Cannon v. State

904 So. 2d 155, 17 A.L.R. 6th 911, 2005 Miss. LEXIS 256, 2005 WL 851381
CourtMississippi Supreme Court
DecidedApril 14, 2005
DocketNo. 2003-CT-00540-SCT
StatusPublished

This text of 904 So. 2d 155 (Cannon v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cannon v. State, 904 So. 2d 155, 17 A.L.R. 6th 911, 2005 Miss. LEXIS 256, 2005 WL 851381 (Mich. 2005).

Opinion

ON WRIT OF CERTIORARI

EASLEY, Justice, for the Court.

¶ 1. Jessie J. Cannon was convicted of felony DUI, third offense, in Webster County Circuit Court. He appealed, and the appeal was assigned to the Court of Appeals, which reversed the conviction and remanded the case for a new trial. A divided Court of Appeals held that the trial court erred: (1) by not granting a sua sponte limiting instruction concerning the testimony of an officer regarding Cannon’s performance on a portable breath test, and (2) because the verdict was contrary to the law and the overwhelming weight of the evidence. Cannon v. State, 905 So.2d 672, 2004 WL 1381725 (Miss.Ct.App.2004). The State filed a motion for rehearing with the Court of Appeals, which was denied. We granted the State’s petition for a writ of certiorari. The State asserts that the Court of Appeals’ decision conflicts with prior decisions of this Court. We agree.

[157]*157FACTS1

¶ 2. On December 15, 2001, Cannon was stopped by Officer Keith Crenshaw of the Eupora Police Department after he was observed traveling south in the northbound lane of Highway 9, causing another automobile to pull over onto the shoulder to avoid a collision. Cannon, a diabetic, testified that at the time of the incident, he was en route to a nearby Shell station to get some orange juice and honey. Feeling nervous, weak and “sort of woozy,” he had tested his blood sugar and found it to be dangerously low just prior to leaving his house.

¶ 3. When asked to show his driver’s license, Cannon advised Officer Crenshaw that it had been suspended for driving under the influence of alcohol. He then asked if he could speak to another Eupora police officer, Perry Yates. Officer Yates arrived shortly thereafter, accompanied by a reserve officer, Shane Box.

¶ 4. Cannon was subjected to a portable breath test at the scene. No other field sobriety tests were given. The three officers presented testimony about Cannon’s demeanor at the time of the stop. They testified that his eyes were bloodshot and he smelled like alcohol. Officer Yates noted that his stance and speech were normal. Officer Crenshaw found his speech slightly slurred.

¶ 5. None of the officers involved with Cannon’s arrest had ever observed an individual suffering a hyperglycemic incident. Cannon’s physician, Dr. James Booth, testified that a blood sugar reading of 21, which Cannon had recorded prior to the incident, was extremely dangerous and would produce symptoms which could be mistaken for intoxication. He further stated that changes in a diabetic’s glucose levels can produce ketones, leaving an acetone smell on the breath, which can be confused with alcohol.

¶ 6. After the initial stop, Cannon was transported to the Webster County Sheriffs Office, where he submitted to testing on the Intoxilyzer 5000 machine. He blew into the machine three or four times, but was unable to blow long enough to complete the test or generate an accurate reading. By his own admission, Cannon became angry and argumentative at the sheriffs office when advised after his unsuccessful attempts to take the Intoxilyzer that he would not be , released. Subsequently, Cannon was placed under arrest, charged with felony DUI and held overnight in jail.

¶ 7. At the time of the incident, Cannon was in poor health. He had seen Dr. Booth several days previously, on December 10th, as well as on December 17th and 21st. In addition to diabetes, he suffered from an enlarged heart, congestive heart failure, high blood pressure and kidney problems. He was taking five different medications. He testified that he had not been drinking, stating that mixing alcohol with his various medications “will lock my kidneys, and it will throw my heart out.”

¶ 8. The State argues that the Court of Appeals erred in rendering its decision and raises the following contentions:

I. THE CIRCUIT COURT DID NOT ERR IN NOT GRANTING A LIMITING INSTRUCTION CONCERNING THE TESTIMONY OF OFFICER CRENSHAW.
II. THE VERDICT OF THE JURY IS NOT CONTRARY TO THE LAW AND TO THE OVERWHELMING WEIGHT OF THE EVIDENCE IN THIS CASE.

