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Murphy v. State10/16/2001
ent or more, or merely being under the influence of intoxicating liquor. The Mississippi Supreme Court has held that Miss. Code Ann § 63-11-30 "merely sets forth numerous methods of committing the same crime." Young v. City of Brookhaven, 693 So.2d 1355, 1358 (Miss. 1997). Therefore, any error by the trial court would have been harmless, because the evidence clearly demonstrated that Murphy had more than a .10% blood alcohol content.
. The jury instructions, when read as a whole, are an accurate and fair pronouncement of the law. Murphy has failed to show how the exclusion of D-10 causes any prejudice. Moreover, Murphy failed to cite any legal authority in support of this argument pertaining to instruction D-10; therefore, his argument is procedurally barred. See Ware, No. 1999-KA-01122-COA at ( ); Pate v. State, 419 So.2d 1324, 1326 (Miss. 1982).
V. DID THE TRIAL COURT ERR WHEN IT INSTRUCTED THE JURY THAT A FINDING OF SIMPLE NEGLIGENCE WOULD BE SUFFICIENT UNDER § 63-11-30?
. Murphy argues that the trial court is required, in the form of a jury instruction, to give specific examples of acts or omissions that would constitute negligent acts. Specifically, Murphy contends that Instruction D-6 both misstates the law as well as confuses the jury. Instruction D-6 instructed the jury that it could convict Murphy if it found that he failed to exercise reasonable care under the circumstances.
. A conviction under the Felony DUI Causing Death statute "merely requires a negligent act, from which death or injury results." Frambes v. State, 751 So.2d 489, 492 ( ) (Miss. Ct. App. 1999). Furthermore, simple negligence is enough to support a conviction under § 63-11-30(4) where all of the other elements are met. Holloman v. State, 656 So.2d 1134, 1140 (Miss. 1995). Simple negligence is a "failure to exercise reasonable care under the circumstances." Turner v. State, 726 So.2d 117, 131 ( ) (Miss. 1998).
. Murphy cites to several civil negligence cases for the proposition that it is reversible error for a trial judge to instruct a jury on negligence without giving it a guide to the acts or omissions that constitute negligence. See Boyd Constr. Co. v. Bilbro, 210 So.2d 637 (Miss. 1968); Rawlings v. Royals, 214 Miss. 335, 58 So.2d 820 (1952). However, each of the cited cases differs from the case at bar in that they do not provide a definition of negligence. Here, the trial court specifically instructed the jury that negligence is the failure to use reasonable care under the circumstances. The Mississippi Supreme Court has explicitly held that similar instructions setting out the reasonable care standard are sufficient in § 63-11-30(4) cases. See Holland, 656 So.2d at 1140.
CONCLUSION
. Under § 63-11-30(4), there is no requirement that the consumption of alcohol cause the negligent act that eventually leads to the death of another. As such, Murphy was not entitled to have jury instruction D-11 submitted as a factual issue. Further, Murphy vehemently contested the issue of his intoxication at the time of the collision; therefore, the first blood test, even though not taken in strict conformity with the Implied Consent Statute, was admissible as relevant evidence. Moreover, because the first test was admissible, Murphy could not show that the failure to exclude the second blood test caused him prejudice. Finally, Murphy's contention that he was entitled to jury instruction D-10 is procedurally barred due to his failure to cite any legal authority.
. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION OF OPERATION OF A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR RESULTING IN DEATH AND SENTENCE OF
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