Before Pittman, P.j., Banks And Waller, JJ.
The opinion of the court was delivered by: Pittman, Presiding Justice
CORWIN TURNER a/k/a CORKY TURNER v. STATE OF MISSISSIPPI
DATE OF JUDGMENT: 09/03/96
TRIAL JUDGE: HON. BARRY W. FORD
COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION AFFIRMED - 8/6/98
MOTION FOR REHEARING FILED:
¶1. Corwin "Corky" Turner was convicted by a jury in the Circuit Court of Lee County on August 22, 1996, of the crime of DUI resulting in death. On September 3, 1996, the trial Judge sentenced Turner to a term of twenty years imprisonment. On September 5, 1996 Turner timely filed his Notice of Appeal after the trial court's denial of his Motion for JNOV or in the alternative for a new trial.
¶2. The record reveals that on the morning of July 2, 1995, Rodney Sheffield and his wife, Sherrie, were traveling on Highway 6 toward Tupelo around 10:30 a.m. when they came upon a green pick-up truck weaving along the highway in such a manner that the Sheffields suspected the driver was impaired. Rodney followed the truck closely enough to take down the license plate number and to observe the three occupants of the truck. Rodney described the driver of the pick-up as having long, shoulder-length hair. He described the person seated in the middle of the pick-up as smaller than the driver. He thought this middle occupant could possibly be a child. Rodney gave no description of the third occupant who was seated in the passenger seat. Rodney testified that July 2, 1995 was a beautiful, clear day. Rodney followed the pick-up truck until it turned right onto Richmond Road, where it almost ran off the road. Rodney stopped at a small grocery store adjacent to Richmond Road where he saw a police car. He reported what he had seen to the officer. Rodney was unable to identify Turner, in court, as the driver of the pick-up truck.
¶3. Sherrie Sheffield, Rodney's wife, also testified at trial. She testified that the driver of the pick-up appeared to be impaired, and that she saw the driver take a drink from a bottle as he drove. Sherrie described the driver as a "white male" with "long hair that was unkempt, real wild-looking." She testified that she could only see the top of the head of the middle occupant, and that she did not remember anything unusual about the passenger side occupant. Sherrie was unable to identify Turner, in court, as the driver of the pick-up truck.
¶4. James Stuard was the officer at the grocery store that the Sheffields spoke to. He was an officer with the Plantersville Police Department. Stuard got into his patrol car and advised the Lee County Sheriff's Department of the situation. The sheriff's department advised Stuard that they had no officers in the area, and asked him to leave his city limits and stop the vehicle. Stuard left in pursuit of the green pick-up truck. He testified that just as he got about four miles out of Plantersville, he saw dust flying in a curve. As he approached, he noticed that the vehicle matched the description given to him by the Sheffields. He also noticed that the green pick-up had collided with another vehicle. Stuard testified that he arrived on the scene of the accident at approximately 10:30 a.m.
¶5. When Stuard arrived the pick-up was lying on the passenger side with the three occupants stacked on top of one another. One person was on bottom which was on the passenger side door, the second person was on top of him, and the third person was on top of the second. The individuals were not able to get out of the truck. Stuard testified that the three individuals in the pick-up were elbowing each other and shoving around. They could move their hands, but not their bodies. He described them as "crammed in like sardines", and stated there was very little room in the cab. The person in the middle of the stack was yelling, "Get off of me, Corky." Stuard described the man with the "scraggly hair and a beard" as being on top of the pile, and closest to the steering wheel. Stuard recognized the individual who was closest to the steering wheel as Corky Turner. Stuard described Turner on that day as having shoulder length hair that was scraggly and unclean looking. He was unable to identify Turner in court saying, "I couldn't recognize him right now. He would have to have his beard and his hair back to the way he had it that day for appearance. I cannot recognize him." Stuard testified that the top of the pick-up had to be cut off in order to remove the three individuals. Stuard noticed several beer cans in the cab and the back of the pick-up, as well as an opened bottle of vodka. When Stuard ran the tag number, he found that the green pick-up belonged to Terry Moore, who was one of the three individuals in the pick-up at the time of the accident.
