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IN THE COURT OF APPEALS 09/17/96 OF THE STATE OF MISSISSIPPI
NO. 93-KA-01031 COA

MELVIN HEMPHILL APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JOSEPH H. LOPER COURT FROM WHICH APPEALED: CIRCUIT COURT OF CHOCTAW COUNTY ATTORNEY FOR APPELLANT: R.W. BOYDSTUN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DEWITT ALLRED III DISTRICT ATTORNEY: DOUG EVANS NATURE OF THE CASE: CRIMINAL: CULPABLE NEGLIGENCE MANSLAUGHTER TRIAL COURT DISPOSITION: CONVICTED AND SENTENCED TO FOURTEEN YEARS IN THE CUSTODY OF THE MDOC

BEFORE THOMAS, P.J., DIAZ, AND PAYNE, JJ. PAYNE, J., FOR THE COURT: Melvin Hemphill was convicted at a bench trial on September 1, 1993, of culpable negligence manslaughter. On that same day, Hemphill was sentenced to serve fourteen years in the custody of the Mississippi Department of Corrections. Feeling aggrieved, Hemphill appeals arguing: (1) the trial court erred in denying his motion for a view of the scene; (2) the trial court erred in finding him guilty of culpable negligence; (3) the trial court erred in denying his motion to appoint a pre-sentence investigator; and (4) the trial court erred regarding the testimony of Tony Cunningham. Finding no error, we affirm Hemphill's conviction and sentence. STATEMENT OF THE FACTS The State sought to prove that Hemphill and Tony Cunningham were involved in a road race which resulted in Cunningham's wrecking with a third car, killing the driver of that car. The testimony and other evidence revealed that both Hemphill and Cunningham were traveling east on state Highway 12 in Choctaw County. Billy Jean McMullen was also traveling east on Highway 12 when he attempted to turn left onto Drain Road. The front end of Cunningham's car collided with the driver's side of McMullen's car as McMullen attempted to turn. McMullen was killed, and his passenger was injured. Hemphill continued east on Highway 12. Jeff McKnight was traveling west on Highway 12 and witnessed the collision. McKnight testified that he met McMullen's car as it slowed. McKnight next met Hemphill's car which had its bright lights on. McKnight recognized the third car as Cunningham's orange cutlass. McKnight testified that both cars traveled at a high rate of speed. After passing the intersection, McKnight watched the cars in his rearview mirror. McKnight testified that Hemphill's lights came on briefly, and then Cunningham's car moved into the left lane colliding with McMullen. Charles Parish also testified at trial. Parish is the proprietor of a store in Attala County which is located approximately one and one-half miles from the scene of the collision. Both Hemphill and Cunningham were at Parish's store previous to the collision. Parish testified that the men had a discussion about racing. According to Parish, Hemphill stated that he could beat Cunningham with a junkyard motor. Parish witnessed both men exiting his store in their respective cars at a high rate of speed with their tires "squalling." Parish heard the call for an ambulance on his police scanner a few minutes later. The Mississippi Highway Patrol's accident reconstructionist, L.M. Claiborne, testified that Cunningham's minimum speed at the moment of impact was ninety miles per hour. Hemphill contended at trial that he knew nothing of the collision until the next morning. ARGUMENT AND DISCUSSION OF THE LAW I. THE TRIAL COURT ERRED IN DENYING HEMPHILL'S MOTION FOR THE COURT TO VIEW THE SCENE. Hemphill fails to cite any authority for this assignment of error or directly argue its merits and instead

quotes the record. The Mississippi Supreme Court has recognized that it will not consider issues on appeal with no citation to authority. Armstrong v. Armstrong, 618 So. 2d 1278, 1282 (Miss. 1993) (citations omitted); Estate of Mason v. Fort, 616 So. 2d 322, 327 (Miss. 1993) (citations omitted); Smith v. Dorsey, 599 So. 2d 529, 532 (Miss. 1992) (citations omitted). This Court likewise is not bound to consider issues without citation to authority. However, we note that under section 13-5-91, "the trial court has discretionary authority to allow the jury to view or inspect the place at which an offense has allegedly been committed. And this Court will reverse only in the event of a clear abuse of discretion." Green v. State, 614 So. 2d 926, 936 (Miss. 1992) (citing Tolbert v. State, 511 So. 2d 1368, 1378 (Miss. 1992)). In the present case, the scene of the incident was established by testimony, diagrams and photographs. Hemphill fails to establish the necessity of the trial court to view the scene. We cannot say that the trial court abused its discretion. Thus, this issue is without merit. II. THE LOWER COURT ERRED IN MISTAKING SIMPLE NEGLIGENCE, IF ANY, FOR CULPABLE NEGLIGENCE AMOUNTING TO MANSLAUGHTER.

IV. THE LOWER COURT ERRED IN RENDERING A JUDGMENT WHICH IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

Hemphill's arguments for his second and fourth assignments of error are essentially the same, and we will consider them together. Hemphill attacks the credibility of the evidence against him, and argues that the trial court erred in finding him guilty of culpable negligence manslaughter. The Mississippi Supreme Court has defined culpable negligence as "negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life, and that this shall be so clearly evidenced as to place it beyond every reasonable doubt." Craig v. State , 520 So. 2d 487, 492 (Miss. 1988) (quoting Grinnel v. State, 230 So. 2d 555, 558 (Miss. 1970) (quoting Smith v. State, 197 Miss. 802, 818, 20 So. 2d 701, 706 (1945))). The court has also noted that culpable negligence may be defined as "the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the wilful creation of an unreasonable risk thereof." Evans v. State, 562 So. 2d 91, 93 (Miss. 1990) (citing Smith v. State, 197 Miss. 802, 818, 20 So. 2d 701, 706 (1945)); Craig v. State, 520 So. 2d 487, 492 (Miss. 1988). The case of Campbell v. State is instructive: The driver of a motor vehicle who enters into an unlawful race with the driver of another motor vehicle may be held criminally responsible for the death of a third person caused by the speed and reckless driving of the latter driver, even though the former's vehicle has no physical contact at any time with the victim of the killing, where the acts of both drivers lead directly to and are a proximate cause of the killing. Campbell v. State, 285 So. 2d 891, 893 (1973) (quoting 7 Am. Jur. 2d Automobiles & Highway Traffic

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