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Prince v. State

Court of Appeals of Mississippi

May 23, 2017

BRETT PRINCE A/K/A BRETT M. PRINCE A/K/A BRETT MATTHEW PRINCE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 10/29/2015

         HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. JEFF WEILL SR. TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: KEVIN DALE CAMP JARED KEITH TOMLINSON

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD

          DISTRICT ATTORNEY: ROBERT SHULER SMITH

          BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.

          ISHEE, J.

         ¶1. Brett Prince was convicted in the First Judicial District of the Hinds County Circuit Court of five counts of aggravated driving under the influence (DUI) in violation of Mississippi Code Annotated section 63-11-30(5) (Rev. 2013). These convictions stemmed from an automobile accident in which Prince struck the Salas family vehicle at a high rate of speed, causing a death and other severe injuries. The jury found that Prince operated his vehicle while under the influence of alcohol, with a blood-alcohol concentration (BAC) over the legal limit of 0.08%, and that he was the cause of both the resulting death and serious bodily injuries. As a result, Prince was sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections (MDOC) for Count I, five years each for Counts II and III, and twenty years each for Counts IV and V, with the sentence for Count I to run consecutively to the sentence for Count II, and concurrently with the sentences for Counts III-V, totaling a term of thirty years' imprisonment.

         ¶2. Prince now appeals, asserting that the State failed to present sufficient evidence to prove the requisite elements of the crimes charged, that the verdict was against the weight of the evidence, that the circuit court erred regarding the admission of certain evidence, and that the court erred in denying proposed jury instruction D-3. Finding no error, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶3. On June 15, 2013, Prince collided with the Salas family's vehicle after running a red light at the intersection of Springridge Road and Highway 18. Prince struck the Salas vehicle-occupied by Michael, his wife, and their four children-at an excessive rate of speed; there was dispute at trial among the accident-reconstruction experts regarding Prince's exact speed. Michael testified as to his family's injuries. He sustained a broken hip and broken ribs, while the Salases' youngest son died at the scene. In addition, one of the children suffered paralysis of his right side, is now bound to a wheelchair, and suffers brain damage, delayed speech, inability to communicate, and loss of vision. Another Salas child suffered paralysis in her left arm and injuries that left permanent scarring on her face. The last child suffered a neck injury.

         ¶4. Trooper James Gray of the Mississippi Highway Patrol responded to the scene of the accident. When he arrived, Gray observed the Salases' tan SUV in the median, and Prince's Ford pickup truck located just east of the SUV. Gray noticed that the airbags had been deployed in Prince's vehicle, and that beer cans were found in and around the SUV driven by Michael; officers found a cooler full of alcoholic beverages in the bed of Prince's truck.

         ¶5. Witnesses to the collision testified to the events that took place. One witness, Jerrica Davis, stated that prior to the accident, Prince approached her vehicle from the rear, driving in an erratic manner, and caused her and others' vehicles to veer off the road. Davis stated that she then attempted to record Prince's license-plate number to report to authorities. Unable to catch up with Prince, however, Davis testified that she realized she would be able to get Prince's tag number at the red light they were approaching. But Davis observed that Prince was not slowing, and subsequently ran the red light, causing the ensuing collision. Following the wreck, multiple witnesses offered aid. Of those witnesses that assisted Prince, one witness testified that beer cans poured out of his truck when he opened the door and that he reeked of alcohol. Another witness stated that beer cans were flung out the truck's cab during the course of the collision.

         ¶6. Shortly after Gray appeared on scene, Trooper Maurice Kennedy of the Mississippi Department of Public Safety arrived to assist. Kennedy stated that he arrived at approximately 6:19 p.m., and that at that time, Prince was already handcuffed and seated in the back of a Hinds County Sheriffs Office patrol car. Kennedy stated that he observed Prince for forty-one minutes, which began at 6:35 p.m. Photographs at the scene, however, showed that Kennedy was outside of Prince's presence at 6:37 p.m., 6:46 p.m., 6:47 p.m., and 6:53 p.m. Nonetheless, Kennedy opined that Prince appeared to be intoxicated based upon Prince's slurred speech, glazed-red eyes, his emanating of an alcoholic odor, and his admission to Kennedy that he had been drinking. Following these observations, Kennedy elected to conduct a breathalyzer test at the scene, utilizing a portable "Intoxilyzer 8000." Kennedy began the breath test at 7:16 p.m., with the first breath sample being taken at 7:23 p.m. The results of the breathalyzer test indicated Prince possessed a BAC of .199%.

         ¶7. On September 28, 2015, trial commenced, and Prince was convicted by a jury of five counts of aggravated DUI in violation of Mississippi Code Annotated section 63-11-30(5). Prince moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The circuit court denied his motion. Prince now appeals.

         DISCUSSION

         I. The circuit court did not err by admitting into evidence the results of the Intoxilyzer 8000.

         ¶8. Before a court may admit into evidence the results of a DUI test, the court must first determine that: (1) the proper procedures were followed; (2) the operator of the machine was properly certified to perform the test;[1] and (3) the accuracy of the machine was properly certified. Mcllwain v. State, 700 So.2d 586, 590 (¶18) (Miss. 1997). At trial, Prince sought to exclude the results of his breathalyzer test for two reasons: (1) Kennedy allegedly did not conduct the mandatory twenty-minute observation period before administering the breathalyzer, as required by police procedure; and (2) the State allegedly violated Uniform Rule of Circuit and County Court 9.04 by failing to disclose documents required for the introduction of the Intoxilyzer 8000 results. Upon review of the record, we find no error.

         A. The observation period was proper.

         ¶9. Prince first argues that Kennedy did not perform the mandatory twenty-minute observation period of Prince, and therefore, the results should not have been admitted into evidence-this was the principal theme of his defense throughout trial. "The standard of review regarding the admission or exclusion of evidence is abuse of discretion." Parkman v. State, 108 So. 3d443, 445 (¶5) (Miss. Ct. App. 2012). "Absent an abuse of that discretion, the trial court's decision will not be disturbed on appeal." Id. (quoting McCoy v. State, 820 So.2d 25, 31 (¶15) (Miss. Ct. App. 2002)).

         ¶10. In Parkman, this Court reaffirmed the principles set forth in the seminal case of Hudspeth v. State, 28 So.3d 600 (Miss. Ct. App. 2009), and stated:

Mississippi Code Annotated section 63-1 l-5(1)(c) (Rev. 2004) states that "[n]o such tests shall be given by any officer or any agency to any person within fifteen (15) minutes of consumption of any substance by mouth." However, a twenty-minute observation period is required under the Mississippi Department of Public Safety's guidelines ...

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