Opinion
No. 2009-KA-00251-COA.
December 14, 2010.
TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN, DATE OF JUDGMENT: 12/16/2008
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
TRIAL COURT DISPOSITION: CONVICTED OF DRIVING UNDER THE INFLUENCE CAUSING DEATH AND SENTENCED TO TWENTY-FIVE YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE
DISPOSITION: AFFIRMED
ATTORNEY FOR APPELLANT: JOHN D. WATSON
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE
DISTRICT ATTORNEY: JOHN W. CHAMPION
BEFORE LEE, P.J., ISHEE AND MAXWELL, JJ.
¶ 1. Jeffrey Dale Beecham was convicted of driving under the influence (DUI), causing death, after operating his motor vehicle in DeSoto County, Mississippi, with a blood-alcohol content of 0.26%. By virtue of his status as a habitual offender, under Mississippi Code Annotated section 99-19-81 (Rev. 2007), Beecham was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, he now appeals both the conviction and sentence.
FACTS
¶ 2. On March 27, 2007, Beecham and Freda Lovelace were involved in a two-vehicle accident in DeSoto County, Mississippi. After being extricated from her vehicle, Lovelace was air lifted to a regional medical center in Memphis, Tennessee, where she eventually died from her injuries. Her death certificate states the cause of death was "complications of blunt force injuries to [the] head and chest." After a trial by jury, Beecham was found guilty of DUI and causing the death of Lovelace.
¶ 3. At trial, eight witnesses testified for the State during its case-in-chief. Once the State rested its case, Beecham moved for a directed verdict, which was denied. Beecham then rested his case without producing any evidence, but as part of his defense, he had the jury visit the scene of the accident. After hearing all of the evidence at trial, the jury returned a unanimous verdict of guilty of DUI causing a death.
¶ 4. At the sentencing hearing, Beecham was adjudicated as a habitual offender within the meaning and purview of section 99-19-81. Beecham was then sentenced to twenty-five years in the custody of the MDOC.
DISCUSSION
¶ 5. Beecham argues that the circuit court erred in the following ways: allowing blood-alcohol evidence; allowing the testimony of the State's accident reconstructionist; allowing the introduction of the death certificate; allowing photographs of the victim's vehicle; denying the defendant's motion for a directed verdict and peremptory jury instruction, D-1; and imposing a maximum sentence. Finding no reversible error, we affirm.
I. Blood-Alcohol Evidence
¶ 6. The trial court admitted Beecham's blood sample and the results of the toxicology reports into evidence, finding that there was sufficient probable cause at the time of the arrest to order the taking of a blood sample. "[B]lood searches based upon probable cause are legal." Wilkerson v. State, 731 So. 2d 1173, 1177 (¶ 13) (Miss. 1999). Our standard of review for a trial court's finding of probable cause is abuse of discretion. Holloman v. State, 820 So. 2d 52, 55 (¶ 11) (Miss. Ct. App. 2002).
¶ 7. The trial court noted the officer at the scene of the accident had relied on the smell of alcohol and the fact that Beecham was uncooperative with the paramedics. Accordingly, the trial court denied Beecham's motion to suppress. "When reviewing a trial court's ruling on a motion to suppress, we must assess whether substantial credible evidence supports the trial court's finding[,] considering the totality of the circumstances." Shaw v. State, 938 So. 2d 853, 859 (¶ 15) (Miss. Ct. App. 2005).
¶ 8. After reviewing the record and relevant case law, we find that the smell of alcohol on Beecham at the scene of the accident, coupled with the fact that Beecham was uncooperative with the paramedics, is sufficient to establish probable cause for the issuance of the warrant. Therefore, we find that the trial court did not abuse its discretion in denying the motion to suppress; accordingly, this issue is without merit.
