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Cannon v. State6/22/2004
sponte, a limiting instruction concerning the marijuana smell). Indeed, the record indicates that the circuit judge thought such instruction had been given. At the hearing on Cannon's motion for a new trial, the following exchange took place between Cannon's attorney and the judge:
BY MR. WRIGHT: ... And then when the officer on direct examination volunteered that the defendant failed the portable breath test, that the defendant was entitled, I believe, to a sui [sic] sponte limiting instruction to the jury that he did not receive and--
BY THE COURT: I believe we did that, didn't we?
BY MR. WRIGHT: Well, Your Honor, I believe you did; you instructed the State that they were not to mention anything about test results.
BY THE COURT: And didn't I poll the jury?
BY MR. WRIGHT: No, sir, not on that particular question, Your Honor. You did poll the jury when they attempted to ask questions regarding the--
BY THE COURT:--his previous intoxication on some other date.
14. In Holmes v. State, 740 So.2d 952 (Miss.Ct.App.1999), this Court addressed an analogous issue involving testimony about the administration of an horizontal gaze nystagmus (HGN) test, the admissibility of which was limited by Young v. City of Brookhaven, 693 So.2d 1355 (Miss.1997). The circuit court had granted a motion to suppress the DUI officer's testimony about his administration of the test to Holmes at the time he was stopped, shortly after leaving a Shell station where another customer told police he was "being obscene in the store." Holmes, 740 So.2d at 955 ( 3, 8). At trial, nevertheless, the officer testified about his administration of the HGN test, offering his opinion that Holmes was driving his truck "under the influence." Id. at 959 ( 19). After an exhaustive review of the evidence, including testimony that Holmes smelled of alcohol, his pupils were dilated and his eyes were bloodshot, his speech was slurred, he was unsteady on his feet and he talked aggressively, this Court found that the State's evidence of Holmes' guilt was not so overwhelming that allowing the officer's testimony was harmless error. Id. at 959-60 ( 20). Thus, the trial judge was held in error for allowing the testimony despite his initial ruling and the case was reversed and remanded. Id. In the case sub judice, where there was little unambiguous evidence to support the State's case against Cannon, the defendant clearly was prejudiced by the admission of Officer Crenshaw's testimony beyond the purpose allowed without a specific limiting instruction. We find, therefore, that the circuit judge erred in not issuing, sua sponte, a limiting instruction to the jury.
II. WHETHER THE VERDICT OF THE JURY IS CONTRARY TO THE LAW AND TO THE OVERWHELMING WEIGHT OF THE EVIDENCE IN THIS CASE
*4 15. Cannon filed a motion for a new trial, or in the alternative, a JNOV. The circuit court denied his motion. Asserting on appeal that the jury's verdict is contrary to the law and evidence, Cannon contends that the evidence presented at trial does not support the indictment's charge that he "did willingly, unlawfully and feloniously drive or operate a motor vehicle while under the influence of intoxicating liquor, or some other substance which impaired his ability to operate a motor vehicle...."
16. In determining whether a verdict is against the overwhelming weight of the evidence, the appellate court must view all evidence in a light most consistent with the jury verdict. Youngblood v. State, 759 So.2d 479 ( 17) (Miss.Ct.App.2000). Moreover, "this Court must accept as true the evidence presented as supportive of the verdict, and will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result w
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