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Murray v. State11/20/2001
DATE OF TRIAL COURT JUDGMENT: 05/24/2000
TRIAL JUDGE: HON. HOWARD QUITMAN DAVIS
COURT FROM WHICH APPEALED:BOLIVAR COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: 05/24/2000: FELONY DUI: SENTENCED TO A TERM OF FIVE YEARS IN THE MDOC WITH THE LAST THREE YEARS SUSPENDED; PAY A FINE OF $500. SAID FINE, COURT COSTS, AND INDIGENT DEFENSE EXPENSE OF $250 SHALL BE PAID COMMENCING WITHIN SIXTY DAYS OF RELEASE.
DISPOSITION: AFFIRMED - 11/20/2001
. Melvin Murray was found guilty of felony driving under the influence of alcohol (DUI) and sentenced to five years in the Mississippi Department of Corrections with the last three years suspended. Aggrieved, Murray asserts the following issue:
I. THE VERDICT OF THE LOWER COURT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
Finding no error, we affirm. FACTS
. Sometime shortly after 2:00 a.m. on the morning of August 7, 1999, Cleveland Police Officer Andy Lambre witnessed an automobile stopped in the middle of the road. When he put his lights on the automobile, it began to proceed down the middle of the road. Lambre pursued the automobile and it pulled over. Lambre approached the automobile to find Murray the sole occupant and, of course, the driver. Lambre smelled a strong odor of alcohol and asked Murray what he was doing. Lambre could not understand Murray's response because his speech was slurred. Lambre asked Murray if he had been drinking. Murray replied that he had drunk three beers. Lambre also noticed that Murray's eyes were red. Lambre asked Murray to get out of the automobile. Murray exited the automobile and attempted to walk, but stumbled and was unsteady standing on two feet. Lambre did not administer a field sobriety test because he felt it was unnecessary.
. At this time Lambre arrested Murray and took him to the police station in order to administer the intoxilyzer test. Murray registered 0.219, the legal limit being 0.1. Lt. Timmy Townsend witnessed the administration of the intoxilyzer test and testified that it was administered properly and gave an accurate reading. Townsend also testified that Murray appeared to be "very intoxicated." Mississippi Highway Patrol Sgt. Patrick Tribble testified as to his inspection of the calibration of the intoxilyzer.
. Terry Taylor testified that he was driving the automobile in question and Murray was a passenger. Taylor explained that the automobile ran out of gas. At this time, Taylor left the car on foot in order to purchase some gas. When Taylor returned to the spot where he had run out of gas, Murray and the automobile were gone.
. Murray testified that Taylor was driving the automobile until the automobile ran out of gas. He continued to explain that after Taylor went to purchase some gas, Murray exited the car and entered into the driver's side in order to turn on the hazard lights. Murray claimed that Lambre approached the automobile as he was doing so.
ANALYSIS
I. WAS THE VERDICT OF THE LOWER COURT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
. The decision to grant or deny a motion for new trial is discretionary with the trial court. McClain v. State, 625 So. 2d 774, 781 (Miss. 1993). In order to preserve the issue for consideration on appeal, the defendant must raise the issue that the verdict was against the overwhelming weight of the evidence as a ground for his motion for new trial. Howard v. State, 507 So. 2d 58, 63 (Miss. 1987). In Ford v. State, 753 So. 2d 489, 490 (Miss. Ct. App. 1999), we held that:
n determining whether a jury verdic
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