IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-KA-00146-SCT

JERRY McILWAIN, JR.

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 01/27/95

TRIAL JUDGE: HON. ROBERT WALTER BAILEY

COURT FROM WHICH APPEALED: WAYNE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: C. GRANT HEDGEPETH

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: PAT FLYNN

DISTRICT ATTORNEY BILBO MITCHELL

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 8/7/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 8/29/97

BEFORE PRATHER, P.J., ROBERTS AND MILLS, JJ.

MILLS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE AND FACTS

¶1. Jerry McIlwain, Jr. appeals his 1995 felony conviction in the Circuit Court of Wayne County,

Mississippi of driving under the influence of intoxicating liquor in violation of Miss. Code Ann. §63-

11-30 (2)(c) (1972). The issues on appeal, rephrased, are as follows:

ISSUES

1) Did the trial court err in overruling Defendant's Motion to Quash the Indictments?

2) Did the trial court err in allowing a blank Waiver of Rights and Entry of Guilty Plea to be

admitted into evidence as proof of a Second Offense conviction of D.U.I.?

3) Did the trial court err in accepting into evidence testimony of Officer Brooks?
4) Did the trial court err in accepting into evidence Intoxilyzer results without proper predicate?

5) Did the trial court err in overruling Defendant's Motion for Directed Verdict?

6) Did the trial court err in granting State's Jury Instruction S-1?

7) Did the trial court err in denying Defendant's Peremptory Jury Instruction D-1?

8) Did the trial court err in overruling Defendant's Motion for Judgment Notwithstanding the

Verdict, or the alternative, for a New Trial?

DISCUSSION

1) Did the trial court err in overruling Defendant's Motion to Quash the Indictments?

¶2. McIlwain asserts that the indictment for D.U.I. Third Offense failed to allege the requisite

essential elements of the offense. Miss. Code Ann. § 63-11-30 (2) (1995) provides for increased

penalties for subsequent convictions as follows:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who (a)

is under the influence of intoxicating liquor; (b) is under the influence of any other substance

which has impaired such person's ability to operate a motor vehicle; (c) has ten one-hundredths

percent (.10%) or more by weight volume of alcohol in person's blood or urine administered as

authorized by this chapter; or (d) is under the influence of any drug or controlled substance, the

possession of which is unlawful under the Mississippi Controlled Substances Law.

(2)(c) For any third or subsequent conviction of any person violating subsection (1) of this

section, the offenses being committed within a period of five (5) years, such person shall be

guilty of a felony and fined not less that Two Thousand Dollars ($2,000.00) nor more than Five

Thousand Dollars ($5,000.00) and shall be imprisoned not less than one (1) year nor more than

five (5) years in the State Penitentiary. . . .

Miss. Code Ann. § 63-11-30.

¶3. On July 2, 1993, the Wayne County Grand Jury returned the following indictment:

The Grand Jury for the State of Mississippi, taken from the body of good and lawful men and

women of Wayne County, in the State of Mississippi, elected, impaneled, sworn, and charged to

inquire in and for said county, in the state aforesaid, in the name and by the authority of the

State of Mississippi upon their oaths present that:

JERRY MCILWAIN

did in said county, wilfully, unlawfully, feloniously and knowingly, on or about the 2nd day of

July, 1993, operate a motor vehicle while under the influence of intoxicating liquor, having

taken the breath test and registered .187 on the intoxilyzer-alcohol analyzer. FURTHER that

this Defendant has been convicted of D.U.I. 1st and D.U.I. 2nd, making this a 3rd or

subsequent offense (SEE EXHIBIT "A" FOR PRIOR CONVICTIONS) in violation of
Mississippi Code Annotated Section 63-11-30 2 (c) (1972), and contrary to the form of the

statute in such cases made and provided, and against the peace and dignity of the State of

Mississippi.

Attached to the indictment were copies of the Abstract of Court Records for McIlwain's convictions

of D.U.I. First and D.U.I. Second.

¶4. In Page v. State, 607 So. 2d 1163, 1168 (Miss. 1992), we held that "each prior conviction is an

element of the felony offense, and each must be specifically charged." Page, 607 So. 2d at 1168.

Page was charged with felony D.U.I. in violation of Miss. Code Ann. § 63-11-30 (2)(d). The

indictment listed five previous charges, the cause numbers, and when and where they occurred.

