CURTIS VALENTINE а/k/a CURTIS LEE VALENTINE v. STATE OF MISSISSIPPI
NO. 2019-KA-01663-SCT
IN THE SUPREME COURT OF MISSISSIPPI
06/10/2021
DATE OF JUDGMENT: 10/10/2019 TRIAL JUDGE: HON. M. JAMES CHANEY, JR. TRIAL COURT ATTORNEYS: RICHARD EARL SMITH, JR.; GLENNARD MICHAEL WARREN, II; KEVIN DALE CAMP; LEIGH ANNE KETTLEMAN CADE COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: KEVIN DALE CAMP ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: META S. COPELAND DISTRICT ATTORNEY: RICHARD EARL SMITH, JR. NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 06/10/2021
BEFORE RANDOLPH, C.J., MAXWELL AND BEAM, JJ.
1. Curtis Valentine appeals his conviction of aggravated driving under the influence (DUI), claiming the Warren County Circuit Court erred by denying his motion for a judgment notwithstanding the verdict (JNOV) and by denying his proposed jury instruction defining “under the influence.”
FACTS
2. At approximately 11 a.m. on November 22, 2016, Katherine “Katie” Nicole Martin was killed while riding as a passenger in a vehicle operated by Valentine after the vehicle failed to negotiate a sharp curve at the end of Mosley Gap Road in Vicksburg, Mississippi. The vehicle left the roadway at a high rate of speed, slammed into a tree, and skidded approximately sixty feet before coming to rest on its passenger side.
3. Khalil Brown, who was riding in the back seat at the time, estimated the that vehicle‘s speed before approaching the curve was between seventy and ninety miles per hour. He said Katie was telling Valentine to stop before the crash. A twenty-mile-per-hour speed-limit sign was posted at the site of the crash, which the vehicle hit during the crash.
4. Katie died at impact from severe head trauma and internal injuries. Valentine and Brown survived the crash with minor injuries, and both were able to remove themselves from the vehicle. When authorities arrived on the scene, Valentine was described as “acting crazy,” “irate, walking around,” and “constantly yelling.”
5. Accident reconstructionist Connie Dolan with the Warren County Sheriff‘s Department was called to the scene. She smelled the odor of marijuana from inside the vehicle. Her investigation confirmed that Valentine had driven the vehicle down Mosley Gap Road at a high rate of speed and had continued straight when the road curved left. Officer Dolan found no signs of braking before the car hit the tree, and she saw no reason that anyone would not see the approaching curve. Based on the circumstances surrounding the wreck, the smell of marijuana in the car, and the fatality, Officer Dolan requested a search warrant to obtain a blood sample from Valentine.
6. Valentine was transported by ambulance to a local hospital, where his blood was drawn. When Valentine was informed at the hospital that Katie had died, he “went ballistic.” He pushed Officer Dolan against a metal cart hard enough that she cut her arm. Hospital personnel were forced to restrain him.
7. Days later, Officer Dolan interviewed Valentine at his home. She learned that Valentine and Katie had spent the night together at the Battleground Campground the night before the wreck after Valentine‘s mother had thrown him out of her house after an argument over Valentine‘s drug usе.
8. On the morning of the wreck, Valentine was several hours late for work. He
9. Valentine‘s blood was tested by the Mississippi Crime Lab. Toxicologist Alyssa Bailey testified at trial that Valentine‘s blood had tested positive for Delta-9-THC (the active ingredient in marijuana), Topiramate (Topamax, an anti-seizure medication), and Alprazolam (Xanax). Bailey said Valentine was under the influence of all three drugs when his blood was drawn at the hospital after the wreck.
10. According to Bailey, both Xanax and Topamax are central-nervous-system depressants that can affect judgment, motor function, and coordination. They can “also increase someone‘s reaction time, meaning it takes longer for somebody to react to stimuli that presents itself.” She said that a combination of these drugs would have a compounding effect on the central nervous system.
11. Bailey said the presence of Delta-9-THC indicates that someone has used marijuana fairly recently. Delta-9-THC also has рsychoactive effects that can impair motor function or coordination, cause difficulty concentrating, and increase one‘s reaction time, which Bailey said means that it takes longer to react to a stimulus.
12. Dr. James O‘Donnell, an expert in pharmacology, testified on Valentine‘s behalf. He stated that there was no appearance of Valentine‘s being intoxicated based on the reports and body-camera footage of Deputy Ricketts from the hospital that Dr. O‘Donnell had reviewed. Dr. O‘Donnell opined that the lab report showed 1.2 ng/ml of marijuana in Valentine‘s system, which is considered to be a very low trace-amount number, not enough to have a clinical effect on Valentine. Additionally, according to Dr. O‘Donnell, there was no measurement of the other drugs found in Valentine‘s system according to the lab report he had reviewed. Dr. O‘Donnell testified that based on the drug levels and all the materials he reviewed, Valentine was not under the influence at the time of the crash.
DISCUSSION
I. Whether the trial court erred by denying a JNOV.
13. Valentine claims the trial court erred by denying his posttrial motion for a JNOV because the State‘s evidence failed to prove that Valentine was under the influence at the time of the accident. Valentine contends that all of the law-enforcement officers who observed him at the scene of the accident and testified at trial “were unable to testify to any observed indicators that would show that any drugs [had] impact[ed] or lessen[ed] Valentine‘s ability or control of the motor vehicle.” Valentine relies on Leuer v. City of Flowood, in which this Court said that “courts have recognized for over half a century that driving ‘under the influence’ is commonly understood to mean driving in a state of intoxication that lessens a person‘s normal ability for clarity and control.” Leuer v. City of Flowood, 744 So. 2d 266, 269 (Miss. 1999) (quoting Gov‘t of Virgin Islands v. Steven, 134 F.3d 526, 528 (3rd Cir. 1998)).
