IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-01467-COA KEITH FRISTON A/K/A KEY-MAN A/K/A KEITH LADELL FRISTON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/20/2015 TRIAL JUDGE: HON. CHARLES E. W EBSTER COURT FROM W HICH APPEALED: COAHOMA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN T. COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT DISTRICT ATTORNEY: BRENDA FAY MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED: 08/08/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Keith Friston appeals his convictions of aggravated driving under the inf luence and f elony leaving the scene of

an accident. W e f

ind no error and af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. On August 17, 2013, Clarksdale police of f i cer Howard W oodward responded t o an
auto mo b i l e accident. W hen h e a rrived at the scene, W oodward saw a white Oldsm obile Alero against a brick w a l l , and f ound N orm an W illiam s and Valerie W est o n the ground outside of the car. W illiam s was injured, but conscious and able to walk. However, W estwas deceased. W illiam s identif ied Friston as the d

river o f the car. W oodward did not see Friston at the scene of

the accident. ¶3. Friston was s ubsequently located by Clarksdale patrol of f i cer By ron Vaughan not f

ar f rom the scene of the accident. Friston was pl a ced i n Vaughn’s vehicle and taken to the hospital. ¶4. Kendrick W alker, an investigator with the Clarksdale Police Departm e nt, r e c eived
perm ission to obtain blood sam ples f rom Friston and W illiam s. Laboratory analy sis showed
F r i s t o n t e s t ed positive f

or the presence of m arijuana a nd had a blood-alcohol level of .19.
W i lliam s tested negative f or alcohol, but positive f

or m arijuana. Two day s af ter the accident, Friston g a v e a s tatem ent to Investigator W a lker, during which F riston adm itted that at the tim e of the accident, he was driving the car. ¶5. Friston was indicted on Count I, aggravated driving under the inf luence, and Count II, f elony leaving the scene of a n accident. The indictm ent wa s s u b sequently am ended to charge Friston as a habitual of f ender pursuant to Mississippi Code A nnotated section 99-19- 81 (Rev. 2015). ¶6. This m atter initially went t o trial in Novem ber 2014. However, during trial, Dr. Erin Barnhart, the f

o rensic pathologist who perf orm ed W e st’s autopsy , becam e ill a n d was unable

to testif y . The State of Mississippi m oved f or a m istrial, which was granted over Friston’s objection. ¶7. The m atter was retried beginning February 17, 2015. At trial, W illiam s testif ied that,

at the tim e of the accident, F riston was driving the c a r , he w as in the passenger seat, and

2W e st w as in the back seat. W illiam s was unable to state whether Friston had b een drinking

on the day

of the accident. ¶8. Dr. Barnhart i dentif ied various autopsy p hotographs, which showed W est’s injuries.
Dr. Barnhart opined that W est’s cause of death was blunt f orce t raum a to the h ead a nd torso, and that her m anner of death was an accident. ¶9. Friston testif

ied in h i s own def

ense. Friston stated he and W est had been in a relationship since 2007. F riston f urther stated he had worked f or Lew Houston, a contractor, f or ten y ears. Houston ty

p i cally picked up Friston f or work since, a ccording to Friston, “[ he]

never drives because [ he is] alway s under the inf luence of alcohol.” Although he claim ed to never drive, Friston adm itted that he purchased the Alero and that it was his car. ¶10. Friston testif

ied that, o n the day of t he ac c i d e n t , he, W illiam s, and W est went by Houston’s house t o check on him

. Friston stated W illiam s w as driving the car when they lef t Houston’s hous e . M o r e o v er, Friston s tated that at the tim e of t he accident, W illiam s was driving the car, W est was in the passenger seat, and he was sitting in the back on the driver’s side. Friston acknowledged that as a result of the im pact, W illiam s was injured a n d West died, y et he was not i njured. Friston f urther acknowledged that m ost of the im pact f rom the accid e n t w a s o n the passenger s ide of the c a r, with little dam age to the driver’s side. However, Friston denied that this indicated he was d riving a t the t im e of t he accident, with
W i lliam s on the passenger side. ¶11. Friston adm itted that during his statem ent to the p olice, he stated he was driving the

car at the tim e of the accident. However, Friston claim ed he only said that to cover up f

or

3W i lliam s, as he considers W illiam s his nephew.

