BEFORE THE COUNTY COURT OF DESOTO COUNTY, MISSISSIPPI

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STATE OF MISSISSIPPI, PLAINTIFF
VS. CAUSE NO.: S2022-0015
JAMES ANDREW FISCHER, DEFENDANT
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TRANSCRIPT OF PROCEEDINGS HAD AND DONE IN THE BENCH TRIAL OF THE
ABOVE STYLED AND NUMBERED CAUSE, BEFORE THE HONORABLE ALLEN B.
COUCH, JR., COUNTY COURT JUDGE, AT APPROXIMATELY 1:35 P.M. ON
THE 30TH day of AUGUST, 2022.

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________________________________________________________________

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APPEARANCES:
PRESENTING THE PLAINTIFF:
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HONORABLE JAMES E. HOLLAND, ESQ.
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Holland & Hisaw

3010 Goodman Road West
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Horn Lake, Mississippi 38637

REPRESENTING THE DEFENDANT:

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HONORABLE JOSEPH "WHIT" COOPER, ESQ.

Farese, Farese & Farese
P.O. Box 98
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Ashland, Mississippi 38603

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MICHELLE A. BROWN, CSR #1395

DeSoto County Official Court Reporter
2535 Highway 51 South, Hernando, MS 38632
michellebrown.csr@gmail.com
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1 I N D E X
2 Page No.
3 Style, Number and Appearances...................... 1
4 Index.............................................. 2
5 Pretrial Matters................................... 3
6 WITNESSES: PLAINTIFF:
7 TROOPER JASON YOUNG
8 Direct Examination by Mr. Holland.............. 4
9 Cross-Examination by Mr. Cooper................ 9

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10 The Plaintiff Rests................................ 17
11 Motion by Defendant................................ 17

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12 WITNESSES: DEFENDANT:
13 JAMES ANDREW FISCHER
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14 Direct Examination by Mr. Cooper............... 20
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15 Cross-Examination by Mr. Holland............... 22

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16 The Defendant Rests................................ 23

17 The Plaintiff Finally Rests........................ 23
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18 Court's Ruling..................................... 23
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19
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20
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1 P R O C E E D I N G S
2 * * * * *
3 THE COURT: Court calls the matter of State of
4 Mississippi vs. James Andrew Fischer, Cause No.
5 S2022-0015CD. What says the State?
6 MR. HOLLAND: The State is ready, Your Honor. We
7 do have one stipulation that I'll make after you
8 confirm.
9 THE COURT: What says the defense?

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10 MR. COOPER: Ready, Your Honor.
11 THE COURT: Okay. And what is that, Mr. Holland?

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12 MR. HOLLAND: Your Honor, with regard to Citation
13
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203258913, the offense of improper lane usage, for
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14 reasons none of us can understand -- and the reason I
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15 wanted the record is so I can report it to the highway

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16 patrol. The ticket that we get in justice court was

17 the correct offense code, section and title, Section
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18 63-3-603, improper lane usage. The ticket that was

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19 printed in the officer's car, given to the defendant,

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20 and provided to defendant's counsel, references

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21 Sections 63-3-609, 611 and 613. It does not reference

22 the correct statute. It's an automatic -- it
23 populates itself. Is that correct?
24 TROOPER YOUNG: Correct.
25 MR. HOLLAND: The officer has no control over
26 what goes in. And by stipulation, the State is going
27 to dismiss that ticket, as not giving proper notice of
28 the actual charge. And we will proceed only on the
29 other traffic citation for careless.
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1 THE COURT: Okay.

2 MR. COOPER: That's correct, Your Honor.
3 MR. HOLLAND: And I'll report it to --
4 THE COURT: Speaking of which, in that case this
5 morning, we need to do an order dismissing the
6 careless driving charge.
7 MR. HOLLAND: Okay. I will do that before I
8 leave.
9 MR. COOPER: Feel free to add this one as well,

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10 Your Honor.
11 MR. HOLLAND: I'll do that when I do this one.

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12 THE COURT: All right. Get me an order on both
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of those at the conclusion of this trial.
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14 Do the parties wish to make an opening statement?
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15 MR. HOLLAND: The State does not, Your Honor.

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16 MR. COOPER: No, Your Honor.

17 THE COURT: You may call your first witness.
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18 MR. HOLLAND: I call Trooper Jason Young.

