KELVIN EDWARDS v. STATE OF MISSISSIPPI
NO. 2021-KM-01348-COA
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
02/07/2023
DATE OF JUDGMENT: 11/05/2021; TRIAL JUDGE: HON. GERALD W. CHATHAM SR.; COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT; ATTORNEY FOR APPELLANT: B. BRENNAN HORAN; ATTORNEY FOR APPELLEE: RUSSELL BARTON JORDAN; NATURE OF THE CASE: CRIMINAL - MISDEMEANOR; DISPOSITION: AFFIRMED - 02/07/2023
BEFORE WILSON, P.J., McDONALD AND LAWRENCE, JJ.
¶1. Kеlvin Edwards was found guilty of first-offense driving under the influence (DUI) and driving without headlights in the Horn Lake Municipal Court on October 16, 2018. Edwards appealed only the DUI charge to the County Court of DeSoto County. Edwards was again found guilty of first-offense DUI following a bench trial. Edwards then appealed to the DeSoto County Circuit Court, which affirmed the conviction. Edwards now appeals claiming that the State failed to prove the requisite probable cause for the traffic stop and that law enforcement officers were required to inform him of his right to alternative testing of his blood-alcohol content (BAC) under
FACTS AND PROCEDURAL HISTORY
¶2. On April 18, 2018, Officer Joshua Parrot with the Horn Lake Police Department initiated a traffic stop on Kelvin Edwards. He was cited for operating a motor vehicle with a BAC of .08 percent or more in violation of
¶3. Edwards appealed only the DUI сonviction to the County Court of DeSoto County. A de novo trial was held on January 11, 2021. The State called Officer Parrot, who was employed at the time of the traffic stop with the Horn Lake Police Department. Parrot testified that on April 18, 2018, “[I was] driving down Nail Road. I saw a white vehicle pull out оf Donnie‘s Deli with no lights on. I turned around and initiated a traffic stop.” Parrot testified it was around eleven o‘clock at night and “very dark” outside. When asked how far the car traveled before its headlights were on Parrot responded, “[A]pproximately 500 yards.” Parrot stated he was driving in the opposite direction of the white car and had to turn around to safely initiate a traffic stop. The “violation location” listed on the DUI ticket was on Nail Road near Somerset Road. Parrot testified Edwards, the driver, had slurred speech and glassy eyes. Parrot testified he called to the scеne Officer
¶4. Officer McCary was the State‘s next witness. McCary testified, “[I] made contact with [Edwards,] and I noticed that he had extremely glassy, bloodshot eyes. I asked him how much he had to drink tonight. He said two beers two hours аgo.” Further, McCary testified he “observed an open corona bottle wedged between the passenger‘s seat and center console half empty.” McCary testified he then asked Edwards to step out of the vehicle so he could administer standardized field sobriety tests. McCary administеred the field sobriety tests. McCary stated, “[B]ased on the totality of the circumstances, I decided that Mr. Edwards was under the influence and unable to operate a motor vehicle safely and placed him into custody for DUI.” McCary stated Edwards was then transported to the station where Edwards provided two breath samples to an Intoxilyzer 8000 machine. McCary stated the “overall reading was a .20.”
¶5. Edwards testified at his county court trial. Edwards admitted to drinking the beer found in the car with him and stated that he “had had a couple beers” over “about a hour and a half, two hours.” Edwards stated that оn the night in question, “[I] got my cigarettes, got back in my car, and pulled out on Nail Road. Then I pulled out from up under the lights that was shining at that gas station, and when I pulled out on the road, I hit my lights and turned my light switch on and headed down Somer . . . no, Nail Road to Somerset.” Edwards continued, “[W]hen I pulled up there before I pulled on the street, I couldn‘t tell my lights were on because I had just left out from up under the gas pump. And I was in that little Versa car. Normally, I drive my GMC truck and which normally when I turn the switch on, my lights automatically comes up.” Edwards stated that when he turned his lights on he was “still in the parking lot pulling onto the road.”
