PIERCE, Justice, for the Court:
¶ 1. Leslie "Bo" Galloway was convicted and sentenced to death by lethal injection by a jury of his peers after the jury determined he committed the murder of Shakeylia Anderson while he was (1) engaged in sexual battery; (2) a person under sentence of imprisonment at the time; (3) a felon previously convicted of an offense involving the use or threat of violence to another person; and (4) that the murder was especially heinous, atrocious, or cruel.
¶ 2. On the evening of Friday, December 5, 2008, seventeen-year-old Shakeylia Anderson and her cousin Dixie Brimage were at their grandmother's house in Gulfport, Mississippi, talking and doing each other's hair. Their uncle, Alan Graham, stopped by briefly. When Graham entered the house, he heard a phone ringing in the living room. He looked at the phone and saw the incoming call was from "Bo." Graham walked through the house and found Anderson and Brimage hanging out in a bedroom. Graham mentioned that someone's phone was ringing, and Anderson said it was hers. Graham overheard Anderson on the phone and got the impression that she was getting ready to go out and meet someone.
¶ 3. At approximately 10:00 that evening, Anderson walked out of her grandmother's house. She was wearing a jacket, blue jeans, and brown boots and carried her book bag with her. Brimage watched Anderson through her grandmother's glass front door as Anderson walked toward a white Ford Taurus parked in the driveway. Brimage saw Anderson stand by the car for a moment and talk to a man. After about five minutes, Anderson got in the white Ford Taurus with the man, and the vehicle drove away.
¶ 4. The following evening, Martin Smith was hunting with dogs in a secluded, wooded area located west of Highway 15 in northern Harrison County. Smith was searching for one of his dogs that had strayed from the pack when he came across an unclothed dead body lying on a dirt logging road. Smith then called law-enforcement personnel.
¶ 5. Shortly before midnight that same evening, Investigator Michelle Carbine of the Harrison County Sheriff's Department received a call that a body had been found in a wooded area. Carbine arrived at the scene in the early morning hours of December 7, 2008. It was too dark to begin processing the body, so Carbine decided to secure the crime scene and wait until daylight. Carbine returned to the scene around 6:30 a.m. that morning with evidence technician Nancy Kurowski and
¶ 6. Near the scene of the body, investigators found a burned patch of grass and drag marks indicating that something or someone had been dragged from this area to the spot where the body lay. As they walked back toward the body, officials found broken glass from a bottle of New Amsterdam gin and a burned piece of cloth. Pieces of glass were recovered. Numerous tire tracks were near and in a turning pattern around the female's body. Photographs and impressions of the tracks were made and measurements were taken. Based on the condition of the body and the crime scene, Dr. McGarry theorized that the female had been run over by a vehicle, most likely a car.
¶ 7. After some investigation, Carbine determined that the deceased female was Anderson. Based on Brimage's description of the man with whom Anderson had left that Friday evening, and Graham's recollection of "Bo" calling Anderson's phone, as well as information from friends and family, Carbine began looking for a light-skinned black male, approximately five feet, five inches tall, from the Moss Point area, nicknamed "Bo," who drove a white Ford Taurus.
¶ 8. On the evening of December 9, 2008, Lieutenant Ken McClenic of the Jackson County Sheriff's Department received information that Harrison County was looking for a black man with the nickname "Bo" who drove a white Ford Taurus. Through his investigation, McClenic identified Leslie Galloway as a possible suspect. Having obtained a residential address for Galloway, McClenic drove by and observed a white Ford Taurus in the driveway. McClenic and other deputies began conducting surveillance of the residence. Later that same evening, the white Ford Taurus was reported leaving the residence. Officers stopped the vehicle a short distance away. Galloway and Cornelius Triplett, a friend of Galloway's, were inside the vehicle. Galloway was placed under arrest.
¶ 9. Carbine responded to the scene. Carbine walked around the Taurus and noticed a small piece of possible evidence flapping underneath the passenger side. Since the vehicle was going to be towed and Carbine feared the substance might be lost, she collected the item. Officers also noticed some broken glass on the lip of the trunk. The vehicle was then towed and secured at Bob's Garage. A search warrant for the car was obtained and executed by Kurowski and two other investigators. When the vehicle was raised on a lift, officers noted that one side of the undercarriage appeared to be wiped cleaner than the other. Pursuant to a second search warrant, the car was turned over to the Harrison County Sheriff's Department and taken to a work center for processing.
¶ 10. Kurowski processed the car. For comparison to the tire impressions taken from the crime scene, Kurowski made tread impressions of the white Ford Taurus. The tire tracks at the crime scene matched the type of tire on the white Ford Taurus Galloway was driving when he was arrested. From the interior of the car, Kurowski collected blood located just above the trunk-release latch and blood from the left rear passenger door near the door handle. From different places underneath the car, Kurowski collected several pieces of a stringy tissue-like substance.
¶ 11. A search warrant was obtained and executed for Galloway's residence. There, officers seized a pair of Nike shoes, an Atlanta Braves baseball hat, a Burger King shirt with the name tag "Bo," and an empty bottle of New Amsterdam gin. DNA testing revealed the presence of Anderson's DNA on the shoes and on the baseball hat.