[158]*158LEGAL ANALYSIS

I. Limiting- Instruction

¶ 9. Before trial, Cannon filed a motion in limine which sought to prevent the admission of evidence that he had taken a portable breath test at the scene of the traffic stop. The trial court ruled that the fact that Cannon submitted to a portable breath test would be admissible, but the trial court determined that the result of the test was inadmissible. During the direct examination of Officer Crenshaw, a reference was made about the test but not the actual result. When Officer Crenshaw attempted to offer that information, the defense objected. The following exchange transpired:

Q: Okay. And what happened then?
A: At that time I called Perry to the scene, and he said he would be there in a few minutes. And on Eupora 2 arrival, at that time I asked Mr. Cannon if he would submit to a portable intoxilizer test, and he said he would. And I did submit him to that, and he run high enough on it that it—
MR. WRIGHT [DEFENSE COUNSEL]: Objection, Your Honor.
BY THE COURT: Sustained.

¶ 10. The Court of Appeals held that the issue was not preserved for appeal because Cannon failed to request a cautionary instruction or mistrial. However, the Court of Appeals further held:

Procedural bar notwithstanding, once Crenshaw’s testimony went beyond the parameters set in the motion in limine, the circuit judge should have given, sua sponte, a specific limiting or cautionary instruction to the jury. See Rose v. State, 846 So.2d 276(¶ 4)(Miss.Ct.App.2002)(even though defendant charged with firearms violation not prejudiced by testimony that officers smelled marijuana burning in his car, trial judge should have issued, sua sponte, a limiting instruction concerning the marijuana smell).

Cannon, 905 So.2d at 675, 2004 WL 1381725, at *3.

¶ 11. The State argues that the trial court had no affirmative duty to offer jury instructions sua sponte or to suggest instructions for the parties to consider. King v. State, 857 So.2d 702, 720 (Miss. 2003). The State distinguishes Rose from the case at bar. In Rose, the Court held that the officers’ detection of a marijuana odor was admissible to show probable cause for stopping the defendant. Rose, 846 So.2d at 278. When Rose exited the vehicle, a cartridge fell to the ground, and one of the officers observed a gun stuck in the driver’s seat. Rose’s conviction for a convicted felon in possession of a firearm was affirmed on appeal. Id. In the case sub judice, Officer Crenshaw’s testimony did not involve another crime, and there was no issue regarding the admissibility of the evidence.

¶ 12. The State further argues that the trial court did instruct the jury, before it retired to deliberate, that it was “to disregard all evidence which I excluded from consideration during the course of the trial.” See Cavett v. State, 717 So.2d 722, 729 (Miss.1998) (there exists the presumption that jurors respect the law as they are instructed by the Court).

¶ 13. The Court of Appeals determined that Holmes v. State,

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Related

White v. State
532 So. 2d 1207 (Mississippi Supreme Court, 1988)
Cavett v. State
717 So. 2d 722 (Mississippi Supreme Court, 1998)
Sheffield v. State
749 So. 2d 123 (Mississippi Supreme Court, 1999)
Collier v. State
711 So. 2d 458 (Mississippi Supreme Court, 1998)
Rose v. State
846 So. 2d 276 (Court of Appeals of Mississippi, 2002)
Kingston v. State
846 So. 2d 1023 (Mississippi Supreme Court, 2003)
Cannon v. State
905 So. 2d 672 (Court of Appeals of Mississippi, 2004)
Pearson v. State
428 So. 2d 1361 (Mississippi Supreme Court, 1983)
Herring v. State
691 So. 2d 948 (Mississippi Supreme Court, 1997)
Groseclose v. State
440 So. 2d 297 (Mississippi Supreme Court, 1983)
Jones v. State
724 So. 2d 1066 (Court of Appeals of Mississippi, 1998)
Holmes v. State
740 So. 2d 952 (Court of Appeals of Mississippi, 1999)
King v. State
857 So. 2d 702 (Mississippi Supreme Court, 2003)

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Bluebook (online)
904 So. 2d 155, 17 A.L.R. 6th 911, 2005 Miss. LEXIS 256, 2005 WL 851381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cannon-v-state-miss-2005.