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19 THE COURT: Come around and be sworn in by the

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20 clerk, please.
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21 TROOPER JASON YOUNG,

22 upon being called as a witness on behalf of the State, after
23 having been first duly sworn, was examined and testified as
24 follows:
25 MR. HOLLAND: May I proceed?
26 THE COURT: Yes, sir.
27 DIRECT EXAMINATION
28 BY MR. HOLLAND:
29 Q. Would you state your name for the record?
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1 A. Trooper Jason Young.

2 Q. And, Mr. Young, what do you for a living?
3 A. Work for the Mississippi Highway Safety Patrol.
4 Q. Are you a certified police officer for that agency?
5 A. Yes.
6 Q. Are you assigned to --
7 THE COURT: Do me a favor -- hang on just a
8 second. If you would, pull that microphone a little
9 closer. Thank you.

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10 MR. HOLLAND CONTINUING:
11 Q. Are you assigned to the DeSoto County area?

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12 A. Yes, sir.
13 Q.
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And did all the events that you're going to testify to
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14 today occur in DeSoto County, Mississippi?
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15 A. Correct.
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16 Q. Were you on duty on or about the 5th day of March of

17 this year?
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18 A. Yes.
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19 Q. In your capacity as an officer on duty, did you have

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20 any contact with a James Andrew Fischer?

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21 A. Yes.
22 Q. Would you recognize Mr. Fischer if you saw him again?
23 A. Yes.
24 Q. Do you see him in the courtroom?
25 A. Yes, sir.
26 Q. Would you identify him for the Court?
27 A. The gentleman to my left, blue shirt.
28 Q. What's he wearing?
29 A. Blue shirt.
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1 MR. COOPER: Your Honor, we'll stipulate that

2 he's identified the defendant.
3 THE COURT: So noted.
4 MR. HOLLAND CONTINUING:
5 Q. How did you come in contact with Mr. Fischer?
6 A. On the date that you stated, we was conducting a
7 safety checkpoint on the 301 and Pratt Road.
8 Q. And how did your attention get drawn to Mr. Fischer?
9 A. I was sitting down on 301 at the intersection. A lady

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10 come down the hill, which it was a truck at the north of where
11 we were at. The lady come up, stated there was a truck backing

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12 up the road. I observed the vehicle that was traveling
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southbound but then was backing up the road to go back
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14 northbound. And I got in my vehicle. That's when I pursued Mr.
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15 Fischer -- the truck that was going northbound.

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16 Q. And did you overtake that vehicle?

17 A. Yes.
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18 Q. Did you witness any traffic offenses during this time

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19 period?
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20 A. Yes, sir, I did. At that time, the lady that was

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21 going southbound that I came in contact -- when she stated that

22 a vehicle was backing up the road and almost hit her, I looked
23 northbound looking north of where we were at. I saw the vehicle
24 that was backing up and made a u-turn to go back northbound.
25 That's when I got in my vehicle to pursue the truck.
26 Q. When you say "backing up," he was going north in
27 reverse in the southbound lane?
28 A. Yes, correct.
29 Q. Was there other traffic around at this point in time?
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1 A. Correct.
2 Q. What, if anything, did you do after that?
3 A. I made -- I approached the driver. Mr. Fischer
4 provided me with a Mississippi driver's license. When I
5 approached the vehicle, I could smell an intoxicating odor
6 coming from the vehicle. I asked him why he turned around. He
7 said he got an emergency phone call for his grandmother to go
8 help her, etc.
9 Q. You didn't find a basis to charge him with a DUI,

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10 though, right? Is that correct?
11 A. It just -- on my preliminary breath test, it just

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12 indicated -- it indicated that he had consumed some kind of
13 alcohol at that time.
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14 Q. But you didn't charge him?
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15 A. No, sir.
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16 Q. Did you charge him with anything?

17 A. Yes, sir.
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18 MR. HOLLAND: Your Honor, may I approach the

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19 witness?
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20 THE COURT: Yes, sir.