¶ 12. During the autopsy, Dr. McGarry collected additional physical and biological evidence from Anderson's body, including swabs of her anal and vaginal cavities. Analysis of the vaginal swab indicated the presence of DNA from Anderson, Galloway, and James Futch. Futch was Anderson's boyfriend, who admitted that he had sexual intercourse with her days prior to her disappearance and death. As part of his examination, Dr. McGarry noted that Anderson had a dilated vagina — indicative of sexual activity — and her anus had stretching injuries including abrasions, rubbing of the lining, and a fresh tear — three quarters of an inch by one quarter of an inch — characteristic of forceful anal penetration. Dr. McGarry concluded that the anal tear had been caused by forceful sexual penetration. He reasoned that the tear could not have been caused by being run over or crushed by the automobile, because Anderson's rectum was intact — or had not been penetrated by any broken bones — but was naturally in a protected area of the body. Dr. McGarry also explained that the tear was not caused by some foreign object, such as a metal or wooden instrument, because the rubbing and stretching injuries to the rectum were not consistent with jamming, ripping, or irregular injuries that would be associated with penetration by that type of object. The injury to her anus involved much more subtle characteristics.
¶ 13. Days after his arrest, on December 10, 2008, Galloway spoke with Carbine. Galloway admitted that he went by the nickname "Bo." Galloway stated that he had been seeing Anderson since November 2008, and he said that he had sex with Anderson on Thanksgiving Day. Galloway admitted that he spoke with Anderson on December 5 and picked her up that evening in a white Ford Taurus.
¶ 14. Also, as part of the criminal investigation, Carbine obtained cell-phone records for Galloway from November 1, 2008, to December 21, 2008. The records indicated that Galloway and Anderson had been in contact beginning as early as November 11, 2008, and every day in December leading up to her disappearance and murder. They were in contact as many as fourteen times on Friday, December 5, 2008, the last time being 11:12 p.m.
¶ 15. Galloway was indicted and tried for the capital murder of Anderson. A jury found him guilty of capital murder based upon sexual assault. During the penalty phase, the jury heard testimony from Galloway's friends and family members, who testified that he was a good father and that they would visit him if he was given life imprisonment. The jury also heard testimony from corrections officers explaining that Galloway had not caused any trouble during his prior incarceration. The State introduced a "pen pack" which included Galloway's prior conviction for carjacking and demonstrated that Galloway was under supervision of the Mississippi Department of Corrections (MDOC) when he murdered Anderson. Unpersuaded by Galloway's mitigating proof and finding four aggravating factors, the jury returned a sentence of death.
¶ 16. Galloway now appeals, asserting thirty assignments of error. Additional facts, as necessary, will be related during our discussion of the issues.
¶ 17. Galloway contends that Dr. McGarry improperly and without any scientific basis told the jury that Anderson's anal injury must have been caused by penile sexual penetration, to the exclusion of all other causes, and that the penetration was resisted, to the exclusion of consensual sex. Galloway further contends that Dr. McGarry was permitted to testify that the tear was evidence of an "anal rape." Gallloway claims that the certainty Dr. McGarry conveyed to the jury was fictional and constituted nothing more than junk science. He submits that, at most, Dr. McGarry properly could have testified only that the injury was consistent with nonconsensual, anal penetration.
¶ 18. At the outset, we note that Dr. McGarry testified without objection
¶ 19. According to Dr. McGarry's findings:
¶ 20. The injury, he stated, would have "caused enough pain that it would be resisted. It would not be ... something that a person would want to have done to them. It would be painful enough to want to stop... or prevent it." In Dr. McGarry's opinion, the anal tear was caused by
¶ 21. Dr. McGarry was asked if it was plausible the anal tear was caused by being crushed beneath the vehicle. He stated that "the roll over injury doesn't affect the anus" because the anus and anal canal are "away from the injuries [caused by] the vehicle. This is in a very protected part of her body between her buttocks, below her pelvis and behind her vagina."
¶ 22. On cross-examination, Dr. McGarry was asked if there was any possibility that bones fractured into the anal area. Dr. McGarry explained that the anal canal is protected by
¶ 23. Defense counsel then asked Dr. McGarry why the tear could not have been caused by a branch or some other object. Dr McGarry replied:
Dr. McGarry reiterated that, in his opinion, the anal tear could have been caused only by sexual penetration.
¶ 24. The defense presented its own forensic expert, Dr. Leroy Riddick. Dr. Riddick testified that the three-quarter-inch-by-one-quarter-inch tear "could be produced by the stretching of the buttocks" as a result of being run over by a car or from having "strained at the stool or having large very difficult bowel movements." Dr. Riddick noted that no semen or DNA was found in the anus.
¶ 25. On rebuttal, Dr. McGarry refuted Dr. Riddick's theory. Dr. McGarry stated:
¶ 26. Dr. McGarry was asked to describe the difference between injuries associated with a insertion of a foreign object versus those caused by forceful penile penetration.
¶ 28. Mississippi operates under a modified Daubert
¶ 29. "[I]n Mississippi, a forensic pathologist may testify as to what produced [a victim's] injuries ... and what trauma such an injury would produce." McGowen v. State, 859 So.2d 320, 335 (Miss.2003) (quoting Holland v. State, 705 So.2d 307, 341 (Miss. 1997) (Holland II)). A forensic pathologist may also testify about "wounds, suffering, and the means of infliction of injury," since it falls within his or her area of expertise. Holland, 705 So.2d at 341. Furthermore, a forensic pathologist may testify as to whether a particular instrument or weapon in evidence was consistent with particular injuries to a victim. McGowen, 859 So.2d at 336.
¶ 30. Dr. McGarry provided similar testimony in the Holland case. In Holland v. State, 587 So.2d 848, 874-75 (Miss.1991) (Holland I), this Court affirmed Gerald Holland's conviction for capital murder but reversed his death sentence and remanded for a new sentencing hearing because the jury prematurely had deliberated the sentence. As related by the Holland I Court, Dr. McGarry provided the following testimony with regard to his autopsy findings:
Id.