II. Expert Witness
¶ 9. Beecham argues the trial court erred in admitting the testimony of Horn Lake Police Officer Lance Weems as an accident-reconstruction expert. He primarily points to the fact that this was Officer Weems's first accident to reconstruct and that he had never been qualified as a expert in court before. The trial court noted, and we have stated in the past, that "a law enforcement officer may, with proper training and experience, qualify as an expert accident reconstructionist." Ware v. State, 790 So. 2d 201, 210 (¶ 32) (Miss. Ct. App. 2001). "The standard of review for the admission or suppression of evidence in Mississippi is abuse of discretion." Vaughn v. State, 972 So. 2d 56, 59 (¶ 10) (Miss. Ct. App. 2008) (citing Troupe v. McAuley, 955 So. 2d 848, 855 (¶ 19) (Miss. 2007)).
¶ 10. The trial court, when determining whether or not to admit expert testimony, should follow a modified Daubert test. This modified test was explained and summarized in Mississippi Transportation Commission v. McLemore, 863 So. 2d 31, 38 (¶ 16) (Miss. 2003), as follows:
[T]he analytical framework provided by the modified Daubert standard requires the trial court to perform a two-pronged inquiry in determining whether expert testimony is admissible under Rule 702. Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002). The modified Daubert rule is not limited to scientific expert testimony-rather, the rule applies equally to all types of expert testimony. [ Kumho Tire Co. v. Carmichael, 526 U.S. 147, 119 S.Ct. 1167, 143 L.Ed. 2d 238 (1999).] First, the court must determine that the expert testimony is relevant-that is, the requirement that the testimony must "`assist the trier of fact' means the evidence must be relevant." Mathis v. Exxon Corp., 302 F.3d 448, 460 (5th Cir. 2002) (citing Fed.R.Evid. 702). Next, the trial court must determine whether the proffered testimony is reliable. Pipitone, 288 F.3d at 244. Depending on the circumstances of the particular case, many factors may be relevant in determining reliability, and the Daubert analysis is a flexible one. Id. Daubert provides "an illustrative, but not an exhaustive, list of factors" that trial courts may use in assessing the reliability of expert testimony. Id.
¶ 11. The trial court was of the opinion that Officer Weems had set forth sufficient evidence regarding his proper training. Furthermore, the trial judge reviewed the principles, methods, and application utilized by Officer Weems and found that Officer Weems was a qualified expert for the purpose of accident reconstruction. After reviewing the record, we find the trial court in no way abused its discretion in admitting the testimony of Officer Weems; therefore, this issue is without merit.
III. Death Certificate
¶ 12. Beecham argues the trial court erred in allowing the introduction of Lovelace's death certificate. He claims the certificate is inadmissible hearsay and a violation of the Confrontation Clause of the Sixth Amendment of the United States Constitution. The standard of review governing the admission or exclusion of evidence is abuse of discretion. Williams v. State, 991 So. 2d 593, 597 (¶ 8) (Miss. 2008) (citations omitted). However, "[t]his Court reviews de novo a Confrontation Clause objection." Smith v. State, 986 So. 2d 290, 296 (¶ 18) (Miss. 2008) (citations omitted).
We recognize the United States Supreme Court has recently held that statements made by scientific analysts-as opposed to eyewitnesses, for example-receive no special treatment under the Confrontation Clause; if a statement by a lab technician or forensic analyst qualifies as testimonial, then it may be admitted against a criminal defendant only if the declarant testifies at trial or is unavailable and has been cross-examined by the defendant's counsel in the past. See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2534-37 (2009).
¶ 13. Although it is true that Beecham objected to the admission of the death certificate, he failed to state specific grounds for his objection, and all matters regarding the objection were conducted at an unrecorded bench conference, thus leaving no record as to why Beecham objected or to why the trial judge admitted the death certificate into evidence. "Counsel must make specific objections in order to preserve a question for appellate review. [The supreme court] has said many times that general objections will not suffice. Objections to the admissibility of evidence must specifically state the grounds; otherwise, the objection is waived." Seeling v. State, 844 So. 2d 439, 445 (¶ 17) (Miss. 2003) (citations omitted). Because the death certificate was properly admitted before the jury, Beecham's second objection to the admission of the certificate as a violation of the Confrontation Clause was untimely made and, therefore, improper. The failure to make a contemporaneous objection operates as a waiver of the issue on appeal. "An objection must be made with specificity, and failure to articulate the grounds for objection constitutes a waiver of the alleged error." Clark v. State, 40 So. 3d 531, 539 (¶ 18) (Miss. 2010).
