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MARCH 01, 1989




Larry Anthony Whitehurst was convicted by jury in the Circuit Court of Tate County of culpably negligent manslaughter pursuant to Miss. Code Ann., 97-3-47 (1972). Whitehurst was sentenced by the court to serve a term of twelve (12) years in the custody of the Mississippi Department of Corrections. Whitehurst has appealed to this Court assigning the following as error:

1. The trial court committed reversible error in denying Appellant's Motion in Limine and then therefore allowing the results of a blood test administered to defendant while he was unconscious to be admitted into evidence;

 2. The trial court committed reversible error in allowing into evidence irrelevant evidence, to-wit: test results of a blood test performed on blood removed from the body of Ronald Wallace, deceased;

 3. The trial court committed reversible error in refusing to permit recross-examination of State witness Smiley;

 4. The trial court committed reversible error in failing to grant Whitehurst's proposed Jury Instruction D-9, a lesser included offense Instruction;

 5. The trial court erred in failing to grant Whitehurst's proposed Instruction D-10;

 6. The trial court erred in failing to direct a verdict of acquittal made at the conclusion of the State's case: and

 7. The trial court erred in failing to sustain Whitehurst's Motion for JNOV/New Trial.

 Whitehurst was involved in an automobile wreck on the night of March 29, 1986, on State Highway #305 in Tate County, Mississippi, which resulted in the death of Ronald B. Wallace, and in serious injury to Whitehurst. Whitehurst was traveling south on Highway #305, and Wallace was traveling north. The accident was a head-on collision in the northbound lane.

 It appears that on the morning of March 29, 1986, (around 10:00 a.m.) Whitehurst went to the house of Kevin Stull, and they drove to Coldwater and Independence, Mississippi, around noon that day. The two then proceeded to Byhalia, Mississippi, for a day at the races, and on the way they purchased and consumed a 12 pack of beer. After staying at the races a few hours, visiting with friends, Whitehurst and Stull returned to Stull's house. On the way they purchased another 12 pack of beer, but Stull testified that they" never even got into it, "and that it remained in a cooler in the trunk of the car.

 Back at Stull's house, Stull's wife announced that their baby girl was sick and needed medical attention. Thereupon, Stull and his wife proceeded to the hospital, and Whitehurst began his fateful journey home, some time around 6:30 to 7:00 p.m., southbound on State Highway #305.

 John Hurt was traveling south on Highway #305 that same evening. He apparently was ahead of Whitehurst because he met Mr. Wallace going north, and seconds afterward, he heard but did not see the collision behind him. Hurt testified that the Wallace vehicle appeared to be traveling within the 55 mile per hour speed limit, and was not being erratically driven.

 Walter Durdin was also traveling on Highway #305 that night, in the northbound lane. Durdin was an eyewitness to the crash. The events he described revealed a car following about 200 feet behind him (the Wallace car) traveling north at approximately 50 to 55 miles per hour, and two cars were approaching from the south. As the first southbound car passed Durdin (at approximately 55 miles per hour), the second southbound car (Whitehurst) closed quickly on the first car. Just as the Whitehurst car passed Durdin, it moved quickly into the left, or northbound lane, in an attempt to pass the first southbound car. Durdin estimated the Whitehurst vehicle's passing speed at approximately 70 miles per

 hour, and before the Whitehurst vehicle could overtake its target, it collided headon with the Wallace vehicle which had been following approximately 200 feet behind Durdin in the northbound lane of Highway #305.

 Whitehurst's vehicle came to rest about 30 to 33 feet south of the point of impact, which was the northbound lane, and Wallace's car came to rest about 37 to 40 feet from the point of impact. There were no skid marks, but there were gouge marks in the pavement indicating the point of impact. Further, this section of Highway #305 where the accident occurred was flat, and on the night in question, the road surface was dry and there was nothing to impede visibility.

 Office Jeff McNeese of the Mississippi Highway Safety Patrol was the first officer to arrive on the scene, and he observed six beer cans in the passenger compartment of the Whitehurst vehicle, and three more in the trunk. Of the six, three had been opened and emptied, and three others were closed, but had been punctured. As stated earlier, it was Stull's testimony that there was a full twelve pack in the trunk that had been untouched. McNeese testified that he detected the presence of alcohol on Whitehurst, but he also stated that the odor of beer could have been attributable to the punctured cans. Wallace was pronounced dead at the scene, and Whitehurst was semi-conscious at best.

 Based on these observations, Officer McNeese directed a blood sample to be taken from Whitehurst at the hospital in order to determine his blood alcohol content. McNeese also requested a blood sample from the deceased as a matter of department policy. Before a blood sample is taken, an implied consent form is usually read to the person to be tested informing him of his rights and the consequences of a refusal to be tested, but that was not done in this case because Whitehurst was not conscious enough to comprehend his rights.