¶ 31. In Holland II, Holland appealed the death sentence delivered by a resentencing
¶ 32. In Harrison v. State, 635 So.2d 894, 898-99 (Miss. 1994), Dr. McGarry was permitted to testify to a number of possible causes of death, and he was allowed to opine that the victim was raped. Dr. McGarry's expert opinion was the only evidence of rape the State had against the defendant. Id. at 899. Reversible error in Harrison occurred because the trial court denied all defense-counsel attempts to invoke the Box procedures,
¶ 33. Here, unlike in Harrison, Galloway was allowed his own expert to rebut Dr. McGarry's testimony and opinion. The experts' testimonies and opinions presented factual questions for the jury to determine. We cannot say Dr. McGarry's opinion that the anal tear was evidence of "anal rape" went beyond his scope of expertise or improperly invaded the province of the jury. For these reasons, we find no reversible error in this issue.
¶ 34. During deliberations, the jury sent out a note which asked, "does murder escalate the sex automatically to sexual battery?" Afterwards, there was some debate in the judge's chambers about the meaning of the jury's question. Defense counsel proposed answering the question, "no, it doesn't." The prosecution, however, expressed concern over placing too much emphasis on one instruction. The trial court ultimately responded to the jury's note in writing, "you have all of the instructions of law that apply to this case. Please review those instructions and continue your deliberations."
¶ 35. Galloway claims this was a deficient response that created a "reasonable probability the jury misapplied the elements of sexual battery." He contends jury instructions S-2A, S-3, S-4A were "imprecise and ambiguous." He argues that instruction S-2A might have confused the jury and caused the jurors to consider the "without consent" language contained therein as an element of murder instead as a modifying element of sexual penetration. We disagree.
When reviewing a trial court's response to the jury's inquiry, this Court's inquiry is not whether the trial, court was "right or wrong" in its response, but whether the trial court abused its discretion. Hooten v. State, 492 So.2d 948, 950 (Miss.1986). Unless the trial court based his decision on an erroneous view of the law, this Court is not authorized to reverse for an abuse of discretion absent a finding the trial court's decision was "arbitrary and clearly erroneous." Id.
¶ 37. In Girton v. State, this Court spoke to this type of situation and provided the following:
Girton v. State, 446 So.2d 570, 572-73 (1984).
¶ 38. Here, rather than give a supplemental instruction, the trial court referred the jury to the instructions already provided. Jury Instruction S-2A instructed as to the elements of capital murder based on sexual battery as follows:
Jury Instruction S-3 reads:
And Jury Instruction S-4 states:
¶ 39. We do not find any of the foregoing instructions imprecise or ambiguous. The instructions, together, fully and accurately informed the jury of state law, and the trial court did not err in directing the jury to review these instructions. This issue is without merit.
¶ 40. At trial, Galloway moved to exclude the testimony of Bonnie Dubourg, a forensic DNA analyst for the Jefferson Parish (Louisiana) Sheriff's Department, whose lab conducted DNA testing on the blood and tissue samples obtained by the case investigators. Galloway objected on
¶ 41. We find no error in the trial court's decision.
¶ 42. The Sixth Amendment to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution guarantee a defendant in any criminal prosecution the right to confront and cross-examine the witnesses against him or her. U.S. Const. amend. VI (applicable to the states through U.S. Const. amend. XIV); Miss. Const. art. 3, § 26 (1890). The United States Supreme Court has held that, under the Sixth Amendment Confrontation Clause, testimonial statements of witnesses absent from trial are admissible only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine the witness. Crawford v. Wash., 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). "Forensic laboratory reports created specifically to serve as evidence against the accused at trial are among the `core class of testimonial statements' governed by the Confrontation Clause." Grim v. State, 102 So.3d 1073, 1078 (Miss. 2012) (quoting Melendez-Diaz v. Mass., 557 U.S. 305, 310, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009)).
¶ 43. This Court recently addressed a similar issue in Grim v. State, 102 So.3d 1073 (Miss.2012), a certiorari case where we affirmed the Mississippi Court of Appeals' finding that a laboratory technician who actually performed the drug analysis need not testify as long as someone with adequate involvement with the testing process testifies. In Grim, the defendant, Frederick Grim, was convicted of selling cocaine. At Grim's trial, the State introduced into evidence a crime lab report that determined the substance Grim had sold was cocaine. Grim, 102 So.3d at 1077. The lab report was admitted through the testimony of Eric Frazure, a laboratory supervisor, who neither observed nor participated in the testing of the substance, but had reviewed the report for accuracy. Id. Frazure testified that he had performed "procedural checks" by reviewing all of the data submitted by the primary analyst to ensure that the data supported the conclusions contained in the report. Id. at 1081. Frazure had reached his own conclusion that the substance tested was cocaine, and he signed the report as the case "technical reviewer." Id.
¶ 44. In analyzing the issue, Grim reiterated that "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 the testifying witness's testimony does not violate a defendant's Sixth Amendment rights." Id. at 1079 (quoting McGowen, 859 So.2d at 339). Grim explained that, in determining whether such a witness satisfies the defendant's right to confrontation, we apply a two-part test:
Grim, at 102 So.3d at 1079 (quoting Conners v. State, 92 So.3d 676 (Miss.2012) (Carlson, P.J., specially concurring, joined by Waller, C.J., Dickinson, P.J., Randolph, Lamar, Kitchens, Chandler, and Pierce, JJ.)).
