E-Filed Document Jun 30 2014 17:24:30 2013-KM-01129-COA Pages: 9 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI D' ANDRE TERRELL APPELLANT vs. VS. N0.2013-KM-1129-COA NO.2013-KM-1129-COA STATE OF MISSISSIPPI APPELLEE EE REPLY BRIEF FOR THE APPELLANT APPELLANT DOES NOT REQUEST ORAL ARGUMENT BY: JEFFREY AV A VARAS (MSB 6592) LEQUISHA STEVENSON (MSB 104319) ATTORNEYS FOR APPELLANT VARAS LAW OFFICE POST OFFICE BOX 886 HAZLEHURST, MS 39083 TELEPHONE: (601) 894-4088 FACSIMILE: (601) 894-4688
TABLE OF CONTENTS TABLE OF AUTHORITIES....ii REPLY ARGUMENT... 1 ISSUE I: ISSUE2 THE TRIAL COURT ERRED WHEN IT DID NOT GRANT THE APPELLANT'S MOTION FOR A DIRECTED VERDICT. THE TRIAL COURT ERRED WHEN IT FOUND THERE WAS SUFFICIENT EVIDENCE PRESENTED TO SUSTAIN A CONVICTION BEYOND A REASONABLE DOUBT OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AS SET FORTH IN MISSISSIPPI CODE ANNOTATED 63-l l-30(1)(a) CONCLUSION... 4 CERTIFICATE OF SERVICE... 6 i
TABLE OF AUTHORITIES FEDERAL CASES Navarette v. California, 134 S.Ct. 1683, 1691 (2014)(Decided Apr. 22, 2014)... 2, 3 STATE CASES Boone v. State, 973 So.2d 237, 242 (Miss.2008)... 1 Bryan v. Holzer, 589 So.2d_648, 659 (Miss. 1991)... 1 Keys v. State, 963 So.2d 1193 (Miss. App.2007)... 3 Knight v. State, 14 So.3d 76 (Miss. Ct. App. 2009)... 2 Mason v. State, 799 So.2d 884, 885 (Miss. Ct. App. 2001)... 2 People v. Wells, 38 Cal. 4th 1078, 136 P.3d 810, 811 (2006)... 2, 3 Sendelweck v. State, I 01 So.3d 734, 739 (Miss. Ct. App 2012)... I State v. Golotta, 178 N.J. 205, 209; 837 A.2d 359, 361 (2003)... 3 State v. Pendergast, 103 Haw. 451, 83 P.3d 714, 715-716 (2004)... 3 State v. Walshire, 634 N.W. 2d 625, 626 (Iowa 2001)... 3 STATE STATUTES Mississippi Code Annotated 63-l l-30(1)(a)... 1 OTHER AUTHORITIES Nat. Highway Traffic Safety Admin., The Visual Detection of DWI Motorists 4-5 (Mar. 2010)... I ii
ARGUMENT ISSUE 1: ISSUE2: THE TRIAL COURT ERRED WHEN IT DID NOT GRANT THE APPELLANT'S MOTION FOR A DIRECTED VERDICT. THE TRIAL COURT ERRED WHEN IT FOUND THERE WAS SUFFICIENT EVIDENCE PRESENTED TO SUSTAIN A CONVICTION BEYOND A REASONABLE DOUBT OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AS SET FORTH IN MISSISSIPPI CODE ANNOTATED 63-11-30(1)(a). A motion for directed verdict and a judgment notwithstanding the verdict challenge the sufficiency of the evidence. Boone v. State, 973 So.2d 237, 242 (Miss.2008). "When reviewing a case for sufficiency of the evidence, 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' Id. The evidence must show 'beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction."' Id. A circuit court judge sitting without a jmy is accorded the same deference with regard to his findings as a chancellor and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence. Sendelweckv. State, 101 So.3d 734, 739 (Miss. Ct. App 2012). An appellate court will only reverse a circuit court's judgment if it is, "manifestly erroneous or clearly wrong." Id. A finding of fact is "clearly erroneous" when, although there is evidence to suppo1t it, the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been made. See, B1yan v. Holzer, 589 So.2d 648, 659 (Miss. 1991). In this case, there is no evidence of the use of alcohol, possession of alcohol, blood alcohol test, field sobriety -1-
tests, or any driving violations. Only a subjective observation by the trooper, which is controverted. This does not arise to the level of proof required in a criminal prosecution. There is no substantial evidence, no credible evidence, and no reasonable evidence that can support a finding of guilt. Mason v. State, 799 So.2d 884, 885 (Miss. Ct. App. 2001). Knight v. State, 14 So.3d 76 (Miss. Ct. App. 2009). Opposing counsel is arguing that there was testimonial evidence that the defendant was driving under the influence of intoxicating beverage. Evidence such as, the defendant driving past the officers and then backing up to the roadblock for the license check. The State argues that this shows the defendant had judgment problems and that this is the type of judgment decision that is indicative of driving under the influence. (Appellee briefp.4). The State suppo1ts this argument by citing one sentence from Navarette v. California, 134 S.Ct. 1683, 1691 (2014) (Decided Apr. 22, 2014). In Navarette, the U.S. Supreme Court cited approvingly to a document by the National Highway Transportation Safety Administration. The one sentence that counsel chose to base his argument on is as follows: Indeed, the accumulated experience of thousands of officers suggests that these sorts of erratic behaviors are strongly correlated with drnnk driving. See Nat. Highway Traffic Safety Admin., The Visual Detection of DWI Motorists 4-5 (Mar. 2010), online at http://nhtsa.gov/staticfiles/nti/pdf/808677.pdfas visited Apr. 18, 2014, and available in Clerk of Comt's case file The State would have you believe that driving past and officer and then backing up to give them your license was the type of erratic behavior Navarette and the National Highway Transportation Safety Administration contemplated. It is not. However, the paragraph reads: Under the commonsense approach (reasonable man), we can appropriately recognize certain driving behaviors as sound indicia of drunk driving. People v. Wells, 38 Cal.4th 1078, 1081, -2-
