Vanessa Lynn Page v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-KA-01456-COA

VANESSA LYNN PAGE A/K/A VANESSA L. APPELLANT
PAGE A/K/A VANESSA PAGE

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/13/2016
TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED: 02/27/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.

GRIFFIS, P.J., FOR THE COURT:

¶1. After a bench trial, Vanessa Lynn Page was convicted of felony driving under the

influence (DUI). Page appeals. Finding no error, we affirm.

FACTS

¶2. On August 14, 2015, around 7:00 p.m., Page was arrested near her home in Cedar

Lake trailer park in Biloxi, Mississippi, after a tipster identified by first and last name called

911 and reported Page. The tipster called 911 shortly after the tipster and Page left the same

Alcoholics Anonymous (AA) meeting. The tipster expressed concern for Page’s driving, and
the tipster included specific details about Page’s identity, vehicle, and destination. The

tipster also told the dispatcher that someone had offered Page a ride home, but Page refused.

The tipster described Page as a slightly belligerent and extremely intoxicated white woman

who was approximately five-feet tall with her hair pulled back into a ponytail.

¶3. Biloxi Police Officer Robert McKeithen received the call from dispatch. McKeithen

was familiar with the trailer park where Page lived.

¶4. When McKeithen approached the area of the trailer park, he immediately noticed the

described car at an intersection in front of him. As he made a turn onto South Cedar Lake,

he saw Page’s grey Nissan Versa turn left into the trailer park. He later testified that the

driver matched the description originally provided in the tip. McKeithen followed Page for

about an eighth of a mile before pulling her over. Traveling at ten miles an hour, McKeithen

trailed Page for roughly forty-five seconds before he stopped her. McKeithen testified he did

not observe any traffic offenses while he followed Page. He made the stop based on the

confirmation of information he received from dispatch and also for the safety of the children

in the area.

¶5. Page pulled over immediately. When McKeithen approached, he noticed that Page

smelled like alcohol, her eyes were glassy, and her speech was slurred. Once she got out of

the car, Page had trouble keeping her balance and she was unsteady on her feet. McKeithen

ran her driver’s license, which came back as suspended because of a prior DUI from earlier

that year.

¶6. Shortly after McKeithen stopped Page, Officer Jason Cummings, a DUI officer,

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arrived on the scene and took over to administer field sobriety tests. Cummings noticed the

same odor, appearance, and slurred speech that McKeithen observed. When Cummings

attempted to administer the field sobriety tests, Page failed the first test. Citing a pre-existing

injury, Page was physically unable to complete the remainder of the tests. Based on these

observations, Cummings arrested Page for driving with a suspended license. After he

properly Mirandized her, he took her to the police station to continue the DUI investigation.

¶7. At the station, Page agreed to an Intoxilyzer test, but she was unable to provide a

sufficient breath sample. Page then verbally consented to provide a blood sample. She was

taken to Merit Health Hospital, where she gave written consent in the presence of an officer

and the phlebotomist who proceeded to draw her blood.

¶8. The blood samples were sent to the crime lab for testing. The results indicated that

Page had a blood-alcohol concentration of 0.19 percent. Thomas Graham, a crime lab

analyst, conducted the test and prepared the report, which was then reviewed by the lab’s

technical reviewer, Maury Phillips. At trial, Phillips testified regarding Graham’s findings.

Phillips also described the standard process of analyzing blood samples, and the roles of a

technical reviewer. Phillips explained that he personally reviewed Graham’s work and all

data generated by the testing. Once Phillips verified the results, he signed Graham’s report.

According to Phillips, the results would have been the same had he conducted the tests

himself. The prosecution never entered the report into evidence.

¶9. However, the prosecution submitted evidence that Page had two previous DUI

convictions within five years of the present case. The circuit court found Page guilty of

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felony DUI and sentenced her to five years in the custody of the Mississippi Department of

Corrections, with three years suspended and two to serve, followed by three years of

post-release supervision.

ANALYSIS

I. Whether there was reasonable suspicion for an investigatory stop.

¶10. “This Court applies a mixed standard of review when considering Fourth-Amendment

issues.” Cook v. State, 159 So. 3d 534, 537 (¶6) (Miss. 2015) (citing Eaddy v. State, 63 So.

3d 1209, 1212 (¶11) (Miss. 2011)). “We apply de novo review when determining whether

probable cause or reasonable suspicion exists.” Id. “[D]e novo review is limited to the trial

court’s decision based on historical facts reviewed under the substantial evidence and clearly

erroneous standards.” Id. (quoting Dies v. State, 926 So. 2d 910, 917 (¶20) (Miss. 2006)).