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21 MR. HOLLAND CONTINUING:

22 Q. Can you identify this document?
23 A. Yes, sir. This is a citation from the Mississippi
24 Highway Safety Patrol. It's a citation for careless driving,
25 which is -- it was on -- I mean, it's 301 and Pratt Road in
26 DeSoto County.
27 Q. Is that the e-citation version?
28 A. Correct.
29 Q. And is that sometimes different from the one that
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1 actually goes to the defendant? That's what happened to these

2 others, right?
3 A. Correct.
4 Q. But does that contain all the information of the
5 charge that was brought at that time?
6 A. Correct.
7 Q. And did you put your signature electronically on that
8 document?
9 A. Yes, sir. It automatically populates my name and my

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10 badge number.
11 Q. And did you go to the clerk's office and confirm that

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12 ticket?
13 A. Correct.
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14 Q. And was a copy given to the defendant of the one that
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15 prints out from your car?

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16 A. Correct.
17 MR. HOLLAND: Your Honor, I would move that be
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18 admitted as Exhibit 1 for jurisdictional purposes.

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19 MR. COOPER: No objection.

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20 THE COURT: It may be made an exhibit to the

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21 witness' testimony.
22 (WHEREUPON, EXHIBIT NO. 1, COPY OF CITATION, WAS
23 MARKED AND ADMITTED TO THE TESTIMONY OF THE
24 WITNESS.)
25 MR. HOLLAND CONTINUING:
26 Q. The charge of that was careless driving, correct?
27 A. Correct.
28 Q. And would you, just one more time, explain to me what
29 the careless driving consisted of so it's clear in my head?
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1 A. For what I observed by the vehicle that was traveling

2 southbound, was driven by Mr. Fischer, was backing up the road,
3 which was in a careless state. Also, after talking to Mr.
4 Fischer, he was under the -- he was under the influence of an
5 intoxicating odor, a smell which indicated some type of
6 beverage. Like I said, Mr. Fischer was not charged with a
7 driving under the influence at that time.
8 MR. HOLLAND: Tender the witness, Your Honor.
9 THE COURT: Cross-examine.

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10 MR. COOPER: Yes, Your Honor, briefly.
11 CROSS-EXAMINATION

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12 BY MR. COOPER:
13 Q.
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Trooper Young, did you make a written report around
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14 the time of this incident of this encounter?
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15 A. I did.
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16 Q. Do you have a copy of the written report?

17 A. No. It was not -- I did not get a subpoena for the
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18 discovery on that.
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19 MR. COOPER: One moment.

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20 (BRIEF PAUSE.)
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21 MR. COOPER CONTINUING:

22 Q. And if we had -- if my office had sent a notice of
23 discovery that was filed with the Court to your Master Sergeant
24 Chatham Knight, you wouldn't know anything about that?
25 A. Everything goes to him. Like I said, we don't have --
26 I don't have any -- if I get an e-mail, of course, it goes
27 directly to him about those subpoenas.
28 Q. Okay. Now, you know that you and I spoke in court and
29 I requested a copy of the video.
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1 A. Which you got.

2 Q. I did. I did receive a copy of the video. You're
3 correct. But I never received a copy of any reports. Do you
4 have that report with you today?
5 A. But you -- I didn't get a subpoena for that. You just
6 asked me face-to-face for the video, not a copy of the subpoena
7 of the discovery.
8 THE COURT: So the question is: You don't have
9 it today?

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10 BY THE WITNESS: No, sir.
11 MR. COOPER CONTINUING:

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12 Q. And I filed for discovery with the court, correct?
13 Well, you don't know that.
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But you're assuming I did, correct?
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14 A. I assume if you wanted it, you'd get it.
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15 Q. And you're the one that has control of that report,

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16 correct?
17 A. No.
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18 THE COURT: Counsel, did you file discovery in

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19 this court?
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20 MR. COOPER: No, sir, Your Honor. I filed the

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21 court -- I filed for discovery in the Justice Court of

22 DeSoto County.
23 THE COURT: Okay, but not in this court?
24 MR. COOPER: No, sir, not in this court.
25 THE COURT: All right.
26 MR. COOPER: I'll move along, Your Honor.
27 MR. COOPER CONTINUING:
28 Q. Trooper Young, back to the event, you state that a
29 lady -- would it -- in your report, would her name and number be
 11

1 present?
2 A. Correct.
3 Q. You state that a lady told you that a gentleman was
4 backing up in the road and almost hit her.
5 A. Correct.
6 Q. Okay. And at that point, you gave north on 301 and
7 you see my client's vehicle. Is that correct?
8 A. Correct.
9 Q. Where was my client's vehicle located? Was it in the

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10 roadway or on the side of the road?
11 A. On the roadway.

