Irby v. State
| Docket Number: | 2009-KA-01005-SCT Linked Case(s): 2009-KA-01005-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 08-12-2010 Opinion Author: Carlson, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: DUI maiming - Admission of blood sample - Voluntariness of consent - M.R.E. 103(a)(1) - M.R.E. 602 - Confrontation rights - Sufficiency of evidence Judge(s) Concurring: Waller, C.J., Graves, P.J., Dickinson, Randolph, Lamar, Kitchens, Chandler and Pierce, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-13-2009 Appealed from: Clarke County Circuit Court Judge: Robert Bailey Disposition: Conviction of DUI Maiming and sentence of twenty-five (25) years in the Custody of the Mississippi Department of Corrections, as a Habitual Offender, without reduction, suspension, probation, parole or any other type early release or reduction. District Attorney: Bilbo Mitchell Case Number: 2008-124 |
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| Note: | This opinion was later withdrawn, and another opinion substituted on 12/9/2010. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Thomas Irby |
OFFICE OF INDIGENT APPEALS: GEORGE T. HOLMES |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY, JR. | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | DUI maiming - Admission of blood sample - Voluntariness of consent - M.R.E. 103(a)(1) - M.R.E. 602 - Confrontation rights - Sufficiency of evidence |
| Summary of the Facts: | Thomas Irby was convicted of DUI maiming and sentenced to twenty-five years as a habitual offender. Irby appeals. |
| Summary of Opinion Analysis: | Issue 1: Admission of blood sample Irby argues that the trial court erred in admitting the blood analysis because the nurse who drew the blood did not testify to the voluntariness of Irby’s consent. He also argues that because Irby was being prepared for surgery, he was incapacitated and unable to consent knowingly to providing a blood sample. Irby never objected to the introduction of the blood-analysis evidence nor did Irby object to the admission of the testimony regarding the amount of other substances found in the blood sample and the impairing effects of the other substances. Thus, he is procedurally barred from making the argument that the blood sample was improperly admitted by the trial judge. His objection based on failure to establish a chain of custody is not an objection based on a failure to establish the voluntariness of consent. The objection made at trial did not state with requisite specificity the basis for the objection to the admission of the testimony as required by M.R.E. 103(a)(1). An objection based on the fact that the officer could not testify to what he personally observed was properly overruled by the trial court pursuant to M.R.E. 602. As to Irby’s argument that he suffered from diminished capacity and could not validly consent, this assertion lacks an evidentiary basis. Consent must be voluntary and absent diminished capacity in order to be valid. The burden is on the defendant to show impaired consent or some diminished capacity. Irby never raised this issue before the trial court, because Irby never properly moved the trial court to make a finding regarding whether Irby knowingly and voluntarily had consented. Irby did not put on any evidence of diminished capacity. Issue 2: Confrontation rights Irby argues that his right to cross-examine a deputy was limited by the trial judge, in violation of his right to confrontation under the Sixth Amendment. The trial judge properly ruled that the deputy’s “motive” or “intent” for obtaining consent from Irby was irrelevant, and evidence of it should not be presented to the jury. Additionally, Irby never properly moved the trial court to make an on-the-record finding outside the presence of the jury, nor did Irby ever proffer any evidence that Irby was suffering from diminished capacity to consent to the blood test. Issue 3: Sufficiency of evidence Irby argues that the evidence was insufficient to support the verdict. Irby argues that the deputy’s testimony that there were two sets of skid marks leading to the accident was contradicted by another officer at the scene. Contrary to Irby’s contention, the testimony by the other officer does not favor the defendant. His testimony was consistent with the victim’s testimony that Irby never appeared to brake prior to impact. Such evidence that Irby failed to brake supports the jury’s finding that Irby was operating a motor vehicle negligently and while impaired. The victim testified that, as she drove over a hill, she saw Irby’s truck in her lane driving toward her at an alarming speed. Afraid of veering into the ditch on her right, the victim swerved left just as Irby overcorrected to his right. This resulted in an impact that was not quite head on, but at an angle. Both officers testified that Irby had smelled of alcohol that day, and although Irby’s blood sample was not positive for the presence of alcohol, it did test positive for other substances. The forensic toxicologist testified to significant levels of alprazolam and hydrocodone in Irby’s blood analysis, both of which affect one’s ability to operate a motor vehicle. The victim also testified at length regarding her husband’s permanent disability that was a direct result of the crash. This evidence is sufficient to support the verdict. |
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