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Comby v. State12/14/2004
the principal charge).
Id. at 1021. A lesser-included offense instruction is required only "where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt." Tyler v. State, 784 So. 2d 972 ( ) (MisS.Ct. App. 2001). Thus, the instruction regarding failing to yield the right of way would be required only if a reasonable juror could find Comby guilty of the lesser-included offense and therefore not guilty of at least one essential element of the charge of driving under the influence . Taking the testimony of the responding officers, the emergency personnel, Comby's own testimony that he consumed a six pack of beer hours before the accident, and the level of alcohol found in Comby's blood sample, a rational juror could not find that Comby was not driving under the influence. Accordingly, the trial court did not err in denying the lesser-included offense instruction.
V. DID THE TRIAL COURT ERR IN NEITHER DISMISSING THE INDICTMENT NOR SUPPRESSING THE FRUITS OF THE ARREST?
. Comby argues that he was arrested illegally on Indian reservation property and that the arrest was illegal because extradition proceedings should have been followed. Comby argues that because extradition proceedings were not followed, all evidence stemming from the arrest should have been suppressed.
. Assuming, without deciding, that Comby was arrested illegally, Comby has failed to show that any evidence was obtained as a result of the arrest. Comby's blood sample was taken pursuant to his consent as discussed previously in this opinion. Comby's vehicle and the evidence obtained therefrom were not within Choctaw jurisdiction because the accident did not occur within Indian land. "The 'body' or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred." Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). Accordingly, the legality of Comby's arrest is a non-issue, for the appellant has failed to show what evidence, save the body of the defendant himself, should be 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, 857 So. 2d 726 ( ). Accordingly, this assignment of error lacks merit.
. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY OF CONVICTION OF DUI - MANSLAUGHTER AND SENTENCE OF TWENTY-ONE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THREE YEARS SUSPENDED AND THREE YEARS' PROBATION AND PAY RESTITUTION OF $11,265.25 TO THE VICTIM'S HUSBAND, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES, P.J., MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.
IRVING, J., CONCURS IN RESULT ONLY.
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