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FEBRUARY 27, 1989




This appeal presents the question of whether the trial judge abused his discretion in excluding a witness' testimony concerning a state's exhibit, where defense counsel had allowed the witness to enter the courtroom and view the exhibit during a recess in the trial. Because we find that the trial judge did abuse his discretion in excluding testimony of the witness, we reverse and remand for a new trial.


 On the evening of March 2, 1985, John R. Walker, a financial consultant with a law degree and a Ph.D. degree in clinical psychology, was driving south on Highway 15 from Louin, Mississippi,

 en route to Laurel. Dr. Walker was accompanied by his wife Mary and their teenaged son. At approximately 6:00-6:15 p. m. (around dusk) Walker approached the intersection of Highway 15 and Tally Road. When about one-fourth mile north of the intersection, Walker noticed a small Pinto automobile traveling east on Tally Road and approaching the intersection of Highway 15. Walker blinked his headlights so as to alert the driver of the Pinto to his presence, and the Pinto proceeded slowly into Highway 15 and headed north. For a long distance south of the Tally Road intersection, Highway 15, a two-lane highway, is a straight stretch of road. Immediately south of the Tally Road intersection, however, Highway 15 rises into a steep hill which crests at a distance of approximately 259 feet from the intersection. A driver headed north on Highway 15 cannot see the intersection until he reaches the crest of the hill. Immediately after the Pinto pulled out into Highway 15, a 1976 Oldsmobile came over the hill from the south. Walker estimated the Oldsmobile's speed at about 60 m.p.h. The driver of the Oldsmobile, apparently realizing that the Pinto was going very slowly, put his lights on bright, turned on his left signal blinker, and moved into the southbound lane to go around the Pinto. The driver of the Pinto then pulled over into the southbound lane in front of the Oldsmobile. The driver of the Oldsmobile then tried to get back into the northbound lane, but the driver of the Pinto also started moving back into the northbound lane. At this point, the Oldsmobile collided with the Pinto. Both the Pinto and the Oldsmobile left the highway. The driver of the Pinto, 22-year-old Dorothy A. (Lisa) Tally, was thrown from her car and died instantly. In the meantime, Walker had pulled off the road in an attempt to give the Oldsmobile room to go around the Pinto.

 After the collision, Walker got out of his car and approached the car closest to him, the Oldsmobile, which was driven by the defendant, 34-year-old Carl Moffett. According to Walker, Moffett got out of the car holding his arms. When Walker asked Moffett if he was all right, Moffett replied that his arms were hurting. Then Walker checked the Pinto and discovered that its driver was not in the car. After looking for the driver, with no success, Walker went to Tally's store in Louin to make sure that a passerby had called for help as requested. Walker's wife and son stayed at the scene of the accident. According to Moffett, during this time he searched for the driver of the Pinto, and, finding her body, he took her pulse. Then he went to the top of the hill and started flagging traffic.

 Durwood Dyess, a resident of Louin, was traveling south on Highway 15 that evening and came upon the scene of the accident, apparently while Dr. Walker was gone. He told Moffett that he would go up to" Mr. [Russell] Tally's "and get him to call an

 ambulance and fire truck. He did so, and after Tally made the call, Tally accompanied Dyess back to the accident scene. As the two men crossed the road with a fire extinguisher, Tally spotted the Pinto and said," I believe that's my daughter's car. "

 Marvin Lewis, a 23-year employee of the Mississippi Highway Patrol, arrived on the scene at about 6:45 p. m. Lewis spotted Carl Moffett standing near the wrecked cars and asked Moffett who had been driving the Oldsmobile and Moffett answered," I was. "Lewis took Moffett's drivers license and asked Moffett:" Have you been drinking? "Moffett responded," Yes, sir, I had two beers. "According to Lewis, he then arrested Moffett and put him in the back seat of Lewis' patrol car, where Moffett remained for approximately an hour while Lewis cleared the accident scene. According to Moffett, Lewis told him," Don't get no blood on my seat. "

 At approximately 7:45 p. m., Lewis took Moffett to the sheriff's office in Bay Springs where Officer Thomas Boyd of the Bay Springs Police Department administered an intoxilizer test at 8:08 p. m. By this time, almost two hours had elapsed since the accident. The test revealed a blood alcohol level of 0.16%. (A level of 0.10% or higher will support a charge of driving under the influence of intoxicating liquor. See Miss. Code Ann. 63-11-30 [Supp. 1988].) Moffett was charged under Miss. Code Ann. 97-3-47 with the crime of culpable negligence manslaughter.

