEE, JJ.
KING, C.J., FOR THE COURT:
¶1.
On January 23, 2007, Justin Turner was convicted on two counts of driving under the
influence manslaughter. He was sentenced on Count I to serve twenty-five years with five
years suspended and five years of post-release supervision. On Count II, Turner was
sentenced to serve ten years with five years suspended and five years of post-release
supervision. The sentence in Count II was ordered to run consecutively to the sentence in
Count I, all in the custody of the Mississippi Department of Corrections. Aggrieved, Turner
appeals and alleges the following: (1) the trial court erred in admitting the blood-alcohol
evidence, and (2) the trial court erred in failing to properly instruct the jury, thus, denying
Turner a fair trial.
¶2.
We find that Turner’s issues are without merit. Therefore, we affirm the judgment of
the trial court.
FACTS
¶3.
On February 18, 2006, after having spent the day with his family, Bailey Trippe and
Kathy Krystine Harris were at Trippe’s parents’ home watching cartoons and looking after
Trippe’s two-year-old daughter. Trippe and Harris left the house at approximately 11:40
p.m. in Harris’s vehicle, a green 2000 Mercury Mountaineer.
¶4.
Shortly thereafter, a collision occurred on Goshen Road near Nazary Lane between
Highway 25 and Highway 16 in Leake County, Mississippi, which involved the vehicle
belonging to Turner and the vehicle driven by Trippe. The exact events leading up to the
collision were disputed.
¶5.
When Deputy Jim Moore of the Leake County Sheriff’s Office arrived on the scene
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of the accident, he attempted to resolve ambiguities surrounding the accident by asking
Turner what happened. Turner replied that he was coming up Goshen Road toward Highway
16, when the vehicle driven by Trippe came out in front of him. Unable to stop, Turner rearended Trippe’s vehicle, knocking the vehicle into a tree. As a result, the vehicle burst into
flames. Trippe and Harris were passengers in the burning vehicle. Unable to escape the
burning vehicle, both Trippe and Harris died as a result of the fire. Testimony by Chance
Wiskus, Turner’s cousin, contradicts Turner’s version of the events leading up to and causing
the collision.
¶6.
Wiskus testified that after attending a house party, which was also attended by Turner,
he left the party and went to Turner’s house. When Wiskus arrived Turner was in his truck
on the phone with Trippe. Wiskus got into Turner’s truck and overheard what appeared to
be an angry conversation between Trippe and Turner. Wiskus testified that Turner and
Trippe agreed to meet at the end of North Jordan Street to fight. Wiskus stated that while on
Goshen Road, Turner rear-ended Trippe’s vehicle twice. As a result, Trippe’s vehicle went
off the road, hit a tree, and burst into flames. Wiskus also testified that after failed attempts
to remove the passengers from the burning vehicle, Wiskus, Chris Turner,1 Nick Moss,2 and
Lauren,3 left the scene of the accident in Chris’s car which had followed them in their pursuit,
1
Chris Turner is Turner’s brother.
2
Nick Moss was Turner’s friend.
3
Lauren was Chris Turner’s girlfriend; however, the record does not provide Lauren’s
last name.
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leaving Turner and Tory Turner4 behind waiting for emergency assistance.
¶7.
Deputy Moore testified that while making an initial investigation of the scene and
attempting to resolve ambiguities by questioning Turner, he smelled alcohol coming from
Turner’s person and, thus, inquired as to Turner’s consumption of alcohol. As a result of
Deputy Moore’s observation of the accident scene and the smell of alcohol on Turner, he
asked Turner to submit a blood sample to determine his blood-alcohol level. After Turner
agreed, Deputy Moore asked him to sit in the patrol car until someone could take him to have
his blood drawn.
¶8.
Soon thereafter, Deputy Mark Wilcher, criminal investigator and accident
reconstructionist for the Leake County Sheriff’s Department, arrived and took control of the
scene. During this time, Deputy Wilcher spoke with Deputy Moore and questioned Turner
while he was in the patrol car. After questioning Turner, Deputy Wilcher instructed Deputy
Cornelius Turner (Deputy Turner) to transport Turner to Leake Memorial Hospital in
Carthage, Mississippi to have blood drawn to determine Turner’s blood -alcohol level. While
at the emergency room of the hospital, Laura Kelly (Kelly), a medical laboratory technician,
drew Turner’s blood for testing. Both Kelly and Vicky Moody, a registered nurse, signed
the consent form as witnessing Turner’s consent to draw blood. The blood samples were
secured and returned to Deputy Wilcher at the scene of the accident, who subsequently
transported the samples to the Mississippi Crime Laboratory.
4
Tory Turner was Turner’s girlfriend at the time of the accident, but she subsequently
married Turner.