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12 Q. On the roadway. Okay, and you state that he was
13 backing up.
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Is that what you could see?
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14 A. Correct.
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15 Q. Okay. And did you see any kind of encounter between

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16 him and another vehicle with your own eyes?

17 A. I encountered him backing up the road making a u-turn
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18 and went back traveling northbound.

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19 Q. And at this -- I've watched the video. I don't know

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20 if you have. At this point, the video shows you leaving the
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21 checkpoint area and traveling to get -- to encounter Mr.

22 Fischer, correct?
23 A. Correct.
24 Q. Okay. And you pull over. And there's no audio on the
25 side of you and him speaking?
26 A. Correct.
27 Q. Okay. And that encounter is brief. I think the video
28 is less than ten minutes long, correct?
29 A. Correct.
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1 Q. Okay. And so the video shows a normal encounter

2 between police officer and defendant. Would you agree?
3 A. That is correct.
4 Q. Okay. And you -- at what point did you smell the odor
5 of intoxicating beverage?
6 A. After I made -- after I approached the window like a
7 normal traffic -- traffic citation or encounter with people
8 throughout the day.
9 Q. And you didn't say anything to him at that point?

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10 A. Whenever I -- I just asked him for his driver's
11 license, proof of insurance.

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12 Q. Okay. And after that encounter, after you got the
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driver's license and proof of insurance, you asked him to go
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14 follow you, correct, or you will follow him back to the
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15 checkpoint?
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16 A. No. After I retrieved his driver's license, I went

17 back to get my PBT -- PBT, and I approached the vehicle. I
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18 asked the driver when was the last time he had something to
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19 drink. He told me he didn't, which I indicated an intoxicating

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20 odor coming from the vehicle. That's why I -- he did -- he did

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21 consent to give a preliminary breath test, and that's what -- it

22 indicated that it was some type of intoxicating in his system.
23 Q. Now, I'm going to rephrase the question again. At
24 what point -- at some point, you requested my client drive and
25 follow you back to the checkpoint, correct?
26 A. Correct.
27 Q. Was that before or after you tested him for alcohol?
28 A. That was going to be after.
29 Q. And the video showed that?
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1 A. Yes, it should.
2 Q. So what if the video doesn't show that, Trooper Young?
3 A. It does.
4 Q. You are sure?
5 A. I'm positive.
6 Q. Okay.
7 MR. COOPER: Your Honor, I think at this point
8 it's time to play the video.
9 THE COURT: Okay.

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10 MR. COOPER: I've got two mediums on which to
11 play it, Your Honor. I have a disc or a flash drive,

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12 whichever is easiest for the Court.
13 THE COURT:
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It's whatever you worked out prior to
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14 walking in here today. I mean, I --
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15 MR. COOPER: Do we have anything?

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16 THE COURT: If a DVD player works -- I mean, I'm

17 not the IT person. This is not the big courtroom with
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18 a big fancy evidence presentation system.

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19 MR. COOPER: We can try.

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20 MR. HOLLAND: I know the last time we plugged a

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21 stick in the side of that TV and it played.

22 THE COURT: All right. We're going to take a
23 recess while y'all figure that out.
24 MR. COOPER: My apologies, Your Honor.
25 THE COURT: You can step down, Officer.
26 (BRIEF RECESS.)
27 THE COURT: All right. Do we have a solution?
28 MR. COOPER: Yes, Your Honor. Luckily, Trooper
29 Young has his laptop at the ready, and it's a video
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1 that's been provided to both counsel.

2 THE COURT: Officer, would you do me a favor and
3 kill these lights. It will be easier to see. You can
4 leave it there. I just wanted to get rid of the
5 glare.
6 BY THE WITNESS: Okay. Do I need to tilt it
7 forward or --
8 THE COURT: That's perfect right there. Okay.
9 MR. HOLLAND: Your Honor, I'm not seeing it. May

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10 I can stand on your corner?
11 THE COURT: Yeah, why don't you turn it this way

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12 and everybody -- yeah, there you go.
13 MR. COOPER:
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I've already seen it, Judge.
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14 MR. HOLLAND: Put it where he can see it.
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15 THE COURT: No, no. That's fine. Just step back

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16 a little bit so Mr. Cooper has a line of sight. Come

17 over here. You can move this.
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18 MR. HOLLAND: I'll stand next to him.

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19 MR. COOPER: We can go ahead and press play, Your

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20 Honor. And there's no audio, Judge. And there may

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21 be, but it's none of any substance.