¶12. Friston stated he lef t the scene of the accident t o get help. However, he a dm itted that despite “a lot of

houses” in the subdivision, he never went to one of the houses f

or help. ¶13. Friston attem

p ted t o call Houston as a witness during t he retrial. Ho u s t o n h ad
pr eviously testif

ied a t Friston’s f

i rst trial. However, the circuit court excluded H ouston’s testim o ny at the retrial. ¶14. Friston was convicted on both counts a n d sentenced, as a habitual of f ender, to twenty

f ive y ears in Count I, and twenty y ears in Count II, to run concurrently , f or a total of twenty

f ive y ears to serve i n the custody of the Mississippi Departm ent o f Corrections. He was also ordered to pay a f

ine in the am ount of $5,000. Following the denial of his post-trial m otions, Friston appealed. ¶15. On appeal, Friston a rgues: (1) the retrial v iolated his right against double jeopardy since t he m istrial was not m anif estly necessary , (2) the circuit court erroneously excluded Houston’s testim ony , and (3) the circuit court f ailed to i nstruct the jury on the specif ic act of negligence and, as a result, constructively am ended the indictm ent. ANALYSIS
I. Double Jeopardy ¶16. Friston f

i rs t a rgues the circuit court erroneously granted the State’s m otion f or m istrial since a m istrial was not m anif estly necessary . A s a result, Friston claim s the retrial violated his constitutional right against double jeopardy

. ¶17. “[ T]he decision to declare a m istrial is within the sound d iscretion of the trial judge.”

4W

hitaker v. State , 114 So. 3d 725, 730 (¶14) (Miss. Ct. App. 2 012). “If a m istrial is granted
upon the court’s m otion or u pon the State’s m otion, a second trial i s barred because of double jeopardy , unless t aking i nto consid e r a t i o n a ll the circum stances[ ,] there was a ‘m anif est necessity ’ f

o r the m istr i al.” Jenkins v. State , 759 So. 2d 1229, 1234 (¶18) ( Miss. 2000) (citing W atts v
. S tate , 492 S o. 2d 1 281, 1284 (Miss. 1986)). W hile “a def endant has a valued constitutional right to be tried by a particular jury , ” that “right is som etim es subordinate to the public interest in allowing the prosecutor one f ull and f air opportunity to present his case to an im partial jury .” Id

. at 1234-35 (¶¶21-22). ¶18. Friston asserts the testim o ny of Dr. Barnhart was unnecessary since the law does not require a n autopsy o r m e dical evidence t o estab l i s h cause of death. Friston contends the State c ould have had the coroner testif y or could have of

f e red into e vidence a death certif i cate. However, “the m ere existence of alternatives does not bar a second t rial.” Leslie

v. State , 171 So. 3d 549, 5 5 2 ( ¶ 4) ( Miss. Ct. App. 2015). The f o rensic pathologist who perf orm ed the autopsy w as the proper witn e ss to identif y and authenticate the autopsy photographs, n ot the c oroner. Moreover, there i s no indication that the coroner was available

to testif y on such short notice or was even a ble t o testif y as to the cause of death. Additionally , there is no indication that a properly certif ied copy of the death certif icate was available during trial. ¶19. Taking i nto consideration all the circum stances, we f ind there was a m anif

est necessity f

or the m istrial. W hile cause of death is n ot an e lem ent of aggravated driving under

t h e i n f l uence, the State m

u st prove a causal c o nnection between t he car accident and th e

5victim ’s death. Theref o re, Dr. Barnhart’s testim ony was necessary

to show that W est died f rom blunt f

orce traum a to the head and torso received in t he car accident. Accordingly , the circuit court did not abuse its discretion in d eclaring a m i strial, and F riston’s subsequent retrial did not violate his right against double jeopardy

. II. Exclusion of Houston’s Testimony ¶20. Friston next argues the circuit court im p roperly exclu d e d Houston’s testim ony , thereby deny ing him the opportunity to establish a def ense. “The standard of r eview applied

to a c ircuit judge’s a dm ission or exclusion of evidence a nd testim ony i s abuse o f discretion.” Carpenter v. State , 132 So. 3d 1053, 1055 (¶5) (Miss. Ct. App. 2013). ¶21. During the retrial , d e f e n se counsel advised t he circuit court that based on a conversation h e had w ith Houston on a break, he anticipated that Houston’s testim ony would be contrary

to his f o rm er trial testim ony . As a result, def ense counsel requested that he be allowed to call Houston a s a witness in order to im peach him with his f

orm e r trial testim ony . ¶22. The f

ollowing exchange between def e n se counsel and the circuit court occurred: DEFENSE: — I’m not askin g y o u t o ma k e t h e decision, whether to call

[ Houston] or not. I am a sking the C o u rt to be a llowed

— although I k n o w i t ’ s not custom ary — to be allowed to call [ Houston] and im

peach him

. COURT: In f

ront of the jury ? DEFENSE: Yes, sir. COURT: I don’t believe I can.

