 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Cannon v. State4/14/2005
to stand. Groseclose, 440 So.2d at 300. However, if a jury verdict convicting a defendant is against the overwhelming weight of the evidence, then the remedy is to grant a new trial. Collier v. State, 711 So.2d 458, 461 (Miss. 1998).
. In the case sub judice, the verdict is consistent with the weight of the evidence, and no new trial is warranted. The State asserts that reference to the possibility of confusing the alcohol odor with that of acetone, which can be present in episodes of hyperglycemia, is erroneous because Cannon claimed to be suffering from hypoglycemia, a low blood glucose incident. The State also points out, and as stated in Judge Griffis's dissent, Officer Yates testified that Cannon asked him for assistance with that particular DUI.
. Officer Yates stated that Officer Crenshaw called him and requested his assistance because Cannon had requested Officer Yates come to where he was stopped. He testified that he had known Cannon for approximately 2 or 3 years. Officer Yates testified that when he arrived, Cannon talked to him and asked if he "could help him out with that particular DUI." Officer Yates testified that he could smell alcohol and observed bloodshot eyes. Cannon never told Officer Yates that he had a medical emergency nor did he request medical attention. Cannon was transported to the Webster County Sheriff's Office where he was tested on an intoxilizer.
. Officer Crenshaw testified that when he stopped Cannon he asked for his driver's license. Cannon informed him that it was suspended for DUI. Cannon then asked Officer Crenshaw to see if Officer Yates could come to the scene. After Cannon talked with Officer Yates, Cannon was transported to the Webster County Jail. Officer Crenshaw testified that he detected the smell of alcohol on Cannon's breath. He observed bloodshot eyes and slight slurred speech, but Cannon spoke fairly well.
. Dr. James Booth testified that he was Cannon's physician treating his diabetes. According to Cannon, his blood sugar level was 21 at the time he was stopped. However, Dr. Booth had no record of Cannon's blood sugar level when he saw him the next day and had no idea what it was when Cannon was arrested. When asked on cross by the State, Dr. Booth stated that a blood sugar level of 21 would be low, critically low. He stated that hyperglycemic is having too much sugar and hydpoglycemic is having too low sugar in the body. When asked by the defense, "the smell of a person who is in a , having a diabetic hypoglycemic incident, would there be any odor." Dr. Booth responded, "No that is in hyperglycemic." (emphasis added).
. Therefore, we find that the Court of Appeals erred in reversing the conviction on this assignment of error and remanding the case for a new trial court.
CONCLUSION
. The Court of Appeals erred in reversing the judgment of the trial court. Therefore, the judgment of the Court of Appeals is reversed and rendered as discussed in the opinion above, and the judgment of the Webster County Circuit Court is affirmed.
. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. CONVICTION OF FELONY DUI AND SENTENCE OF FIVE (5) YEARS, WITH THE LAST TWO (2) YEARS POST-RELEASE, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, TOGETHER WITH PAYMENT OF A FINE OF $2,000.00, ALL COSTS AND ATTORNEY FEES, AFFIRMED.
SMITH, C.J., WALLER AND COBB, P. JJ., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR.
GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
DIAZ, J., NOT PARTICIPATING.
Page 1 2 3 4 5 Mississippi DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|