IN THE SUPREME COURT OF MISSISSIPPI

NO. 1998-KA-01706-SCT

BOBBY STRICKLAND

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 10/21/1998

TRIAL JUDGE: HON. ROBERT WALTER BAILEY

COURT FROM WHICH APPEALED: CLARKE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: DAVID A. STEPHENSON

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: SCOTT STUART

DISTRICT ATTORNEY: BILBO MITCHELL

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 05/17/2001

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 6/7/2001

EN BANC.

McRAE, PRESIDING JUSTICE, FOR THE COURT:

¶1. Bobby Strickland, then fifty-seven years old, was arrested on January 10, 1998, and charged with

DUI. He was subsequently indicted by a Clarke County Grand Jury for the offense of DUI Third Offense.

As a result, the jury had knowledge of the fact that Strickland had twice been convicted of driving under the

influence. He was also charged as a habitual offender, having been previously convicted of possession of a

firearm by a felon (February 17, 1995) and aggravated assault (June 12, 1981). A jury trial was had in the

Circuit Court of Clarke County starting August 24, 1998. The jury returned a verdict of guilty of driving

under the influence of alcohol. Strickland was given a sentence of life in prison without parole. Strickland's

motion for a new trial was overruled. Finding Strickland's arguments to be without merit, we affirm his

conviction.

I.

¶2. On January 10, 1998, Mississippi Highway Patrol Officer Jerome Lee was driving south of Quitman on

U.S. Highway 45 around 6:30 p.m. when he got behind a Ford pickup truck that "was all over the road." It

was "crossing the center line, meeting traffic and they were almost colliding with each other." Lee turned on

the video camera in his vehicle and followed the truck for approximately a mile before activating his blue

light to stop the vehicle just as it made a wide turn into County Road 125. Lee walked up to the truck and

asked the driver, Bobby Strickland, to step outside his vehicle. Lee testified that the driver "appeared to be

having difficulty with his movements," staggering. "He was having to hold on to the truck to walk." The truck

smelled like beer, and there was one empty beer can on the floorboard of the truck. Lee helped Strickland
walk to the rear of Lee's police car. Apparently, no roadside or breathalyzer blood test was given.

¶3. Lee drove Strickland to the county jail and, after a computer check, discovered that Strickland's license

had been suspended for two past DUIs. Lee requested a Quitman police officer, Alton Beckman, to

conduct a breathalyzer analysis on Strickland. Certified copies of the previous DUI convictions were

entered into the record without objection from the defendant, as was a videotape of the arrest.

¶4. Trooper Ronnie Carter testified that Strickland was convicted of DUI first offense on February 24,

1995, and DUI second offense on March 14, 1995. Carter recalled that Strickland was able to blow into

the breathalyzer at his first arrest. On the arrest for DUI Second Offense, Strickland refused to submit to a

breathalyzer.

¶5. Quitman police officer Alton Beckham testified that Strickland refused to take the breathalyzer.

Beckham stated that Strickland told him that he was drunk but that "it wasn't going to be on paper how

drunk he was."

¶6. Strickland took the stand in his own defense and testified to his poor physical condition on the day of his

arrest. Strickland suffers from diabetes and high blood pressure. On the day of his arrest, Strickland stated

that he had not had a drink of alcohol in a year and a half. He was on his way back from purchasing

cigarettes when he was arrested. At that time he was sweating all over and, having failed to take his glasses

with him, could not see very well. There was a "half a sack" of beer cans located in the back of Strickland's

truck that he had recently collected from the side of the highway. Strickland testified that Officer Lee

flashed his flashlight in his eyes when he came upon his truck and that he had to sit there a few minutes to

regain his focus.

¶7. When taken to the station and asked to take a breathalyzer, Strickland did not refuse to take the

breathalyzer but informed Officer Beckham that he did not have sufficient breath to blow in the machine.

Because of his failing eyesight, he could not even see a machine in the room.

¶8. In this appeal, Strickland raises three issues:

1. WHETHER THE LOWER COURT ERRED IN PERMITTING THE STATE OF

MISSISSIPPI TO QUESTION STRICKLAND REGARDING HIS PAST ARREST FOR

DUI.

2. WHETHER THE LOWER COURT ERRONEOUSLY PERMITTED THE STATE OF

MISSISSIPPI TO CROSS-EXAMINE STRICKLAND REGARDING HIS DRIVING

WITHOUT A VALID DRIVER'S LICENSE.

