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Comby v. State12/14/2004
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 12/14/2004
FACTS AND PROCEDURAL HISTORY
. On his way home from working the night shift on September 3, 2002, Samuel Comby bought a six pack of beer. Comby drank the beer and ate breakfast as he worked around his house that morning.
Shortly after noon, Comby offered to give a friend a ride across the Choctaw reservation, about a forty minute drive. After Comby dropped his friend off, he stopped by another friend's house who gave him several warm beers to take home. Comby then stopped by a convenience store and bought ice to cool off the beer. On his return home, Comby was south-bound on Conahatta-Prospect Road, when he crossed the double yellow lines, striking Patsy Butler, a motorist traveling north. Butler was pronounced dead on the scene. Comby was taken via ambulance to Alliance Laird Hospital, where he consented to a blood test. Comby's blood alcohol level registered at 0.19. A few days later Comby was arrested for DUI manslaughter.
. Comby was convicted of DUI manslaughter, and it is from this conviction that Comby now appeals, claiming the following five points of error: (1) the trial court erred in allowing evidence of Comby's blood alcohol content and evidence obtained from his medical records; (2) the trial court erred in allowing into evidence items located in Comby's vehicle at the time of the accident; (3) the trial court erred in allowing Grady Downey to offer expert testimony in the field of toxicology when no notice was provided that he would provide such testimony; (4) the trial court erred in refusing Comby's requested jury instructions; and (5) the trial court erred in denying Comby's motion to dismiss based upon his arrest on the Choctaw reservation. Finding that these arguments lack merit, we affirm the judgment of the trial court.
DISCUSSION OF ISSUES
I. DID THE TRIAL COURT ERR IN ALLOWING EVIDENCE OF COMBY'S BLOOD ALCOHOL CONTENT AND EVIDENCE OBTAINED FROM MEDICAL RECORDS THAT WERE ILLEGALLY OBTAINED?
(a) Seizure of the Medical Records
. Comby argues that his medical records were illegally seized and "all records/testimony obtained as a result of the illegal seizure should have been suppressed as fruit of the poisonous tree." Although the district attorney's office acted improperly in obtaining Comby's medical records, Comby has failed to outline for this Court specifically what evidence should have been suppressed. The appellant, Comby, bears the burden of showing some reversible error by the trial court. The failure to do so constitutes a waiver. King v. State, 857 So. 2d 702, 726 ( ) (Miss. 2003) (citing Branch v. State, 347 So.2d 957, 958 (Miss. 1977)). This issue is procedurally barred from our consideration.
(b) Comby's Consent
. Comby argues that the trial court erred in allowing evidence of his blood alcohol content. Comby argues that he did not voluntarily consent to have a blood sample taken, and the sample should have been suppressed.
. In McDuff v. State, 763 So. 2d 850, 855 (Miss. 2000), the supreme court held that taking a blood sample had to be based on probable cause, a warrant or consent. In the case sub judice, Comby signed a consent form to have his blood drawn and tested for law enforcement purposes. To determine whether Comby's consent was valid, the trial court, outside the presence of the jury, heard testimony from the nurses who were present when Comby signed the consent form, the deputy who obtained Comby's consent, and Comby himself. The trial court determined that Comby voluntarily consented to having his blood drawn. Voluntary consent
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