BEFORE ROY NOBLE LEE, DAN LEE and GRIFFIN
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
William P. Whitley was indicted, tried and convicted in the Circuit Court of Jackson County on two counts of manslaughter by culpable negligence. The lower court sentenced him to twenty (20) years on each count in the custody of the Mississippi Department of Corrections, the sentences to run concurrently. Whitley has appealed to this Court and assigns three errors in the trial below.
The evidence reflects that on July 4, 1982, appellant was involved in an automobile accident on U.S. Highway 90 in Jackson County, which resulted in the death of John Green, Sr. and his three-year-old son John Green, Jr.
In the area of the collision, U.S. Highway 90 is a four-laned east-west highway divided by a median of grass approximately 15-20 feet in width. Appellant, travelling without passengers, drove his automobile a distance of at least one-half (1/2) mile eastward in the west-bound lanes of the highway and struck an automobile head-on, which was driven by John Green, Sr., and occupied by his wife, and two small children. The point of impact occurred seven (7) feet south of the north curb of the westbound lanes, at approximately 3 p.m. on a Sunday and at a point where the highway is flat and straight for many miles. According to Mrs. Toni Green, the wife and mother of the two victims, Mr. Green was driving, she was sitting on the front seat and her two children in the rear seat; they were heading west in the right-hand or slow lane, following a pickup truck at a rate of 45 mph when the truck suddenly swerved from its course, in order to avoid colliding head-on with appellant's car, which was bearing down on them head-on; and the accident occurred an instant after the truck swerved out of its path.
James Sellers, who was a passenger in an eastbound automobile, travelling in its proper lane, testified that he saw appellant exit the Hy-Tymes Lounge parking lot located on the north side of Highway 90, approximately eight-tenths (8/10) of a mile west of the accident; that the automobile turned left, heading east in the westbound lanes of traffic; that Sellers and the driver of the car he was travelling in began to blow the horn, wave and yell at appellant from across the median in an effort to attract his attention; that appellant turned his head in their direction for a few seconds, but continued east in the westbound lanes; and that, after seeing a few cars manage to get by appellant, he looked forward and suddenly" heard horns blow and then a crash "and saw both automobiles sliding off the road.
Officer Joseph Gazzo, Mississippi Highway Patrol, arrived on the scene, hurried to appellant's car to check on appellant's condition, smelled the odor of alcohol and saw several beer cans and a whisky bottle on the floorboard. After completion of the investigation, appellant was informed at the hospital that he was being charged with two counts of manslaughter, appellant was read his rights, and his consent for a blood sample was requested. Officer Gazzo testified that appellant signed the release form for the blood sample, but it was missing at the time of trial. Officer Albert Santa Cruz testified that appellant was belligerent and slurred his speech when talking, and that appellant signed the consent form to take a blood sample.
Larry Orgill and Bruce Hoyt, lab technicians at Ocean Springs Hospital, testified that appellant was very uncooperative and unsuccessfully resisted their efforts to procure a blood sample. The lab technician at Singing River Hospital, who performed the test on the blood sample, testified that appellant's blood alcohol content was .29. Dr. Dewey Lane testified for the State that a .30 blood alcohol content in an experienced drinker would leave him in a stupor with greatly diminished capacity, both mental and physical.
I. THE LOWER COURT ERRED IN ADMITTING EVIDENCE RELATING TO APPELLANT'S BLOOD ALCOHOL TEST.
The appellant filed motions in limine to suppress the blood alcohol test performed on him. He argues that the evidence indicates he was unable to consent to the test; that the evidence was inadmissible under Mississippi Code Annotated 63-11-7 (1972), and constituted reversible error. He refers to his lack of cooperation and belligerency in the emergency room of the Ocean Springs Hospital as indicating that he was in a condition rendering him incapable of refusal.
Investigating Officer Santa Cruz informed appellant at the hospital that he was being charged with two counts of manslaughter as a result of the collision. Without question, there was overwhelming evidence that the officers had probable cause to arrest appellant, and to charge him with the crimes of manslaughter. In Ashley v. State, 423 So.2d 1311 (Miss. 1983), this Court said:
We find appellant had not been lawfully arrested when his blood was withdrawn for testing. However, our examination of the facts must not stop
here. We must determine whether Officer Santacruz had probable cause to detain appellant and order a blood test after he went to the hospital. The facts in possession of the officer at that time were that Ashley was driving an automobile which had run into the rear end of another automobile which was stopped at a traffic signal, that an occupant of the stopped automobile had been killed in the accident, and in the opinion of the officer appellant was intoxicated. Under these facts the officer could then have arrested appellant on a charge of manslaughter and required appellant to submit to a test to determine the alcoholic content of his blood. At that time there existed probable cause for arrest and also probable cause to search appellant by requiring him to submit to the withdrawal of blood from his body to be tested.
Ashley, 423 So.2d at 1313. See also Williams v. State, 434 So. 2d 1340 (Miss. 1983); Bayes v. State, 420 So.2d 1050, 1052-53 (Miss. 1982); and Gregg ...