Istiphan v. City of Madison
| Docket Number: | 2010-KM-01785-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-06-2012 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: DUI first offense - Sufficiency of evidence - Section 63-11-30(1)(a) - M.R.E. 402 - Toxicology report - M.R.E. 803(6) Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts and Fair, JJ. Dissenting Author : Irving, P.J. Concur in Part, Concur in Result 1: Maxwell, J., concurs in part and in the result without separate written opinion Procedural History: Bench Trial Nature of the Case: CRIMINAL - MISDEMEANOR |
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| Trial Court: |
Date of Trial Judgment: 11-06-2009 Appealed from: Madison County Circuit Court Judge: William Agin Disposition: CONVICTED OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCED TO SERVE A SUSPENDED TERM OF FORTY-EIGHT HOURS IN THE CUSTODY OF MADISON COUNTY, MISSISSIPPI, AND TO PAY A FINE OF $900 Case Number: CI2009-0816-C |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Khader Hanna Istiphan |
MINOR F. BUCHANAN |
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| Appellee: | City of Madison | JOHN HEDGLIN | ||
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| Topic: | DUI first offense - Sufficiency of evidence - Section 63-11-30(1)(a) - M.R.E. 402 - Toxicology report - M.R.E. 803(6) |
| Summary of the Facts: | Khader Istiphan was convicted of driving under the influence, first offense. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Istiphan argues that the evidence is insufficient to support his conviction of DUI, first offense, under section 63-11-30(1)(a). Common law DUI can be proven in cases where the ‘defendant's blood-alcohol results are unavailable 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. Here, ample evidence was offered by the City in support of Istiphan’s DUI conviction. The officer testified to the following: he observed Istiphan’s vehicle weaving in the roadway and crossing over the center lane markings; he smelled alcohol emanating from Istiphan’s person and vehicle; Istiphan admitted that he had been drinking; Istiphan exhibited an uncooperative and argumentative demeanor; Istiphan demonstrated coordination impairment when attempting to complete the walk-and-turn test; and Istiphan refused the Intoxilyzer test. Evidence of a defendant's refusal to submit to a breathalyzer test is relevant and admissible under M.R.E. 402. Additionally, a video recording of the traffic stop and the events that occurred in the booking room at the police department was admitted into evidence without objection. Thus, the evidence did not preponderate so heavily against the verdict that allowing the verdict to stand would sanction an unconscionable injustice. Issue 2: Toxicology report Istiphan argues the trial court erred in denying into evidence his toxicology report taken by a medical provider at St. Dominic’s Hospital approximately three hours after his traffic stop. He argues that in accordance with M.R.E. 803(6), he adequately identified the toxicology report and established it as his medical record. At trial, Istiphan presented no testimony, other than his own, in seeking admission of his toxicology report into evidence. Istiphan’s testimony is insufficient to satisfy the requisite predicate as stated in Rule 803(6). Rule 803(6) requires the sponsoring testimony of a “custodian or other qualified witness” that the report was “made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation. . . .” Istiphan, through his testimony, failed to satisfy this burden. The alternative argument made by Istiphan is that his trial counsel rendered ineffective assistance, because his counsel failed to obtain the necessary witness to authenticate the report for admission into evidence. Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings. Pursuant to M.R.A.P. 22, the Court may address an ineffectiveness claim on direct appeal only if the presented issues are based on facts fully apparent from the record. Istiphan’s claim of ineffective assistance of counsel would be more appropriately raised in a motion for post-conviction relief. |
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