However, the indictment failed to specify whether the previous convictions were for D.U.I. First,

Second, or Third. Page, 607 So. 2d at 1165.

¶5. This court, following the strict statutory analysis engendered by the "whiskey" cases(1)from the

1940's, found that each subsection of the D.U.I. statute constituted a separate offense. Page, 607 So.

2d at 1168-69. Lacking specific charges of prior convictions for second and third offense D.U.I., this

Court stated that "[f]or all we know, Page was convicted and punished as a first offender under § 63-

11-30 (2)(a) each and every time." Id.

¶6. Prior to Page, in Benson v. State, 551 So. 2d 188, 196 (Miss. 1989), we also addressed the

validity of an indictment to impose enhanced penalties. This Court stated that the purpose of the

specific listing of previous convictions is to "supply enough information to the defendant to identify

with certainty the prior convictions relied upon by the State for enhanced punishment." Benson, 551

So. 2d at 196. Page went further and stated:

. . . the gravity and seriousness of each successive violation of the statute, i.e., second, third,

fourth and fifth were not charged after the first offense. Therefore, Page was not made aware

that his continued violations increased in punishment for the offense, and that he eventually, by

his continued violations, could face a felony sentence.

Page, 607 So. 2d at 1169.

¶7. We have since followed the Page decision in Ashcraft v. City of Richland, 620 So. 2d 1210,

1211 (Miss. 1993). The Ashcraft indictment was as follows:

[t]hat said person had previously been convicted of a violation of Section 63-11-30 (1), Miss.

Code Ann. (1972) 2nd time(s) and that said person is being charged as a 3rd offender within

five (5) years, under Section 63-11-30 (1), Miss. Code Ann. (1972); against the peace and

dignity of the State of Mississippi.

Ashcraft, 620 So. 2d at 1211-12. We found the indictment fatally defective stating that it "failed,

however, to charge the gravity and seriousness of each successive violation of the statute, i.e., it did

not allege that Ashcraft was ever tried for and convicted of a second offense. . . ." Id.

¶8. Today we find unwarranted our prior application of the "Whiskey" cases to our D.U.I. enhanced

punishment statutes. We find more persuasive the rational and well reasoned analysis of Justice

Banks as stated in his dissent to Page:
[t]here is no explicit requirement [in the statute] that the offender be punished as a third

offender before he is punished as a fourth or subsequent offender. It is only necessary that the

defendant have been convicted of three previous offenses.

Page, 607 So. 2d at 1170-71 (Banks, J., dissenting). The Page majority's interpretation of legislative

will was overreaching and unwarranted. As Justice Banks stated, "It takes no great draftsman to have

defined a third offender as one who has been subjected to punishment as a second offender and a

fourth offender as one who has been subjected to punishment as a third offender." Id. (Banks, J.,

dissenting).

¶9. Today we specifically overrule Page v. State, 607 So. 2d 1163 (Miss. 1992) and Ashcraft v. City

of Richland, 620 So. 2d 1210 (Miss. 1993) to the extent that they interpret the statute to require that

the indictment must specifically show a previous conviction for D.U.I. First prior to being convicted

for D.U.I. Second and a conviction of D.U.I. Second prior to being convicted for D.U.I. Third. The

obvious intent of this statute is to remove repeat D.U.I. offenders from our streets. This goal will be

better accomplished by simply reading the clear language of the statute.(2)

¶10. Therefore, it is irrelevant whether McIlwain had been charged with a D.U.I. First and a D.U.I.

Second. However, as required by Benson v. State, 551 So. 2d 188, 196 (Miss. 1989), the indictment

must still "supply enough information to the defendant to identify with certainty the prior convictions

relied upon by the State for enhanced punishment." Benson, 551 So. 2d at 196. The attached

abstracts of records state clearly that McIlwain had pleaded guilty and been convicted on two prior

occasions, June 6, 1992 and April 24, 1993. Such proof complies with Benson. Further, the

attachment of the abstracts provide a clear and concise statement of the charges as required by both

the D.U.I. indictment case law and the Rules of Circuit Court Practice.

¶11. The indictment clearly gave the defendant sufficient notice of the gravity of the charge against

him. We therefore affirm the trial court's refusal to quash the indictment.

2) Did the trial court err in allowing a blank Waiver of Rights and Entry of Guilty Plea to be

admitted into evidence as proof of a Second Offense conviction of D.U.I.?