22 (VIDEO PLAYS, DURING WHICH QUESTIONING OF TROOPER
23 YOUNG CONTINUED.)
24 MR. COOPER CONTINUING:
25 A. This is on Pratt Road, and I'm fixing to go back
26 northbound, 301.
27 Q. Officer, I want to ask a question while the video is
28 going. This is where I was confused earlier. Do you have a
29 breathalyzer with you at this point?
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1 A. In my hand.
2 Q. Okay. Okay.
3 A. Yes, sir.
4 Q. It's kind of dusky. I didn't see it.
5 A. Yeah, it's in my right hand. You want me to wind it
6 back?
7 Q. No. I think it was yellow.
8 A. It's gray.
9 Q. Gray.

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10 MR. HOLLAND: I can't even see him, much less
11 what's in his hand.

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12 Q. At this point, Officer, you've instructed my client to
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follow you back to the checkpoint, correct, or to head back to
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14 the checkpoint --
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15 A. As far as --
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16 Q. -- and you will follow him?

17 A. Yeah. At that time, I was -- I approached him back
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18 again.
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19 Q. Okay, one more time.

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20 A. And I had to go back down to where we were at.

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21 Q. Okay. That's it.

22 (PLAYING OF THE VIDEO STOPPED AND PROCEEDINGS
23 CONTINUED AS FOLLOWS:)
24 MR. HOLLAND: Is that all you want to show?
25 MR. COOPER: Your Honor, any other questions or
26 anything like that you -- do you want to see anything
27 else?
28 THE COURT: No, sir. I'm not the one --
29 MR. COOPER: I understand, Judge.
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1 THE COURT: You can turn the lights on.

2 MR. COOPER CONTINUING:
3 Q. Trooper Young, at the point that he registered for the
4 presence of alcohol, you had him operate his vehicle after that,
5 correct?
6 A. Correct.
7 Q. So you didn't have any qualms about him operating his
8 vehicle safely?
9 A. There was no field sobriety done, only just a test to

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10 indicate if there was alcohol in his system.
11 Q. Okay. And when you got back to the checkpoint, you

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12 gave him another test, correct?
13 A. Correct.
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14 Q. And then you impounded his car and had his wife come
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15 pick him up. Is that correct?

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16 A. Correct.
17 Q. Okay. At what point did you write him a ticket and
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18 hand him the tickets?

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19 A. During -- when we got back down there to the

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20 intersection, I went back to my car. I had to tell him a couple

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21 of times to pull on off the shoulder -- out of the roadway off

22 the shoulder so it wouldn't obstruct any more traffic.
23 Q. I understand. Any issues with my client at that time?
24 A. Well, at that time, Mr. Fischer was getting irritated
25 and just irritated by the whole situation. Mr. Fischer wanted
26 to walk to meet his wife. I wouldn't let him walk because at
27 that time he was in -- he was in my -- as I was saying, he was
28 up under me at that time, and so I thought -- I wasn't going to
29 let him walk away as long as he's been -- he's under the
 17

1 influence or had consumed alcohol. So at that time I just had

2 him call his wife to come get him.
3 Q. Did you know at the time if he was chewing tobacco, or
4 did he have anything in his mouth during the time you gave him
5 the breath test?
6 A. No.
7 MR. COOPER: Indulge me one moment, Your Honor.
8 THE COURT: Okay.
9 (BRIEF PAUSE.)

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10 MR. COOPER: No further questions.
11 THE COURT: Redirect?

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12 MR. HOLLAND: No, Your Honor. State would rest.
13 THE COURT:
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All right. Trooper, you are free to
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14 leave. Just don't discuss your testimony with anyone
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15 until the conclusion of this case.

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16 TROOPER YOUNG: Yes, sir.

17 THE COURT: Thank you.
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18 MR. HOLLAND: May he remain in the courtroom if

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19 he chooses?
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20 THE COURT: If he wants to.

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21 MR. COOPER: The State rested, Your Honor?