¶ 45. Galloway argues, however, that in this instance, Dubourg merely provided surrogate testimony of the kind found unacceptable for purposes of the Confrontation Clause by the United States Supreme Court in Bullcoming v. N.M., ___ U.S. ___, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). We disagree.
¶ 46. In Bullcoming, the Supreme Court addressed whether "the Confrontation Clause permit[s] the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification." Id. at 2710. There, the evidence introduced was "a forensic laboratory report certifying that [Donald] Bullcoming's blood-alcohol concentration was well above the threshold for aggravated DWI." Id. at 2709. The laboratory analyst (Razatos) who testified about the report "was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on Bullcoming's blood sample." Id. The Supreme Court held that, when the prosecution elected to introduce the blood-alcohol analyst's (Caylor's) certification, that analyst became a witness Bullcoming had a right to confront. Id. at 2716. The Court reasoned: "surrogate testimony of the kind Razatos was equipped to give could not convey what Caylor knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed. Nor could such testimony expose any lapses or lies on the certifying analyst's part." Id. at 2715.
¶ 47. Galloway contends that, as in Bullcoming, Dubourg was not a sufficient surrogate for Golden. He argues that, because the State did not produce Golden, defense counsel could not question her about her critical tasks of initial presumptive testing, DNA extraction (including the differential extraction of the DNA on a vaginal swab), DNA quantitation, polymerase chain reaction (PCR), the separation and detection of PCR-produced STR (short tandem repeat) alleles and the production of electropherograms through electrophoresis. Galloway also contends that only Golden could have been examined concerning possible contamination of the samples and her vigilance in attempting to prevent it.
¶ 48. Galloway's contentions are without merit. Distinguishable from Bullcoming, the record here illustrates that Dubourg, as the technical reviewer assigned to the case, was familiar with each step of the complex testing process conducted by Golden, and Dubourg performed her own analysis of the data. Cf. id. at 2722 (Sotomayor, J., concurring) (specifying that an inadmissible report in the case had not been admitted through "a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue"). Dubourg personally analyzed the data generated by each test conducted by Golden and signed the report. Given Dubourg's knowledge about the underlying testing process and the report itself, any questions regarding the accuracy
¶ 49. Consistent with our holding in Grim, we find that no Confrontation Clause violation occurred in this case. This issue is without merit.
¶ 50. Galloway claims his trial counsel was constitutionally ineffective for failing to object to Dr. McGarry's highly prejudicial testimony (1) that the anal tear must have been caused by a human penis; (2) that the tear would have required such force as to be resisted; and (3) that stated a legal conclusion beyond his specialized knowledge.
¶ 51. In evaluating an ineffective-assistance charge, this Court applies the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674, 693-95 (1984), and adopted by this Court in Stringer v. State, 454 So.2d 468, 476-77 (Miss.1984). Galloway must show: (1) that his counsel's performance was deficient, and (2) that this alleged deficiency prejudiced his defense. Lindsay v. State, 720 So.2d 182, 184 (Miss.1998) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). The burden of proving both prongs lies with Galloway, who is faced with a rebuttable presumption that trial counsel is competent and his performance was not deficient. Chase v. State, 699 So.2d 521, 526 (Miss. 1997). Additionally, Galloway must show that there is a reasonable probability that, but for the errors of his counsel, the judgment would have been different. Fisher v. State, 532 So.2d 992, 997 (Miss.1988). Finally, this Court must determine whether trial counsel's performance was both deficient and prejudicial to the defense based upon the "totality of the circumstances." Carr v. State, 873 So.2d 991, 1003 (Miss. 2004) (citing Carney v. State, 525 So.2d 776, 780 (Miss.1988)). If this Court finds that an ineffective-assistance charge chiefly fails under the prejudicial prong, then we may proceed directly to this part of the test. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").
¶ 52. We note that ineffective-assistance-of-counsel claims ordinarily are more appropriately brought during post-conviction proceedings, as this Court on direct appeal is limited to the trial-court record in its review of the claim. Wilcher v. State, 863 So.2d 776, 825 (Miss.2003). If we find that the record before us contains insufficient information to address the claim, the appropriate procedure is to deny relief, preserving the defendant's right to argue the issue through a petition for post-conviction relief. Read v. State, 430 So.2d 832, 837 (Miss.1983). This Court, however, may address an ineffectiveness claim on direct appeal if the presented issues are based on facts fully apparent from the record. M.R.A.P. 22.
¶ 54. After his arrest, Galloway gave investigators two statements. The first statement was given on December 10, 2008. The second statement was given eight days later, on December 18. In his first statement, Galloway said he previously had had sex with Anderson and that he had picked her up in his mother's car on December 5, 2008. Thereafter, he invoked his right to counsel and the interrogation ended. In his second statement, which Galloway initiated, Galloway stated that he and Anderson had gone to a park on the night of the murder, where they had consensual sex. At the park, they were overpowered by two men with a gun, who raped and killed Anderson by setting her afire and running her over with the car.
¶ 55. The State introduced the first statement at trial during Carbine's testimony. The State, however, filed a pretrial motion to exclude the second statement on the basis that it was self-serving. Galloway contends that the trial court granted the motion and committed reversible error by excluding the second statement.
¶ 56. The record does not clearly indicate that to be the case. It shows the following pretrial exchange, in pertinent parts, regarding these two statements:
¶ 57. Based on this Court's reading of the trial court's ruling, Galloway was not expressly prohibited from introducing the December 18 statement. Rather, the trial court prohibited Galloway from referring to the second statement unless the State opened the door by introducing the first statement. When the State did introduce the first statement, Galloway made no attempt to introduce the second statement. Accordingly, this issue is without merit.