¶6. The defense then re-called Officer Parrot as an adverse witness. The defense focused on the location of the stop. The defense asked, “[B]ut you‘re saying McCary pulled him over at a different spot than you pulled him over? . . . [F]irst of all did you pull the officer [sic] over, or did McCary pull him over?” Parrot rеsponded, “I did.” Parrot testified that Edwards was pulled over at “Nail and Somerset.” On cross-examination, Parrot clarified that when he initiated the traffic stop, he was “on Nail Road approaching Somerset,” and then “the vehicle made a right turn onto Somerset, which puts you near the intersеction of Somerset and Laurel.”
¶7. In closing, the defense argued Parrot lacked probable cause to pull Edwards over. Further, the defense argued Parrot‘s testimony had been inconsistent. The State argued there was sufficient evidence to find that Edwards was guilty of first-offense DUI.
¶8. The county court found Edwards guilty. The court found beyond a reasonable doubt that Edwards “did operate his motor vehicle on the roadway without headlights, and therefore, the officer was within his rights to make the stop.”
¶9. Edwards appealed that decision to the DeSoto County Circuit Court, arguing two issues. Edwards claimed thаt the State failed to prove probable cause to support the traffic stop. Edwards also argued law enforcement officers failed to disclose to him that he had a right to an alternative BAC test under
¶10. On November 5, 2021, the circuit court affirmed the county court‘s DUI conviction.
[T]his Court notes that a trial judge, sitting without a jury, is the ultimate finder of fact and the sole judge of a testifying witness‘s credibility. Norman v. State, 114 So. 3d 799, 802 (Miss. Ct. App. 2013) (citing City of Jackson v. Lipsey, 834 So. 2d 687, 691 (Miss. 2003)). And this Court cannot reverse such determinations where they are supported by substantial evidence. Id. (citing Yarborough v. State, 514 So. 2d 1215, 1220 (Miss. 1987)) . . . . . As to the issue of probable cause, the United States Supreme Court has held that “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769 (1996). “Well-settled Mississippi law provides that ‘when a police officer personally observes a driver commit what he reasonably believes is a traffic violation, he then has probable cause to stop the vehicle.‘” Casey v. State, 302 So. 3d 617, 625 (Miss. 2020) (quoting Martin v. State, 240 So. 3d 1047, 1052 (Miss. 2017)).
¶11. The circuit court found that Officer Parrott had testified he observed Edwards pull out of Donnie‘s Deli and travel west for approximately 500 yards down Nail Road without his headlights on. The court stated that “[b]ecause Edwards‘s operation of a motor vehicle at eleven o‘clock at night without headlights on constituted a violation of
¶12. As to the argumеnt that a defendant should be made aware of the statutory right to have an additional blood-alcohol test performed, the circuit court explained that “in Green v. State, 710 So. 2d 862 (Miss. 1998), the Mississippi Supreme Court addressed and rejected the same argument.” Likewise, in Ivy v. City of Louisville, 976 So. 2d 951, 953 (¶13) (Miss. Ct. App. 2008), the Mississippi Court of Appeals repudiаted the argument that Edwards presents. The circuit court found that Edwards‘s arguments lacked merit. Edwards now appeals and presents the same arguments.
STANDARD OF REVIEW
¶13. “In a bench trial the trial judge sits as the trier of fact and is accorded the same deference in regard to his findings as that of a chancellor, and the reviewing court must consider the entire record and is obligated to affirm where there is substantial evidence in the record to support the trial court‘s findings.” Barnett ex rel. Gordon v. Lauderdale Cnty. Bd. of Sup‘rs, 880 So. 2d 1085, 1088 (¶7) (Miss. Ct. App. 2004) (quoting City of Newton v. Lofton, 840 So. 2d 833, 835-36 (¶¶6-7) (Miss. Ct. App. 2003)). “The findings of the trial judge will not be disturbed unless the judge abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legаl standard was applied.” Id. “[T]he trial judge, sitting in a bench trial as the trier of fact, has sole authority for determining credibility of the witnesses.” Ulmer v. State, 292 So. 3d 611, 613 (¶7) (Miss. Ct. App. 2020) (quoting Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987)).