3. WHETHER THE LOWER COURT ERRED IN REFUSING TO GRANT A MISTRIAL

WHEN THE JURY WAS TOLD THAT STRICKLAND WAS A CONVICTED FELON.

II.

STANDARD OF REVIEW

¶9. The admissibility of evidence rests within the discretion of the trial court. Peterson v. State, 671 So.2d

647, 655-56 (Miss. 1996). The function of the reviewing court is to determine if the trial court abused its
discretion. Bogard v. State, 624 So.2d 1313, 1316-17 (Miss. 1993).

¶10. The decision to declare a mistrial is within the sound discretion of the trial judge. To find error from a

trial judge's failure to declare a mistrial, there must have been an abuse of discretion. Brent v. State, 632

So.2d 936, 941 (Miss. 1994).

III.

DISCUSSION

1. WHETHER THE LOWER COURT ERRED IN PERMITTING THE STATE OF

MISSISSIPPI TO QUESTION THE DEFENDANT REGARDING HIS PAST ARRESTS

FOR DUI.

¶11. During opening statement, Strickland's attorney stated that he believed the evidence would show that

Strickland did not refuse to take the intoxilyzer. Strickland's attorney stated: "As a matter of fact, I think the

evidence is going to show he actually did blow into it; although, I think they will say it was an insufficient

sample, is what they say."

¶12. The fact that Strickland had been convicted twice previously for DUI was testified to by Trooper

Ronnie Carter. Carter also testified that while Strickland submitted to the breathalyzer on his first arrest, he

refused to take the breathalyzer test on his second arrest.

¶13. On direct examination, Strickland testified that he told Officer Beckham, "I have a little problem with

[breathalyzers] because my breath ain't long enough to blow in this latest machine." On cross-examination,

the prosecution delved into Strickland's past experiences blowing into breathalyzer machines.

¶14. Strickland argues that it was error for the prosecution to bring out details of his previous DUI

convictions. See Blanks v. State, 547 So.2d 29 (Miss. 1989); Edlin v. State, 533 So.2d 403 (Miss.

1988). He argues that this evidence was offered only to show that Strickland was acting in conformity with

prior acts and was not admissible under M.R.E. 404(b).

¶15. The State argues that Beckham's testimony was "admissible to refute Strickland's announced theory

that he did not refuse to take the intoxilyzer test but was physically unable to give a sufficient breath

sample."

¶16. Pursuant to M.R.E. 403, relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. In this case, the fact that Strickland failed to object to the

introduction of his prior convictions into the record effectively waived his right to object to this evidence on

appeal. Had the jury not been made previously aware of Strickland's prior DUIs, such evidence might have

unfairly prejudiced the jury. However, the jury was fully aware that Strickland was being tried for his third

DUI offense and testimony as to specific incidents involving past arrests for DUI was not substantially

prejudicial to Strickland in this instance. As a result, this assignment of error must fail.

¶17. We note that there is no need for the State to introduce evidence of prior DUI convictions during the

guilt phase of a trial. A better approach would be to introduce the prior convictions at the sentencing phase

of the trial in order to prevent unfair prejudice to the defendant.
¶18. Miss. Code Ann. § 63-11-30(8) (Supp. 1999), requires an indictment to "state the number of times

the defendant has been convicted and sentenced within the past five years under this section to determine if

an enhanced penalty shall be imposed." This provision is in conflict with our Rules of Evidence. Rule 404(b)

prevents the introduction of evidence of prior bad acts to show action in conformity therewith. In addition,

Rule 403 prevents the introduction of otherwise relevant evidence if its probative value is outweighed by the

danger of unfair prejudice to the defendant. Evidence of two prior convictions for the same crime that a

defendant is currently being tried is the exact type of evidence that our Rules of Evidence seek to exclude.

¶19. We have held in the past that a statute in conflict with the Rules of Court are abrogated by this Court's

rule-making power. Hughes v. Tupelo Oil Co., 510 So.2d 502 (Miss. 1987). In Hughes, Miss. Code

Ann. § 63-11-43 (1972) prevented the introduction of blood-alcohol test results in civil trials. We held this

statute to be abrogated by Mississippi Rule of Evidence 501, which did not bar admission of the test results

in civil trials. Hughes, 510 So.2d at 505.