¶ 58. Relying on Skipper v. South Carolina, 476 U.S. 1, 5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1, 7 (1986), Galloway argues that the State implicitly impressed upon the jurors' minds that he was a future danger; therefore, he had the due-process right to introduce evidence (via Dr. Beverly Smallwood) regarding how he might behave in the future. The implications contended by Galloway, for the first time on appeal, that unfairly conveyed to the jury that he posed a future danger are: evidence that he previously had been convicted of carjacking and was under post-release supervision at the time of the crime; Dr. McGarry's comment on direct examination that the massive surface burn sustained by Anderson "would be a million times worse than touching a hot flame"; the four statutory aggravating factors alleged by the State; the fact that the State questioned Deputy Catchings about whether she had seen Galloway "outside of the jail"; and the State's commending Brimage for "bravely" identifying Galloway, which suggested that she had reason to fear Galloway.
¶ 59. The State responds that it made no express or implied attempt at trial to place Galloway's future propensity for dangerousness in issue. The State contends that Galloway attempts to demonstrate the State's purported implication(s) by pointing to inconsequential snippets of the trial, in which the defense made no contemporaneous objection.
¶ 60. We agree with the State. Galloway's contentions on this assignment of error are simply after-the-fact assertions, barred from consideration on appeal because
¶ 61. Prior to trial, the State filed a motion in limine seeking to prohibit Galloway from introducing evidence concerning his "ability to adapt to prison life in the future and his propensity (or lack thereof) to commit violent acts in the future." The State's motion contended that such evidence "is inadmissible because it is purely speculative and irrelevant to the charges in this case ... [and] is not being offered through the testimony of a qualified, accepted expert in the field of predicting future behavior."
¶ 62. Prior to the sentencing phase, the trial court heard arguments from both sides (none of which involved the "implications" complained of above) concerning the State's motion. The defense argued that Galloway had the right to present mitigating evidence to the jury showing that, if Galloway were spared the death penalty and sentenced to life in prison without parole, his life would be a suffering existence and not that of someone sitting in an air-conditioned room watching ESPN all day. The record indicates that Galloway sought to illustrate the true conditions of prison life through the testimony of Donald Cabana, former superintendent of the Mississippi State Prison at Parchman. The record also shows that the defense had hoped to have Dr. Smallwood, a psychologist, testify as a mitigating witness. But, as Galloway's defense told the trial court, Dr. Smallwood was unavailable to testify; thus, the defense did not intend to call her as a witness-contrary to Galloway's contention on appeal.
¶ 63. Ultimately, the trial court made the following ruling: "I'm not going to prevent [Galloway] from putting on any kind of testimony about his behavior while incarcerated in the past," but the defense witnesses "will be prohibited from speculating as to how he might behave in the future."
¶ 64. We find no error in the trial court's ruling. This Court has rejected similar arguments in Wilcher v. State, 697 So.2d 1123 (Miss.1997), and Hansen v. State, 592 So.2d 114, 147 (Miss.1991), and we do so again today.
¶ 65. In Hansen, Tracy Hansen argued that the trial court erred in refusing to allow opinion testimony of a prison counselor that he would adapt well to prison life in the future. Hansen, 592 So.2d at 147. The counselor had become acquainted with Hansen while Hansen was incarcerated in the Florida correctional system. Id. Hansen relied on Skipper, 476 U.S. at 5, 106 S.Ct. 1669, wherein the United States Supreme Court wrote:
Hansen, 592 So.2d at 147. The Hansen Court noted this Court's long acceptance of this rule, and stated:
Hansen, 592 So.2d at 147 (emphasis added). Hansen held, however, that speculative opinion testimony of how a defendant may adapt to prison life in the future is not admissible unless the expert is qualified and accepted in the field of predicting future behavior. Id. Because Hansen had failed to show the counselor was qualified as such an expert, we affirmed the trial court's decision not to allow the counselor to opine how Hansen would adapt to prison life in the future. See id. (noting the trial court did allow the counselor "substantial liberties in testifying about Hansen's past").
¶ 66. In Wilcher, Bobby Wilcher argued that the trial court erred in excluding both Cabana's testimony and photographs of Parchman to demonstrate the harshness of a life sentence. Wilcher, 697 So.2d at 1133. The Wilcher Court held that the trial court properly excluded this evidence because "[t]he harshness of a life sentence in Parchman in no way relate[d] to Wilcher's character, his record, or the circumstances of the crime." Id. (citing Hansen, 592 So.2d at 147; Minnick v. State, 551 So.2d 77, 96 (Miss.1989), reversed on other grounds by Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990); Cole v. State, 525 So.2d 365, 371 (Miss.1987); Lockett v. State, 517 So.2d 1317, 1334 (Miss.1987)).
¶ 67. Here, no proffer was made to the trial court as to what Cabana's testimony would entail, and no evidence was presented that he is an expert in the field of predicting future behavior. We can surmise, though, based on the defense's argument to the trial court, that the defense intended Cabana to testify about generalities of prison life. Consistent with our holding in Wilcher, the trial court properly excluded such testimony because it was irrelevant to Galloway's character, his record, or the circumstances of his crime. As the State points out, the trial court permitted the testimony of two corrections officers who testified that Galloway had not caused any problems during his prior incarceration. This was relevant mitigating evidence that bore on Galloway's character and prior record. The jury could infer from such evidence, if it chose, that Galloway had the ability "to make a well-behaved and peaceful adjustment to life in prison" and would not pose any danger in the future. Skipper, 476 U.S. at 6-8, 106 S.Ct. 1669.