14. Valentine argues that the act of speeding, alone, is not an indicator of being under the influence of anything. Valentine contends that out of the twenty-four “DWI” detection cues issued by the National Highway Traffic Safety Administration (NHTSA), speeding is not one of them. And he contends that the Court of
15. A JNOV motion challenges the legal sufficiency of the evidence. Knight v. State, 72 So. 3d 1056, 1063 (Miss. 2011). In reviewing the trial court‘s denial of the motion, we view all evidence, including all reasonable inferences, in the light most favorable to the State. Thomas v. State, 277 So. 3d 532, 535 (Miss. 2019). We will affirm the conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal quotation marks omitted) (quoting Cotton v. State, 144 So. 3d 137, 142 (Miss. 2014)).
16. To prove Valentine guilty of aggravated DUI causing death, the State was required to show that Valentine caused Katie‘s death by unlawfully operating а motor vehicle in a negligent manner under
(1) It is unlawful for a person to drive or otherwise operate a vehicle within this state if the person:
....
(b) Is under the influence of any . . . substance [other than intoxicating liquor] that has impaired the person‘s ability to operate a motor vehicle; [or]
(c) Is under the influence of any drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law . . . .
17. The jury was instructed that in order to find Valentine guilty of aggravated DUI, it must “find beyond a reasonable doubt from the evidence” that when Valentine drove the vehicle in question, he “was under the influence of a drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substance Law” and that “Valentine was negligent in his operation of said vehicle . . . .” The jury was further instructed that “under the influence” means “driving in a state of intoxication that lessens a person‘s normal ability for clarity and control.”
18. We find that the State presented sufficient evidence to support Valentine‘s conviction. At the outset, Valentine‘s reliance on Thomas is misplaced. In that case, the Mississippi Department of Public Safety and one of its highway-patrol officers were sued for not performing a DUI test on a driver who was ticketed for going ninety-two miles per hour in a fifty-five-mile-per-hour zone. Thomas, 882 So. 2d at 791. Minutes after the driver was ticketed and released, the driver wrecked his vehicle, killing his fifteen-year-old son who was riding as a passenger in the vehicle. Id. It was determined that the driver‘s blood-alcohol concentration (BAC) at the time of the accident was greater than .1825. Id. at 790.
19. The trial court granted judgment in favor of the defendants. Id. The Court of Appeals affirmed, agreeing with the trial court that the officer‘s failure to check the driver‘s sobriety at the time he issued the driver a speeding ticket did not rise to the level of reckless disregard required for the plaintiff to recover against the State. Id. In so holding, the Court of Appeals noted, inter alia, the “DWI Detection and Standardized Field Sobriety Tests, which Mississippi highway officers must learn as part of their training.” Id. at 794. According to the Court of Appeals, the “DWI manual lists twenty characteristics of drivers under the influence; excessive speed is not one of those characteristics.” Id. at 795.
20. That the “DWI manual” referenced in Thomas did not list excessive speed as a driver-under-the-influence characteristic is
21. Evidence shows that Valentine did not just exceed the twenty-mile-per-hour posted speed limit, rather he was driving between seventy and ninety miles per hour in a reckless manner. Witnesses tеstified that the vehicle was “flying” down Mosely Gap Road when it should have been slowing for the approaching curve. The State‘s accident reconstructionist testified that Valentine should have seen the curve in the road and did not slow or brake before the wreck. An officer who responded to the crash described Valentine as “irate, constantly yelling,” and “acting crazy.” And his behavior continued at the hospital, where he had what was described as a “rage episode.”
22. Officer Dolan testified that she smelled the odor of marijuana from inside the vehicle. Valentine admitted that he had smoked marijuana the morning of the wreck, and he tested positive for Delta-9-THC, Topamax, and Xanax. The State‘s toxicologist testified that Valentine was under the influence of all three drugs when his blood was drawn after the wreck. And she testified that the combination of these drugs would impair Valentine‘s motor functions and his reaction time.
23. In Irby v. State, 49 So. 3d 94, 104 (Miss. 2010), this Court affirmed a conviction of DUI maiming under
24. Based on this evidence, the Irby Court held that “it is clear that ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.‘” Id. (quoting Neal v. State, 15 So. 3d 388, 409 (Miss. 2009)).
25. Similar evidence was presented here from which a rational trier of fact could find that Valentine negligently caused the death of Katie while operating a motor vehicle under the influence of a controlled substance that impaired Valentine‘s ability to operate the motor vehicle. Accordingly, we find no merit to Valentine‘s claim that the trial court erred by denying his motion for a JNOV.
II. Whether the trial court erred by denying Valentine‘s requested jury instruction.
26. Valentine claims the trial court erred by denying the following proposed jury instruction:
Jury Instruction No. D-6
The Court instructs the jury that mere consumption is insufficient to prove that a criminal defendant was driving “under the influence” of an intoxicant. To prove driving under the influence, the State must prove the drug inhibited the person‘s capacity to operate his vehicle with clarity and control.
27. We review the trial court‘s grant or denial of jury instructions under an abuse-of-discretion standard. Victory v. State, 83 So. 3d 370, 373 (Miss. 2012). “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id.