4
¶9.
During trial, hearings were held on motions to suppress Turner’s statement to Deputy
Moore and the blood-test evidence. During the first hearing, the trial court ruled the
statement inadmissible. However, prior to the hearing, Deputy Moore’s testimony regarding
Turner’s involvement in the accident and alcohol consumption was heard by the jury, and
no instructions were given to the jury to disregard that testimony. Thereafter, the trial judge
ruled that Turner’s constitutional rights were not violated, and the blood test was admissible
because voluntary consent was given in the presence of two witnesses.
After the
prosecution’s rebuttal testimony, Turner renewed all previous motions and offered a motion
for acquittal and motion to suppress the blood-alcohol test. The trial court ruled that Turner’s
blood was lawfully seized since he initially consented to the blood sample and probable
cause existed to obtain a blood sample.
¶10.
On January 12, 2007, a jury in the Circuit Court of Leake County returned a guilty
verdict against Turner for two counts of DUI manslaughter.
ANALYSIS
I.
¶11.
WHETHER THE EVIDENCE OF THE BLOOD TEST WAS ADMISSIBLE
The applicable standard of review as to the admissibility of evidence is abuse of
discretion. Shaw v. State, 938 So. 2d 853, 857 (¶9) (Miss. Ct. App. 2005).
¶12.
Turner’s first allegation of error is that the trial court erred in admitting the blood-
alcohol analysis into evidence. Turner argues that the trial court erred in admitting the results
of his blood-alcohol level into evidence because: (a) Turner was seized within the meaning
of the Fourth Amendment; (b) the unconstitutional seizure was not cured; and (c) Turner’s
5
consent was not voluntarily given.
a.
¶13.
Whether Turner Was Seized Within the Meaning of the Fourth Amendment
Under Terry v. Ohio, 392 U.S. 1, 16 (1968), an individual is seized within the meaning
of the Fourth Amendment, “whenever a police officer accosts an individual and restrains his
freedom to walk away.” Turner contends that the initial “Terry-type encounter” escalated
almost immediately to an arrest without probable cause when Deputy Moore asked Turner
what had happened and inquired as to whether Turner had been drinking. Turner testified
that after acknowledging that he had rear-ended Trippe’s vehicle and that he had consumed
one beer prior to the accident, he was immediately placed in the back of a patrol car to be
transported to the hospital for a blood-alcohol test. Turner alleges he was not read his
Miranda rights, and, thus, his seizure was unconstitutional and in violation of the Fourth
Amendment.
¶14.
Turner was not seized within the meaning of the Fourth Amendment when he initially
made the statement as to his involvement in the collision and his alcohol consumption prior
to the accident. According to Alexander v. State, 736 So. 2d 1058, 1063 (¶11) (Miss. Ct.
App. 1999), “[c]ustodial interrogation [within the meaning of the Fourth Amendment] is
defined as ‘questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant way.’” The
initiation of questioning by law enforcement of the suspect who is in custody triggers
Miranda warnings.
Id.
However, in “a non-custodial setting where interrogation is
investigatory in nature (general on-the-scene investigation), Miranda warnings are not
6
required in order that a defendant’s statements be admissible. Even in this setting, statements
must be freely and voluntarily given in order to be admissible.” Hopkins v. State, 799 So.
2d 874, 878 (¶7) (Miss. 2001) (citation omitted).
¶15.
When Deputy Moore arrived on the scene, he began his initial investigation as to how
the accident occurred. Deputy Moore observed a burning vehicle containing two possibly
deceased individuals, a second damaged vehicle, and Turner and an unidentified female (later
identified as Tory Turner) watching from afar. In an effort to gain some clarity of the
situation, Deputy Moore approached Turner and Tory and inquired as to what had happened.
Smelling alcohol coming from Turner, Deputy Moore asked about Turner’s involvement and
possible alcohol consumption. When Turner disclosed his involvement and amount of
alcohol consumption, Turner was not placed under arrest or detained. However, Deputy
Moore requested that Turner submit to a blood test to determine his blood-alcohol content.
Turner agreed. Subsequently, Turner was placed in the back of a patrol car to await
transport to the hospital for the blood draw.
¶16.
When Deputy Wilcher arrived on the scene, he also questioned Turner as to what had
happened and his level of involvement. Turner acknowledged his involvement in the
collision and again consented to have blood drawn to determine his blood-alcohol level.
Although Turner was never handcuffed, advised of his rights, or told that he was under arrest,
he was placed in the back of a patrol car unable to open the door of his own free will.
Therefore, according to the definition of seized under Terry, when Turner made the statement
to Deputy Wilcher, he was considered seized within the meaning of the Fourth Amendment.