22 THE COURT: Yes, the State rested.
23 MR. COOPER: I apologize. Your Honor, at this
24 time, the defense would make a motion for directed
25 verdict based off the testimony sworn to by the
26 officer.
27 Your Honor, I was not given any kind of written
28 report by this officer. I was -- I did request
29 discovery in the Justice Court of DeSoto County. I
 18

1 got the video. I did not get a written report. I

2 think that should weigh heavily in our -- in the
3 defendant's favor.
4 At this point, the testimony is my client was
5 traveling backwards. Unknown individual, no record of
6 her, stated that he was in some way impeding her or
7 almost hit her. My client makes a u-turn. At that
8 point, the video speaks for itself, Your Honor. My
9 client is pulled over, taken back to a checkpoint

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10 after registering positive for alcohol, not allowed to
11 do field sobriety, even though -- I assume he was not

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12 allowed to do field sobriety. We don't have anything
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for that, no field sobriety given. My client's car
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14 was impounded, and he was given two tickets, one which
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15 was dismissed earlier today, Your Honor.

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16 THE COURT: Okay. Mr. Holland.

17 MR. HOLLAND: Your Honor, we've had the
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18 discussion of careless, which is pretty much a

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19 discretionary call; but backing northbound in a

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20 southbound lane with traffic around you, I think

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21 qualifies as careless driving, even if you get to the

22 guilty phase, but certainly in whether or not there is
23 probable cause to proceed.
24 The burden at this stage is very light. The
25 officer's testimony was very clear, that he was told
26 of this event, looked up, sees the truck backing down
27 the road and u-turning for whatever reason. And he
28 pulls him over and writes him for careless driving.
29 THE COURT: Anything else, Mr. Cooper?
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1 MR. COOPER: No, Your Honor.

2 THE COURT: All right. First of all, as to the
3 discovery issue, there's no discovery violation in
4 this court. I mean, this is a trial de novo, and
5 proceedings in this court are governed by the
6 Mississippi Rules of Criminal Procedure, which provide
7 for the request for discovery. Just as I don't put
8 any stock into the conviction at the lower court, I
9 don't put any stock into any rulings or rulings that

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10 didn't happen. It's de novo. We begin anew, and
11 there's no discovery request that's been filed in this

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12 court for me to even enforce.
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Furthermore, I mean, the State -- I think the way
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14 that would work is even if the State wanted to
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15 introduce something then, you know, they could either

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16 withdraw it or we go through a procedure there. This

17 is not something the State tried to introduce, and
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18 it's something that could have been dealt with

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19 pretrial if it were that much of an issue. But the

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20 fact remains that no request was filed; therefore,

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21 there's nothing for this court to enforce one way or

22 the other.
23 As to the rest of the motion, for purposes of a
24 directed verdict, I'm to take facts in the light most
25 favorable to the nonmoving party. In this case, the
26 witness testified that he was made aware of the
27 defendant's behavior and then personally observed what
28 he described as the defendant backing up, going
29 backwards -- I may be getting the directions mixed
 20

1 up -- going northbound in a southbound lane or

2 southbound in the northbound lane, but going in the
3 opposite direction of that lane of travel while
4 traveling backwards in his car. Therefore, I would
5 deny the defendant's motion.
6 MR. COOPER: Thank you, Your Honor.
7 THE COURT: Okay. Anything on behalf of the
8 defendant?
9 MR. COOPER: Your honor, the defense would call

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10 Mr. James Fischer.
11 THE COURT: Mr. Fischer, be sworn in by the

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12 clerk, please.
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JAMES ANDREW FISCHER,
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14 upon being called as a witness on his own behalf, after having
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15 been first duly sworn, was examined and testified as follows:

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16 DIRECT EXAMINATION
17 BY MR. COOPER:
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18 Q. Mr. Fischer, please state and spell your name for the
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19 Court.
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20 A. James Andrew Fischer, Jr.

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21 Q. And spell your last name?

22 A. F-I-S-C-H-E-R.
23 Q. Mr. Fischer, you've sat through the proceedings, but
24 you remember an encounter on March 5th, 2022, on Highway 301
25 with the Mississippi Highway Patrol?
26 A. I do.
27 Q. Where were you traveling at that time, Mr. Fischer?
28 A. I was on my way home from work going south on 301.
29 Q. Okay. And what precipitated you changing your route?
 21

1 A. I got a call from my little brother to come help move

2 some furniture for my grandmother. Hospice was bringing a bed
3 in, and he needed help moving the furniture out of the living
4 room.
5 Q. Okay. At that point, please describe how you
6 maneuvered your vehicle to turn around.
7 A. I pulled to the right side of the road and looked both
8 ways and made a u-turn just like the u-turn in the video, same
9 thing just like in the video.

