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Ward v. State8/24/2004
This case comes from the Circuit Court of Oktibbeha County, Mississippi, Honorable Lee J. Howard presiding. John L. Ward was tried and convicted of felony driving under the influence and was sentenced to five years in the custody of the Mississippi Department of Corrections as a habitual offender. After denial of his post-trial motions, Ward appeals raising the following issues:
I. WHETHER THE TRIAL JUDGE COMMITTED PLAIN ERROR BY INFORMING THE JURY DURING VOIR DIRE OF WARD'S PRIOR DUI OFFENSES, BY ALLOWING THE PRIOR OFFENSES TO BE A PART OF THE CASE-IN-CHIEF, AND BY FINDING THAT THEY CONSTITUTED MATERIAL ELEMENTS OF THE INDICTMENT, NOTWITHSTANDING RIGBY V. STATE
II. WHETHER THE TRIAL JUDGE COMMITTED ERROR BY OVERRULING WARD'S MOTION IN LIMINE
III. WHETHER THE TRIAL JUDGE COMMITTED PLAIN ERROR BY ALLOWING THE ARRESTING OFFICER TO TESTIFY AS TO THE RESULTS OF THE HORIZONTAL GAZE-NYSTAGMUS FIELD SOBRIETY TEST AND THE RESULTS OF THE PORTABLE INTOXILIZER BREATH TEST AS EVIDENCE OF WARD'S INTOXICATION
IV. WHETHER THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE OR WHETHER THE CUMULATIVE ERRORS SHOULD HAVE RESULTED IN A NEW TRIAL
STATEMENT OF FACTS
2. Late at night on November 5, 2001, the Starkville Police Department and the Oktibbeha County Sheriff's Department joined forces to conduct a roadblock at the intersection of Highway 82 and Highway 12 in Starkville, Mississippi. Officer Shawn Word and Deputy Archer Sallis stood behind the vehicles as they went through the checkpoint in order to check tags.
3. Officer Word noticed that a vehicle stopped abruptly in the middle of the highway about twenty-five yards before the roadblock. The vehicle was a dark-colored Jeep Cherokee Laredo. Once the Jeep stopped, Officer Word saw the driver's door open and a man with a pressed shirt and khakis run towards the back of the vehicle. Officer Word then saw the right rear passenger door open and a man with a purple hat run towards the front of the Jeep, enter the driver's seat, and shut the door. Officer Word was using his flashlight and testified that the area was fairly well lit.
4. Officer Word ordered the Jeep to pull over onto the shoulder of the road. As he did, a man driving a truck told Officer Word that he witnessed two males in the Jeep switch drivers. Apparently, the driver of the truck was traveling in the same direction as Ward and had to stop his vehicle since the Jeep was sitting in the middle of the highway.
5. By that time, Deputy Sallis had arrived and approached the driver's side of the Jeep. Officer Word approached the right rear passenger door where he asked *319 John Ward to step out of the vehicle. Officer Word asked Ward why they had switched drivers. Ward stated that he did not need to get a ticket for driving with a suspended license.
6. Officer Word testified that Ward's eyes were bloodshot and that he could smell alcohol on Ward's breath. Officer Word administered a horizontal gaze-nystagmus test and testified that Ward showed signs of intoxication. Officer Word also gave Ward a portable breath intoxilizer test and Ward registered above the legal limit.
7. Deputy Sallis administered a portable breath intoxilizer test on Ward's brother, James, because he was in the driver's seat and had pulled the Jeep onto the shoulder of the highway. The test revealed that James had also been drinking but he was under the legal limit.
8. Officer Word handcuffed Ward and placed him in the rear seat of the police car. Ward was then taken to the Oktibbeha County Sheriff's Department for an Intoxilizer test.
9. After arriving at the Sheriff's Department, Officer Word administered the "one leg stand" test and the "walk and turn" test and testified that Ward failed them both. Officer Word th
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