¶12. McIlwain asserts that the State failed to prove his conviction of D.U.I. Second. In attempting to

prove the conviction, the State presented an abstract of McIlwain's prior court record with an

attached blank waiver of rights and entry of guilty plea form. At trial, Stephanie West, Wayne County

Court Clerk, testified to the accuracy of the abstracts.

¶13. Miss. Code Ann. § 13-1-77 and M.R.E. 1005 specifically provide that abstracts of records are

admissible to prove prior convictions. As stated in DeBussi v. State, 453 So. 2d 1030, 1031 (Miss.

1984):

Mississippi's position on proof of prior convictions respects the substance of the best evidence

rule: If the actual judgment of conviction is not introduced, it may only be proved by documents

accorded equivalent evidentiary weight by statute.

We have regularly upheld sentences under the habitual criminal statutes where the proof of

prior convictions was made by certified copies of the judgments of conviction. Baker v. State,
394 So. 2d 1376 (Miss. 1981); Jackson v. State, 418 So. 2d 827 (Miss. 1982); Crawley v.

State, 423 So. 2d 128 (Miss. 1982). This accords with the basic principle that the best evidence

of a conviction is the judgment of conviction. McGowan v. State, 269 So. 2d 645 (Miss. 1972);

Brown v. State, 222 Miss. 863, 77 So. 2d 694 (1955).

Debussi, 453 So. 2d at 1031.

¶14. Abstracts of court records, when properly certified, are clearly allowed to prove prior

convictions. The introduction of the blank waiver of rights and entry of guilty plea form is irrelevant

to the proof of the prior Second offense for D.U.I. We find no substance to this issue.

3) Did the trial court err in accepting into evidence the intoxilyzer results?

4) Did the trial court err in accepting into evidence intoxilyzer results without proper predicate?

¶15. In the case sub judice, the State presented the testimony of Officer Danny Brooks to show that

the results of the intoxilyzer were accurate. Officer Brooks testified that he was "certified with the

crime lab in the State of Mississippi to run a simulator test on the intoxilyzer to certify the calibration

on it." McIlwain objected to Brooks' testimony stating that "[t]here should be a certificate filled out

showing where he certified the machine." The trial court overruled McIlwain's objection and allowed

Brooks to testify from his own knowledge. At the close of Brooks' testimony, McIlwain moved to

strike Brooks' testimony for failure to produce the original certificate for certification of the machine

and the officer.

¶16. McIlwain asserts that the State failed to lay the proper predicate for the admission of the

intoxilyzer test results. Rephrased, this issue is identical to that addressed in Johnston v. State, 567

So. 2d 237, 238 (Miss. 1990).

A. Whether the court abused its discretion in ruling that a sufficient predicate had been

laid for the admission of the intoxilyzer results.

¶17. As stated in Johnston;

The relevancy and admissibility of evidence are largely within the discretion of the trial court

and reversal may be had only where that discretion has been abused. Hentz v. State, 542 So. 2d

914, 917 (Miss. 1989), Monk v. State, 532 So. 2d 592, 599 (Miss. 1988). The discretion of the

trial court must be exercised within the boundaries of the Mississippi Rules of Evidence.

Under M.R.E. 901, authentication and identification are conditions precedent to admissibility.

Generally these serve simply to establish that a matter is what it is claimed to be. However in

the illustrations listed for Rule 901, a process or a system may be authenticated or identified

when it is shown that the process or system is used to produce a result and that it produces an

accurate result. 901 (b)(9) Miss. Rules of Evidence.

A chemical analysis of a person's breath, blood, or urine is deemed valid only when performed

according to approved methods; performed by a person certified to do so; and performed on a

machine certified to be accurate. Certification of the machines must take place at least quarterly.

Miss. Code Ann. 63-11-19 (1972). These safeguards insure a more accurate result in the
gathering of scientific evidence through intoxilyzers and are strictly enforced. Where one of the

safeguards is deficient the State bears the burden of showing that the deficiency did not affect

the accuracy of the result. Gibson v. State, 458 So. 2d 1046, 1047 (Miss. 1984).

Johnston v. State, 567 So. 2d 237, 238 (Miss. 1990).

