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Ali v. State12/7/2004
the claim that Ali being tried in absentia violates the U.S. Constitution. The Mississippi Supreme Court in Jefferson v. State, 807 So. 2d 1222 ( ) (Miss. 2002) carved out an exception, allowing a trial in absentia based on willful, voluntary and deliberate actions by a defendant in avoiding trial.
. In the present case Ali was clearly aware of the date of his trial especially since he was present in the courtroom earlier that day. Ali was told the trial would begin at 1:00 p.m. and assured his attorney he would return. These actions show Ali's absence was willful, voluntary and deliberate. A jury instruction was given to the jury requesting them not to make any assumptions regarding Ali's absence when considering his guilt or innocence. Thus, we find no error in the trial court's decision to try Ali in absentia.
II. DID THE TRIAL COURT ERR IN ADMITTING IRRELEVANT AND UNDULY PREJUDICIAL EVIDENCE OF INTOXILYZER TEST RESULTS WHEN THE INDICTMENT ALLEGED A VIOLATION OF MISSISSIPPI CODE ANNOTATED SECTION 63-11-30(1)(a) AND NOT SECTION 63-11-30(1)(c)?
. It is well settled that " he relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused." Parker v. State, 606 So. 2d 1132, 1136 (Miss. 1992); Johnston v. State, 567 So. 2d 237, 238 (Miss.1990) (citing Hentz v. State, 542 So. 2d 914, 917 (1989)). "Unless the trial judge's discretion is so abused as to be prejudicial to the accused, this Court will not reverse his ruling." Parker, 606 So. 2d at 1136.
. In Mississippi Code Annotated section 63-11-30: Operation under influence of alcohol or other impairing substance, the related sections read as follows:
(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor;... (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law, or two one-hundredths percent (.02%) or more for persons who are below the legal age to purchase alcoholic beverages under state law, in the person's blood based upon grams of alcohol per one hundred (100) milliliters of blood or grams of alcohol per two hundred ten (210) liters of breath as shown by a chemical analysis of such person's breath, blood or urine administered as authorized by this chapter....
. The introduction of the Intoxilyzer result was just one of several pieces of evidence the prosecution used to prove Ali was "under the influence" as required in sub-part (1)(a). Officer Cline testified about the results of two field sobriety tests, the odor of an intoxicating beverage and the initial observation of Ali's driving. When considering the evidence of the Intoxilyzer result in conjunction with the overall proof presented against Ali, it is our opinion it was not an abuse of the trial court's discretion to admit the evidence.
III. DID THE TRIAL COURT ERR IN OVERRULING ALI'S MOTION FOR DIRECTED VERDICT?
. Ali is procedurally barred from asserting this issue. In his brief Ali claims he should have been granted a directed verdict because the State failed to prove Ali had been convicted twice by the Tennessee courts of a violation of Mississippi law and the State failed to amend its indictment to conform with the proof. However, when the prosecution admitted certified abstracts of Ali's prior convictions Ali was given an opportunity to object to the evidence and said, "I have no objections. Those were provided to me in discovery. That's fine." Also, at tria,l Ali's grounds for directed verdict we
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