Cannon v. State

905 So. 2d 672, 2004 WL 1381725
CourtCourt of Appeals of Mississippi
DecidedJune 22, 2004
Docket2003-KA-00540-COA
StatusPublished
Cited by2 cases

This text of 905 So. 2d 672 (Cannon v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cannon v. State, 905 So. 2d 672, 2004 WL 1381725 (Mich. Ct. App. 2004).

Opinion

905 So.2d 672 (2004)

Jessie J. CANNON, Appellant
v.
STATE of Mississippi, Appellee.

No. 2003-KA-00540-COA.

Court of Appeals of Mississippi.

June 22, 2004.
Rehearing Denied October 12, 2004.

*673 Ronald Stephen Wright, Ackerman, Attorney for Appellant.

Office of the Attorney General by Charles Maris, Attorney for Appellee.

Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.

CHANDLER, J., for the Court.

¶ 1. Jessie J. Cannon was found guilty by a jury of the Circuit Court of Webster County of felony DUI, third offense, pursuant to Mississippi Code Annotated § 63-11-30(1) and (2)(c) (Supp.2002). He was sentenced to serve a term of five years in the custody of the Mississippi Department of Corrections and ordered to pay a fine and court costs. The circuit judge further ruled that after serving a period of three years and abiding by all of the rules and regulations of the Department of Corrections during his incarceration, Cannon should be placed in a program of post-release supervision for two years.

¶ 2. On appeal, Cannon now asserts that after granting that part of his motion in limine restricting the State from referring to the results of a portable breath test taken when he was stopped by police, the circuit judge erred in failing to issue a limiting instruction to the jury after the arresting officer testified that he had "run it up." He further argues that the jury's verdict was contrary to the overwhelming weight of the evidence. Cannon failed to request a limiting instruction or to move for a mistrial. However, we are persuaded *674 that admission of the testimony, in light of the circuit court's ruling on the motion in limine, was plain error. Moreover, because the evidence presented does not so overwhelmingly support the State's case against Cannon, we reverse and remand for proceedings consistent with this opinion.

FACTS

¶ 3. On December 15, 2001, Jessie J. 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 on to 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.

¶ 4. 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.

¶ 5. 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.

¶ 6. 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.

¶ 7. After the initial stop, Cannon was transported to the Webster County Sheriff's 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 sheriff's 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.

¶ 8. 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."

LAW AND ANALYSIS

I. WHETHER THE CIRCUIT COURT ERRED IN NOT GRANTING A LIMITING INSTRUCTION CONCERNING THE TESTIMONY OF OFFICER CRENSHAW THAT THE PORTABLE BREATH TEST SHOWED THE DEFENDANT "RAN HIGH ENOUGH ON IT...."

¶ 9. Cannon filed a motion in limine to restrict the State from making any references *675 to the use of the portable breath tester at the traffic stop or the use and results of the Intoxilyzer 5000 test after he was taken to the police station. The trial judge sustained Cannon's motion to the extent that the results of the portable breath tester were ruled inadmissible. He further found that evidence of the portable breath test was admissible only for the purpose of showing probable cause. Considering the admissibility of evidence about the Intoxilyzer 5000 test, the trial judge found that administration of the test had probative value as part of the facts of the case and was not necessarily prejudicial to Cannon.

¶ 10. During the State's direct examination of Officer Crenshaw, however, the witness testified:

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 [sic] arrival, at that time I asked Mr. Cannon if he would submit to a portable intoxilizer [sic] 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.

The State then resumed questioning Officer Crenshaw about the use and purpose of the portable breath test without further objections.

¶ 11. No specific limiting instruction was requested by the defendant or given to the jury. As part of the court's instruction C-1, however, the trial judge admonished the jury generally "to disregard all evidence which I excluded from consideration during the course of the trial." Cannon now asserts that a sua sponte instruction regarding the use of Officer Crenshaw's testimony about the results of the portable intoxilyzer test should have been given to the jury.

¶ 12. Cannon did not move for a mistrial or request a cautionary, limiting instruction or a polling of the jury after his objection to Crenshaw's testimony was sustained as he did later in the proceedings when the State attempted to question Officer Yates about Cannon's social drinking habits. "The law of this State is quite clear that, in order to preserve an error of this nature for review on appeal, defense counsel must offer a mistrial motion after it is established that the evidence was, in fact, improper." Jones v. State, 724 So.2d 1066 (¶ 11)(Miss.Ct.App.1998). Because Cannon failed to ask the judge to instruct the jury to disregard the comments or move for a mistrial, the issue is not preserved for our review on appeal. Gray v.

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Related

Cannon v. State
904 So. 2d 155 (Mississippi Supreme Court, 2005)
Jessie J. Cannon v. State of Mississippi
Mississippi Supreme Court, 2003

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Bluebook (online)
905 So. 2d 672, 2004 WL 1381725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cannon-v-state-missctapp-2004.