Comby v. State


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Docket Number: 2003-KA-01075-COA
Linked Case(s): 2003-CT-01075-SCT

Court of Appeals: Opinion Link
Opinion Date: 12-14-2004
Opinion Author: Lee, P.J.
Holding: Affirmed

Additional Case Information: Topic: DUI manslaughter - Admission of medical records - Blood alcohol content - Illegal search - Discovery violation - Jury instructions - Extradition proceedings
Judge(s) Concurring: King, C.J., Bridges, P.J., Myers, Chandler, Griffis, Barnes and Ishee, JJ.
Concurs in Result Only: Irving, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 05-01-2003
Appealed from: Newton County Circuit Court
Judge: Marcus D. Gordon
Disposition: GUILTY OF DUI-MANSLAUGHTER; SENTENCE OF TWENTY-ONE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THREE YEARS SUSPENDED AND THREE YEARS' PROBATION AND PAY RESTITUTION OF $11,265.25 TO THE VICTIM'S HUSBAND.
District Attorney: Mark Sheldon Duncan
Case Number: 02-CR-074-NWG

  Party Name: Attorney Name:  
Appellant: Samuel C. Comby




KATHRYN N. NESTER SHAWNA ANNE MURRELL



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE MCCRORY  

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Topic: DUI manslaughter - Admission of medical records - Blood alcohol content - Illegal search - Discovery violation - Jury instructions - Extradition proceedings

Summary of the Facts: Samuel Comby was convicted of DUI manslaughter. He appeals.

Summary of Opinion Analysis: Issue 1: Admission of medical records Comby argues that his medical records were illegally seized. Although the district attorney's office acted improperly in obtaining Comby's medical records, Comby has failed to specify what evidence should have been suppressed. Therefore, this issue is barred. Issue 2: Blood alcohol content Comby argues that the court erred in allowing evidence of his blood alcohol content, because he did not voluntarily consent to have a blood sample taken. Comby signed a consent form to have his blood drawn and tested for law enforcement purposes. Comby also argues that his blood alcohol level of 0.19 calls into question his ability to consent. Where the defendant appears to be aware of the circumstances surrounding his consent, the consent is valid despite his purported intoxication. There was testimony that Comby understood what was going on. Issue 3: Illegal search Comby argues that evidence obtained from his car should have been suppressed because no warrant was obtained to search the vehicle and Comby did not consent to the search. Police may conduct a warrantless search of an automobile and any containers therein if they have probable cause to believe that it contains contraband or evidence of crime. The deputy who responded to the scene of the accident, testified that Comby's eyes were bloodshot, that his breath smelled of alcohol, and that his motor skills were impaired. Comby told him that he had consumed about eight or nine beers that day, but that he had not had anything to drink in about three hours. Under the totality of the circumstances, there was probable cause to believe that Comby's vehicle contained evidence of a crime. Issue 4: Discovery violation Comby argues that the court erred in allowing expert testimony in toxicology when he was provided no notice of this testimony. Failure to request a continuance constitutes a waiver of the discovery violation issue. Because Comby did not request a continuance when confronted with the previously undisclosed opinion, this issue is waived. Issue 5: Jury instructions Comby argues that the court erred in rejecting an instruction and granting an instruction. When taken as a whole, the instructions did not place a higher standard of care on Comby as a driver. The jury was adequately and properly instructed as to Comby's duty to drive in a reasonably safe manner. With regard to the lesser-included offense instruction which was denied, the instruction regarding failing to yield the right of way would be required only if a reasonable juror could find Comby guilty of the lesser-included offense and therefore not guilty of at least one essential element of the charge of driving under the influence. Taking the testimony of the responding officers, the emergency personnel, Comby's own testimony that he consumed a six pack of beer hours before the accident, and the level of alcohol found in Comby's blood sample, a rational juror could not find that Comby was not driving under the influence. Issue 6: Extradition proceedings Comby argues that he was arrested illegally on Indian reservation property and that the arrest was illegal because extradition proceedings should have been followed. Comby's vehicle and the evidence obtained therefrom were not within Choctaw jurisdiction because the accident did not occur within Indian land. The legality of Comby's arrest is a non-issue, because he has failed to show what evidence, save the body of the defendant himself, should be suppressed.


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