127 So. 3d 1150
Miss. Ct. App.2013Background
- Merritt convicted of aggravated DUI after a three-day jury trial in Hinds County Circuit Court; sentenced to 20 years with 5 suspended and 15 to serve.
- Accident occurred Sept. 26, 2010 on Gallatin Street; tow truck obstructed traffic and Merritt collided with the wrecker.
- Officer Godfrey pursued Merritt; she ran a red light, maneuvered onto an interstate ramp, and stopped after side-swiping a barricade.
- Merritt reeked of alcohol, had bloodshot eyes, slurred speech, and admitted fourteen drinks; she refused a breathalyzer; no blood test performed.
- Bounds survived with months of hospitalization; Merritt claimed the scene was dark and she hit the wrecker while avoiding a door opening.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Miranda warnings and waiver | Merritt contends Miranda warning waiver was invalid due to lack of written waiver. | State argues oral warnings and waiver proven; exigent circumstances allowed waiver. | No reversible error; warnings and waiver proven. |
| Recall of Officer Godfrey | Merritt shows prejudice from recalling after defense declined cross-exam. | State reasons recall was permissible to refresh memory; no prejudice shown. | Within court's discretion; no reversible error. |
| Jury instruction S-4 | Instruction impermissibly commented on Fifth Amendment and functionality of breath test refusal. | Instruction valid; refusal evidence admissible under statute. | No reversible error; instruction proper. |
| Jury instruction D-3 | Trial court should have given D-3 on verdict unanimity/reasonable doubt. | C-4 instruction adequately conveyed unanimity and reasonable doubt. | Harmless error; C-4 sufficed. |
Key Cases Cited
- Scott v. State, 8 So.3d 855 (Miss. 2008) (burden on State to prove voluntariness of confession; correct standard.)
- Taylor v. State, 789 So.2d 787 (Miss.2001) (oral warnings and waivers suffice if proven.)
- Dees v. State, 758 So.2d 492 (Miss.Ct.App.2000) (affirmative test for admissibility of Miranda waivers.)
- Fulgham v. State, 46 So.3d 315 (Miss.2010) (repetition and foundation of jury instructions analyzed.)
- Edlin v. State, 523 So.2d 42 (Miss.1988) (verdict unanimity requirement.)
- Ricks v. State, 611 So.2d 212 (Miss.1992) (refusal to testify; physical act not communication.)
- South Dakota v. Neville, 459 U.S. 553 (U.S. 1983) (physical act/refusal and Fifth Amendment implications.)