¶ 68. We find no merit in this issue.
¶ 69. This issue is without merit for reasons discussed in the preceding issue.
¶ 70. Galloway argues that his conviction and death sentence were based on significant and pervasive prosecutorial misconduct. He contends the prosecution (1) presented and relied heavily upon Dr. McGarry's scientifically unreliable and, therefore, false and highly misleading testimony; (2) misstated the evidence; (3) vouched for a witness; (4) inflamed the passions and prejudices of the jurors; (5) deflected the jury's attention from the issues it had to decide; and (6) misstated the law. The State argues that Galloway made no contemporaneous objection to preserve these issues for appeal; therefore, they are barred from review. Scott
¶ 71. Galloway contends that the prosecution violated the Constitution by presenting Dr. McGarry's scientifically invalid and therefore false and highly misleading testimony to the jury and relying upon it in closing. This contention already has been addressed. Dr. McGarry's testimony presented no reversible error, and the State was permitted to rely on it during its summation of the evidence.
¶ 72. The standard of review which this Court must apply to lawyer misconduct during opening statements or closing arguments is "whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created." Sheppard v. State, 777 So.2d 659, 661 (Miss.2000) (citing Ormond v. State, 599 So.2d 951, 961 (Miss. 1992)). Attorneys are afforded wide latitude in arguing their cases to the jury, but they are not allowed to employ tactics which are "inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury." Sheppard, 777 So.2d at 661 (citing Hiter v. State, 660 So.2d 961, 966 (Miss.1995)). The purpose of a closing argument is to fairly sum up the evidence. Rogers v. State, 796 So.2d 1022, 1027 (Miss.2001). The State should convey those facts on the basis of which it asserts a verdict of guilty would be proper. Clemons v. State, 320 So.2d 368, 370 (Miss. 1975). "The prosecutor may comment upon any facts introduced into evidence, and he may draw whatever deductions and inferences that seem proper to him from the facts." Bell v. State, 725 So.2d 836, 851 (Miss.1998). "Counsel `cannot, however, state facts which are not in evidence, and which the court does not judicially know, in aid of his evidence. Neither can he appeal to the prejudices of men by injecting prejudices not contained in some source of the evidence.'" Sheppard, 777 So.2d at 661 (quoting Nelms & Blum Co. v. Fink, 159 Miss. 372, 131 So. 817, 821 (1930)).
¶ 73. Galloway contends that, during closing arguments, the prosecution misstated the testimony of Dr. Ronald Acton, the defense's DNA expert, by proclaiming that Dr. Acton agreed with certain findings of the State's DNA expert, Dubourg. First, he claims the State misrepresented that Dr. Acton had "agreed with every [sic] all but two different exhibits that were presented by the crime lab beyond a reasonable doubt that this defendant was responsible for the murder of ... Anderson." Second, the prosecution twice misrepresented that Dr. Acton had agreed that the tissue found under the Ford Taurus was that of the victim. Galloway also contends the prosecution misstated Dubourg's testimony, as she testified that her lab had obtained samples from shoes found at Galloway's mother's house with "possible blood like" substances and a hat with a "soiled" bill. Yet, the prosecution claimed that the shoes and the hat had Anderson's blood on them.
¶ 74. As the State points out, Dr. Acton essentially acknowledged during cross-examination that the DNA sample taken from the left rear passenger seat was consistent with Anderson's DNA, testifying that "you can say there is no evidence that she is excluded from having contributed." Dr. Acton also acknowledged that the DNA sample found underneath the Ford
¶ 75. As to the prosecutor's remark regarding blood on the shoes and hat, no objection was entered by the defense. Procedural bar notwithstanding, we find any error here was harmless, given the presence of the victim's DNA on the items.
(3), (4), and (5) Witness vouching; inflaming the passions and prejudices of the jurors; and deflecting the jury's attention away from the issues
¶ 76. Galloway claims the State improperly vouched for Brimage and went outside the record when it stated, "[Brimage] bravely told us who [Anderson] was talking to by the car, the defendant, Leslie Galloway." Galloway also contends that this comment improperly inflamed the jurors' passions and prejudices by suggesting that Brimage had reason to fear Galloway. Galloway further claims that the prosecution inflamed the jurors' passions and prejudices, which also deflected their attention from the issue they were to decide when the prosecution repeatedly asked Galloway's mitigation witnesses whether they believed that the punishment should fit the crime.
¶ 77. The State responds that Galloway has cherry-picked the word "bravely" and is attempting to elevate it to an unconstitutional term of art that inflames passion and prejudice. We find that, whatever the prosecution meant by use of the word, no serious contention can be made that it rendered Galloway's trial fundamentally unfair.
¶ 78. As to the point of contention with regard to asking whether punishment should fit the crime, we see no problem with such a question. The prosecution's repeated query should have served to focus the jury on the appropriate punishment for Galloway's crime.
¶ 79. These arguments are without merit.
¶ 80. Galloway argues that, during the penalty-phase summation, the prosecution misstated the law by telling the jury that a carjacking conviction "clearly and by law is a conviction involving the use of threat or violence to another person" and that the jury should find the aggravating circumstances that Galloway previously had been convicted of a felony involving the use of threat or violence to another person. He contends that carjacking is not a per se crime of violence, and so carjacking is not per se a conviction meeting the criteria of an aggravating circumstance.
¶ 81. The State submitted evidence during the penalty phase that Galloway previously had been convicted of the crime of carjacking under Mississippi Code Section 97-3-117(1). That Section states:
Miss.Code Ann. § 97-3-117(1) (Rev.2006).