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10 Q. At that time, had you been drinking?
11 A. No.

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12 Q. After you were given a -- after you were pulled over
13
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and given a portable breath test, what happened? Did you travel
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14 anywhere else?
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15 A. I did.
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16 Q. Where did you go?

17 A. I was told to drive down to Pratt Road, which I did
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18 and pulled over at the stop sign at Pratt and 301.

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19 Q. Did you receive another breath test?

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20 A. Yes, sir.
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21 Q. And at that point were you detained?

22 A. I didn't know. This was all very strange. So I'm --
23 I don't know. I assumed I was. He gave -- he went to his car
24 after the third breathalyzer and came out with a ticket -- one
25 ticket in his hand, told me to get out of my truck that he was
26 impounding it. And I get to look at the ticket, and it's for
27 unsafe lane change. And I said, "Hold on, you're impounding my
28 truck for unsafe lane change?"
29 And he said, "Yeah, and if you don't shut up, I'm
 22

1 going to take you to jail."

2 So my brother is still on the phone with me. I got
3 him to call Crystal to come get me.
4 Q. Who is Crystal?
5 A. I'm sorry. Crystal is my wife.
6 Q. Okay. And you were allowed to stay on the scene until
7 your wife picked up you, correct?
8 A. I actually tried to cross the road to go where she
9 was, and then he illegally detained me at that point.

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10 Q. But you -- eventually, your truck was impounded and
11 your wife --

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12 A. Yes, sir, that's correct. Yes.
13 Q.
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And you came straight from work to that encounter,
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14 correct?
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15 A. That's correct.
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16 Q. Hadn't been drinking?

17 A. No.
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18 MR. COOPER: No further questions, Your Honor.

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19 THE COURT: Cross-exam.

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20 MR. HOLLAND: Just a couple of questions.

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21 CROSS-EXAMINATION
22 BY MR. HOLLAND:
23 Q. Mr. Fischer, were you cuffed? Were you placed in
24 handcuffs?
25 A. No, sir.
26 Q. Were you placed inside the patrol car and ordered to
27 sit still and not move?
28 A. No, sir.
29 MR. HOLLAND: That's all I have, Your Honor.
 23

1 MR. COOPER: No further questions.

2 THE COURT: All right. You may step down, sir.
3 Anything else from the defense?
4 MR. COOPER: One moment.
5 THE COURT: Okay.
6 (BRIEF PAUSE.)
7 MR. COOPER: The defense rests, Your Honor.
8 THE COURT: All right.
9 MR. HOLLAND: The State finally rests, Your

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10 Honor.
11 THE COURT: Closing argument?

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12 MR. HOLLAND: No, Your Honor.
13 MR. COOPER:
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No, Your Honor.
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14 THE COURT: Okay. Y'all give me a moment,
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15 please.
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16 (WHEREUPON, THE COURT RETIRED TO CHAMBERS TO

17 CONSIDER HIS RULING AFTER WHICH PROCEEDINGS
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18 CONTINUED AS FOLLOWS:)
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19 THE COURT: I will try not to get too far in the

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20 weeds on a relatively simple case, but I've heard talk

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21 about DUI investigations and detentions, and this is a

22 careless driving case. I mean, I -- William Faulkner
23 was once asked about the meaning between his short
24 story "The Bear," which was about a hunting party
25 chasing after a bear. And, you know, these literary
26 critics and reporters, you know, "What is the deeper
27 meaning here?" And he had finally said, "Sometimes a
28 hunting story is just a hunting story."
29 This is just a careless driving. And what the
 24

1 testimony was is the officer observed the defendant

2 backing his car in the wrong direction going
3 northbound in the southbound right of way. And I
4 believe that the State has met their burden of proof
5 as to careless driving and find the defendant guilty
6 of careless driving and impose a $50 fine. Y'all need
7 to split out the court costs.
8 And something else I noticed. Pursuant to the
9 State's stipulation, dismissing the improper lane, he

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10 was sentenced to ten days in jail on that. Is that
11 correct?