¶20. Therefore, when a defendant is charged with subsequent violations of section 63-11-30, an indictment

containing evidence of prior convictions should not be read to the jury. A jury should not be made aware of

a defendant's prior convictions for the same crime that he is currently facing trial. The prior convictions are

only relevant as to sentencing and should only be admitted during a separate sentencing phase.

¶21. This will not place an onerous burden on the State. Miss. Code Ann. § 63-11-30(6) requires judges

to forward a copy of the citation, an affidavit, or "any other pertinent documents concerning the conviction"

to the Commissioner of Public Safety. The statute further provides that any of these documents, once

verified by the Commissioner, "shall be sufficient proof of the conviction for purposes of determining the

enhanced penalty for any subsequent convictions." Therefore, they can be used in the sentencing phase by

the judge.

2. WHETHER THE LOWER COURT ERRED IN PERMITTING THE STATE OF

MISSISSIPPI TO CROSS-EXAMINE THE APPELLANT REGARDING HIS

DISRESPECT OF THE LAW BECAUSE HE WAS DRIVING WITHOUT A VALID

DRIVER'S LICENSE.

¶22. During the State's cross-examination of Strickland, the following testimony was elicited in regard to

why he had given the wrong last digit when asked for his Social Security number:

Q: Now, it didn't have anything to do with the fact that you were driving and you had no license at all,

right; didn't have anything to do with that?

A: No, it didn't have nothing to do with that.

Q: But you were driving with a license that was suspended because you commit DUI's, right?

A: Yes, sir.

Q: So when you got in the car to drive to the tobacco store, you were completely in the violation of

the law -

BY MR. STEPHENSON: Object, Your Honor, under 404, and it is not relevant.
BY MR. ANGERO: It is relevant, too, Judge.

BY MR. STEPHENSON: The fact that he -

BY THE COURT: No, sir, I think it is relevant and I believe it is more probative than prejudicial.

Q: When you got into the car to drive to down to that tobacco store it was a violation of the law of

the State of Mississippi for you to get behind the wheel to go anywhere in that car; isn't that right?

A: Yes, sir.

Q: But you just disregarded that, correct; is that correct?

A: I just drove my truck over there.

Q: You disregarded the law that says your license is revoked, you have been driving under DUI and

you cannot drive a car, and you said well, I am not worried about that, and you drive on to the

tobacco store anyway, right?

A: (No response)

Q: Is that right?

A: I went to the tobacco store.

¶23. The State argues that Strickland's credibility was placed directly in issue when he denied that he ever

told Officer Beckman that he was drunk.(1) The State claims that as a result it was appropriate to crossexamine Strickland on the issue of giving a false Social Security number to Officer Lee prior to speaking

with Beckman. The State attempted to prove that Strickland lied in order to hide the fact that he was

driving without a valid driver's license, which, argues the State, goes to show Strickland's motive for lying,

which is admissible under M.R.E. 404(b).

¶24. Strickland argues that the sole reason for the above line of questioning was to show that he possessed

a bad character and, as a lawbreaker, the jury could infer that he was driving under the influence on this

occasion. In other words, the officers were to be believed and not the lawbreaker.

¶25. In Mack v. State, 650 So.2d 1289 (Miss. 1994), this Court set out the burden which must be met for

admitting evidence under Rule 404(b). The proponent must (1) identify the consequential fact to which the

proffered evidence of other crimes, wrongs or acts; and (2) prove the other crimes, wrongs or acts; and (3)

articulate precisely the evidential hypothesis by which the consequential fact may be inferred from the

proffered evidence. Once the evidence has met this burden, it must also pass the balancing test of probative

value versus prejudicial effect found in Rule 403. Mack, 650 So.2d at 1311.

¶26. Strickland put both his own credibility, and that of Beckman, at issue when he claimed that Beckman

had lied at trial. Strickland denied that he told Beckman that he was drunk while under custody. Since the

charge against Strickland was driving under the influence, the evidence was highly relevant. In addition,

proof that Strickland did not have a valid license due to a previous arrest was relevant to show why

Strickland might have lied about his Social Security number. (Strickland claimed that he merely mixed up

the last numbers.) The evidence of Strickland's suspended license was admitted to show that Strickland had
not just accidentally mixed up the last numbers and was evidence of his motive to keep the officer from

retrieving his record. Motive is a recognized exception from the general prohibition against proof of other

crimes under M.R.E. 404(b). As a result, this assignment of error also fails.