 Moffett's trial began on May 26, 1986. Venue was moved from Jasper to Covington County. At the beginning of trial, defense counsel asked that the record reflect that the deceased, Lisa Tally, was white and that the defendant is black. Although there were some questions raised about the prosecutor's use of his peremptory strikes to eliminate black jurors, this issue was apparently resolved, the record reflecting that one black juror was accepted by the prosecutor.

 One of the witnesses called by the state was Staff Sgt. Donald W. Rawson of the Mississippi Highway Patrol. Sgt. Rawson, a specialist in accident reconstruction, testified as to his conclusions regarding the accident. Sgt. Rawson concluded that the vehicle driven by Moffett was traveling at a speed not less than 66 miles per hour when it began to lay skid marks on the road and not less than 59 miles per hour at the point of contact with the Pinto. (The speed limit in that area of Highway 15 was 55 m.p.h.) He concluded that at the point of impact Moffett's car was canted slightly to the west and the Pinto was mostly in the northbound lane with the left rear of the vehicle across the center line into the southbound lane. He testified that the right front of Moffett's Oldsmobile struck the right rear corner of the Pinto. Sgt. Rawson also concluded that the Pinto was

 traveling at 19 miles per hour at the time of the collision. The point of impact was 60 feet north of the north edge of Tally Road. Sgt. Rawson testified that there is a road sign on Highway 15, south of Tally Road, warning northbound motorists of a crossing over the hill. On Cross examination, Sgt. Rawson stated that in his opinion the scene of the accident did not reveal anything inconsistent with the theory that Moffett came over the hill, saw the vehicle of the deceased and tried to avoid her, and that she then pulled over into the other lane in front of him.

 The state also called as an expert witness Dr. Thomas Bennett, who was the state medical examiner at that time. Dr. Bennett testified that because the human body metabolizes alcohol, decreasing the body's blood alcohol content at the rate of 0.02% per hour (as long as no additional alcohol is consumed), the intoxilizer test result of 0.16% would indicate that Moffett's blood alcohol content was approximately 0.20% two hours earlier, when the accident occurred. According to Dr. Bennett, a person with a blood alcohol content of 0.20% would have dilated pupils, his tongue would be thick, and his speech would be slurred. He would have trouble walking because his balance would be impaired.

 Testifying in his own defense, Moffett stated that he had drunk two beers at around 12:30 or 1:00 p. m. the day of the accident. He stated that he drank nothing else before the accident occurred. He stated, however, that during the time he was in the back of patrolman Lewis' car, his stepfather, Willie Musgrove, came to the scene of the accident and, seeing that Moffett was in pain from the injured arm, offered Moffett some whiskey. Moffett stated that Lewis had not told him at that time that he was under arrest, but had only told him to sit in the police car. So, when Musgrove offered him the whiskey, he drank it. (Musgrove had died by the time this case went to trial; however, Otis Hardy, Jr., Moffett's brother-in-law, testified that he saw Musgrove slip a half pint of whiskey to Moffett through the window of the patrol car.)

 There was no testimony whatsoever that, following the collision, Moffett exhibited any of the characteristics described by Dr. Bennett as typical for a person having a blood alcohol content of 0.20%. To the contrary, several witnesses, including Dr. Walker and other witnesses called by the state, testified that they talked with Moffett and observed his behavior after the collision, and they neither smelled alcohol on him nor saw any indication that he was under the influence of alcohol.

 The jury found Carl Moffett guilty of culpable negligence manslaughter, and he was sentenced to 15 years in the custody of the Mississippi ...

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