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12 MR. COOPER: That's correct, Your Honor.
13 THE COURT:
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63-3-603, the penalty for that -- and
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14 that was supposed to be -- well, it says in the ticket
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15 63-3-603A. There's not an "A". There's a "1" and a

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16 "2" with subparts. But in any event, the only penalty

17 I see for that statute is a fine no less than five
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18 dollars and no more than fifty dollars. So even

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19 though that matter is dismissed and not before me, I

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20 am more than a little disturbed that a defendant was

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21 sentenced to 10 days in jail on a crime that doesn't

22 carry jail time.
23 MR. HOLLAND: I did that, Your Honor. That's on
24 me. That's my handwriting.
25 THE COURT: Okay. And the judge imposed the
26 sentence?
27 MR. HOLLAND: Yeah. I don't know why I wrote
28 that.
29 THE COURT: Am I missing something?
 25

1 MR. HOLLAND: No, Your Honor. There's no jail

2 time on either of those offenses. I don't know -- I
3 don't remember the discussion. I don't know why we
4 did it.
5 THE COURT: Okay.
6 MR. HOLLAND: That's a hundred percent my fault,
7 Your Honor.
8 THE COURT: Okay. Well, just look into that,
9 please, because I would hope the --

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10 MR. HOLLAND: I'll blame him for letting me do
11 it.

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12 THE COURT: What's that? Yeah, it did --
13 MR. COOPER:
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I get blamed for everything else,
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14 Your Honor.
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15 THE COURT: It did get past the goalie over here.

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16 And I say that because it's not -- it doesn't have a

17 bearing on Mr. Fischer's case, but in the overall
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18 scheme of things, that's quite concerning. I

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19 understand I have more than a few causes coming from

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20 another certain jurisdiction where --

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21 MR. HOLLAND: It's common.

22 THE COURT: -- jail time is being imposed where
23 jail time is not allowed. And that -- that is a real
24 issue. Maybe you have some of those.
25 MR. COOPER: I would like to speak to you about
26 that after this.
27 THE COURT: No. Well, we're going to speak about
28 it --
29 MR. COOPER: I don't have any pending cases on
 26

1 those.
2 THE COURT: You know, and -- you know, that being
3 said, as I mentioned earlier in the discovery ruling,
4 this is de novo, so whatever was imposed at the lower
5 court has no bearing on this court. But trying to be
6 a responsible jurist and member of the bar, that
7 offends me and I don't want to see it happen and I
8 don't want to be a party to it and I want to get it
9 nipped in the bud. So to the extent that word may

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10 filter back to where it needs to filter back to, then
11 that needs -- that needs to be addressed.

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12 But in this case, I'm going to impose the --
13
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what's allowed by statute, the maximum of a $50 fine.
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14 You all will have to figure out what court costs were
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15 attributable to the case that was dismissed and fill

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16 in that total. Anything else?

17 MR. COOPER: No, Your Honor.
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18 MR. HOLLAND: Message received, Your Honor.

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19 THE COURT: Yes, sir. Okay. Good luck, Mr.

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20 Holland. Like I said, y'all figure out what that

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21 number is, and I'm assuming there's going to be a

22 balanced left over then. And unless you say
23 otherwise, that will be returned directly to Mr.
24 Fischer.
25 MR. COOPER: Yes, Your Honor.
26 THE COURT: Okay. Just make sure the clerk has
27 an address because they will send a check to him. All
28 right, we're adjourned.
29 PROCEEDINGS CONCLUDED
1 C E R T I F I C A T E
2
STATE OF MISSISSIPPI:
3
COUNTY OF TATE:
4
I, MICHELLE A. BROWN, Certified Court Reporter and
5 Notary Public for the State of Mississippi at Large,
do hereby certify that I reported in machine shorthand
6 Pages 1-26 of the above-captioned proceedings.
7 I HEREBY CERTIFY that the foregoing pages contain a
full, true and correct transcript of my said stenotype
8 notes and digital recording then and there taken.
9 I FURTHER CERTIFY that I am not an attorney or counsel
of any of the parties, nor a relative or employee of any

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10 of the parties, nor am I a relative or employee of any
attorney or counsel connected with the action, nor am I
11 financially interested in the action.

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12 I FURTHER CERTIFY that in order for this document to be

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authentic and genuine, it must bear my original
13 signature and my embossed notarial seal and that any
reproduction in whole or in part of this document is not
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14 allowed or condoned and that such reproductions should
be deemed a forgery.
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15
THEREFORE, witness my hand and my official seal in the
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16 State of Mississippi on September 21, 2022

17
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18 ___________________________
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MICHELLE A. BROWN, CSR #1395

19 Notary Public at Large
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20 My Commission Expires:
September 3, 2024
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