28. The State contends that the trial court did not err by denying Valentine‘s requested instruction because it was duplicative of another instruction requested by Valentine and granted by the trial court. That instruction explained:
Jury Instruction No. D-5
The definition of “under the influence” is “driving in a state of intoxication that lessens a person‘s normal ability for clarity and control.
29. Valentine contends that this instruction alone was insufficient because the State‘s toxicologist had stated that having a drug in one‘s system at all means one is under the influence. Valentines argues that “[m]ere consumption is insufficient because [under the influence] is actually determined by a person‘s capacity to operate his vehicle with clarity and control.”
30. We find no error in the trial court‘s decision not to allow Valentine‘s proposed jury instruction D-6. Jury Instruction D-5, along with the State‘s jury instructions providing the elements required to prove aggravated DUI, fairly and accurately informed the jury of the law in this case.
31. At the jury-instruction conference, the trial court noted that a similar instruction was refused in Langdon v. State, 798 So. 2d 550 (Miss. Ct. App. 2001). There, the defendant was convicted of negligently causing the death of another while driving a motor vehicle under the influence of alcohol. Id. at 553. The defendant claimed on appeal that “the trial court committed reversible error in refusing to instruct the jury that the mere act of ingesting alcohol is not, in itself, negligence.” Id. at 559. The Court of Appeals found no error in the trial court‘s decision to deny the instruction. Id.
There was no contention by the State and no argument faintly suggesting that the prosecution was urging such a proposition. Aside from being correct statements of the law, instructions must have some relevance to the particular facts of the case being tried and must have the potential to aid the jury in its deliberations. The requested instruction could not have served to assist the jury in its fact-finding and appears to be merely argumentative.
Id. (citation omitted).
32. Here, similarly, the State‘s toxicologist did not testify about the mere consumption of drugs found in Valentine‘s system. Rather, she testified to the effects of each drug on a person once the drugs have been absorbed into a person‘s system. Contrary to the dissent‘s contention, we do not find that the State‘s evidence blurred the distinction between the two.
33. We find no merit to this issue.
34. Also, while Valentine does not challenge the sufficiency of his indictment, the dissent contends that it was so defective that reversal of his conviction is required. The dissent submits that the indictment fails to inform Valentine adеquately of the facts and elements necessary to notify him of the crime charged, thus constituting plain, reversible error. We disagree.
35. While the indictment did not identify the impairing or controlled substance(s) that Valentine was alleged to have been under the influence of for purposes of
36. This Court found similarly in Warren v. State, 187 So. 3d 616 (Miss. 2016), for purposes of
37. Rejecting this claim, we found that “neither the crime nor the penalty under Section 47-5-198(1) depends upon the identity of the controlled substance, [thus] an indictment for possession of a controlled substance in a correctional facility need not identify the controlled substance allegedly possessed.” Id. at 624.
38. Warren further rejected the argument that the accused‘s defense was prejudiced by the indictment‘s failure to specify the controlled substance. Noting former Rule 9.04(A) of the Uniform Rule of Circuit and County Court Practice, governing mandatory discovery, Warren found that the accused “admitted that the State had provided her with the crime lab‘s test results in discovery.” Id. at 625.
39. We find the same here. Similar to the statute at issue in Warren, neither the crime nor the penalty under
40. We also find the same with the indictment‘s charge of aggravated DUI. Though the indictment did not specify the type of bodily injury the victim allegedly suffered, the indictment references
41. Further, even though Valentine does not make the claim, we point out to the dissent that the record clearly demonstrates that Valentine was provided a copy of the toxicology report during discovery, which reported the presence of marijuana, Topamax, and Xanax in his bloodstream. Thus, as in Warren, we reject the notion that Valentine‘s defense was prejudiced by the failure to specify these substances in the indictment.
42. Lastly, we agree with the dissent that State‘s witnesses erroneously referred to Topamax (also known as Topiramate) as a controlled substance under Mississippi law. We do not see this drug, or any of its components, listed under any of the schedules provided by
43. Valentine did not raise this error in the trial court, nor does he argue it on appeal. Nevertheless, we find that the error constitutes no more than harmless error in this instance.
44. Again, Valentine was charged with operating a motor vehicle in violation of
45. As the dissent rightly points out, even though the State charged Valentine under both provisions (b) and (c), the State elected to proceed at trial solely under provision (c), and the jury was instructed accordingly.1 As mentioned, two of the State‘s witnesses stated during the State‘s case-in-chief that all the drugs found in Valentine‘s system are considered controlled substances under Mississippi law. Having reviewed the provisions under Mississippi‘s Controlled Substances Law, we find that while the drugs marijuana and Xanax are classified as controlled substances, the drug Topamax, as mentioned, is not classified
under any of the listed schedules.2 Thus,
46. Subpart (b) is different from subpart (c) in that subpart (b) contains the language, “has impaired the person‘s ability to
47. While this Court has never explicitly held so, arguments have been presented in the past suggesting that, by use of the term impairment, subpart (b) contains a requirement that neither subparts (a) or (c) contain and thus requires greater proof to sustain a conviction. We find that this is an incorrect interpretation of
48. First, we reiterate what this Court explained in Young v. City of Brookhaven, 693 So. 2d 1355 (Miss. 1997). There, it was argued that because the State had charged and prosecuted the defendant under two separate provisions under
do not prescribe separate offenses. Id. at 1358 (citing Johnston v. City of Fort Smith, 690 S.W.2d 358, 359 (Ark. Ct. App. 1985); Buckner v. City of Huntsville, 549 So. 2d 451, 452 (Ala. 1989)). Young held that “[Section] 63-11-30 merely sets forth numerous methods of committing the same crime.” Young, 693 So. 2d at 1358.
