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Gross v. State3/25/2003
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 03/25/2003
. John Gross pled guilty in June 1998 to the crime of driving under the influence of intoxicants and thereby causing the death of another. Prior to making his decision to enter a guilty plea, Gross filed a pre-trial motion to suppress evidence of a post-accident medical test that showed a high level of alcohol content in his bloodstream. The trial court denied the motion, relying on the provisions of Section 63-11-8 of the Mississippi Code, which mandated such blood alcohol testing for all drivers involved in an accident resulting in a fatality. Miss. Code Ann. § 63-11-8 (Rev. 1996) (declared unconstitutional in McDuff v. State, 763 So. 2d 850 (Miss. 2000)). In the face of that ruling, Gross decided that his best course was to enter a plea of guilty.
. Gross subsequently filed a motion for post-conviction relief claiming that the trial court erred in that evidentiary ruling. The trial court denied Gross any relief on his motion without a hearing. Gross has now appealed that ruling to this Court. We affirm.
. Gross based his claim for post-conviction relief on a decision by the Mississippi Supreme Court rendered after he entered his guilty plea that declared Section 63-11-8 of the Mississippi Code unconstitutional. In that decision, the supreme court found that obtaining the necessary blood samples to conduct such tests without a prior determination of probable cause (or without first obtaining the driver's informed consent) was an unreasonable search and seizure prohibited by the Fourth Amendment. McDuff, 763 So. 2d at 856.
. Gross appears to contend that he may raise this issue in a post-conviction relief proceeding under the authority of Section 99-39-5(1)(c), which permits relief when "the statute under which the conviction and/or sentence was obtained is unconstitutional." Miss. Code Ann. § 99-39-5(1)(c) (Rev. 2000). We find that argument unpersuasive. That portion of the post-conviction relief statute plainly applies only in those cases where the statute defining the crime or defining the prescribed punishment is later successfully attacked on constitutional grounds. As we have previously observed, the trial court in this case dealt with a garden-variety evidentiary question that, in the court's view, happened to be controlled by a statutory provision. That question had nothing to do with the constitutionality of the statute defining the crime under which Gross was indicted. It remained within Gross's power to mount a challenge to the trial court's ruling on this question of evidence that could have included an attack on the constitutionality of the statute relied upon by the court. Even if unsuccessful in such efforts at the trial level, Gross could have continued the constitutional challenge in an appeal and, had he done so, it must be assumed that his tenacity would have been rewarded with the same success that Beverly Ann McDuff found less than two years later.
. It is critical to note that the McDuff decision holding the provisions of Section 63-11-8 requiring automatic blood testing unconstitutional came long after Gross's judgment of sentence on his guilty plea was entered and any possible right of direct appeal from that judgment had expired. The issue, then, becomes whether a subsequently issued opinion of the supreme court which plainly shows the error of an evidentiary ruling made in a prior proceeding may be the ground for post-conviction relief.
. One of the fundamental principles governing the extraordinary remedy of post-conviction relief is that issues that could or should have been fully litigated in the origina
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