¶18. Johnston sets forth the following three prong test for laying the predicate prior to admitting the

results of a D.U.I. test. The court must determine whether the 1) proper procedures were followed,

2) whether the operator of the machine was properly certified to perform the test, and 3) whether the

accuracy of the machine was properly certified. Johnston, 567 So. 2d at 238. The Johnston

requirements are based on Miss. Code Ann. § 63-11-19 (1996) which sets forth the following:

The State Crime Laboratory shall make periodic, but not less frequently than quarterly, tests of

the methods, machines or devices used in making chemical analysis of a person's breath as shall

be necessary to ensure the accuracy thereof, and shall issue its certificate to verify the accuracy

of the same.

Id.

¶19. This Court has not yet addressed specifically what is meant by a "certificate." In Johnston,

Highway Trooper Thompson testified "that the intoxilyzer was calibrated every month." We stated

that "Trooper Thompson's testimony notwithstanding, the State did not produce any evidence that

the machine was properly certified and made no effort to meet its burden that even if the intoxilyzer

was not properly certified the deficiency did not affect the accuracy of the test." Johnston, 567 So.

2d at 239. In the instant case, unlike in Johnston, immediately following the defendant's motion to

strike, the State reopened Officer Brooks' testimony and introduced the certification of the

intoxilyzer.

¶20. In Monroe v. State, 515 So. 2d 860, 868 (Miss. 1987), we defined a "certified copy" as "[a]

copy of a document or record, signed and certified as a true copy by the officer to whose custody the

original in intrusted." Monroe v. State, 515 So. 2d at 868 (quoting Black's Law Dictionary, 207

(5th Ed. 1979)). To certify is "[t]o authenticate or vouch for a thing in writing. To attest as being

true as represented." Id.

¶21. As stated by M.R.E. 901 (b)(7), "evidence that a writing authorized by law to be recorded or

filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or

data compilation, in any form, is from the public office where items of this nature are kept" is

admissible to prove what the proponent claims.

¶22. The State clearly met the requirement for admission of the certificate of accuracy for the

intoxilyzer. That is not to say, however, that the State is required to present the testimony and allow

cross-examination of the calibrating officer, a misunderstanding of the law which may have been

engendered by our recent decision in Young v. City of Brookhaven, 693 So. 2d 1355 (Miss. 1997).

Rather, the State must present the testimony and allow cross-examination of the calibrating officer

only in the absence of the certification of the intoxilizer or where there is a genuine issue as to the

authenticity of the certification, which, as stated above, may normally be authenticated by the method

set out in Rule 901(b)(7). We find that this assignment of error is without merit.
5) Did the trial court err in overruling Defendant's Motion for Directed Verdict?

6) Did the trial court err in granting State's Jury Instruction S-1?

7) Did the trial court err in denying Defendant's Peremptory Jury Instruction D-1?

8) Did the trial court err in overruling Defendant's Motion for Judgment Notwithstanding the

Verdict, or the alternative, for a New Trial?

¶23. The remaining issues are all based on the State's perceived failure to present their case in chief.

McIlwain asserts that:

without the properly laid predicate for introduction of the intoxilyzer test results, i.e. the proof

of certification of Officer Danny Brooks to test calibration, proof of certification of calibration

of the machine at least quarterly, proof of certification of the Officer Todd McCaskey to

operate the machine, and further without the original documentation of the test results, the

breath test results should not have been allowed into evidence.

We find no validity to this argument. As stated above, the State proved the elements for enhanced

D.U.I. punishment. Therefore, McIlwain was not entitled to a directed verdict, a peremptory

instruction, judgment notwithstanding the verdict, or a new trial. Therefore, this Court finds no

grounds for these issues.

¶24. Furthermore, jury instruction S-1 was a clear and concise statement of D.U.I. law. However,

McIlwain asserts that it does not conform to the required proof. As stated above, the State clearly

proved all required elements of D.U.I. Third. Therefore, instruction S-1 was proper. We find no

grounds for reversal on this issue.

CONCLUSION

¶25. We find no merit in the errors suggested by the appellant. The State must only prove two prior

D.U.I. convictions to enforce the enhanced punishment allowed under our D.U.I. statute. In so

holding, we specifically overrule the holdings of Page v. State, 607 So. 2d 1163 (Miss. 1992) and

Ashcraft v. State, 620 So. 2d 1210 (Miss. 1993) to the extent that the defendant must be punished as

a second time offender prior to being punished as a third time offender. We find the only relevant

consideration to be the number of previous convictions, not the degree of punishment imposed. The

State clearly met this burden through the introduction of the abstracts of the previous convictions.

