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Sheppard v. State1/14/2003
DATE OF TRIAL COURT JUDGMENT: 02/15/2001
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: DUI FELONY - SENTENCED TO 5 YEARS WITH 2-1/2 YEARS SUSPENDED PENDING DEFENDANT'S FUTURE GOOD BEHAVIOR. PAY FINE IN THE AMOUNT OF $2,000 AND ALL COSTS OF COURT, WITH ALL ASSESSMENTS TO BE PAID AT THE RATE OF $100 PER MONTH BEGINNING WITHIN 90 DAYS OF RELEASE FROM INCARCERATION.
DISPOSITION: AFFIRMED-01/14/2003
EN BANC
. William Robert Sheppard was found guilty by a DeSoto County jury of felony driving under the influence . Feeling aggrieved, he has appealed and argues that the trial judge's refusal to grant a mistrial was an abuse of discretion, and that reversible error occurred as a result of the trial judge's refusal to grant a new trial or judgment notwithstanding the verdict.
FACTS
. On November 20, 1999, Officer Shannon Beshears of the City of Horn Lake Police Department was traveling northbound on Tulane Street in Horn Lake, Mississippi. While driving, he observed a blue and white pickup truck traveling at a high rate of speed southbound on Tulane. A basketball goal was in the back of the truck and was thrown out of the ruck as it turned on a curvature on the road. Officer Beshears turned on his blue light to signal the truck to stop. The officer stopped the vehicle and approached the window. As the officer leaned into the truck window, he smelled alcohol.
. The officer requested that the driver give his license and exit the vehicle. The driver was identified as William Robert Sheppard. Upon Sheppard's exiting the truck, the officer asked him whether he suffered from any physical impairments. Sheppard responded, "No." During this time, Officer Beshears continued to smell alcohol on Sheppard's breath. The officer then instructed Sheppard to perform a series of tests designed to determine whether a person is under the impairment of alcohol or drugs. During the walk and turn test, Sheppard failed to keep his balance and consistently broke his heel to toe stance. Additionally, Sheppard performed a one leg stand test in which he constantly put his leg down to maintain balance.
. After Sheppard faltered during these tests, Officer Beshears arrested Sheppard and took him to the police department where the officer administered a Breathalyzer test. Sheppard registered .152.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Denial of Motion for Mistrial
. Sheppard asserts that the trial court erred in denying his motion for a mistrial after one of the chosen jurors failed to return to the jury box in a timely manner. On the day of trial, and before the jurors were sworn in, the trial judge discovered that juror number eighty was absent. At that time, this colloquy took place between Sheppard's counsel and the judge:
BY THE COURT: When we went out there to put the jury in the panel, we find that one of the jurors that had been picked is not here. If she arrives before we actually start in the next few minutes, then she will go on the panel. But just in case, we need to go ahead and pick another juror. An alternate has already been accepted. I would suggest, unless there is some objection, that she be made the juror and we go pick another alternate in case 80 does not show up. Do you have any objection to that, Mr. Watson?
BY MR. WATSON: No, sir, Your Honor.
BY THE COURT: Tell me if you do. Would you rather 80 not be an actual juror? Do you know anything about her? I will certainly give you an opportunity to strike her if you have a problem with her being an actual juror.
BY MR. WATSON: I don't have
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