                           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 cross-
examine 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."