49. Later, in speaking to common-law DUI under subsection (a), this Court explained: “Common law DUI is proven when a defendant‘s blood alcohol results are unavailable or the defendants BAC tests under the limit, but there is sufficient evidence that the defendant operated a vehicle under circumstances indicating his ability to operate the vehiclе was impaired by the consumption of alcohol.” Gilpatrick, 991 So. 2d at 133 (second emphasis added) (citing Leuer, 744 So. 2d at 268)).
50. The term “impaired” does not carry with it a specific definition. Indeed, some jurisdictions consider impaired driving to be a lesser-included offense to driving under the influence. See, e.g., Bernhardt v. State, 719 P.2d 832, 833 (Okla. Crim. App. 1986) (“the crime of Driving While Impaired is a lesser included offense to Driving Under the Influence“); People v. Leonowicz, 350 N.W.2d 770, 772 (Mich. Ct. App. 1984) (same).
51. But Kentucky, for example, which has a provision almost identical to
52. In speaking to the use of the term impairment contained in the statute, the Kentucky Supreme Court has explained as follows:
The statute means to prevent the evil effects of substandard driving resulting from the operation of motor vehicles by persons under the influence of alcohol. We take as legislative facts that: 1) alcohol (or other substances) may impair driving ability; and 2) a driver actually under the influence of such substances is impaired as a driver, conclusively, and presents a danger to the public. Proof that a driver was “under the influence” is proof of impaired driving ability. It is redundant to instruct on impairment as a separate element, and confusing to instruct that the Commonwealth must prove influence but not impaired ability.
Bridges v. Commonwealth, 845 S.W.2d 541, 542 (Ky. 1993).
53. We point out that at the time Bridges was decided, the controlling statute read, “No person shall operate a motor vehicle anywhere in this state while under the influence of alcohol or any other substance which may impair one‘s driving ability.” Bridges, 845 S.W.2d at 541 (quoting Ky. Rev. Stat. Ann. § 189A.010(1)). Since Bridges, the statute has been amended to that as provided by
54. We interpret
not require an extra element of proof or provide a heightened standard for demonstrating a violation of
55. Here, while the drug Topamax was misidentified as a controlled substance at trial, we do not find that the error resulted in a fundamentally unfair trial for Valentine. Even though the drug is not considered a controlled substance, evidence was presented both by the State and the defense‘s own expert that the drug affects the central nervous system. Baily testified that it can affect judgment, motor function, and coordination. And Dr. O‘Donnell testified that too much of the drug “can cause confusion, . . . slurred speech, [and] a general slowing [of the] person.” When combined with the two other drugs contained in Valentine‘s system, which are considered controlled substances, there is a compounding effect on the central nеrvous system.
56. Given the evidence presented, we are confident that the jury would have reached the same result if Topamax had not been misidentified as a controlled substance or if the jury had been instructed with regard to subsection (b) rather than just subsection (c). Thus, we find the error harmless beyond a reasonable doubt.
CONCLUSION
57. Valentine‘s conviction for aggravated DUI is affirmed.
58. AFFIRMED.
RANDOLPH, C.J., COLEMAN, MAXWELL, CHAMBERLIN AND GRIFFIS, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., AND ISHEE, J.
KITCHENS, PRESIDING JUSTICE, DISSENTING:
59. Respectfully, I dissent. Conducting a plain error review of Valentine‘s indictment, I find that the indictment was insufficient to charge him with a crime. Notwithstanding the defective indictment, the State failed to provide sufficient evidence that Valentine‘s ability for clarity and control had been affected adversely by drugs, which is a necessary component of “under the influence,” an element of the offense with which the State attempted to charge Valentine. Additionally, the trial court should have granted Valentine‘s proposed Jury Instruction D-6 because it was needed to inform the jury adequately of all essential elements of driving under the influence, especially in the wake of the misleading testimony of the State‘s expert about the meaning of “under the influence.” Because Valentine‘s indictment was defective and because the State failed to provide sufficient evidence that Valentine was “under the influence,” I would reverse Valentine‘s conviction and rendеr a judgment in his favor.
A) Under plain error review, Valentine‘s indictment was so defective that reversal of his conviction is required.
60. Although Valentine has not argued that his indictment is defective, this Court
a defendant‘s fundamental, substantive right.‘” Id. (alteration in original) (quoting Smith v. State, 986 So. 2d 290, 294 (Miss. 2008)).
61. “‘The government may not prosecute a criminal defendant for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury . . . .‘” Quang Thanh Tran v. State, 962 So. 2d 1237, 1241 (Miss. 2007) (quoting
62. The indictment “does not require a citation to the specific statute, but merely enough facts so that the defendant is put on notice as to the statute that is alleged to have been violated.” Id. (citing Westmoreland, 246 So. 2d at 492). “It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of
themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” Quang Thanh Tran, 962 So. 2d at 1241 (quoting United States v. Carll, 105 U.S. 611, 611, 612, 26 L. Ed. 1135 (1881)). Simply put, “[a]n indictment must contain (1) the essential elements of the crime charged, (2) sufficient facts to fairly inform the defendant of the charge which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense.”5 Hardy v. State, 137 So. 3d 289, 301 (Miss. 2014) (internal quotation marks omitted) (quoting Young v. State, 119 So. 3d 309, 313 (Miss. 2013)).63. “[S]imply tracking the language of a statute will not always be sufficient.”6 Quang Thanh Tran, 962 So. 2d at 1242. This Court has said that “the language of the statute may be used in the general
64. Valentine‘s indictment is entitled, “DUI-AGGRAVATED CONTROLLED SUBSTANCES.”7 The grossly inadequate charging language alleges that Valentine
[O]n or about November 22, 2016, in the County aforesaid, and within the jurisdiction of this Court did willfully, unlawfully and feloniously drive or otherwise operate a motor vehicle in violation of
Section 63-11-30(1)(b) and/or(c) ,Miss. Code 1972 , as amended, and in a negligent manner caused bodily injury Katherine Nicole Martin, as described in and in violation ofSection 63-11-30(5) ,Miss. Code 1972 , as amended, and against the peace and dignity of the State of Mississippi.