. . . . COURT: I don’t kno w t h a t I c a n — y ou know, y ou want to call him f or
6im peachm ent purposes, but — DEFENSE: No, sir. COURT: — i n reality , t h e im peachm ent that y ou want to u se, y o u want the jury to receive as substantive evidence. DEFENSE: Yes, y our Honor.

. . . . COURT: I don’t think I can — I don’t believe — under t hose circum s t a n c e s , I

wouldn’t allow y ou to call Mr. Houston. ¶23. “A crim inal def

endant is entitled to present his def e nse to t he f

inder o f f act, and it is f undam entally u nf

air to deny the jury the opportunity t o c o n sider the def endant’s def

ense where t h e r e i s t estim ony to support the theory .” Clark v. State , 40 So. 3d 531, 542 (¶30) (Miss. 2010). “However, all evidence adm itted in support of the def endant’s theory of the

case m ust com port with the Mississippi Rules of Evidence.” I

d

. ¶24. Im peachm ent tests the credibility of a witness. Lanier v. State , 533 So. 2d 473, 487 (Miss. 1988). F riston asserts that pursuant to Mississippi Rule o f Evidence 607, “ [ a]ny party , including the p arty that called the witness, m ay a ttack the witness’s credibility .” Friston claim s his attem

pt t o c all Houston as a witness was not m ade in bad f aith, but was a n attem

pt
to e stablish h is def

ense, which was supported by Houston’s f o rm er testim ony . See Carothers

v. State , 152 So. 3d 277, 284 (¶21) (Miss. 2014) (“[ T]o prevent abuse of Rule 607, im p eachm ent s h ould not be allowed where the trial court f inds t he purported purpose of im p eachm ent f

or of f ering the statem ent(s) is i n bad f aith, o r is subterf

uge to m ask the true purpose of

of f e ring the statem ent(s) to prove the m atter asserted.”).

7¶25. However, the r ecord s hows Friston did not seek to im peach Houston’s credibility with his f orm er testim ony . Instead, F riston sought t o i n t roduce Houston’s f orm er testim ony as substantive evidence i n support of t he central issue of Friston’s guilt. Wh i l e a p r ior inconsistent statem ent can be used to im peach the witness’s credibility , i t is not adm issible

as substantive evidence of the def endant’s guilt. See Brown v
. State , 556 So

. 2 d 338, 341 (Miss. 1990) (prior i nconsistent s worn statem ents, w hich provided substa n tial support f

or the central issue of

guilt, were not adm issible as substantive evidence of guilt). ¶26. I t i s im

portant to note that the circuit court sim ply denied Friston’s attem pt to us e Houston’s f

orm e r testim ony f

or substantive pu r p o s e s. The circuit court did not exclude
Houston a s a witness on these g rounds. Instead , the circuit court f ound Houston’s f

orm er
t e s t i m ony f

or that l im i ted purpose would not be allowed. Overall, we f ind no a b u s e o f discretion in the exclusion of Houston’s testim ony . ¶27. Def

ense counsel next requested to introduce the transcript of Houston’s f orm er trial testim o ny in lieu of calling Houston as a witness. Pursuant t o Mississippi Rule of Evidence 804(b)(1), in order f

or f or me r t e s t im ony to be adm issible u nder the hearsay exception, the declarant m

ust be unavailable as a witness. Here, it is undisputed that Houston was available to testif y . Thus, the circuit court did not err in excluding Houston’s testim ony . III. Jury Instructions ¶28. Friston last argues the jury was not properly i nstructed on the elem ents of aggravated driving u nder the inf

luence. In particular, F riston argues the j ury was not instructed on the specif ic negligent act that caused W est’s death, as o utlined in Friston’s indictm ent. Friston

8claim s the im proper instructions resulted in a constructive am endm ent to his indictm ent. ¶29. At the jury -instruction conf erence, Friston did not object to th e S t a t e ’ s elem ents instructi o n or the S tate’s negligence instruction, w hich were subsequently m arked Jury Instruction C -20 and Jury Instruction C-21 respectively

