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Pulliam v. State4/8/2003
NATURE OF THE CASE: CRIMINAL - MISDEMEANOR
TRIAL COURT DISPOSITION: CONVICTED OF DUI - FIRST OFFENSE; SENTENCED TO $500 FINE AND COSTS
DISPOSITION: AFFIRMED
. Kenneth Pulliam was convicted by a Leake County Circuit Court jury of his first offense of driving under the influence . On appeal, Pulliam argues that the State should not have been permitted to reopen its case, and that he was entitled to a directed verdict. We disagree and affirm.
STATEMENT OF FACTS
. Shortly after midnight on the morning of July 26, 2000, officers manning a vehicle safety checkpoint stopped Kenneth Pulliam, who was leaving the Neshoba County fairgrounds with a young child following a concert. The highway patrolman's suspicions were aroused by Pulliam's bloodshot eyes, slurred speech, and the odor of alcohol. After Pulliam exited his vehicle, he was given three portable breath tests. Because of the results, Pulliam was then escorted to the Leake County jail. There his blood was found to have an alcohol content of .105%. At the time of the offense, it was a crime to operate a motor vehicle with a blood alcohol concentration of .10% or more. Miss. Code Ann. § 63-11-23 (Supp. 2001).
. Pulliam was later convicted in justice court of a first offense of driving under the influence . After appealing to circuit court, he was retried and again convicted. This is his next appeal.
DISCUSSION
1. Reopening of the State's case
. Pulliam first challenges the lower court's actions in allowing the prosecution to reopen its case. Once the State rested, Pulliam moved for a directed verdict based on the failure of the State to prove the calibration of the intoxilyzer machine. In its case in chief, the prosecution offered the intoxilyzer's operation checklist utilized by the highway patrolman and the test card containing Pulliam's results. Both were admitted into evidence. However, Pulliam raised a hearsay objection to the log book showing that Pulliam tested at a .105% blood alcohol concentration, and to the calibration certificates from before and after Pulliam's test. The judge sustained the objection.
. Pulliam based his motion for directed verdict at the close of the State's case solely on the alleged failure of the prosecution to demonstrate the equipment's proper calibration. The following exchange occurred during the hearing on Pulliam's motion:
BY THE COURT: Where is your evidence the machine had been calibrated?
PROSECUTOR: That's what I was trying to get in, and, I was not allowed to.
BY THE COURT: You were trying to get in the log book.
PROSECUTOR: That, and, through the log, it was certified, and, it was shown that it had been calibrated. The pink slips are the certification of calibration.
BY THE COURT: I didn't know that's what you were doing. The trial court then reconsidered and reversed its earlier ruling on the hearsay objection, allowed the State to reopen its case, and admitted evidence of the intoxilyzer's calibration.
. Pulliam admits that a trial court has the discretion to reopen a case in its conduct of a trial. Moran v. State, 822 So. 2d 1074, 1076 (Miss. Ct. App. 2002). However, he argues that the trial court abused its discretion on this occasion. Pulliam draws a parallel with Perkins v. State, 253 Miss. 652, 178 So. 2d 694 (1965). In Perkins, the trial court allowed the jury to re-examine a victim's wounds after both parties had rested, the court had delivered its instructions, and the jury had begun its deliberations. Id., 178 So. 2d at 695. There is a prerequisite that "a cogent reason be found to exi
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