Here, the erroneous omissions were substantive and not merely of form. The indictment is defective because it fails to inform Valentine adequately of the facts and elements necessary to notify him of the offense charged.8 Most notably, there is no allegation that Valentine had driven a motor vehicle while under the influence of alcohol or any other intoxicating drug. Valentine‘s indictment informed him only that hе had been accused of driving a motor vehicle in violation of
65. The majority finds that the indictment “provided Valentine fair and reasonable notice of the charges against him.” Maj. Op. ¶ 35. While the indictment did note the statutes under which the State wished to proceed, it failed to provide “a statement of the facts and circumstances [that would have] inform[ed] [Valentine] of the specific offence . . . with which he [was] charged.” Quang Thanh Tran, 962 So. 2d at 1242 (internal quotation mark omitted) (quoting Hess, 124 U.S. at 483). Without more, Valentine was not placed on notice that the State would adduce evidence that accused him of driving under the influence of marijuana, Topamax, and Xanax and that his speeding negligently had caused the death of the victim.9 Valentine‘s indictment did not provide “enough facts so that [he] [was] put on notice as to the statute that [was] alleged to have been violated[,]” and it was left up to Valentine to figure out what crime and theory the State intended to pursue. Culp, 933 So. 2d at 277 (citing Westmoreland, 246 So. 2d at 490). The statute cited in the indictment contains numerous scenarios and a multitude of injuries, including death, that can constitute indictable crimes. Valentine was entitled to be informed precisely which of those possible scenarios he was being accused of. In that regard, the indiсtment was a dismal failure.
66. A specific set of facts was especially essential in this case because of the numerous factual and legal theories the State could have employed under the statute cited. First,
67. The majority finds also that the indictment is sufficient because neither the crime nor the penalty under
Section 47-5-198(1) makes no distinctions based on the type of controlled substance allegedly possessed in a correctional facility. . . . Neither the crime nor the penalty depends upon the type of controlled substance possessed; rather, the statute criminalizes possession of “any controlled substance” in a correctional facility. . . . Because neither the crime nor the penalty underSection 47-5-198(1) depends upon the identity of the controlled substance, an indictment for possession of a controlled substance in a correctional facility need not identify the controlled substance allegedly possessed. The identity of the controlled substance underSection 47-5-198(1) is not an essential element of the crime.. . . .
[T]he identity of the controlled substance under
Section 41-5-198(1) is not an essential element of the crime, and the fact that Warren‘s indictment did not identify the controlled substance was not prejudicial to her defense.
Warren, 187 So. 3d at 623-24. But Warren is distinguishable from Valentine‘s case. The applicable statute in Warren was
68. This Court‘s holding in Brewer v. State, 351 So. 2d 535 (Miss. 1977), contradicts the majority‘s conclusions. In Brewer, the defendant was indicted for delivering a controlled substance, “to-wit: preludin . . . .” Id. at 536. “At the conclusion of the state‘s case, the defendant made a motion to dismiss on the ground that no cause of action was stated by the indictment since it did not charge him with delivery of a substance which was on the statutory schedule.” Id. But “evidence adduced at trial showed that preludin contained phenmetrazine, a substance listed in Schedule II of the Schedules of Controlled Substances.” Id. (citing
It is clear that in order for the indictment to allege a violation of law that the state had to show by extrinsic evidence that preludin was a substance which contained phenmetrazine. Therefore, an essential ingredient of the indictment was omitted and the indictment was invalid. Under these circumstances the indictment could not be amended. See Wortham v. State, 219 So. 2d 923 (Miss. 1969).
. . . .
[I]t was necessary for the state to prove extrinsic facts, i.e., that preludin contained phenmetrazine, in order to make out a prima facie case since preludin itself is not designated as a controlled substance.
Id. at 536-37. Quoting Love v. State, 211 Miss. 606, 52 So. 2d 470 (1951), the Court recognized the importance that “[e]very material fact and essential ingredient of the offense—every element of the offense—must be alleged with precision and certainty, or, as has been stated, every fact which is an element in a prima facie case of guilt must be stated in the indictment.” Id. at 536 (internal quotation marks omitted) (quoting Love, 52 So. 2d at 472). “The omission of a recital in the indictment that preludin contained phenmetrazine was an omission of substance; and, it was an omission which went to the very heart of the11 indictment.” Id. at 536. The Court noted also that “a comparison of the indictment to the criminal statute would not disclose that a crime was charged.” Id. at 537.
69. In Valentine‘s case, the indictment failed to allege that Valentine was “under the influence” and failed to identify the prohibited controlled substances, which are undoubtedly essential elements because in order for a crime to occur the accused person‘s normal ability for clarity and control had to have been lessened by a prohibited controlled substance.
