Ellis v. State
| Docket Number: | 2009-KM-02030-COA Linked Case(s): 2009-KM-02030-COA ; 2009-CT-02030-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-19-2011 Opinion Author: Roberts, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: DUI - Destruction of evidence - Suppression of evidence - Sufficiency of evidence - M.R.E. 402 Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes and Ishee, JJ. Concurs in Result Only: Carlton and Maxwell, JJ. Without Separate Written Opinion Nature of the Case: CRIMINAL - MISDEMEANOR |
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| Trial Court: |
Date of Trial Judgment: 11-17-2009 Appealed from: Carroll County Circuit Court Judge: Joseph H. Loper Disposition: Convicted of Driving Under the Influence of Intoxicating Liquor, First Offense, and Sentenced to Forty-Eight Hours in Jail Suspended and to Pay an $800 Fine and Costs and Assessments in the Amount of $332.50 and to Attend the Mississippi Alcohol and Safety Education Program District Attorney: Lori M. Bell Case Number: 2009-0015CR2 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Kenneth Ray Ellis |
V.W. CARMODY JR., KEVIN THOMAS STEWART, LANCE O’NEAL MIXON |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LISA LYNN BLOUNT |
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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 - Destruction of evidence - Suppression of evidence - Sufficiency of evidence - M.R.E. 402 |
| Summary of the Facts: | Kenneth Ellis was convicted of driving under the influence of intoxicating liquor. He was fined and given a forty-eight hour suspended sentence. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Destruction of evidence Ellis argues that he was denied due process of law by the circuit court for failing to direct a verdict of acquittal in Ellis’s favor because the prosecution failed to preserve the trooper’s videotape of the traffic stop. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. In order to prevail on his due-process claim, Ellis first must show that the digital memory card had exculpatory value that was apparent before it was erased. Secondly, he must show that he would be unable to reasonably obtain comparable evidence; and thirdly, Ellis must show that the State acted in bad faith by destroying the memory card. The patrolman testified that the digital camera did not activate until he turned on his blue flashing lights to initiate the actual stop. It would not have shown any actions like the way Ellis was driving prior to the stop. It might have shown the actual stop. However, any exculpatory value of the events following the stop is significantly reduced by Ellis’s own admission that he was drinking and driving and that he had been consuming alcohol earlier in the day at the duck hunt and that he refused the field sobriety test and the Intoxilyzer test. There was no bad faith on the part of the State in the destruction of the card. Ellis’s attorney sent the trooper a letter requesting “the video, if any, taken by the officer of the test or tests.” However, by this time the memory card had been erased. The patrolman explained that the card was erased through the normal process used by the trooper of erasing and recording over the digital camera’s memory card. Ellis said that unless he determines that there is something unusual about a stop, he simply records over each memory card. He further testified that there was no rule or regulation which required him as a trooper to preserve every memory card of traffic stops. He did not destroy the card of Ellis’s traffic stop to circumvent its disclosure. Issue 2: Suppression of evidence Ellis argues that because the circuit court acquitted him of careless driving, which was the basis for initiating the traffic stop, the circuit court erred in admitting all evidence obtained after the traffic stop. However, Ellis’s argument is not the current state of the law on this issue. The decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Probable cause arises when the facts and circumstances within an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it. Here the patrolman based his stop upon the belief that Ellis was driving erratically. This belief was based upon a report from a truck driver who had observed Ellis’s vehicle driving in a manner which led the trucker to ask for the assistance of the patrolman. Once behind Ellis, the patrolman observed Ellis cross from the fog line to the center line at which point the officer turned on his blue lights to make the stop. Under the totality of the circumstances, the patrolman had probable cause to stop Ellis’s vehicle. Issue 3: Sufficiency of evidence Ellis argues that the evidence was insufficient to support the verdict. Common law DUI is proven when a defendant's blood alcohol results are unavailable or the defendant's BAC tests under the legal limit, but there is sufficient evidence that the defendant operated a vehicle under circumstances indicating his ability to operate the vehicle was impaired by the consumption of alcohol. Ellis testified that he had a six pack of Bud Light in his vehicle when he was stopped and that he had consumed two of those beers while driving “between Tunica and Vaiden.” He also admitted to having drunk liquor and beer earlier in the day at a duck hunt. Ellis himself testified that after he was stopped, the patrolman asked him if he had been drinking; and he responded, “Yes, sir.” The patrolman then administered the portable breath machine, which registered positive for alcohol. The patrolman testified that he smelled a strong odor of alcoholic beverage coming from Ellis when he stopped him; he observed that Ellis’s eyes were glassy; and his pupils were dilated. Ellis refused the field sobriety test and the Intoxilyzer 8000 test, and this evidence is relevant and admissible under M.R.E. 402. Considering the evidence, there is a sufficient basis for the fact-finder to conclude beyond a reasonable doubt that Ellis committed the act charged. |
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