Freeman v. State

121 So. 3d 888, 2013 WL 2350373, 2013 Miss. LEXIS 312
CourtMississippi Supreme Court
DecidedMay 30, 2013
DocketNo. 2012-KM-00192-SCT
StatusPublished
Cited by20 cases

This text of 121 So. 3d 888 (Freeman 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
Freeman v. State, 121 So. 3d 888, 2013 WL 2350373, 2013 Miss. LEXIS 312 (Mich. 2013).

Opinion

KING, Justice,

for the Court:

¶ 1. In this conviction for driving under the influence (“DUI”) first offense, speeding, and littering, the State lost key evidence prior to the defendant’s de novo trial in county court, while it was under a court order to preserve the evidence. The State’s actions violated the defendant’s due process right to present a complete defense. Further, the county court improperly admitted proof of the radar device’s accuracy under the business records hearsay exception. However, sufficient evidence to support the defendant’s speeding conviction exists in the officer’s testimony regarding the defendant’s speed. Thus, this Court reverses the DUI conviction and renders judgment in favor of the defendant. This Court affirms the speeding conviction, because it is supported by sufficient evidence. The defendant does not adequately contest the littering conviction; thus this Court affirms his littering conviction.

FACTS AND PROCEDURAL HISTORY

If 2. On September 8, 2008, Mississippi Highway Patrol Officer Phillip Patrick stopped the vehicle driven by Dr. Erwyn Freeman on Highway 51 in Madison County. The facts surrounding the stop are hotly contested. Officer Patrick recorded the entire stop on video. As a result of the stop, Officer Patrick arrested Freeman for DUI and transported him to the Madison County Sheriffs Department. After observing Freeman for an appropriate time period and informing Freeman of his right to refuse chemical tests to determine blood alcohol content (“BAC”), Officer Patrick administered the Intoxilyzer test. Officer Patrick administered the test twice, and Freeman’s BAC was determined to be .09. Officer Patrick issued Freeman tickets for DUI first offense, careless driving, speeding, and littering. Freeman was ordered to appear in the Madison County Justice Court.

¶ 3. Freeman entered a plea of “not guilty.” A justice court hearing was ultimately set for March 11, 2009. On October 30, 2008, Freeman propounded a subpoena duces tecum on Officer Patrick, requesting that Officer Patrick produce “[a]ny and all police reports, statements, video tapes, audio tapes, and any other evidence relating to the September 8, 2008 traffic stop involving Erwyn Freeman” within ten days of service. (Emphasis added.) Neither the prosecutor nor Officer Patrick produced the video recording of the stop in response to this subpoena. The Madison County Justice Court held trial on March 11, 2009, and at that trial, defense counsel first learned of the video of Freeman’s stop. The video was played in justice court, and Freeman maintains that the video reveals that the facts of the stop were quite different from the facts as later testified to by Officer Patrick. The justice court found Freeman guilty of DUI first offense, speeding, littering, and careless driving. At the end of the trial, Freeman requested the video be preserved pending appeal.

¶ 4. Freeman appealed his guilty verdicts to the County Court of Madison County, requesting a trial de novo. A trial was scheduled to occur in the county court on May 29, 2009. On April 17, 2009, the State requested a lengthy continuance because Officer Patrick would be on active [891]*891military duty on May 29, 2009, and would remain on active military duty until November 2009. Freeman noted his concerns in agreeing to the continuance, including that he would be waiving his speedy trial rights, among others. However, he ultimately agreed to the continuance “so long as it is noted on the record that he wishes all evidence be preserved, specifically the video of the arrest, and does not waive any objections/rights if any such evidence is missing and/or destroyed.” (Emphasis added.) In response, the court granted the continuance and ordered that “all evidence in this case be preserved and should any evidence be lost or destroyed, the Defendant preserves any and all defenses he has under the United States and Mississippi Constitutions relating to lost or destroyed evidence.”

¶ 5. On August 7, 2009, Freeman propounded general discovery on the State, which was sufficiently broad to cover the video. The State responded to Freeman’s discovery requests on December 11, 2009, replying that the video had been destroyed. It stated that, during Officer Patrick’s absence, “the laptop with the recording in question was housed and kept at DPS. Upon Trooper Patrick’s return to work in November 2009, it was discovered that the hard drive for said laptop was corrupted and many files were lost. DPS technicians have attempted to recover this recording of the Defendant’s stop and arrest but were unsuccessful.” In response, Freeman filed a Motion to Dismiss, which the court denied. The court did, however, determine that it would infer that the video would have been favorable to Freeman with respect to any contested issues.

¶ 6. At trial, the facts were hotly contested. Freeman maintained that the destroyed video showed Freeman’s vehicle abiding by traffic laws, showed that his speech was not slurred, and showed that his coordination was not impaired. He claims that the video showed the results of Freeman’s preliminary breath tests (“PBT”), and also revealed Officer Patrick speaking with dispatch about Freeman’s PBT levels going-down and that he did not want to “waste his time” if Freeman was not under the influence. He states that the video reveals Officer Patrick cancelling the wrecker he called and stating that he was going to allow someone to pick up Freeman. It shows that Officer Patrick then asked Freeman to take the PBT once more, and Freeman questioned the officer as to why he had to take yet another PBT test. At that point, Officer Patrick arrested Freeman.

¶ 7. Officer Patrick testified on direct examination that as he was driving southbound on Highway 51, he observed Freeman’s vehicle, also traveling southbound, which “appeared to have been running off the road.”1 After Officer Patrick allegedly witnessed Freeman swerve, Officer Patrick approached Freeman’s vehicle from [892]*892behind. Officer Patrick testified that he then estimated Freeman’s speed by following him. Because Freeman was exceeding the posted speed limit of fifty-five miles per hour, he initiated his radar, and it displayed a speed of sixty-nine miles per hour. The Radar Unit Certification introduced into evidence was not a certified copy. After gauging Freeman’s speed while following Freeman, Officer Patrick activated his blue lights and his video and pulled Freeman over.

¶ 8. Officer Patrick testified that when he initially pulled Freeman over, Freeman threw a cup under the vehicle. Officer Patrick maintained that, when he approached the vehicle, he smelled the presence of alcohol. He asserted that Freeman stated that he drank two beers. Freeman asserts that he never stated that he drank two beers. Both Freeman and Officer Patrick agree that what he did or did not say regarding drinking beer was on the destroyed videotape.

¶ 9. Officer Patrick then maintained that Freeman’s speech was slurred and his coordination impaired. Freeman used Officer Patrick’s justice court testimony, which was given when the video was readily available, on cross-examination to elicit the following testimony regarding Freeman’s impaired coordination:

Q: And I asked you a question: “Now, on the videotape — we’re going to put that on in a minute — Dr. Freeman had no problems with his coordination on this video, did he?” What was your answer?
A: I said, “No, sir.”

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Cite This Page — Counsel Stack

Bluebook (online)
121 So. 3d 888, 2013 WL 2350373, 2013 Miss. LEXIS 312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freeman-v-state-miss-2013.