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Cannon v. State6/22/2004
Jessie J. Cannon was found guilty by a jury of the Circuit Court of Webster County of felony DUI, third offense, pursuant to Mississippi Code Annotated § 63-11-30(1) and (2)(c) (Supp.2002). He was sentenced to serve a term of five years in the custody of the Mississippi Department of Corrections and ordered to pay a fine and court costs. The circuit judge further ruled that after serving a period of three years and abiding by all of the rules and regulations of the Department of Corrections during his incarceration, Cannon should be placed in a program of post-release supervision for two years.
2. On appeal, Cannon now asserts that after granting that part of his motion in limine restricting the State from referring to the results of a portable breath test taken when he was stopped by police, the circuit judge erred in failing to issue a limiting instruction to the jury after the arresting officer testified that he had "run it up." He further argues that the jury's verdict was contrary to the overwhelming weight of the evidence. Cannon failed to request a limiting instruction or to move for a mistrial. However, we are persuaded that admission of the testimony, in light of the circuit court's ruling on the motion in limine, was plain error. Moreover, because the evidence presented does not so overwhelmingly support the State's case against Cannon, we reverse and remand for proceedings consistent with this opinion.
FACTS
3. On December 15, 2001, Jessie J. Cannon was stopped by Officer Keith Crenshaw of the Eupora Police Department after he was observed traveling south in the northbound lane of Highway 9, causing another automobile to pull over on to the shoulder to avoid a collision. Cannon, a diabetic, testified that at the time of the incident, he was en route to a nearby Shell station to get some orange juice and honey. Feeling nervous, weak and "sort of woozy," he had tested his blood sugar and found it to be dangerously low just prior to leaving his house.
4. When asked to show his driver's license, Cannon advised Officer Crenshaw that it had been suspended for driving under the influence of alcohol. He then asked if he could speak to another Eupora police officer, Perry Yates. Officer Yates arrived shortly thereafter, accompanied by a reserve officer, Shane Box.
5. Cannon was subjected to a portable breath test at the scene. No other field sobriety tests were given. The three officers presented testimony about Cannon's demeanor at the time of the stop. They testified that his eyes were bloodshot and he smelled like alcohol. Officer Yates noted that his stance and speech were normal. Officer Crenshaw found his speech slightly slurred.
6. None of the officers involved with Cannon's arrest had ever observed an individual suffering a hyperglycemic incident. Cannon's physician, Dr. James Booth, testified, that a blood sugar reading of 21, which Cannon had recorded prior to the incident, was extremely dangerous and would produce symptoms which could be mistaken for intoxication. He further stated that changes in a diabetic's glucose levels can produce ketones, leaving an acetone smell on the breath, which can be confused with alcohol.
*2 7. After the initial stop, Cannon was transported to the Webster County Sheriff's Office, where he submitted to testing on the Intoxilyzer 5000 machine. He blew into the machine three or four times, but was unable to blow long enough to complete the test or generate an accurate reading. By his own admission, Cannon became angry and argumentative at the sheriff's office when advised after his unsuccessful attempts to take the Intoxilyzer that he would not be released. Subsequently, Cannon was placed under arrest, charged with felony DUI and held overnight in jail.
8. At the ti
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