3. WHETHER LOWER COURT ERRED IN NOT GRANTING A MISTRIAL WHEN

THE JURY WAS TOLD THAT STRICKLAND WAS A CONVICTED FELON.

¶27. When being cross-examined by Strickland's attorney regarding how many arrests he had made since

arresting Strickland in 1994, Trooper Carter stated the following:

Q: Officer Carter, on January 5, 1994, - -that was what, four and a half years ago? - - are you telling

me that you can remember whether or not he blew into the machine or didn't blow into the machine?

A: Well, what I am telling you is that I am answering the best I can according to my memory.

Q: Okay. Now, it's about four and a half years since then. About how many people have you

arrested?

A: It would just be a guess. I wouldn't have any -

Q: A couple of thousand?

A: I couldn't really know for sure. I would have to check my records.

Q: I mean, would that be a ballpark figure?

A: No, sir.

Q: More than that?

A: No, sir, it wouldn't be that many.

Q: Okay. So, I mean, are you telling me four and a half years ago, when he asked you about this test

given on January 5, 1994, the refusal, you just don't remember, right, it's just a refusal?

A: On that particular instance, what I arrested Bobby, that I charged him with driving under suspicion

for DUI and for carrying a - - convicted felon carrying -

BY MR. STEPHENSON: All right. Judge, now, I am going to object to that and then ask the Court

to instruct the jury -

BY THE COURT: I will instruct the jury to disregard the last statement.

¶28. Strickland contends that the judge erred in not granting a mistrial in Strickland's favor. He points out

that Carter's testimony was extremely prejudicial since the issues in the case revolved around whether the

jury believed Strickland or the state troopers. According to Strickland, the statement made by Carter was a

violation of M.R.E. 609(a) and 403, and the judge's direction to the jury to disregard the statement was not

enough to cure the error. The State points out that generally a defendant cannot complain of damaging

testimony when it is in response to his questions. Griffin v. State, 504 So.2d 186, 192 (Miss. 1987).
¶29. In Hoops v. State, 681 So.2d 521 (Miss. 1996), the defendant complained that during his trial a

witness made references to other aggravated assaults allegedly committed by him (Hoops) prior to the

shooting in question. However, the references were elicited by Hoops's counsel during cross-examination

of Bell. The pertinent testimony was as follows:

Q: You made some statements earlier, sir, about knowledge of Timmy Hoops being in a gang. How

do you know that personally? Were you at the gang initiation?

A: No. I just--we used to come over to Timmy Hoops house, you know, to visit, you know. And

Timmy Hoops has got one of the rags and everything.

Q: I can't understand what you said.

A: He used to have one of the rags and everything, scarf, red bandana.

Q: So, he was wearing a red bandana. That's how you knew that he was allegedly affiliated--

A: --Yeah. He used to shoot at other G's, what I recall, too.

Q: I couldn't understand what you said.

A: He used to shoot at other G's, what I recall. You know what I'm saying.

Q: I think so.

¶30. In finding no reversible error by the judge, this Court held that the record showed that Hoops's

attorney was not blindsided by Bell's comments and that Bell gave a direct and responsive answer to the

question. "Hoops elicited the response and therefore cannot complain that the answer was one he did not

want." Hoops, 681 So.2d at 528.

¶31. The trial judge may alleviate the potential damage of such testimony by addressing the statement with

the jury, instead of declaring a mistrial. See Hoops, 681 So.2d at 528. This Court has held that the trial

court's instruction to the jury to disregard such testimony is sufficient to prevent prejudice. See Baine v.

State, 604 So.2d 249, 257 (Miss.1992)(Court held that only "if the inadmissible testimony is so damaging

that its effect upon the jury could not be adequately tempered by admonition or instruction, the trial court

should grant a mistrial."); Dennis v. State, 555 So.2d 679, 682-83 (Miss.1989); Wright v. State, 540

So.2d 1, 4 (Miss.1989) ("Absent unusual circumstances, where objection is sustained to improper

questioning or testimony, and the jury is admonished to disregard the question or testimony, we will not find

error").

¶32. The decision to grant a mistrial because of potentially damaging statements is left to the discretion of

the trial judge, and the trial judge must grant a mistrial if he believes that the challenged testimony is so

damaging that his instructions to the jury could not adequately temper the testimony's effects. See Hoops,

681 So.2d at 528. Each case must be decided individually in determining whether particular error

constitutes reversible error. Henderson v. State, 403 So.2d 139, 140 (Miss.1981).