¶6. Stuard checked on the occupants of the second vehicle and found that the passenger was conscious, but the driver was not. He checked the driver's pulse and found that he did not have one, nor was he breathing. The driver of the second vehicle was Randy West and the passenger was Betty West. Stuard was relieved at the scene as soon as the Lee County Sheriff's Department arrived.
¶7. David Payne, who at the time was the fire chief of the Plantersville Fire Department, went to the scene of the wreck after hearing it reported on his radio. When he arrived at the scene, someone was doing chest compressions on Mr. West. Payne proceeded to the pick-up. He saw three individuals in the pick-up. He described their positions saying that, "there was one halfway in, halfway out, and then there was two on--completely on the inside of it." He described the individual that was halfway out of the truck as partially baldheaded. The one on top of him had darkish hair with a mustache, and the person on top had "long, kind of light-colored hair and kind of a thin beard, kind of long." He had learned the names of the occupants of the truck. Payne testified that Leon was under the truck, Terry was in the middle, and Corky was on top. He stated that Terry kept talking to Corky. He was shouting, "Corky, get off of me." Payne described Corky Turner as being the person closest to the steering wheel. Payne testified that the three individuals could not have rearranged themselves in the truck because they could barely move. Payne was unable to recognize Turner in court. Payne noticed several cans of beer, both full and empty, at the scene as well as an opened bottle of vodka.
¶8. Sherry Riner, a volunteer with the Plantersville fire department, arrived on the scene at approximately 10:30 a.m. She testified that she went to the West's vehicle to help. Mr. West was unresponsive, and someone was performing CPR on him. She assisted with the CPR. When the medics arrived, she went to the pick-up truck where David Payne was working. She noticed that the three occupants of the truck were stacked on top of one another. She did not think that it would have been possible for the individuals to swap positions. She testified that the person on the bottom was bald, the one in the middle had dark hair, and the person on top "was a tall, slender guy, sort of longish hair, scraggly beard, grayish hair..." She also said that the guy in the middle kept calling the one on top of the stack "Corky". The person on top of the stack was closest to the steering wheel. Riner could not identify Turner in court.
¶9. Vicki Westmoreland was a paramedic who responded to the scene at approximately 10:30 a.m. She saw two vehicles. One was off the road and one was turned up on its side. Vicki went to the white car to help out. Other personnel were working on the driver, Mr. West, so Vicki proceeded to the truck to determine if a helicopter or other backup help was needed. Backup was called including a helicopter. Vicki returned to the white car to help with Mr. West. She determined that he had very serious injuries. As emergency personnel worked on him, he died. Vicki then returned to the truck. She described the occupant that was trapped between the truck and the ground as balding. She described the person on top of the stack as having "long, scraggly hair and a beard." The person in the middle had dark hair and a mustache, and was smaller than the other two occupants. The person on top of the stack with the long scraggly hair and beard was closest to the steering wheel. Vicki stepped on a vodka bottle by the truck, and noticed the odor of alcohol from the three people in the truck. She also saw beer cans in the area. Vicki testified that the top of the truck had to be cut off in order to rescue the three occupants. Vicki stated that the three men could move their arms around, but they could not move their bodies. She did not witness any of them swapping positions, and did not think that it would be possible. Vicki learned that the person closest to the steering wheel was named Corky Turner. She was unable to identify Turner in court.
¶10. Tommy Owens was another paramedic at the scene. When he arrived at the pick-up truck, he noticed the positions of the individuals in the truck. He testified that the person on the bottom was bald or slightly bald. He described a black headed person with a black beard as being in the middle. He stated that the person on top was tall and thin with stringy hair and a shaggy beard. The person on top was the closest to the steering wheel. Corky was the person closest to the steering wheel. Owens rode in the ambulance to the hospital with Corky Turner and Terry Moore. Owens asked them if they had been drinking. Turner said that he had and that he was an alcoholic. Owens also asked who had been driving the pick-up. Turner gave no response. Owens testified that the occupants were moving their arms and legs, but not their complete bodies.