 At trial, the results of both tests were admitted into evidence. The tests on Whitehurst showed that his blood alcohol content was .20 percent, .10 percent being the legal limit under the implied consent law.

 In Whitehurst's behalf, several people who saw him earlier in the day at the Byhalia race track testified that he appeared normal. In their opinion, Larry Whitehurst was not drunk when he left the races with Stull that afternoon, some time around 6:00 p.m. Whitehurst

 testified in his own behalf that he had six beers to drink all day, and was not drunk when he left Stull's house that night. Further, he only remembered driving down the road listening to his radio, hearing a pop, and waking up four days later in a Memphis Hospital.



 It is undisputed that Whitehurst did not consent to either the taking or use of the blood alcohol content test. The test was taken pursuant to Mississippi Code Annotated, 63-11-7 (1972). That section authorizes the taking of a blood test to determine the blood alcohol content of a person who is" unconscious or dead as a result of an accident, . . . or is otherwise in a condition rendering him incapable of refusal . . . if the arresting officer has reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways, public roads and streets of this state while under the influence of intoxicating liquor. "

 That section also provides that" [t]he results of such test or tests, however, shall not be used in evidence against such person in any court . . . without the consent of the person so tested, or, if deceased, such person's legal representative. "Whitehurst filed a Motion in Limine to exclude the test results on the basis of the exclusionary privilege provided by Section 63-11-7. After argument outside the jury's presence, the trial judge overruled the defendant's motion. Whitehurst appeals that ruling, and relies exclusively on the language in Section 63-11-7.

 The State argues in support of the trial judge, who held that the evidentiary exclusion contained in Section 63-11-7 is inconsistent with the Mississippi Rules of Evidence, and is therefore, repealed pursuant to M.R.E. 1103. See also, M.R.E. 501.

 Whitehurst concedes that the sole issue here is whether the results were, by statute, inadmissible. He raises no issue of whether there was probable cause to have sought the blood alcohol test, or whether a procurement of the blood sample offended any of his constitutional guarantees. It does not appear from the

 record whether Whitehurst was under arrest at the time of the blood testing, or whether a formal arrest followed contemporaneously, but the absence or presence of a formal arrest is of insufficient moment because even a pre-arrest, warrantless blood test is constitutionally permissible. See Whitley v. State, 511 So. 2d 929 (Miss. 1987); Gibson v. State, 503 So. 2d 230 (Miss. 1987); Cole v. State, 493 So. 2d 1333 (Miss. 1986); Williams v. State, 434 So. 2d 1340 (Miss. 1983); Ashley v. State, 423 So. 2d 1311 (Miss. 1982); McCrory v. State, 342 So. 2d 897 (Miss. 1977); Cupp v. Murphy, 412 U.S. 291, 93 S. Ct. 2000, 36 L.Ed.2d 900 (1973); Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L.Ed.2d 908 (1966); Breithaupt v. Abram, 352 U.S. 432, 77 S. Ct. 408, 1 L.Ed.2d 448 (1957).

 The sole question is whether the prohibition in Section 63-11-7 governs the admissibility of the test results, notwithstanding that the search and seizure of the blood sample did not violate any of the constitutional guarantees accorded Whitehurst. While previous cases from this Court have admitted the results of a blood alcohol test performed on a defendant, those cases did not involve an application of the exclusion in Section 63-11-7 because the blood test in those cases was not taken from an unconscious or functionally unconscious person pursuant to Section 63-11-7. See, e.g., Whitley v. State, supra; Gibson v. State, supra; Cutchens v. State, 310 So. 2d 273, 276 (Miss. 1975). Therefore, this is the first case to squarely confront the application of the privilege created by Section 63-11-7.

 Under the Mississippi Rules of Evidence, it is clear that the test results are admissible. Under Rule 401, the blood alcohol content of the defendant goes to the state of the defendant's intoxication, and this is relevant and probative on the issue of whether the defendant is guilty of criminally culpable negligence. Gibson, 503 So. 2d at 233. Of course, being intoxicated does not create a prima facie case of culpably negligent manslaughter, but being under the influence is certainly a factor if it can be further established that the intoxication proximately contributed both to the establishment of negligence and to the resulting death. Gibson, supra: Stever v. State, 503 So. 2d 227, 229 (Miss. 1987); Dickerson v. State, 441 So. 2d 536, 539 (Miss. 1983). Thus, unless excluded by Rule 403, the evidence was relevant and admissible.

 As for Rule 403, the jury was properly instructed that proof of intoxication alone does not constitute manslaughter by culpable ...

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