¶ 82. For a prior conviction to qualify as a felony involving the use or threat of violence to a person under Section 99-19-105(b), the conviction must have been made under a statute which has as an element the use or threat of violence
¶ 83. Here, based on the elements set forth in Section 97-3-117(1), we find that the act of carjacking per se involves conduct that presents a serious potential risk of physical violence to another. Therefore, for purposes of Section 99-19-105(b), any conviction made under Section 97-3-117(1) constitutes a felony involving the use or threat of violence to the person. Accordingly, this argument is without merit.
¶ 84. Galloway claims the trial court violated his Confrontation Clause rights by allowing prejudicial testimonial hearsay statements during the testimony of Investigator Carbine, Lieutenant McClenic, and Dubourg.
¶ 85. Carbine testified that she found a pair of shoes, a hat, and a New Amsterdam gin bottle in a space she identified as Galloway's room in his mother's house. During cross-examination, Carbine stated that she knew the area belonged to Galloway because, when executing the search warrant on the house, his mother pointed out "his living space, the space he occupied while he was there." Carbine described the space as "a bathroom, with a majority — or all of Galloway's items belonging to him, clothes hung up, a toilet, it was just an old bathroom." When asked how she knew items in the room belonged to Galloway, Carbine said, "Because his mother explained to us that those were his things." On redirect, when asked again how she knew the space belonged to Galloway, Carbine responded, "His mom pointed it out to us." Galloway entered an objection at that point on hearsay, which was overruled. Also, Carbine identified cell-phone numbers during her testimony as belonging to Anderson and Galloway. The defense did not object to this testimony.
¶ 86. Galloway claims on appeal that Carbine's testimony merely reiterated the mother's out-of-court statements, which were highly prejudicial. Galloway also contends that Carbine's identification of the phone numbers contained in the phone records obtained by investigators was prejudicial because: (1) Carbine had no personal knowledge that the phone numbers contained therein belonged to him and Anderson, and (2) the State sought to use the phone records to prove that, since his calls to Anderson abruptly stopped the night she disappeared, this demonstrated consciousness of guilt.
¶ 87. We find that the defense opened the door to what Galloway's mother told Carbine when defense counsel asked Carbine on cross-examination how she knew the room, and the items contained therein, belonged to Galloway. Thus, Galloway cannot now charge error on appeal. "A defendant cannot complain on appeal of alleged errors invited or induced by himself." Caston v. State, 823 So.2d 473, 502 (Miss.2002) (quoting Singleton v. State, 518 So.2d 653, 655 (Miss. 1988)); see also United States v. Jimenez, 509 F.3d 682, 691 (5th Cir.2007) (rejecting Confrontation Clause challenge to admission of testimony where defense counsel opened the door by asking the witness on cross-examination the basis for his suspicions about defendant). Moreover, statements
¶ 88. As to Galloway's argument with regard to the phone records, they were admitted, without objection, under the business-record exception of Rule 803(6) of the Mississippi Rules of Evidence, "which by their nature, are non-testimonial for purposes of the Sixth Amendment." United States v. Green, 396 Fed.Appx. 573, 575 (11th Cir.2010). Further, no objection was made to Carbine's statements regarding the phone records. Instead, Galloway chose to question Carbine about the fact that the phone number used by Galloway was actually in Lashondra Taylor's name and that Anderson also had received a number of phone calls from a phone number used by Triplett.
¶ 89. McClenic testified that Galloway was driving his mother's white Ford Taurus when he left her house on December 9, 2008, shortly before law-enforcement personnel arrested him. On cross-examination, McClenic admitted that he was reporting what his deputies had told him. Galloway argues for the first time on appeal that this was hearsay testimony, which was admitted for its truth and damaged his defense. Galloway contends that he conceded his mother's Taurus was the murder weapon, but he questioned who drove the vehicle. Specifically, the defense maintained that Triplett may have been the person Brimage saw in the Taurus the night Anderson disappeared.
¶ 90. Again, we find that defense counsel invited such information and did so in order to show to the jury that McClenic did not actually ever see Galloway driving the Taurus.
¶ 91. Galloway argues that Dubourg testified that her lab received and tested blood samples obtained from the interior of the Taurus for DNA testing, despite there not being any evidence that she had conducted any serological testing herself to confirm that the substance was blood. He contends that the prosecution exploited her hearsay statements as truth during closing arguments, claiming that the substance found in the interior of the car contained Galloway's blood and Anderson's blood. Galloway, however, did not object to any of the complained-of testimony or summation. Procedural bar notwithstanding, we find that any error here was harmless, given that the substances collected and tested revealed the presence of both Anderson's and Galloway's respective DNA profiles.
¶ 92. This issue is without merit.
¶ 93. Galloway submits that one of his theories was that the DNA found in the Taurus may have gotten on the vehicle when it was left unattended overnight at Bob's Garage in Jackson County after Galloway's arrest. McClenic testified on cross examination that he did not know whether the owner of the garage or "anyone else" went in and out while the car was stored there. On redirect examination, McClenic blurted out: "The only other person who would have gone in the building is [sic] if he got any more wrecker calls that night." When defense counsel objected to speculation, McClenic improperly insisted, "Well, I know it to be a fact." The
¶ 94. The State responds that the trial court did not err by overruling Galloway's objection based on speculation because the testimony was supported by the facts. To place the statement in context, the State has reproduced the relevant portions of McClenic's testimony beginning with Galloway's cross-examination of the witness.