¶11. Terry Moore, one of the occupants of the truck, testified at trial. Moore had known Turner for about three and one half years. He identified Turner in court. Moore said that he had never seen Turner without a beard or long hair prior to trial. Moore testified that he was with Turner and Leon Umfress on Sunday, July 2, 1995. Moore testified that on the Wednesday prior to that Sunday, he had gotten off work and had started drinking. On Thursday, he got up and decided not to go to work. He went to Turner's house and picked him up. Then, they picked up Leon Umfress. The three rode around drinking. On Friday, Moore was also with Turner and Umfress. The three men went to Fulton to pick up Moore's paycheck. Afterwards, they went to the bank. Approximately two blocks from the bank, Moore was pulled over by a policeman, and charged with DUI. Moore spent the night in jail. Umfress drove Moore's pick-up home. On Saturday morning, Umfress and his father picked Moore up at the Itawamba County Jail. That afternoon, Moore and Umfress picked up Turner. Moore was driving. Turner did some of the driving on that Saturday afternoon. After picking up Turner, the three proceeded to Dago's store, where Turner cashed his check and bought a case of beer. They left from Dago's and went to Tupelo, where Turner got some groceries. They then stopped at a liquor store where Turner bought a fifth of vodka. Later that afternoon, Turner was driving when the three returned to Dago's to purchase three more cases of beer. Moore testified that he, Umfress, and Turner got drunk that night. He did not recall where they spent the night. On Sunday morning, Moore, Turner, and Umfress went to Moore's home around 6:30 or 7:00 a.m. While there, Moore changed clothes and spoke with his mother. When the three left Moore's home sometime around 7:00 a.m., Moore was driving. From there, he drove to the BP station near his home. Moore bought some gas, cigarettes, and ice. There was beer in the truck so Moore bought the ice to cool it down. When the three left the BP station, Moore was driving. He drove toward Tupelo. The last place Moore remembered being on Sunday morning was at the BP station. Moore, Turner, and Umfress were drinking in the truck. The next thing Moore remembered was waking up right before the wreck. He testified that he was seated in the middle of the truck. When he awoke he saw that they were about to hit the Wests' vehicle, and he reached over and grabbed the steering wheel in an attempt to pull the truck out of the way of the Wests' car. He was not sure whether he had actually turned the steering wheel or not. The next thing Moore remembered was Turner lying on top of him. Moore testified that he asked Turner to raise up so he could get from underneath Turner, but Turner said he could not move. Moore was then taken to the hospital, where he refused consent to allow his blood to be drawn. He testified that he told the nurse that he was not driving and there was no need for her to draw his blood. Moore testified that he did not remember stopping and turning the driving over to Turner. Moore testified that he was not driving when the accident occurred. Moore testified that Turner was the driver. He testified that he is 5'6" or 5'7". Moore testified that on the day of the accident, Turner had long grayish hair and a full beard.
¶12. William Putt was a deputy sheriff with the Lee County Sheriff's Department at the time of the accident. He was called to the scene of the accident and arrived there at approximately 11:27 a.m. Later he went to the hospital to talk to Turner and Moore. Putt asked Turner to consent to a blood test, and Turner refused. At that point, Putt returned to the sheriff's office and started working on getting a search warrant for the blood test of Turner. During that time, the hospital called and said that Turner had agreed to take the blood test. Putt returned to the hospital. He and Gwen Judon went in to talk to Turner. Putt did not remember anyone else being present in the room during this conversation except Turner, Judon, and himself. Putt again asked Turner to consent to the blood test, and Turner consented. Judon then drew Turner's blood. Putt testified that Turner did not sign a consent form. Turner told Putt and Judon that he could not write. He gave verbal consent. The consent form was signed by Putt and Judon. The form stated that "[t]he patient is unable to consent because... states unable to write at this time but given verbal consent." Putt described Turner's appearance at the hospital. He stated that Turner had long, shoulder-length, bushy hair and a beard. Putt was unable to identify Turner in court.
¶13. Sam Howell with the Mississippi Crime Lab testified that he analyzed Turner's blood and that the blood alcohol level was 0.23%.