ANALYSIS
I. Whether the State failed to prove the requisite probable cause for the traffic stop.
¶14. On appeal, Edwards argues, “Officer Parrot‘s testimony is so discrеdited by the State‘s own other witness, Officer McCary and exhibits as to have made it
¶15. In response, the State argues:
Contrary to Appellant‘s assertions, Officer Parrоtt‘s testimony was clear and unambiguous he was traveling east on Nail Road when he passed Mr. Edwards’ vehicle with no headlights activated. After turning around and initiating his blue lights, Mr. Edwards’ vehicle had traveled approximately 300 yards. . . . According to the Appellant himself, he did not come to a stop until after he had turned off Nail Road and onto Somerset. Consequently, Officer Parrott listed the violation as occurring on Nail Road near Somerset. . . . There is simply no merit to the Appellant‘s argument that Officer Parrott stopped Mr. Edwards on Nail Road but failed to properly notate the citation.
¶16.
¶17. Edwards‘s concern that the “location of the violation” listed on the ticket was different from the final stop location is unfounded. There are no inconsistencies in either officer‘s testimony or in the record. Officer Parrot was clear in his testimony that on the date in question he observed Edwards pull out of Donnie‘s Deli and drive apрroximately 500 yards on Nail Road without headlights on. Parrot‘s ticket stated the “location of the violation” was on Nail Road near Somerset Road. Parrot then turned around and made the traffic stop, at which point Edwards had turned onto Somerset Road near Laurel Road. Officer McCary testified he responded to the traffic stop on Somerset Road near Laurel Road.
¶18. Officer Parrot testified that he observed Edwards drive on Nail Road without headlights. This is sufficient under Mississippi law to constitute probable cause for a traffic stop. The trial judge, sitting as the trier of fact, is the sole judge of the credibility of the witness. Ulmer, 292 So. 3d at 613 (¶7). The trial judge found Officer Parrot‘s testimony to be credible and sufficient to show that probable cause existed for the traffic stop. The trial judge‘s finding was supported by sufficient evidence. This Court affirms the conviction.
¶19. On appeal, Edwards argues that law enforcement was required to inform him of his right pursuant to
¶20.
The person tested may, at his own expense, have a physician, registered nurse, clinical laboratory technologist or clinical laboratory technician or any other qualified person of his choosing administer a tеst, approved by the Mississippi Forensics Laboratory created pursuant to Section 45-1-17, in addition to any other test, for the purpose of determining the amount of alcohol in his blood at the time alleged as shown by chemical analysis of his blood, breath or urine. The failure or inability tо obtain an additional test by such arrested person shall not preclude the admissibility in evidence of the test taken at the direction of a law enforcement officer.
¶21. Edwards‘s argument has been addressed and rejected. In Scarborough v. Kellum, 525 F.2d 931, 933 (5th Cir. 1976), the court affirmed that in Mississippi, an officer is not required to advise the Defendant of his right to finance an additional test. In Green v. State, 710 So. 2d 862, 869 (¶22) (Miss. 1998), the Mississippi Supreme Court held that “section 63-11-13 does not impose an affirmative duty on law enforcement to give notification of the right to an independent test, and Green is presumed to know his rights under the law. . . .”
¶22. Further, in Ivy, 976 So. 2d at 953 (¶13), this Court rejected the same argument Edwards makes here, holding that law enforcеment officers do not have to inform defendants of their right to have an independent BAC test under
¶23. It is settled law in Mississippi that
CONCLUSION
¶24. After a review of the record, we find that the circuit court did not abuse its discretion in finding that Office Parrot had probable cause to initiate the traffic stop. Further, this Court follows precedent and declines to place an obligation on officers to inform the accused of their right to an independent BAC test under
¶25. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, MCDONALD, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.
LAWRENCE, J.
FOR THE COURT