70. Comparing the indictment to the code section cited in the indictment,
71. Valentine‘s case is analogous to Thomas, 126 So. 3d 877. In Thomas, the defendant was indicted for being a felon in possession of a prohibited weapon, i.e., a knife, pursuant to
Thomas‘s indictment informed him only that he was accused of possessing a
knife at a time when he was a convicted felon. Notwithstanding the vast varieties of knives he could have possessed with impunity, the indictment failed to specify which, if any, of the four types of prohibited knives he was alleged to have possessed. The type of weapon a felon is alleged to have possessed is unquestionably an essential and material element of the crime of being a felon in possession of a prohibited weapon.
Id. at 879-80. Valentine‘s indictment “failed to specify which, if any, of the [numerous] types of prohibited [controlled substances] he was alleged to have [been under the influence]” of. Id. at 879. Similarly, the crime in
72. The majority is mistaken in its conclusion that the toxicology report obtained through discovery cured any prejudice suffered by Valentine and his defense. The majority‘s reliance on Warren is misplaced. First, the Court in Warren mainly rejected the defendant‘s prejudice argument because “[a]s we have held, the identity of the controlled substance under
73. Second, Warren overlooked Brewer‘s holding “that a substantive defect in an indictment cannot be cured by extrinsic proof[.]” Copeland v. State, 423 So. 2d 1333, 1336 (Miss. 1982). Under Brewer, the later discovery of an essential element of the crime does not cure a substantively insufficient indictment because the indictment had failed to charge a crime in the first place. Brewer, 351 So. 2d at 536 (“[A]n essential ingredient of the indictment was omitted and the indictment was invalid. Under these circumstances the indictment could not be amended.“); see also Copeland, 423 So. 2d at 1337 (“[W]e hold that the indictment failed to charge a crime and is therefore void.“). If we allow evidence discovered after an indictment has been formed and served on a defendant to cure any prejudicial effect it had created, we defeat the constitutional protection afforded an individual to “ensure that criminal defendants have a fair and adequate opportunity to prepare for and defend against the charges brought against them by the government.” Quang Thanh Tran, 962 So. 2d at 1241. If the Court‘s intention in Warren had been to overrule Brewer by allowing extrinsic proof to cure substantively defective indictments, then the Court should have done so explicitly. To the contrary, this Court never has taken that radical step.
74. The indictment failed to (1) allege that Valentine was driving under the influence of intoxicants, (2) name the substance(s) that had rendered him under the influence, (3) state how Valentine‘s driving was negligent, and (4) identify the type of injury the victim had sustained in the crash, all of which are essential facts and elements for putting Valentine on notice of the charge against him. “[T]his Court [has] recognized that an indictment which fails
B) Under the Influence
75. I agree with both arguments that Valentine presents to this Court. First, he contends the trial court erred by denying his motion for judgment notwithstanding the verdict (JNOV) because the State failed to prove that he was “under the influence.” To address this argument, an analysis of the phrase “under the influence” is necessary. At the outset I reiterate that the words “under the influence” do not appear in Valentine‘s indictment.
76. Both
77. In order for a trier of fact to find that a person is “under the influence,” the State must prove beyond a reasonable doubt that the accused consumed an intoxicating substance and that the substance adversely affected the person‘s normal ability for clarity and control. Any argument or finding that consumption of an intoxicating substance alone is sufficient to constitute “under the influence” would not comport with this Court‘s holding in Leuer that the intoxicating substance must “lessen[] [the] person‘s normal ability for clarity and control.” Leuer, 744 So. 2d at 269 (quoting Steven, 134 F.3d at 528). Thus, “under the influence” requires more than mere consumption of an intoxicating substance. In this case, the State was required to prove (1) that Valentine was driving a motor vehicle in the State of Mississippi, (2) that he consumed an intoxicating substance, (3) that the substance lessened Valentine‘s normal ability for clarity and control, and (4) that Valentine negligently caused the death of another.
C) The trial court erred by denying Valentine‘s motion for judgment notwithstanding the verdict.
78. “This Court applies a de novo standard of review to a trial court‘s denial of a judgment notwithstanding the verdict.” Daniels v. State, 107 So. 3d 961, 963 (Miss. 2013) (citing Johnson v. St. Dominics-Jackson Mem‘l Hosp., 967 So. 2d 20, 22 (Miss. 2007)). “A motion for JNOV is a challenge to the legal sufficiency of the evidence, and this Court will affirm the denial of a motion for JNOV if there is substantial evidence to support the verdict.” Id. (citing Johnson, 967 So. 2d at 22). This Court has held that “[i]n reviewing a challenge to the sufficiency of the evidence, the critical inquiry is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the
79. Valentine argues that the State failed to provide any evidence that his ability and control of the vehicle were affected adversely or lessened by the drugs he had consumed. Specifically, “Valentinе contends that all of the law enforcement officers who observed him at the scene of the accident and testified at trial ‘were unable to testify to any observed indicators that would show that any drugs [had] impact[ed] or lessen[ed] Valentine‘s ability or control of the motor vehicle.‘” Maj. Op. ¶ 13 (alterations in original). The State relied on testimony from several witnesses regarding Valentine‘s speeding prior to the crash and his behavior afterward. Again, in order to prove that Valentine was “under the influence,” the State was required to produce evidence that (1) had Valentine consumed the intoxicating drugs and (2) that he was driving in a state of intoxication by which his ability for clarity and control was diminished. See Leuer, 744 So. 2d at 269.