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Turner’s first statement and consent were made during Deputy Moore’s general investigation
of an accident scene and not while in custody; hence, when Turner informed Deputy Moore
of his involvement in the accident and consented to give a blood sample, he was not seized
at the time. Therefore, this issue is without merit.
b.
¶17.
Whether the Consent Was Voluntary
“In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973),
the United States Supreme Court held that when determining whether consent to a
warrantless search was given voluntarily, [the court must examine] the totality of the
circumstances.” Logan v. State, 773 So. 2d 338, 343 (¶12) (Miss. 2000). To be valid, the
consent must be voluntary. Gazaway v. State, 708 So. 2d 1385, 1388 (¶10) (Miss. Ct. App.
1998). In reviewing the trial court’s determination of the voluntariness of a consent to a
blood draw, the Court applies an abuse of discretion standard. Comby v. State, 901 So. 2d
1282, 1285 (¶5) (Miss. Ct. App. 2004). A trial court has broad discretion when addressing
the voluntariness of a consent. Id. We are obligated to affirm the decision of the trial court,
unless it is apparent that such discretion has been abused. Id.
¶18.
Turner contends that his consent at the hospital to draw a blood sample to determine
his blood-alcohol level was not voluntary and was defective for the following reasons stated
in his brief:
(1) the consent was not the product of an intervening act of free will; (2) the
consent was sufficiently attenuated by the initial illegal seizure/arrest; (3) the
consent was a flagrant disregard of his rights; (4) the blood draw was done as
a routine procedure, not based on probable cause; and (5) the blood draw was
done improperly by having witnesses sign same [consent form] without
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actually witnessing the act and/or hearing the rights read to Turner.
Turner does not suggest that he at any time revoked or attempted to revoke the consent,
which was first given to Deputy Moore, to have a blood sample drawn. This first consent
was given in a noncustodial general-on-the-scene investigation. That consent remained valid
until it was revoked, or the blood draw was completed. Because the first consent given to
Deputy Moore was valid, it was not necessary that the second consent given to Deputy
Wilcher be valid, as it was merely surplusage.
¶19.
The Court notes that pursuant to Mississippi Code Annotated sections 63-11-8(1) and
(2) (Rev. 2004), “(1) [t]he operator of any motor vehicle involved in an accident that results
in death shall be tested for the purpose of determining his alcohol content or drug content .
. . . (2) [i]f any investigating law enforcement officer has reasonable grounds to believe that
person is the operator of the motor vehicle involved in an accident that has resulted in a
death.” In a factually similar case, Turner v. State, 726 So. 2d 117, 127 (¶36) (Miss. 1998),
the defendant appealed his conviction of the crime of driving under the influence resulting
in death, alleging that the trial court erred in admitting the blood-alcohol report because the
blood draw violated his Fourth Amendment right against unreasonable searches and seizures
since he did not sign a consent form. The supreme court held that although the defendant had
not been lawfully arrested when his blood was drawn for testing, the officer did have
probable cause to detain the appellant and order a blood draw, because according to
Schmerber v. California, 384 U.S. 757 (1966), the taking of blood samples from a defendant
does not violate his Fourth Amendment rights where probable cause exists for the
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defendant’s arrest. Turner, 726 So. 2d at 127 (¶36) (Miss. 1998).
¶20.
Turner’s acknowledgment of his involvement in the accident, his admission to having
consumed alcohol prior to the accident, and the smell of alcohol on his person gave Deputy
Moore reasonable grounds to believe that Turner was involved in the accident that resulted
in the death of two individuals. These factors gave Deputy Moore the authority to obtain a
blood sample for testing Turner’s blood-alcohol level.
¶21.
For the aforementioned reasons, this issue is without merit.
c.
¶22.
Whether the Unconstitutional Seizure Was Cured by Consent
The applicable standard of review as to whether an illegal arrest tainted the
defendant’s consent is de novo. United States v. Richardson, 949 F.2d 851, 858 (6th Cir.
1991).
¶23.
Turner asserts that his alleged consent to a blood sample did not cure the
unconstitutional seizure. We find this issue is moot. We have found that Turner was not
unconstitutionally seized within the meaning of the Fourth Amendment when he first
acknowledged his involvement and gave consent to Deputy Moore for a blood sample.
Therefore, this assignment of error is without merit.
II.
¶24.
WHETHER TURNER WAS DENIED A FAIR TRIAL BASED ON JURY
INSTRUCTIONS
The second allegation of error is that Turner was denied a fair trial because the jury
was not properly instructed.
¶25.
Turner contends that jury instruction S-1 should have included a proximate cause
10
statement. He contends that the failure to include a proximate cause statement in S-1 allowed
the jury to find him guilty without finding that the death of Trippe and Harris were a result
of Turner’s actions.