¶26. Finding no merit among McIlwain's assignments of error, we affirm his conviction and sentence.

¶27. CONVICTION OF FELONY D.U.I. AND SENTENCE OF FIVE (5) YEARS IN THE

CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOUR (4)

YEARS SUSPENDED AND FIVE (5) YEARS SUPERVISED PROBATION AFFIRMED.

PRATHER, P.J., PITTMAN, BANKS, ROBERTS AND SMITH, JJ., CONCUR. McRAE, J.,

DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY LEE, C.J. AND

SULLIVAN, P.J.
McRAE, JUSTICE, DISSENTING:

¶28. I disagree with the majority's decision to overrule Page v. State, 607 So. 2d 1163 (Miss. 1992)

and Ashcraft v. City of Richland, 620 So. 2d 1210 (Miss. 1993). As shown by McIlwain's sentence

of five years in the custody of the MDOC with four years suspended and five years of supervised

probation, a felony conviction for driving under the influence pursuant to Miss. Code Ann. § 63-11-

30 (2)(c) is a serious matter. The indictment, therefore, should enumerate prior misdemeanor DUI

convictions with the same specificity with which other criminal indictments are required to detail the

elements of the offense charged. Accordingly, I dissent.

¶29. In Page, we recognized that when a DUI is charged under § 63-11-30(2)(c), "each prior

conviction is an element of the felony offense, and each must be specifically charged." Page, 607 So.

2d at 1168. Analogizing the graduated offense and penalty scheme of our shoplifting and "whiskey"

cases to the Implied Consent statute, we explained in Page that:

. . . the Implied Consent Law, Miss. Code Ann. § 63-11-30 (1) to (2), increases the penalty for

each succeeding violation of the statute to the point where a fourth or subsequent violation may

be punished as a felony. Each subparagraph of § 63-11-30(2) represents a separate crime with

separate penalties. Section 63-11-30(2)(a) establishes an offense and penalty for the first

conviction under subsection (1). Section 63-11-30(2)(b) establishes a second offense with its

attendant, graduated penalty. Section 63-11-30(2)(c) establishes a third offense and graduated

penalty, and Section 63-11-30(2)(d) establishes a fourth or felony offense and graduated

penalty.

Id. Therefore, as distinguished from the habitual offender statute, Miss. Code Ann. § 99-19-81,

which provides for enhanced sentencing for repeat offenders, § 63-11-30(2)(c) elevates the DUI

offense to a felony for those previously convicted under both §§ 63-11-30(2)(a) and (b). As we

further acknowledged in Page, prior convictions under the statute, "charged and punished as

separate, subsequent offenses, are as much elements of the present felony charge as the element of

driving under the influence." Id. at 1169.

¶30. Adherence to the standards set forth in Page and followed in Ashcraft for sufficiency of an

indictment under the Implied Consent law does not contravene the statutory intent to keep habitually

drunk drivers off the roads. To the contrary, its effect is two-fold. It helps insure that those charged

with repeated DUI offenses are accurately charged and punished and further, that especially those

ultimately charged under § 63-11-30 (2)(a) are afforded the same constitutional rights as those

charged with other felonies. Accordingly, I dissent.

LEE, C.J., AND SULLIVAN, P.J., JOIN THIS OPINION.
1. See, e.g., Brewsaw v. State, 168 Miss. 371, 151 So. 475 (1933); Millwood v. State, 190 Miss.

750, 1 So. 2d 582 (1941), aff'd, 6 So. 2d 619 (Miss. 1942); Rogers v. State, 198 Miss. 495, 22 So.

2d 550 (1945); McGowan v. State, 200 Miss. 270, 25 So. 2d 131, error overruled, 200 Miss. 270,

26 So. 2d 70 (1946).

2. In fact, in 1994, the Legislature clarified its intent by enacting Miss. Code Ann. § 63-11-30(7)

(Supp. 1996), which provides that "the indictment shall not be required to enumerate previous

convictions. It shall only be necessary that the indictment state the number of times that the defendant

has been convicted and sentenced within the past five (5) years under this section to determine if an

enhanced penalty shall be imposed."