80. Warren County Sheriff‘s Deputies Ronnie Fuller and Jonathan Hearn testified about Valentine‘s behavior after the car crash. Deputy Fuller testified that when he arrived at the crash scene, he observed Valentine “steady trying to get back into the vehicle[]” and that Valentine repeatedly told the officers that “there [was] someone in the vehicle.” He also described Valentine as behaving “very, very, hysterical, acting crazy and everything.” Deputy Hearn described Valentine as acting “irate” at the crash scene. But both deputies acknowledged that Valentine ultimately did calm down at the crash scene once the officers had placed him in a patrol car. Deputy Fuller testified also that while at the hospital, Valentine was “a little agitated[,]” kept inquiring about the victim‘s condition, and that upon learning of the victim‘s death, Valentine “went ballistic[.]”12
81. An in-house accident reconstructionist for the Warren County Sheriff‘s Department, Connie Dolan, testified that when she examined the car after the wreck, she detected the odor of marijuana emanating from the vehicle. But she testified also that during her interactions with Valentine, she did not observe any signs that suggested that Valentine was under the influence of anything.
82. The third occupant of the car, Khalil Brown, testified that he believed Valentine was traveling between seventy to ninety miles per hour prior to the crash. On cross-examination, Brown testified repeatedly that he did not think that Valentine was under the influence of anything.13
83. The State called Alyssa Bailey from the Mississippi Forensics Laboratory as an expert in the field of forensic toxicology to testify regarding blood analysis, which revealed that Valentine had consumed marijuana, Topamax, and Xanax at some time prior to the accident. In addition, Bailey
Yes. The mere presence of these different drugs in the blood, it is indicative that he was under the influence at the time that the blood was drawn.
(Emphasis added.) Then on cross-examination, the following exchange occurred:
| Defense Counsel: | So your testimony is, basically, if it‘s in your body, then you‘re under the influence. Now, the legal definition says it has to lessen a person‘s normal ability for clarity and control. And that‘s not the standard that you‘re telling them; correct? |
| Bailey: | The definition of “under the influence,” as far as I‘m concerned in the profession of toxicology is, again, a mere presence of a substance, means that person is under the influence of that substance. But again to what extent, is determined by the level of the drug, or like you were saying the effects it was having on the person. |
(Emphasis added.) Bailey repeatedly expressed her belief that a person is “under the influence” when the substance is present in his or her body.
84. Bailey is the only State‘s witness who provided opinion testimony that Valentine was “under the influence.” Maj. Op. ¶ 22. But Bailey‘s personal opinion of “under the influence” contradicts what this Court requires for proof of “under the influence.” We have held that, in order to be “under the influence,” one must be “driving in a state of intoxication that lessens a person‘s normal ability for clarity and control.” Leuer, 744 So. 2d at 269 (internal quotation marks omitted) (quoting Steven, 134 F.3d at 528). To satisfy the standard, there must be proof beyond a reasonable doubt that the consumption of the drugs lessened the person‘s ability for clarity and control. To the contrary, Bailey‘s statement that Valentine became “under the influence” upon his consumption of the drugs does not satisfy Mississippi‘s legal standard because Bailey could not and did not say whether the drugs had lessened Valentine‘s normal ability for clarity and control. Bailey testified that she could not attest to the effects the drugs had on Valentine‘s clarity and control because she had not observed Valentine‘s behavior on the day of the wreck. Thus, Bailey‘s testimony proved only that Valentine had consumed the drugs prior to the crash.
85. The State‘s evidence can be summarized as follows: Valentine had consumed drugs before the crash, Valentine was speeding before the crash, Valentine was acting “hysterical” and “irate” after the crash, and the accident reconstructionist believed she smelled marijuana in the vehicle. Although Valentine‘s speeding and his “hysterical” behavior after being in a severe car crash raise questions for the fact finder,15 this Court cannot say that a rational
D) The trial court erred by denying Valentine‘s proposed Jury Instruction D-6.
86. I disagree also with the majority‘s analysis regarding one of Valentine‘s proposed jury instructions. Valentine argues that the trial court erred by denying his proposed Jury Instruction D-6, contending that the instructions given “[were] insufficient because the State‘s toxicologist had stated that having a drug in one‘s system at all means one is under the influence.” Maj. Op. ¶ 29. Valentine‘s proposed jury instruction was an accurate statement of the applicable Mississippi law and was needed not only to inform the jury of all the elements of the offense but also to provide the jury a correct statement of Mississippi law on the element of driving under the influence, which had been stated incorrectly by the State‘s toxicology witness.
87. Valentine‘s proposed jury instruction D-6 says:
The Court instructs the jury that mere consumption is insufficient to prove that a criminal defendant was driving “under the influence” of an intoxicant. To prove driving under the influence, the State must prove the drug inhibited the person‘s capacity to operate his vehicle with clarity and control.