¶26.
Instruction S-1 reads as follows:
[T]he Court instructs the jury that if you believe from the evidence in
this case beyond a reasonable doubt that at the time and place charged in
Count One of the indictment and testified about, that the Defendant, Justin
Brent Turner, did willfully, unlawfully, and feloniously operate a motor
vehicle while under the influence of intoxicating liquor, having eight onehundredths percent (.08%) or more by weight volume of alcohol in his blood,
and in a negligent manner caused the death of Bailey A. Trippe, then it is your
duty to find the defendant guilty as charged in Count One.
You are further instructed that if you believe from the evidence in this
case beyond a reasonable doubt that at the time and place charged in Count
Two of the indictment and testified about, that the Defendant, Justin Brent
Turner, did willfully, unlawfully and feloniously operate a motor vehicle while
under the influence of intoxicating liquor, having eight one-hundredths percent
(.08%) or more by weight volume of alcohol in his blood, and in a negligent
manner caused the death of Kathy Krystine Harris, then it is your duty to find
the defendant guilty as charged in Count Two.
¶27.
Jury instructions are to be read as a whole rather than in isolation. Burton v. Barnett,
615 So. 2d 580, 583 (Miss. 1993). If after doing so, the totality of the instructions fairly and
accurately state the law and facts, this Court will not find error. Id. “When so read, if the
instructions fairly announce the law of the case and create no injustice, no reversible error
will be found.” Wilkerson v. State, 731 So. 2d 1173, 1180 (¶25) (Miss. 1999) (citation
omitted).
¶28.
The fact that jury instruction S-1 is an accurate statement of the law under Mississippi
Code Annotated section 63-11-30(5) (Rev. 2004) is not questioned. The jury instruction
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specifies the elements that the prosecution was required to prove in order to find Turner
guilty of DUI manslaughter. Those elements are as follows: (1) Turner was operating a
motor vehicle; (2) while doing so, his blood-alcohol level was at least .08%, (3) and he
negligently caused the deaths of Harris and Trippe. Jury instruction S-1 required the jury to
convict Turner if it found that these elements had been proven by the prosecution. It did not,
however, instruct the jury that it should find Turner not guilty if any of these elements were
not proven.
¶29.
However, jury instruction D-5, which was given, reads as follows:
In every criminal case, a person on trial, such as Justin Turner, is
presumed to be innocent until his guilt is established by the evidence beyond
a reasonable doubt.
Before the presumption of innocence leaves Justin Turner, every
material allegation of the charge must be proven by the evidence beyond a
reasonable doubt. The presumption of innocence accompanies and abides with
Justin Turner to each and every material allegation of the charge through each
stage of the trial until it has been overcome by the evidence beyond a
reasonable doubt.
If any of the material allegations of the charge are not proven beyond
a reasonable doubt, you must give Justin Turner the benefit of the doubt and
find him not guilty.
Jury instruction D-5 informed the jury that the prosecution was required to prove each
element of its case. When read in conjunction with instruction S-1, it becomes clear that the
jury was properly instructed.
¶30.
Furthermore, while alleging that the trial court erred in failing to give a proximate
cause instruction, Turner did not make reference to or mention the need for proximate cause
12
language within the instruction in his objection at trial. Turner’s objection was merely a
request for a stronger or different version of instruction S-1. In his limited objection to
instruction S-1, Turner stated, “Other than what the court said about the negligent manner.
No objection except for the request by co-counsel about a stronger or different version of this
in a negligent manner.” “[F]ailure to challenge a given instruction or offer another in its
place renders this assignment of error meritless.” Lockett v. State, 517 So. 2d 1317, 1333
(Miss. 1987) (overruled in part on other grounds). There is no indication that Turner offered
an alternative instruction to instruction S-1. Therefore, Turner’s assignment of error that he
was denied a fair trial because the jury was not properly instructed with regard to instruction
S-1 is without merit.
CONCLUSION
¶31.
For the foregoing reasons, we affirm the judgment of the Circuit Court of Leake
County.
¶32. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF
CONVICTION OF COUNT I, DUI MANSLAUGHTER, AND SENTENCE OF
TWENTY-FIVE YEARS WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF
POST-RELEASE SUPERVISION; COUNT II, DUI MANSLAUGHTER, AND
SENTENCE OF TEN YEARS WITH FIVE YEARS SUSPENDED AND FIVE YEARS
OF POST-RELEASE SUPERVISION, WITH THE SENTENCE IN COUNT II TO
RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE, ROBERTS AND
CARLTON, JJ., CONCUR. IRVING AND BARNES, JJ., CONCUR IN RESULT
ONLY.
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