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Solitro v. State

Court of Appeals of Mississippi

May 8, 2018

PASQUALE SOLITRO A/K/A PASCAL SOLITRO APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/01/2017

          JASPER COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT, HON. EDDIE H. BOWEN TRIAL JUDGE

          ATTORNEY FOR APPELLANT: MICHAEL DUANE MITCHELL.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART.

          BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.

          LEE, C.J.

         ¶1. Pasquale Solitro was found guilty of driving under the influence (DUI), first offense, in the Jasper County Justice Court. He appealed his conviction to the Jasper County Circuit Court for a trial de novo. Following a bench trial in the circuit court, Solitro was convicted of common law DUI first offense and was sentenced to two days in jail; fined $1, 000; ordered to attend and complete the Mississippi Alcohol Safety Education Program; and given a 90-day suspension of driving privileges. Finding no arguable issue for appeal, Solitro's appellate counsel filed a brief pursuant to Lindsey v. State, 939 So.2d 743 (Miss. 2005). Solitro was given additional time to file a supplemental brief, which he has not done.

         FACTS AND PROCEDURAL HISTORY

         ¶2. At trial, Mississippi Highway Patrol Trooper Kevin Bentley testified as the only witness on behalf of the State. Trooper Bentley testified that on November 15, 2014, he was dispatched to a wreck on Highway 15 North in Jasper County. When he arrived on the scene, he found a vehicle with significant front-end damage off the road and in the bushes of a private residence's yard. Trooper Bentley encountered a deputy sheriff, who pointed him toward the driver-Solitro. Trooper Bentley testified that when he approached Solitro, he immediately detected the presence of an alcoholic beverage coming from Solitro's person and breath. He also noticed that Solitro had urinated on himself. As he attempted to gather information and question Solitro about what happened, Solitro became belligerent and did not want to answer any questions. Trooper Bentley testified that it was at this point that the disorderly conduct came about, and he realized that Solitro was intoxicated. Subsequently, Trooper Bentley informed Solitro he was under arrest and placed him in handcuffs. Trooper Bentley then went over to the vehicle to examine its condition and noticed there were empty beer cans in the rear of the vehicle and in the passenger-side floorboard. At this time, Solitro attempted to run away, and Trooper Bentley then placed Solitro in the back of the patrol car.

         ¶3. Trooper Bentley testified that Solitro was unable to stand up and even at one point fell down. He stated he did not offer Solitro a field sobriety test and did not recall whether he offered Solitro a portable breath test at the scene. Trooper Bentley then transported Solitro to the county jail to process him, and stated that on the way, Solitro was spitting on him, cursing, and slurring his words. Because of this, Trooper Bentley pulled Solitro's shirt over his head while in the patrol car and took a picture of Solitro which was shown at trial. At the jail, Trooper Bentley offered Solitro the Intoxilizer 8000, which Solitro refused. Trooper Bentley testified he could not recall whether any other law enforcement officers witnessed him offer the Intoxilizer to Solitro and that he did not have a video recording of him offering Solitro the Intoxilizer.

         ¶4. Solitro testified in his own defense. He stated that on the day of the wreck, he was driving to his uncle's house to watch a football game on television, and he had purchased a case of beer, which was in the back seat of the vehicle. Solitro stated that while driving, a couple of deer came out, and he overcorrected, consequently running off the road into the gully. He stated he was knocked out for a few minutes, and when he came to, he was covered with beer which had come forward from the back seat and exploded on impact. He stated he had not been drinking. He also stated that he suffered a concussion. Though offered, Solitro did not receive any medical attention at the scene. He did go to the doctor seven or eight days later with complaints of headaches, where he was diagnosed with a concussion.

         ¶5. Solitro further testified that despite his concussion, he could clearly recall his interaction with Trooper Bentley. Solitro denied that he attempted to run away at the scene and that he spit on Trooper Bentley. He also denied that he had urinated on himself, but rather that he was covered with beer from the cans exploding on impact. The trial court noted, however, that the photograph Trooper Bentley had taken of Solitro revealed that Solitro's shirt was dry and Trooper Bentley had testified that Solitro's shirt was dry. Solitro also stated that Trooper Bentley did not offer him the Intoxilizer on the date of the incident.

         ¶6. Following the bench trial, the judge found that Solitro's testimony was not credible and that Trooper Bentley's testimony was credible. Based on Trooper Bentley's testimony and the evidence in the case, the judge found Solitro guilty of first offense DUI. Again, Solitro's counsel filed ...


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