Smith v. State
| Docket Number: | 2010-KA-01123-COA Linked Case(s): 2010-KA-01123-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-20-2012 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Felony DUI - Sufficiency of indictment - Section 63-11-30(1)(c) - Sufficiency of evidence - Section 63-11-30(2)(c) - Prior DUI offenses - Admissibility of statements - Reopening case Judge(s) Concurring: Irving, P.J., Carlton and Fair, JJ. Dissenting Author : Barnes, J. Dissent Joined By : Lee, C.J., Griffis, P.J., Ishee and Russell, JJ. Concurs in Result Only: Maxwell, J., concurs in result only without separate written opinion Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 07-08-2010 Appealed from: Neshoba County Circuit Court Judge: Marcus D. Gordon Disposition: CONVICTED OF FELONY DRIVING UNDER THE INFLUENCE AND SENTENCED TO TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS Case Number: 10-CR-044-NS-G |
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| Party Name: | Attorney Name: | |||
| Appellant: | Rachel Ryals Smith |
EDMUND J. PHILLIPS JR. |
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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: | Felony DUI - Sufficiency of indictment - Section 63-11-30(1)(c) - Sufficiency of evidence - Section 63-11-30(2)(c) - Prior DUI offenses - Admissibility of statements - Reopening case |
| Summary of the Facts: | Rachel Smith was convicted of felony driving under the influence. The circuit court sentenced Smith to two years and fined her $2,000. She appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of indictment Smith argues that the indictment is defective in that it charges her with having .08% “weight volume of alcohol in her blood.” Noting that the Mississippi statute regarding DUI references “alcohol concentration” rather than “weight volume,” Smith argues that she could not understand what the indictment charged. An indictment is legally sufficient if the accused is given fair notice of the charge he faces from a reading of the indictment as a whole. The indictment against Smith charged her with operating a motor vehicle while “having eight one-hundredths percent (.08%) or more by weight volume of alcohol in her blood.” Section 63-11-30(1)(c) states that it is “unlawful for any person to drive or otherwise operate a vehicle within this state” if that person “has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law.” The indictment against Smith stated that she was charged with violating section 63-11-30(1)(c). Section 63-11-30(1)(c) includes the phrase “alcohol content” rather than “weight volume.” Accordingly, the indictment against Smith included sufficient information to place her on notice regarding the charge she faced. Issue 2: Sufficiency of evidence Smith argues that there was insufficient evidence to convict her of felony DUI because the prosecution did not demonstrate that she had been convicted of two prior DUI offenses within five years of her most recent DUI conviction. Section 63-11-30(2)(c) requires that the offenses must have been committed within a period of five years of each other, not the convictions. Evidence of both the date the offense was committed, normally the date of the arrest, and that the arrest/offense resulted in a conviction are necessary to sustain a conviction under section 63–11–30(2)(c). The prosecution submitted two documents into the evidence. Exhibit S-5 was a certified copy of Smith’s judgment of DUI conviction, which was described as her second DUI offense, in the Kosciusko municipal court. Smith committed that offense on April 5, 2004. Exhibit S-6 was a certified copy of a judgment of conviction for Smith’s previous felony DUI offense. Smith pled guilty before the Attala County Circuit Court on August 31, 2006. Smith’s trial attorney never challenged the adequacy of Exhibits S-5 and S-6. Without objection from Smith’s trial attorney, the prosecutor successfully submitted jury instruction S-1 which stated that “if you believe from the evidence in this case beyond a reasonable doubt that . . . Smith . . . did willfully, unlawfully[,] and feloniously operate a motor vehicle while under the influence of intoxicating liquor . . . at a time when [she] . . . previously had been twice convicted and sentenced within five (5) years under the same statute, then it is your duty to find [Smith] guilty as charged.” Smith’s trial attorney did not object to the misstatement of law in jury instruction S-1. It is inappropriate to analyze this issue as plain error – thereby raising the issue on Smith’s behalf sua sponte when her trial attorney never raised it in the circuit court and her appellate attorney never raised it here. There is no merit to this issue. Issue 3: Admissibility of statements Smith argues the circuit court erred when it allowed the state trooper to testify regarding her responses to his initial questions. According to Smith, her responses were inadmissible because the trooper had not informed her of her Miranda rights. In a non-custodial setting where interrogation is investigatory in nature (general on-the-scene-investigation), Miranda warnings are not required in order that a defendant's statements be admissible. The key to determining if the questioning of a person is a custodial interrogation within the meaning of Miranda is whether the defendant is deprived of his freedom of action in any significant manner and whether he is aware of such restraint. Smith was not under arrest when the trooper asked her whether she had been drinking. The trooper did not arrest Smith until after he had determined that she had been driving under the influence of alcohol. Thus, there is no merit to this issue. Issue 4: Reopening case After the prosecution announced that it was resting its case-in-chief, Smith moved for a directed verdict on the basis that the prosecution had not presented evidence that Smith had two prior convictions for DUI. The circuit court asked the prosecution to respond and then allowed the prosecution to reopen its case. Smith argues this was error. Trial courts must not allow the state to reopen its case unless there is mere inadvertence or some other compelling circumstance and no substantial prejudice will result. It is clear that the prosecutor’s failure to introduce evidence of Smith’s two prior DUI offenses was due to mere inadvertence in the form of a misunderstanding of the circuit court’s instructions. Although the circuit court’s decision arguably resulted in Smith’s conviction for felony DUI rather than a misdemeanor offense, Smith did not suffer substantial prejudice as a result of the circuit court’s decision to allow the prosecution to reopen its case-in-chief. Obviously, Smith’s trial attorney was prepared to defend Smith on a felony DUI charge which required the prosecution to prove two or more arrests and convictions for DUI. |
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