¶33. While there is little doubt that Carter's testimony regarding Strickland previously being arrested for

possession of a firearm by a felon had the potential to bias the jury, consideration must be given as to

whether the judge's instruction to disregard the statement was sufficient to ward off any prejudicial effect on
the jury. However, it is of great consequence whether Strickland's attorney invited Carter's response by his

line of questioning during cross-examination. Finding that Carter's response was invited and should not have

blindsided Strickland's attorney, this assignment of error fails as well.

IV.

CONCLUSION

¶34. This Court finds no reversible error in any of the three issues presented by Strickland. Evidence of

Strickland's prior DUI arrest and breathalyzer test was admissible to rebut the claim made during opening

statement that he had tried but was unable to sufficiently blow into the breathalyzer. There was also no error

in the court admitting evidence that Strickland had a suspended driver's license at the time of arrest and that

this was therefore one of the reasons he gave a false Social Security number to the arresting officer.

Testimony that Strickland had previously been convicted of a felony was also harmless error, as

Strickland's own attorney provoked the testimony during cross-examination of one of the State's witnesses.

Strickland failed to object to the jury's being notified of his prior two DUIs and similarly failed to raise it on

appeal. However, when a defendant is brought to trial for felony DUI under Miss. Code Ann. § 63-11-30,

the judge and jury are aware that he has twice previously been convicted of DUI, as these are requirements

for such a charge. A better procedure would be to allow information of past DUIs during trial only when it

relates to the current charge, is allowed under the rules of evidence, and during the sentencing stage before

the judge.

¶35. Finding none of Strickland's arguments meritorious, we affirm his conviction and sentence.

¶36. CONVICTION OF FELONY DUI AS A HABITUAL OFFENDER UNDER MISSISSIPPI

CODE ANNOTATED § 99-19-83 AND SENTENCE OF LIFE IMPRISONMENT IN THE

CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH

CONDITIONS, AND PAYMENT OF A FINE OF $2,000.00, ALL FEES AND COSTS,

AFFIRMED.

BANKS, P.J., WALLER AND DIAZ, JJ., CONCUR. PITTMAN, C.J., SMITH, COBB

AND EASLEY, JJ., CONCUR IN RESULT ONLY. SMITH, J., CONCURS IN RESULT

AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY

PITTMAN, C.J., MILLS AND COBB, JJ.

SMITH, JUSTICE, CONCURRING IN RESULT AND DISSENTING IN PART:

¶37. I agree with the plurality's result in affirming Strickland's conviction on all three issues raised on appeal.

However, I disagree with the language at the end of part III (1) and of the plurality's conclusion stating:

However, when a defendant is brought to trial for felony DUI under Miss. Code Ann. §§ 63-11-30,

the judge and jury are aware that he has twice previously been convicted of DUI, as these are

requirements for such a charge. A better procedure would be to allow information of past DUIs

during trial only when it relates to the current charge is allowed under the rules of evidence as in this

case and during the sentencing stage before the judge.

¶38. The plurality is simply criticizing this Court's recent decision in Weaver v. State, 713 So. 2d. 860

(Miss. 1997), without citing or expressly overruling it. Interestingly, the author of the plurality opinion here
joined the dissent in Weaver on the very issue concerned in the case at bar. I find no necessity for the use

of any of this critical language in this case.

¶39. In Weaver, this Court approved of the very procedure about which the plurality now complains. It is

inappropriate to comment adversely in a plurality opinion by suggesting that a different procedure would be

better than what this Court approved recently in Weaver. The Bench and Bar are entitled to consistency by

this Court and to rely upon our opinion in Weaver unless and until this Court clearly overrules Weaver.

¶40. We crossed this bridge in Weaver. There is no reason to now undermine Weaver as does the plurality

who effectively attempts to overrule Weaver without even mentioning it.

¶41. I respectfully concur in the result and dissent in part regarding the plurality's newly proposed

procedure.

PITTMAN, C.J., MILLS AND COBB, JJ., JOIN THIS OPINION.

1. Quitman police officer Alton Beckham testified that Strickland refused to take the breathalyzer.

Beckham stated that Strickland told him that he was drunk but that "it wasn't going to be on paper how

drunk he was."