Ellis v. State

21 So. 3d 669, 2009 Miss. App. LEXIS 208, 2009 WL 1058165
CourtCourt of Appeals of Mississippi
DecidedApril 21, 2009
Docket2007-KA-02178-COA
StatusPublished
Cited by1 cases

This text of 21 So. 3d 669 (Ellis 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
Ellis v. State, 21 So. 3d 669, 2009 Miss. App. LEXIS 208, 2009 WL 1058165 (Mich. Ct. App. 2009).

Opinion

IRVING, J.,

for the Court.

¶ 1. Robert Ellis Jr. was convicted by the Lowndes County Circuit Court of possession of less than 0.1 gram of cocaine and sentenced as a habitual offender to eight years in the custody of the Mississippi Department of Corrections without the possibility of probation or parole. Aggrieved, Ellis appeals and asserts: (1) that the trial court erred in failing to suppress evidence in violation of his due process rights and Fourth Amendment rights, (2) that the trial court erred in allowing hearsay testimony of several witnesses, and (3) that evidence was admitted without the establishment of a proper foundation.

*671 ¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On May 4, 2006, Officer Ryan Woods, a Columbus, Mississippi police officer, called over the radio for assistance in apprehending a fleeing suspect. Officers Kelvin Lee, Wade Beard, and Oscar Lewis responded to the call. By the time the officers made it to the scene, Officer Woods had already detained the suspect, Ellis.

¶ 4. One of the officers noticed that Ellis had a plastic bag containing a white substance in his mouth and that Ellis began chewing it. Having worked in narcotics, the officers determined that it was highly probable that the bag in Ellis’s mouth contained some type of narcotic that he was trying to dispose of. As Ellis continued to chew on the bag, the officers noticed that a white substance appeared on the outer corner of his mouth, indicating to the officers that the bag was open and that the white substance, suspected of being cocaine, was getting into Ellis’s mouth. The officers’ suspicion was later confirmed by the crime lab, which determined that the white substance was cocaine.

¶ 5. In the attempt to prevent Ellis from ingesting “too much” of the cocaine, the officers used several methods to get him to spit the bag out. First, the officers tried pinching Ellis’s nose to prevent him from breathing. Second, the officers tried pressing Ellis’s cheeks and jaws. Third, the officers informed Ellis that he was in imminent danger, hoping that Ellis would be concerned for his health and would spit the bag out. When none of these methods worked, the officers used a Taser on Ellis. 1 After the first use of the Taser, Ellis partially released the bag; however, when the officers released the Taser’s trigger, Ellis retracted the bag. At that point, the officers called for medical assistance. While they were waiting, they used the Taser on Ellis four additional times in one last attempt to get him to disgorge the bag of cocaine.

¶ 6. At trial, all of the officers testified that they were attempting to save Ellis’s life, as they were all aware that the ingestion of too much cocaine can be fatal. Also, at trial, the State offered a video recording of the incident. The video showed the officers constantly telling Ellis to spit the bag out and explaining that if he did not, he would die. The video also revealed that, as time passed, Ellis’s condition worsened until, by the end of the recording, he could barely stand on his own.

¶ 7. The ambulance driver testified that when she and her partner arrived at the scene, Ellis was having difficulty breathing, “as if he was choking on something.” The driver also testified that Ellis’s skin was clammy, his color was abnormal, he was sweating, and he had a rapid heartbeat. The driver further testified that Ellis’s symptoms were consistent with the first stages of a drug overdose. According to the driver, they placed Ellis on a stretcher and put him in the back of the ambulance. Officer Woods and the driv *672 er’s partner 2 rode in the back of the ambulance with Ellis.

¶ 8. Shortly after the ambulance left for the hospital, the driver was asked by her partner to pull over. She did so and went to the back of the ambulance. When she opened the back door, she saw her partner using forceps to remove the bag from Ellis’s mouth. The driver testified that her partner had determined that the bag was blocking Ellis’s airway. The driver gave Officer Woods a biohazard bag to be utilized in preserving the bag that was removed from Ellis’s mouth. However, she testified that she did not see Officer Woods place the bag of cocaine in the biohazard bag, because she immediately returned to the driver’s seat and continued the drive to the hospital.

¶ 9. Officer Woods was unable to testify at trial because he had been called to active duty in Iraq. Therefore, there was no testimony as to what he did with the bag after it was given to him by the ambulance driver. However, Officer Brad Ray, a former narcotics officer with the Columbus Police Department, testified that he removed a bag bearing Officer Woods’s badge number, initials, and Ellis’s case number from the evidence vault and sent it to the crime lab for testing. 3 Officer Ray further testified that it was departmental procedure to have the case number, complaint number, and the date of the incident on items that were placed in the evidence vault. Upon being shown the bag that was removed from the evidence vault by Officer Ray, all of the officers testified that it was, in fact, the bag that Ellis had in his mouth on the day of the incident. Also, the ambulance driver testified that the bag that was shown to her at trial appeared to have been the bag that her partner pulled from Ellis’s mouth while they were transporting him to the hospital.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 10. First, Ellis contends that the bag of cocaine that was removed from his mouth was removed in violation of his Fourth Amendment and due process rights and that the trial court erred in failing to suppress it. Ellis relies here, as he did in the trial court, on the “shocks the conscience” standard established in Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952) and argues that it should have been the standard used by the trial court. In Rochin, officers illegally broke into a defendant’s room and attempted to retrieve pills from the defendant’s mouth. Id. at 166, 72 S.Ct. 205. After they failed in their attempt, they handcuffed him and transported him to a hospital where the pills, containing morphine, were removed by a doctor who pumped his stomach without his consent. Id. The defendant was convicted by a California superior court of illegally possessing morphine. Id. The pills that were removed from his stomach were the primary evidence offered against him. Id. The defendant appealed, and the District Court of Appeal affirmed. Id. The Supreme Court of California denied certiorari. Id. at 167, 72 S.Ct. 205. Following a denial of review by the California Supreme Court, the United States Supreme Court granted cer-tiorari and suppressed the evidence, holding that the method utilized by law enforcement to obtain the evidence “shocks the conscience.” Id. at 172, 72 S.Ct. 205. However, the Supreme Court clarified that it was all of the actions taken by the police to obtain the evidence that “shocked the conscience.” Id.

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21 So. 3d 669, 2009 Miss. App. LEXIS 208, 2009 WL 1058165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-state-missctapp-2009.