¶ 14. The testimony provided by Lovelace's husband with regard to the medical condition and injuries of his wife were clearly hearsay. However, not once did Beecham object to the admission of Lovelace's husband's testimony at trial, nor does he object to it now. Accordingly, this issue is without merit.
IV. Photographs
¶ 15. Beecham's next assignment of error deals with the trial court's admission of photographs of the accident. He claims the photographs are irrelevant, or, in the alternative, he contends they have no probative value.
¶ 16. This Court will not reverse a trial court's decision to allow the admission of photographs into evidence absent an abuse of discretion by the trial court. Ware v. State, 790 So. 2d 201, 206 (¶ 14) (Miss. Ct. App. 2001). This discretion originates from the primary test for admissibility: "whether the probative value of . . . [the] photographs is substantially outweighed by the danger of unfair prejudice." Parker v. State, 514 So. 2d 767, 771 n. 3 (Miss. 1986) (citing M.R.E. 403).
¶ 17. The trial judge found the photographs to be relevant because the State had the burden of proving that the accident in question was in connection to the death of the victim. Furthermore, he found the photographs were relevant in assisting the jury in determining whether or not Lovelace had her headlights on at the time of the accident. After reviewing the record and the photographs, we are of the opinion that the trial court did not abuse its discretion; therefore, this issue is without merit.
V. Sufficiency of Evidence and Weight of the Evidence
¶ 18. Beecham argues the trial court erred in denying his motion for a directed verdict and his peremptory instruction D-1. He further argues that the trial judge abused his discretion in denying his post-trial motion for a judgment notwithstanding the verdict (JNOV), as well as the denial of his motion for a new trial as the verdict is against the overwhelming weight of the evidence.
¶ 19. A motion for a directed verdict and a JNOV both challenge the sufficiency of the evidence. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). The standard of review is the same for both: we must give the prosecution "the benefit of all favorable inferences that may be reasonably drawn from the evidence." Id. The evidence will be reviewed in the light most favorable to the State. Id. (citing Esparaza v. State, 595 So. 2d 418, 426 (Miss. 1992)). All credible evidence consistent with the defendant's guilt will be accepted as true. Id. (citing Spikes v. State, 302 So. 2d 250, 251 (Miss. 1974)). "[R]eversal can only occur when evidence of one or more of the elements of the charged offense is such that `reasonable and fair minded jurors could only find the accused not guilty.'" Stewart v. State, 909 So. 2d 52, 56 (¶ 16) (Miss. 2005).
¶ 20. On the other hand, a motion for a new trial challenges the weight of the evidence. Sheffield v. State, 749 So. 2d 123, 127 (¶ 16) (Miss. 1999). Matters regarding the weight of the evidence are to be settled by the jury. Stegall v. State, 765 So. 2d 606, 610 (¶ 10) (Miss. Ct. App. 2000) (citing Neal v. State, 451 So. 2d 743, 758 (Miss. 1984)). Therefore, the appellate court's scope of review is limited. This appellate court must accept as true the evidence presented which supports the verdict. Id. (citing Eakes v. State, 665 So. 2d 852, 872 (Miss. 1995)). "[W]e will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Bush v. State, 895 So. 2d 836, 844 (¶ 18) (Miss. 2005) (citing Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)).
¶ 21. Beecham argues the State was unable to show negligence on his behalf. He further asserts that the victim, Lovelace, was contributorily negligent; and without her negligence, the accident would have never occurred.
