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McLaurin v. State9/14/2004
to the jury. The State counters that the defense suffered no prejudice from the denial of jury instruction D-8. Instruction C-3 informed the jury that McLaurin was presumed innocent and that the State had the burden of overcoming this presumption by proving guilt beyond a reasonable doubt of every element of the crime charged. Instruction S-1 stated in part that the State was required to prove beyond a reasonable doubt that the defendant did unlawfully, willfully, and feloniously drive or operate a motor vehicle while he had an alcohol concentration of .10% or more in his blood. Instruction D-7 stated that the prohibition is against driving while having a .10% or more by weight of volume of alcohol in the blood.
19. This Court's standard of review in reviewing jury instructions is well settled. "In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole." Collins v. State, 691 So.2d 918, 922 (Miss.1997) (citing Hickombottom v. State, 409 So.2d 1337, 1339 (Miss.1982)). "When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible *273 error will be found." Id. McLaurin cites no authority for his argument that instruction D-8 should have been granted. In reading the instructions submitted to the jury as a whole, the jurors were adequately instructed that McLaurin was presumed innocent and that the State had the burden to prove every element of the offense beyond a reasonable doubt, including the fact that McLaurin had a blood alcohol level of .10% or more at the time he was operating a motor vehicle.
20. In regard to McLaurin's closing argument, a defendant is entitled to broad latitude in framing his final arguments to the jury. Neal v. State, 451 So.2d 743, 762 (Miss.1984) (citing Gray v. State, 351 So.2d 1342, 1346-47 (Miss.1977); Johnson v. State, 416 So.2d 383, 391-92 (Miss.1982)). The defendant may not, however, "state facts which are not in evidence, and which the court does not judicially know, in aid of his evidence." Johnson, 416 So.2d at 392. McLaurin wanted to argue that it was possible he drank immediately before driving and that the alcohol had not reached his blood stream at the time he was stopped but appeared on the breath test taken an hour later. He did not present any evidence during trial supporting this allegation, and his own admissions to the officers were that he had been drinking straight gin several hours prior to driving and then being stopped by the officers. The trial judge did not err in refusing McLaurin's theories during closing arguments. This issue is without merit.
21. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE AND SENTENCE OF FIVE YEARS TO RUN CONSECUTIVELY TO THE SENTENCE PRESENTLY BEING SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
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