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Cannon v. State6/22/2004
me of the incident, Cannon was in poor health. He had seen Dr. Booth several days previously, on December 10th, as well as on December 17th and 21st. In addition to diabetes, he suffered from an enlarged heart, congestive heart failure, high blood pressure and kidney problems. He was taking five different medications. He testified that he had not been drinking, stating that mixing alcohol with his various medications "will lock my kidneys, and it will throw my heart out."
LAW AND ANALYSIS
I. WHETHER THE CIRCUIT COURT ERRED IN NOT GRANTING A LIMITING INSTRUCTION CONCERNING THE TESTIMONY OF OFFICER CRENSHAW THAT THE PORTABLE BREATH TEST SHOWED THE DEFENDANT "RAN HIGH ENOUGH ON IT...."
9. Cannon filed a motion in limine to restrict the State from making any references to the use of the portable breath tester at the traffic stop or the use and results of the Intoxilyzer 5000 test after he was taken to the police station. The trial judge sustained Cannon's motion to the extent that the results of the portable breath tester were ruled inadmissible. He further found that evidence of the portable breath test was admissible only for the purpose of showing probable cause. Considering the admissibility of evidence about the Intoxilyzer 5000 test, the trial judge found that administration of the test had probative value as part of the facts of the case and was not necessarily prejudicial to Cannon.
10. During the State's direct examination of Officer Crenshaw, however, the witness testified:
Q. Okay. And what happened then?
A. At that time I called Perry to the scene, and he said he would be there in a few minutes. And on Eupora 2 [sic] arrival, at that time I asked Mr. Cannon if he would submit to a portable intoxilizer [sic] test, and he said he would. And I did submit him to that, and he run high enough on it that it--
MR. WRIGHT [DEFENSE COUNSEL]:--Objection, Your Honor.
BY THE COURT: Sustained.
The State then resumed questioning Officer Crenshaw about the use and purpose of the portable breath test without further objections.
11. No specific limiting instruction was requested by the defendant or given to the jury. As part of the court's instruction C-1, however, the trial judge admonished the jury generally "to disregard all evidence which I excluded from consideration during the course of the trial." Cannon now asserts that a sua sponte instruction regarding the use of Officer Crenshaw's testimony about the results of the portable intoxilyzer test should have been given to the jury.
*3 12. Cannon did not move for a mistrial or request a cautionary, limiting instruction or a polling of the jury after his objection to Crenshaw's testimony was sustained as he did later in the proceedings when the State attempted to question Officer Yates about Cannon's social drinking habits. "The law of this State is quite clear that, in order to preserve an error of this nature for review on appeal, defense counsel must offer a mistrial motion after it is established that the evidence was, in fact, improper." Jones v. State, 724 So.2d 1066 ( 11)(Miss.Ct.App.1998). Because Cannon failed to ask the judge to instruct the jury to disregard the comments or move for a mistrial, the issue is not preserved for our review on appeal. Gray v. State, 831 So.2d 1221( 4)(Miss.Ct.App.2002).
13. Procedural bar notwithstanding, once Crenshaw's testimony went beyond the parameters set in the motion in limine, the circuit judge should have given, sua sponte, a specific limiting or cautionary instruction to the jury. See Rose v. State, 846 So.2d 276( 4)(Miss.Ct.App.2002)(even though defendant charged with firearms violation not prejudiced by testimony that officers smelled marijuana burning in his car, trial judge should have issued, sua
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