136 P.3d 810, 811 (2006). ("weaving all over the roadway"); Stale v. Pendergast, 103 Haw. 451, 452-453, 83 P.3d 714, 715-716 (2004). ("crossing over the center line" on a highway and "almost causing several head on collisions"); Stale v. Galo/la, 178 N.J. 205, 209; 837 A.2d 359, 361 (2003). ("driving all over the road" and "weaving back and forth") Stale v. Walshire, 634 N.W.2d 625, 626 (Iowa 2001) ("driving in the median"). Indeed, the accumulated experience of thousands of officers suggests that these sorts of erratic behaviors are strongly correlated with drunk driving. See Nat. Highway Traffic Safety Admin., The Visual Detection of DWI Motorists 4-5 (2010), online at http://nhtsa.gov/staticfiles/nti/pdf/808677.pdfas visited Apr. 18, 2014, and available in Clerk of Court's case filed. Here, the defendant was traveling on a dark road; the two officers did not have their blue lights from their patrol car on; and the officers were just standing on the side of the road with their flashlights on. The fact that the defendant drove past them and after realizing that they were officers, backed up does not show that he had judgment problems. His actions instead show that he made a ve1y responsible decision. Counsel also argues that the defendant testifying to having taken DayQuil and NyQuil that day for his cold is evidence that he was driving under the influence of an intoxicating liquor. (Tr.24). Counsel suppmis this argument with Keys v. Stale, 963 So.2d 1193, 1198 (Miss. App. 2007) which states, "In addition to the testimony of Deputy Meritt, Keys testified that he had consumed NyQuil, a medication containing alcohol." Id. The Keys case involved a simple assault on a police officer at a traffic stop initiated because of the defendant's erratic driving. When the defendant was questioned by the officer about the smell of alcohol, the defendant responded he had not been drinking but rather he had drank NyQuil. Id at 1193, 1198. However, the Officer found thirteen beer cans in the vehicle and the defendant did not take the portable breath test on two occasions, biting down on the blow tube. According to the case, the NyQuil was the probable cause to run the defendant on the breathalizer. Id. 1197-98. The State is attempting to compare apples to oranges. -3-
In this case, there was no erratic driving, no field sobriety tests and more impoliantly, when the trooper took the Appellant to the station, he was not able to produce a test due to the machine's malfunction. Although it is true that some NyQuil products contain alcohol (NyQuil Cold & Flu Relief Liquid, NyQuil Cold & Flu Symptom Relief plus Vitamin C, and NyQuil Cough), others do not (NyQuil Cold & Flu ReliefLiquiCaps, NyQuil Sinus LiquiCaps, and Alcohol-Free NyQuil Cold & Flu Relief Liquid). There is no evidence that shows which product the defendant consumed that day. Furthermore, the defendant testified to taking DayQuil and NyQuil at 6:30 am, 12:00 noon, and 6:00 pm. (RE-014), the defendant approached the roadblock at around 11 :45 pm that night, which means that the NyQuil taken would have more than likely not have been in his system or its effect would have diminished severely around that time period. Counsel has also stated that the officer found a marijuana cigarette in the vehicle. (Tr.6.) However, the marijuana cigarette was not produced at trial nor was the defendant charged or issued any citations for possessing a marijuana cigarette. (RE-007). CONCLUSION Mr. Terrell submits that there is no evidence to support a conviction of driving under the influence or any evidence of impairment. Terrell came to a stop when he saw that there were officers present. He got out of the car when directed. His driver's license was valid and Trooper Morgan recalls no other violations. No sobriety tests were conducted and he was not charged with any other traffic violations. (T. 12-13, RE 7-10). Mr. Terrell was not in possession of alcohol. He was given the portable breath test and nothing happened. He did it again and again nothing happened. That is why he was taken to the police station. The trooper told Mr. Terrell -4-
his eyes were red and that is why he was charged. (T.25, RE 15). A red eye, an alleged odor of alcohol, his leaning against his vehicle, the testimony of a trooper who did not conduct the stop himself, are not sufficient proof beyond a reasonable doubt the elements of the offense charged: DUI, first offense. As such, we respectfully request that this Court reverse and render this case to find Mr. Terrell not guilty of said charges. In the alternative, this Court has the authority to remand this matter back for findings of fact and conclusions of law upon which the Copiah County Circuit Court found Mr. Terrell guilty of DUI, first offense. Respectfully submitted, this the 30 1 h day of June, 2014. D'ANDRE TERRELL BY: IS/ Jeffrey A. Varas JEFFREY A. VARAS (MSB#6592) -5-
CERTIFICATE OF SERVICE I, Jeffrey A. Varas, certify that I have this day served United States Mail, postage prepaid, a true and correct copy of the above and foregoing Appellant's Reply Brief on the following: Elise Munn, Esq. Copiah County Prosecutor P.O. Box 768 Hazlehurst, Mississippi 39083 Honorable Jim Hood Mississippi Attorney General's Office Criminal Division P.O. Box 220 Jackson, MS 39205 Honorable Lamar Pickard Copiah County Circuit Judge P.O.Box310 Hazlehurst, Mississippi 39083 THIS, the 30'h day of June, 2014. /SI Jeffrey A. Varas JEFFREY A. VARAS (MSB # 6592) -6-