¶ 22. In Mississippi, there is no requirement that the negligence, which caused the death of another, be caused by alcohol. Joiner v. State, 835 So. 2d 42, 44 (¶ 5) (Miss. 2003). Miss. Code Ann. § 63-11-30(5) (Supp. 2009). The pertinent part of Mississippi Code Annotated section 63-11-30(5) states that: "[E]very person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another shall . . . be guilty of a felony[.]" Miss. Code Ann. § 63-11-30(5). Therefore, the State had the burden of proving that Beecham was not only driving under the influence of intoxicating liquor at the time of the accident but that he performed a negligent act that caused the death of Lovelace.
¶ 23. According to Officer Weems, the accident reconstructionist, Beecham was traveling at 50 mph at the time of impact with the victim's automobile, thereby exceeding the speed limit by at least 12-15 mph. Further, Officer Weems testified there was no evidence of braking on the part of Beecham. Beecham's blood-alcohol level was 0.26%, well above the legal limit of 0.08%. We find that the jury was presented with substantial evidence to support its verdict of guilty. We further hold that allowing the jury's verdict to stand does not sanction an unconscionable injustice. Accordingly, these issues are both without merit.
VI. Sentence
¶ 24. Beecham, a habitual offender under Mississippi Code Annotated section 99-19-81, was given a sentence of twenty-five years in the custody of the MDOC. His sentence is the maximum sentence under Mississippi Code Annotated section 63-11-30(5), and because of his status as a habitual offender, he is required to serve the sentence without eligibility of probation or parole. Beecham argues that the sentence imposed is cruel and unusual in that it is disproportionate to other sentences imposed.
¶ 25. Sentencing is generally within the sound discretion of the trial judge and the trial judge's decision will not be disturbed on appeal if the sentence is within the term provided by statute. Davis v. State, 724 So. 2d 342, 344 (¶ 10) (Miss. 1998). The practical effect of this general rule is that a trial judge's sentencing decision has traditionally been treated as unreviewable so long as the sentence was within the statutory limits. As a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal. Wallace v. State, 607 So. 2d 1184, 1188 (Miss. 1992). In Davis, 724 So. 2d at 344 (¶ 11), the Mississippi Supreme Court acknowledged that the length of sentences is properly controlled by the Legislature. Furthermore, we have held that when a trial court imposes a sentence which complies with statutory limitations, the court will not be held in error and will not have abused its discretion. Bonner v. State, 962 So. 2d 606, 611 (¶ 18) (Miss. Ct. App. 2006) (citing Johnson v. State, 461 So. 2d 1288, 1292 (Miss. 1984)).
¶ 26. In light of the gravity of Beecham's current offense, and his prior predicate offenses (sexual battery and a convicted felon in possession of a firearm), the trial court's imposition of a twenty-five-year sentence does not give rise to an inference of gross disproportionately; thus, we do not proceed with an Eighth Amendment proportionality analysis. Accordingly, this issue is without merit.
VII. Accident Report
¶ 27. In his final assignment of error, Beecham argues that the admission of the accident report into evidence was a judicial abuse of discretion. We disagree. The Mississippi Supreme Court has held that "police reports prepared during the investigation of an accident should be admissible into evidence." Copeland v. City of Jackson, 548 So. 2d 970, 975 (Miss. 1989).
¶ 28. The accident report was admitted into evidence, and Officer Weems was available to testify regarding the report. Beecham was allowed to cross-examine Officer Weems regarding conflicting statements from his trial testimony and the report itself. We hold that the admittance of the report into evidence was in no way an abuse of discretion; therefore, this final assignment of error lacks merit.
¶ 29. THE JUDGMENT OF THE DESOTO COUNTY CIRCUIT COURT OF CONVICTION OF DRIVING UNDER THE INFLUENCE CAUSING DEATH AND SENTENCE OF TWENTY-FIVE YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. KING, C.J., LEE, P.J., IRVING, GRIFFIS, ROBERTS AND CARLTON, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. MYERS, P.J., NOT PARTICIPATING.