. “ [ A]n of f en d e d p a r ty ’s f

ailure to object to jury instructions at trial procedurally bars the issue on appeal.” Neal v. State , 15 So. 3d 388, 397 (¶13) (Miss. 2009). As Friston f ailed to object , h e f

a i l e d t o preserve f

or appellate review his challenge to t he instructions. Ac c o r d i n g l y , we f ind this issue is procedurally

barred. ¶30. Procedural bar n otwithstanding, we f ind the issue is without m erit. “ It i s well settled that jury instructions generally are within the d iscretion of the trial c ourt, and the appropriate standard of review is abuse of discretion.” Faust v. State , 113 So. 3d 614, 616 (¶9) (Miss. Ct. App. 2013) (quoting Bolton v. State , 87 So. 3d 1129, 1132 (¶10) ( Miss. Ct. App. 2012)). Jury instructions m

ust be read together as a whole. W ilson v. State , 967 So. 2d 32, 36 (¶11) (Miss. 2007). W hen so read, “if a ll instructions taken as a whole f airly , but not necessarily perf ectly , announce the applicable rules of law, no error results.” I

d . at 36-37 (¶11). ¶31. Count I of

the Indictm ent alleged Friston: [ D]id unlawf

ully , willf ully and f eloniously drive or otherwise operate a m otor vehicle

. . . while under the inf luence of an intoxicating l i q u o r , or any other substance, to w it: m arijuana, w h i c h im paired his a

b ility to operate a m otor vehicle, or while having a concentration of [ eight] one-hundredths percent of alcohol (.08%) or m ore in his blood

. . . and did, in a negligent m anner, cause the death of Valerie W est, b y running off the roadway and into a b rick wall[ .] (Em phasis added). Jury

Instruction C-20 instructed the jury : [ I]f y ou f ind f rom the evidence in this case b ey ond a reasonable doubt

. . . that:

91. On or about A ugust 17, 2013, that the Def endant, [ F riston], negligently caused a m otor vehicle a ccident resulting in the death of [ W est], a living hum an being, when he w as driving or operating a m otor vehicle, to-wit: a white Olds m o b ile A lero, and 2. the Def

endant, [ Friston], was driving or operating said m otor vehicle while under the i n f l uence o f a n intoxicating liquor, or any other substance, to-wit: m arijuana, that im paired his ability to operate his m otor vehicle, or 3. the Def

endant, [ Friston], was driving or operating said m otor vehicle while having a bl o od concentration l evel o f eight onehundredths percent of alcohol (.08%) or m ore, t hen y o u should f ind the def

endant guilty

of DUI Death in Count One. ¶32. Friston argues that in order to convict h im of aggravated d riving under the inf

luence, the State “had to prove that [ he] drove while under the inf l u e n c e . . . and that he caused
W e st’s death [ by running o f f the roadway and into a brick wall].” Friston claim s the circuit

court “ f ailed to instruct the jury on the specif i c negligence the j ury shou l d f i n d b ef ore convicting Friston of the crim e .” As a result, Friston argues t he circuit court constructively

am ended his indictm ent “by om itting the specif

ic act of negligence.” W e disagree. ¶33. “[ N]ot all variances between the indictm ent and instructions c onstitute a constructive

am endm ent.” Graham v. State , 185 So. 3d 992, 1001 (¶25) (M i s s . 2 0 1 6 )

. “The central question [ we] m

ust ask when reviewing a n alleged constructive am endm ent is whether the variance is such as to substantially alter the elem ents of proof necessary f

or a conviction.” Id

. ¶34. “The elem e nts of D UI hom icide are (1) operating a vehicle while u nder the inf luence of an intoxicating liquor, or operating a vehicle with [ .08%] or mo r e b y w e i g h t volum e of alcohol in the person’s blood; and (2) causing the death of another in a negligent m anner.”

1 0Andino v
. State , 125 S o. 3d 700, 703 (¶8) (Miss. Ct. App. 2013); see a lso Miss. Code Ann.

§ 63-11-30(1), (5) (Rev. 2013 ). The State is not required to prove a specif ic act of negligence, only that the death was caused in a negligent m anner. Thus, contrary t o Friston’s claim , the jury was n ot required to be instructed on a specif ic negligent act, i.e., running of f the roadway and into a brick wall, in order to convi c t h i m o f t h e charge. Instruction C-20 sim ply rem o ved language that was unnecessary to prove. ¶35. Additionally , Instruction C-20 did not m aterially alter F riston’s d e f e n se. Friston claim s he was not driving the car a t the tim e of the a ccident. W hether F riston was negligent by running of

f the roadway and into a brick wall does not af f ect this d ef

ense. Accordingly , the rem o val of

such language was im m aterial. ¶36. W e f

ind the jury was properly instructed on the elem ents of aggravated driving under the inf luence. Instruction C-20 did not constructively am e n d F riston ’ s indictm e nt, as the instruction did not substantially alter the elem ents of proof necessary f or a conviction, and did not m a terially

alter his def

ense. ¶37. AFFIRMED. LEE, C.J., I RVING, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., C ONCUR. W E S T BROOKS, J., CONCURS I N PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

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