¶11. Police officers may conduct a brief investigatory stop when they have “reasonable

suspicion, grounded in specific and articulable facts that allows the officers to conclude [that]

the suspect is wanted in connection with criminal behavior.” Eaddy, 63 So. 3d at 1213 (¶14)

(quoting Walker v. State, 881 So. 2d 820, 826 (¶10) (Miss. 2004)). “[A]n informant’s tip

may provide reasonable suspicion if [it is] accompanied by some indication of reliability; for

example, reliability may be shown from the officer’s independent investigation of the

informant’s information.” Id. at (¶15) (citing Florida v. J.L., 529 U.S. 266, 270 (2000)).

“Reasonable suspicion is dependant upon both the content of the information possessed by

the detaining officer as well as its degree of reliability.” Floyd v. City of Crystal Springs, 749

So. 2d 110, 118 (¶30) (Miss. 1999) (citing Alabama v. White, 496 U.S. 325, 330 (1990)).

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“Both factors—quantity and quality—are considered in the ‘totality of the circumstances.’”

Id.

¶12. The Mississippi Supreme Court has addressed reasonable suspicion in DUI cases in

Floyd and Cook. In Floyd, 749 So. 2d at 112 (¶ 4), an off-duty police officer received a tip

from someone who had provided the officer with credible information in the past. That

information was relayed to an on-duty officer who located the car and pulled over the driver

without observing a traffic violation. Id. at (¶5). The driver evidenced signs of intoxication,

and he had an open liquor bottle. Id. at (¶¶6-7). Because of the accuracy of the informant’s

tip, the off-duty officer’s familiarity with the informant, and the fact that there was no reason

“to doubt the reliability or good faith of the informant,” the supreme court found that the

investigatory stop was justified. Id. at 119 (¶33).

¶13. Page argues that unlike the informant in Floyd, the tipster was essentially anonymous

because the tipster had no prior working relationship with the Biloxi Police Department.

However, there is no requirement that a tipster provide credible information in the past to be

able to do so in the present. If that were the case, a first-time tipster could never establish

credibility. Instead, as noted previously, the court takes a totality-of-the-circumstances

approach when evaluating a tip and the tip’s subsequent establishment of reasonable

suspicion. Alabama, 496 U.S. at 330.

¶14. In Cook, a driver was pulled over and arrested for DUI after a police officer followed

the driver based on a tip from an unknown source who said Cook had been driving

erratically. Cook, 159 So. 3d at 536 (¶3). The arresting officer never observed that behavior

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before stopping the driver. Id. at 540 (¶16). Ultimately, the supreme court reversed the DUI

conviction because the officers did not corroborate the criminal activity reported in the tip

prior to stopping the driver. Id. at (¶18). An accurate description of the driver’s vehicle and

location was insufficient. Id. at (¶17).

¶15. Page relies on State v. Sailo, 910 S.W.2d 184, 188 (Tex. Ct. App. 1995), in which the

Texas Court of Appeals noted that “a tip by an unnamed informant of undisclosed reliability

standing alone will rarely establish the requisite level of suspicion necessary to justify

investigative detention.” However, that is not what occurred in the present case. Here the

tipster identified herself by name and reported that she had personally witnessed Page’s

behavior during an AA meeting just prior to calling in the tip. The tipster also provided

specific facts regarding Page’s car, physical appearance, and destination. McKeithen stopped

Page based on his confirmation of those facts. The content of the tip was extremely specific

and easily and visibly verifiable by McKeithen before he stopped Page. The fact that the

tipster had been participating in the same AA meeting as Page and personally witnessed

Page’s behavior, speaks to the tip’s reliability regardless of whether the tipster had provided

credible information to the police in the past. The “quantity and the quality” of the

information provided in the tip, when considered alongside the totality of the circumstances,

was enough to establish reasonable suspicion. See Floyd, 749 So. 2d at 118 (¶30).

Therefore, the investigatory stop did not violate Page’s Fourth Amendment rights. We find

no merit to this issue.

II. Whether the admission of the blood-alcohol testing violated Page’s
Confrontation Clause rights.

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¶16. “The standard of review for admission of evidence is abuse of discretion.” Debrow

v. State, 972 So. 2d 550, 552 (¶6) (Miss. 2007) (citing Smith v. State, 839 So. 2d 489, 494

(¶6) (Miss. 2003)). “However, when a question of law is raised, the applicable standard of

review is de novo.” Id.

¶17. Criminal defendants have a constitutional right to confront witnesses against them.

U.S. Const. amend. VI; Miss. Const. art. 3, § 26. This applies to in-court testimony and out-

of-court testimonial hearsay, unless the witness is unavailable and the defendant had a prior

opportunity to cross-examine him. Rubenstein v. State, 941 So. 2d 735, 754 (¶6) (Miss.

2006) (citing Crawford v. Washington, 541 U.S. 36, 53-54 (2004)).