¶14. Wanda Shumpert, a defense witness, testified that she is a neighbor of Turner's. In the early morning of July 2, 1995, she was outside of her house when Turner, Moore and Umfress drove by. She did not know the other two men, but she knew Turner. She testified that at that time, Turner was seated in the middle of the truck. On cross-examination, Shumpert testified that she saw Turner and the others between 7:00 a.m. and 9:00 a.m. Turner had a beard and his hair was fairly long.
¶15. Amy Linton testified that she is a neighbor of Turner's. On July 2, 1995, between 8:00 a.m. and 9:00 a.m., she saw Turner and two other men that she did not know driving down the road. She testified that Turner was seated in the middle of the truck. Linton testified on cross-examination that she was positive that it was Turner that she saw in the middle because she recognized his beard and long hair.
¶16. John Gardner testified that he knew Turner, Moore, and Umfress. He saw them at the BP station on July 2, 1995 between 7:00 a.m. and 7:15 a.m. Gardner testified that Moore was driving the truck.
¶17. Richard Dobbins testified that he knew Turner. He testified that between 7:00 a.m. and 8:00 a.m. on July 2, 1995, he saw Turner and two other men at Leslie's grocery. Turner was sitting in the middle of the truck.
¶18. Frank Carroll Leslie testified that between 7:00 a.m. and 8:00 a.m., Turner and two other men came to his store. When the vehicle left his store, Turner was seated in the middle.
¶19. Faye Willis testified that she saw Turner and two other men at the R&R Cash and Carry on July 2, 1995 around 9:30 a.m. or 10:00 a.m. Turner was seated in the middle of the truck with the other men on either side of him. The other men were wearing caps.
¶20. Lamon Griggs testified as an expert in accident reconstruction for the defense. He testified that the pick-up was on the wrong side of the road when it collided with the Wests' vehicle. He saw no evidence of anyone jerking the steering wheel to try to avoid impact. Griggs testified that there was plenty of room within the cab of the pick-up for one or two people to move around.
¶21. The State called Nancy Hammond as a rebuttal witness. She testified that she had known Turner all her life. She identified Turner in court. Hammond testified that on July 1, 1995, Turner and Umfress came into her store, Dago's. She described Turner as having a "long, stringy hair, beard down to here, real rough looking." Turner left driving the truck.
¶22. The State also called Doris McCullar on rebuttal. She had known Turner for several years. She identified Turner in court. McCullar was working at Dago's on July 1, 1995 when Turner came in. Turner did not look the same in court as he did on that day. McCullar testified that on July 1, 1995, Turner had a long beard and long hair. When the three men left the store, Turner was driving the truck.
¶23. Turner appeals from the jury verdict convicting him of DUI resulting in death. He assigns as error the following issues for this Court's review:
I. WHETHER SUFFICIENT EVIDENCE WAS PRESENTED TO CONVICT TURNER ON THE INDICTED CHARGE.
II. THE COURT ERRED IN ALLOWING THE INTRODUCTION OF THE BLOOD ALCOHOL REPORT OVER THE OBJECTION OF THE DEFENDANT WHERE THE PROSECUTION DID NOT LAY THE PROPER FOUNDATION FOR INTRODUCTION AND VIOLATIVE OF THE FOURTH AMENDMENT.
III. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR DIRECTED VERDICT, BOTH AT THE CLOSE OF THE STATE'S CASE AND AT THE CLOSE OF THE ENTIRE CASE, AND IN DENYING MOTION FOR JNOV, OR IN THE ALTERNATIVE, A NEW TRIAL.
IV. THE COURT ERRED IN NOT GIVING A CIRCUMSTANTIAL EVIDENCE INSTRUCTION.
V. THE EVIDENCE PRESENTED PROVED TO BE INSUFFICIENT WHERE GREAT RELIANCE WAS PLACED ON THE UNCORROBORATED INCREDIBLE TESTIMONY OF TERRY MOORE.
VI. WHETHER THE TRIAL COURT ERRED IN CHARGING THE JURY TO RESUME DELIBERATIONS ON TWO SEPARATE OCCASIONS WHERE THEY ...