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Wilkerson v. State11/12/1998
. Wilkerson finally argues that the court wrongfully denied Jury Instruction D-10. The trial court amended and accepted this instruction without an objection by Wilkerson's attorney. In the instant case, Wilkerson's attorney allowed the court to alter Jury Instruction D-10 and offer it to the jury as Instruction 12. The Court views the absence of any objection to this altered Jury Instruction as a waiver from Wilkerson. See Carr v. State, 655 So. 2d 824, 851 (Miss. 1995). This is especially so here, where the amended instruction is not substantially different from the proffered one. The lower court was correct in denying Jury Instructions D-1, D-2, D-4, D-6, D-9, and D-10.
VI.
. Wilkerson argues that the Court erred in failing to grant his Motions for Directed Verdict and Judgment Not Withstanding the Verdict. The standard of review for a denial of a judgment notwithstanding the verdict and a directed verdict are identical. The Court has held the standard of review as the following:
his Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different Conclusions, affirmance is required.
Steele v. Inn of Vicksburg, Inc., 697 So. 2d 373, 376 (Miss. 1997) (quoting Sperry-New Holland, a Div. of Sperry Corp. v. Prestage, 617 So. 2d 248, 252 (Miss. 1993).
. Wilkerson cites Hedrick v. State, 637 So. 2d 834, as controlling in the instant case. In Hedrick, the state failed to put on testimony that the suspect was drinking before his accident. Wilkerson attempts to draw similarities between Hedrick and his own case. The defendant in Hedrick testified that he had nothing to drink before the wreck, but he subsequently drank a half-pint of gin after the wreck and before his blood was withdrawn for analysis. Id. at 836. Wilkerson argues that in Hedrick there were no witnesses to testify that they saw Hedrick drink, stumble, hear his speech slur, or exhibit any other indication that he had been intoxicated or had been drinking. This Court held in Hedrick, " here was absolutely no evidence advanced at the trial from which the jury could have reasonably concluded that Eddie [Hedrick] was legally intoxicated at the time his automobile struck [the victim]. Therefore, the State failed to prove the element of intoxication." Id. at 838.
. In the present case, Wilkerson did not testify that he was drinking between the time of the accident and the time of him giving a blood sample. Further, Wilkerson had no opportunity to drink as medical personnel took him to the hospital shortly after the accident. There was testimony nevertheless that Wilkerson was driving recklessly shortly before the accident. Testimony from witnesses on the scene stated that the defendant had alcohol on his breath. The state has established through testimony of many individuals that Wilkerson appeared drunk shortly after the accident.
. There is no evidence from which a reasonable juror could infer that Wilkerson had anything to drink after the accident, which leaves the only reasonable inference that the defendant was drinking intoxicants before the fatal collision. The evidence so considered is not such that reasonable and fair-minded juror
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