¶18. Here, Graham performed the test that determined Page’s 0.19 percent blood-alcohol

concentration. At the time of Page’s trial, Graham was no longer employed by the crime lab,

and he did not live in Mississippi. The prosecution called Phillips to testify regarding the test

results. Although Graham’s lab report was not entered into evidence, Phillips testified

regarding the results. Accepted by the trial court as an expert in forensic toxicology, Phillips

explained that he did not perform the test on Page’s blood sample. But he clarified that as

the section chief for the toxicology and implied-consent sections of the Mississippi Forensics

Lab, he was the technical reviewer of Graham’s test.

¶19. Claiming that the trial court erred by allowing Phillips’s testimony, Page relies heavily

on the outcome of Melendez-Diaz v. Massachusetts, 557 U.S. 305, 308 (2009). There, the

prosecution attempted to circumvent the Confrontation Clause requirement by submitting

analysts’ affidavits and “certificates of analysis” instead of live, in-court testimony. Id. The

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United States Supreme Court held that the Sixth Amendment does not permit prosecutors to

submit forensic reports absent a defendant’s opportunity to cross-examine the analysts who

generated those reports. Id. at 329.

¶20. Page also relies on Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011). There, the

Supreme Court rejected the use of an uninvolved surrogate witness to testify about forensic

reports. Id. At trial, the prosecution sought to admit the crime laboratory’s report, which

showed that Bullcoming was intoxicated. Id. at 655. The prosecution did not, however, call

as a witness anyone involved with the blood-alcohol concentration test and its subsequently

generated report. Id. at 653. Instead, the prosecution attempted to call another analyst from

the crime laboratory. Id. at 655. That analyst “had neither observed nor reviewed” the work

of the analyst who had tested Bullcoming’s blood sample. Id. The Supreme Court ruled that

allowing testimony by uninvolved parties about the forensic reports, as well as entering those

reports into evidence without subjecting the analysts to cross-examination, would be

reversible error. Id. at 657-58.

¶21. Such is not the case here. Phillips was the technical reviewer of the lab report at issue,

and he testified. The supreme court has held that a supervisor, reviewer, or other analyst may

testify in lieu of the primary analyst where the surrogate witness was “actively involved in

the production of the report and had intimate knowledge of the analyses even though [he] did

not perform the tests first hand.” McGowen v. State, 859 So. 2d 320, 340 (¶68) (Miss. 2003).

Additionally, “when the testifying witness is a court-accepted expert in the relevant field who

participated in the analysis in some capacity, such as by performing procedural checks, then

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the testifying witness’s testimony does not violate a defendant’s Sixth Amendment rights.”

Id. at 339 (¶68).

¶22. Here, Phillips was a court-accepted expert in the field of forensic toxicology. He was

actively involved in the production of the report, he had intimate knowledge of the tests that

were performed and the process that was used to confirm the findings, and he reviewed

Graham’s work to ensure that the conclusions were correct and accurate. Phillips testified

that when an analyst has completed the analysis, his work packet is submitted for review.

Phillips explained that all reports issued by an analyst must be technically and

administratively reviewed before they are released. As the technical and administrative

reviewer in this case, Phillips verified that Graham followed protocol and used the proper

scientific methods of toxicology. Moreover, Phillips stated that he received Graham’s work

packet “with all of the data” and examined it to ensure that the policies were followed and

that Graham’s conclusions were accurate and correct.

¶23. This case is consistent with Jenkins v. State, 102 So. 3d 1063, 1069 (¶20) (Miss.

2012), and Grim v. State, 102 So. 3d 1073, 1081 (¶23) (Miss. 2012), which both support the

conclusion that Phillips’s testimony did not violate Page’s right of confrontation. In both

cases, technical reviewers who had reviewed data generated by testing, verified the results,

and signed the lab reports were called to testify as to their opinions on the forensic findings.

Jenkins, 102 So. 3d at 1064 (¶1); Grim, 102 So. 3d at 1075 (¶1). Our supreme court held that

the testimony of an analyst who did not perform the test did not infringe the defendant’s right

to confrontation if the testifying analyst had “intimate knowledge” of the analysis and if the

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testifying analyst was “actively involved in the production” of the report at issue. Jenkins,

102 So. 3d at 1067, 1069 (¶¶13, 19); Grim, 102 So. 3d at 1079, 1081 (¶¶16, 20) (quoting

McGowen, 859 So. 2d at 340 (¶13)).

¶24. While Phillips did not conduct the test himself, he was “actively involved in the

production of the report and had intimate knowledge of the analyses even though [he] did not

perform the tests first hand.” See McGowen, 859 So. 2d at 340 (¶68). Additionally, Phillips

testified that he would have come up with the same result had he done the testing himself.

Therefore, we find that Phillips, as the technical and administrative reviewer, was qualified

to testify as a surrogate witness in lieu of the primary analyst. We find no merit to this issue.

¶25. AFFIRMED.

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR.

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