Irby v. State


<- Return to Search Results


Docket Number: 2009-KA-01005-SCT
Linked Case(s): 2009-KA-01005-SCT

Supreme Court: Opinion Link
Opinion Date: 12-09-2010
Opinion Author: Carlson, P.J.
Holding: The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor. 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, Affirmed. Appellant shall pay court costs of $368.50, a fine of $1,000.00, pay $1,000.00 AB fee and $3,000.00 restitution for Justin Miller.

Additional Case Information: Topic: DUI maiming - Admission of blood evidence - M.R.E. 103(a)(1) - M.R.E. 602 - Right to confrontation - Weight of evidence
Judge(s) Concurring: Waller, C.J., Graves, P.J., Dickinson, Randolph, Lamar, Kitchens, Chandler and Pierce, JJ.
Procedural History: Motion for Rehearing
Nature of the Case: CRIMINAL - FELONY

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

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Thomas Irby




OFFICE OF INDIGENT APPEALS: GEORGE T. HOLMES



 
  • Appellant #1 Brief

  • 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.

    Topic: DUI maiming - Admission of blood evidence - M.R.E. 103(a)(1) - M.R.E. 602 - Right to confrontation - Weight of evidence

    Summary of the Facts: The motion for rehearing is denied, and this opinion is substituted for the original opinion. Thomas Irby was convicted of DUI maiming and sentenced to twenty-five years as a habitual offender. He appeals.

    Summary of Opinion Analysis: Issue 1: Admission of blood evidence Voluntary consent to a search eliminates an officer’s need to obtain a search warrant. The question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. In addition to voluntary consent, a knowledgeable waiver of this right to be free from unreasonable search also is required. 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, and because Irby was being prepared for surgery, he was incapacitated and unable to consent knowingly to providing a blood sample. The objection to the officer’s testimony regarding written consent made at trial was that another person’s testimony was necessary to establish a “chain of custody.” An 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 under M.R.E. 103(a)(1) the basis for the objection to the admission of the testimony. Under M.R.E. 602, the officer could testify to what he personally observed concerning Irby’s written consent to the blood test. Irby never properly raised the validity-of-consent issue. Accordingly, the trial court never ruled on the voluntariness of Irby’s consent. Issue 2: Right to confrontation Irby argues that his right to cross-examine the police officer was limited by the trial judge, in violation of his right to confrontation under the Sixth Amendment. The trial judge properly ruled that the officer’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: Weight of evidence Irby argues that the verdict was against the overwhelming weight of the evidence and that the evidence was insufficient to support the verdict. Although conceding that he was observed to be in the wrong lane of traffic, Irby argues that it was the other driver’s negligence, namely swerving into the wrong lane just as Irby swerved into the correct lane, that caused the accident. Irby further maintains that the driver was speeding in that she was traveling at 35-45 miles per hour in a 25-miles-per-hour zone. Moreover, Irby avers that he had no alcohol in his system and that the toxicologist’s analysis regarding other substances was speculative. It is clear that the overwhelming weight of the evidence supports a guilty verdict. The other driver 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, she 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 the driver and the police officer 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, Dr. Labay, testified to significant levels of alprazolam and hydrocodone in Irby’s blood analysis, both of which, according to Dr. Labay, affect one’s ability to operate a motor vehicle. Finally, the other driver testified at length regarding her husband’s permanent disability that was a direct result of the crash.


    Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court