Maj. Op. ¶ 26. When Jury Instruction D-6 was proffered to the trial judge, the State objected on the ground that it was duplicative of Jury Instruction D-5, which had been granted. Jury Instruction D-5 provided the definition of “under the influence” as defined by this Court in Leuer. Valentine‘s trial counsel disagreed that the instruction was duplicative and that if it were “then it would be just that second line which [was] duplicative.” Valentine‘s counsel maintained that the first sentence in Jury Instruction D-6 was a correct statement of the law and was not covered in any other jury instruction. Additionally, Valentine submitted a modified copy of Jury Instruction D-6 that included only the sentence regarding mere consumption.16
88. The trial judge‘s and the majority‘s reliance on Langdon is misplaced. First, “Court of Appeals decisions are not binding on this Court[.]” Stewart v. Stewart, 864 So. 2d 934, 937 (Miss. 2003). Second, the defendant in Langdon argued that the trial court erred by “refusing to instruct the jury that the mere act of ingesting alcohol is not, in itself, negligence.” Langdon, 798 So. 2d at 559 (emphasis added). The instruction in Langdon dealt with the element of negligence and not with the elements required to satisfy the “under the influence” standard. Lastly, the Court of Appeals made its decision because “[t]here was no contention by the State and no argument faintly suggesting that the prosecution was urging such a proposition.” Id. at 559. In Langdon, the State did not assert or contend that merely ingesting alcohol was a negligent act. Id. But, in this case, the State did contend that mere consumption of an intoxicating substance is sufficient to deem a person to be “under the influence.” The State advanced this position through its expert witness‘s testimony in which she repeatedly testified that a person is considered “under the influence” when the mere presence of an intoxicating substance is found in the person‘s system.
89. The majority finds that “the State‘s toxicologist did not testify about the mere consumption of drugs found in Valentine‘s system. Rather, she testified to the effects of each drug on a person, once the drugs have been absorbed into a person‘s system.” Maj. Op. ¶ 32. This is a mischaracterization of Bailey‘s testimony as a whole. Bailey repeatedly testified that a person is considered “under the influence” if the substance is present in the person‘s body. Unlike in Langdon, the State made the contention that a person is deemed to be “under the influence” by the mere presence of the intoxicating substance in the person‘s system. Thus, Langdon is distinguishable from this case.
90. This Court has held that “[i]n reviewing jury instructions, the instructions must be read as a whole.” Bay Point Props., Inc. v. Miss. Transp. Comm‘n, 201 So. 3d 1046, 1054 (Miss. 2016) (citing N. Biloxi Dev. Co., LLC v. Miss. Transp. Comm‘n, 912 So. 2d 1118, 1123 (Miss. Ct. App. 2005)). Without the proposed jury instruction, the jury instructions, as a whole, did not fully inform the jury of the law applicable to this case because the instructions did not state what is and what is not sufficient to prove a person was driving “under the influence.” Here, Jury Instruction D-6 was a necessity in light of the State‘s expert witness‘s legally wrong opinion of “under the influence,” which misled the jury regarding the proof required for the jury to find that Valentine had been driving “under the influence.”
91. Because Valentine‘s proposed jury instruction was an accurate statement of the law and was not covered elsewherе in the jury instructions, Valentine was “entitled to have [this] jury instruction[] given which present[ed] his theory of the case[.]” Victory v. State, 83 So. 3d 370, 373 (Miss. 2012) (quoting Newell v. State, 49 So. 3d 66, 74 (Miss. 2010)).
E) Cumulative Error
92. “The cumulative error doctrine stems from the doctrine of harmless error
93. In addition to the errors already enumerated, the State erroneously referenced a noncontrolled substance, Topamax, as being a controlled substance that was prohibited by law to advance its argument that Valentine was under the influence of multiple controlled substances. Although the indictment charged Valentine with violating
94. The State relied on a noncontrolled substance to enhance its argument in this case, the State‘s expert repeatedly gave unreliable testimony that effectively decreased the State‘s burden of proof, and the indictment failed to include sufficient facts and essential elements of the charge for which the State prosecuted Valentine. These errors when combined create such a prejudicial burden on Valentine and his defense that it was impossible for him to receive a fair trial, especially in light of his not having been charged with any crime whatsoever.
F) Conclusion
95. Valentine‘s indictment was so deficient that he was not charged with any crime. For that reason alone his conviction should be reversed and rendered. Additionally, the State failed to provide sufficient evidence that Valentine was driving “under the influence,” an essential element of the crime for which he was tried. The State‘s evidence was sufficient to prove that Valentine had consumed drugs, and it was sufficient to prove that Valentine‘s driving was negligent. But the State‘s evidence was not sufficient tо prove that Valentine‘s normal ability for clarity and control had been affected adversely by the drugs. Proof of Valentine‘s consumption of the drugs alone is insufficient to prove that his ability for clarity and control had been impaired. At the very least, the numerous errors here require reversal of Valentine‘s conviction under the cumulative error doctrine.
96. I would reverse Valentine‘s conviction for aggravated driving under the influence and render a judgment in his favor.
KING, P.J., AND ISHEE, J., JOIN THIS OPINION.
Notes
JURY INSTRUCTION NO. S-1
Curtis Lee Valentine is charged with driving or operating a vehicle while under the influence of any drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law, and negligently causing bodily injury to another person.
If you find beyond a reasonable doubt from the evidence of this case that:
1) On or about November 22, 2016, in Warren County, Mississippi;
2) Curtis Lee Valentine drove a Nissan Altima automobile; and
3) When Curtis Lee Valentine drove the Nissan Altima automobile, Curtis Lee Valentine was under the influence of a drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law.
4) While Curtis Lee Valentine was driving the Nissan Altima automobile, Curtis Lee Valentine was negligent in his operation of said vehicle; and
5) Katherine Nicole Martin, a human bеing was injured or killed as a result of Curtis Lee Valentine‘s negligence,
Then and in that event, the defendant, Curtis Lee Valentine, is guilty of DUI - Aggravated Controlled Substances and it is your sworn duty to so find.
The Court further instructs the Jury that if the State fails to prove any of the above elements, beyond a reasonable doubt, then in that event you must find the defendant, Curtis Lee Valentine, not guilty of DUI - Aggravated Controlled Substances.