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Burke v. State

Court of Appeals of Mississippi

April 24, 2018

JAMES BURKE A/K/A JAMES CLINTON BURKE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 01/11/2017

          RANKIN COUNTY CIRCUIT COURT HON. STEVE S. RATCLIFF III JUDGE

          ATTORNEY FOR APPELLANT: V.W. CARMODY JR.

          ATTORNEY FOR APPELLEE: DAVID RINGER

          BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.

          WESTBROOKS, J.

         ¶1. James Burke pleaded no contest to a charge for driving under the influence (DUI). Burke appealed the municipal court's judgment of conviction to the Rankin County Court. The county court found Burke guilty of the DUI charge - his first offense for DUI. Burke filed a motion to reconsider, and the county court denied that motion. Burke appealed the county court's decision to the Rankin County Circuit Court, and the court affirmed Burke's conviction. Aggrieved, Burke now appeals. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On October 4, 2011, Burke was involved in a single-car accident. The vehicle became engulfed in flames while Burke was still inside and passed out. Two civilians stopped to assist getting Burke out of the burning truck. Sergeant Tony Bunkley of the Florence Police Department arrived first at the scene and joined the civilians' rescue effort. Officer Jason Goad arrived on the scene in time to help Bunkley and the two civilians pull Burke out of the burning vehicle. Goad testified that when he grabbed Burke to pull him out, Goad smelled a pungent odor of alcohol on Burke's person.

         ¶3. Bunkley attempted to speak with Burke after retrieving him from the vehicle and noticed that Burke was swaying. Bunkley asked Burke for his location prior to the accident, and Burke responded that he was coming from a local bar. Bunkley smelled the odor of alcohol on Burke's breath and noticed that his speech was slurred. Bunkley also observed that Burke's eyes were glassy, and his pupils were dilated. Bunkley began to believe that Burke was intoxicated.

         ¶4. According to Bunkley, he did not perform a field-sobriety test because of the injuries Burke sustained in the crash. Burke was taken to the hospital, where he refused to consent to blood testing. Bunkley went to the hospital and spoke with Burke. Burke admitted that he was a recovering drug-addict and alcoholic and just had relapsed. According to Bunkley, Burke also admitted to having a beer at the bar.

         ¶5. As a result of the circumstances surrounding Burke's accident, Bunkley believed that Burke was driving under the influence of alcohol. Bunkley arrested Burke and charged him with DUI. Burke pleaded no contest before the municipal court. He then appealed to the county court for de novo proceedings. After a trial, the county court also found Burke guilty of the DUI charge. Burke then appealed to the circuit court, which affirmed the trial court's decision.

         ¶6. During trial, Bunkley testified that in his experience as a law enforcement officer, he believed Burke was intoxicated. Bunkley also testified that the two civilians who assisted with removing Burke from his truck stated that they noticed Burke weaving on the highway in front of them, and when they saw the truck again, it was toppled and on fire.

         ¶7. Additionally, Burke tendered Dr. Jimmie Valentine as an expert witness in the area of pharmacology and toxicology, as well as an expert in concussions. The State only objected to Dr. Valentine's qualification as an expert on the effect of concussions. The basis for the State's objection to Dr. Valentine's opinion on the subject of concussions was his testimony during ...


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