¶ 95. The following is from the State's redirect:
¶ 96. We find that the trial court did not abuse its discretion in overruling Galloway's objection. "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter." M.R.E. 602. As the State points out, McClenic testified only to his belief that no person other than the owner of Bob's Wrecker Service would have entered the garage while the Ford Taurus was stored there. McClenic's belief was based on McClenic's past personal experience and personal observations with the operation of Bob's Wrecker Service, as established by questions posed by Galloway's defense attorney on cross-examination. The jury heard McClenic also admit that he could not definitively testify that no one touched the vehicle before it was turned over to authorities.
¶ 97. This issue is without merit.
¶ 98. Galloway argues that his constitutional right to a speedy trial was violated because 424 days passed between his arrest on December 10, 2008, and the date of his first trial setting, February 8, 2010. Galloway notes in his brief that trial actually began on September 21, 2010. Since the February 8, 2010, trial setting was continued at the request of defense counsel, Galloway does not include the time frame after February 8 in his analysis.
¶ 99. Both the United States Constitution and the Mississippi Constitution provide an accused the right to a speedy and public trial. U.S. Const. amend. VI.; Miss. Const. art. 3, § 26. Four factors guide this Court when determining whether an accused's right to speedy trial has been violated: (1) length of delay, (2) reason for delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the defense suffered any prejudice from the delay. Johnson v. State, 68 So.3d 1239, 1241 (Miss.2011) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). The Barker factors are to be considered along with other relevant circumstances. Id. at 1242.
¶ 100. According to the record, Galloway was arrested on December 10, 2008. A preliminary hearing was conducted on January 29, 2009. An indictment was returned on June 8, 2009. Galloway filed a motion to dismiss on July 10, 2009, asserting his speedy trial rights. Galloway was
¶ 101. On February 11, 2010, the trial court held a hearing to rule on open motions. The court heard arguments from both sides regarding Galloway's July 29, 2010, motion to dismiss for lack of speedy trial. The prosecution provided a timeline for the trial court. The prosecution informed the trial court that 224 days had elapsed between Galloway's arrest and his arraignment, and 200 days from the arraignment to the first trial setting, which was February 8, 2010. The prosecution told the trial court at the arraignment that the State and the defense had agreed to a scheduling order. The prosecution also told the trial court that this case involved much DNA evidence and that exhibits had been sent to a lab in Louisiana. Referring to Manix v. State, 895 So.2d 167 (Miss. 2005), the prosecution argued that delays caused by backlog of state or federal crime labs constitute good cause for delay. The prosecution further argued that this case involves "expert consultation on behalf of the defense which has also resulted in some delays, and in fact, one of [the defense's] experts still hasn't got a report [sic] and won't have one until May 4th." The prosecution then argued that Galloway had not established that he had suffered any prejudice as the result of any delay. At this point in the proceedings, as the trial court was doing its calculations, the prosecution told the trial court that "case law states you don't count the date of arrest." To which the trial court responded, "Well, that wouldn't even approach the eight-month requirement. So as far as length of delay, the court finds that there has not been a substantial length in getting this matter to trial." The trial court also found that both the State and the defense had reason for the delay, as "both needed time to get the extensive evidentiary documents and other evidence analyzed by the Crime Lab and DNA expert." The trial court acknowledged that the defendant had asserted his speedy-trial right, but found "in light of the fact that the court finds that he is getting a speedy trial, that factor is not involved." The trial court added: "As most of the cases do point out, what appears to this court to be the most important factor is
¶ 102. As the State acknowledges on appeal, Galloway's constitutional right to a speedy trial attached at the time of his arrest. Price v. State, 898 So.2d 641, 648 (Miss.2005). "In evaluating a speedy trial issue arising under constitutional considerations, as opposed to Mississippi's statutory scheme, the commencement of the period begins when a person is arrested." Id. (citing Sharp v. State, 786 So.2d 372, 380 (Miss.2001); Taylor v. State, 672 So.2d 1246, 1257 (Miss.1996)). "The statutory right to a speedy trial attaches and time begins running after the accused has been arraigned." Adams v. State, 583 So.2d 165, 167 (Miss.1991); see also Miss.Code Ann. § 99-17-1 (Rev. 2007). Galloway's statutory speedy-trial right appears to be what the prosecutor meant when he told the trial court that "you don't count the date of the arrest." Galloway, however, did not assert a statutory violation.
¶ 103. For purposes of a constitutional speedy-trial determination, a delay longer than eight months in bringing a criminal case to trial from the date of arrest is considered "presumptively prejudicial and triggers further analysis of the remaining three Barker factors." Johnson, 68 So.3d at 1242. A presumptively prejudicial delay does not, however, automatically equate to "actual prejudice." Id. "Actual prejudice" is determined later in the Barker analysis. Id. Presumptive prejudice "simply marks the point" where the court must then consider the remaining Barker factors, and the burden is shifted to the State to show good reason for delay. Id. (citing Doggett v. U.S., 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992)). Here, the 424-day period from Galloway's arrest until the first trial setting exceeded eight months and is presumptively prejudicial. Thus, we proceed to discuss the other three Barker factors.
¶ 104. As mentioned, the trial court found both the State and the defense had reason for the delay, as "both needed time to get the extensive evidentiary documents and other evidence analyzed by the Crime Lab and DNA expert." We agree with Galloway, though, that the State failed to provide any documentation or facts of actual delays in obtaining testing results from the Louisiana crime lab. We do not know when the State submitted its evidence to the lab for testing or when the State received the results. All that the record contains is an invoice from that lab, dated December 29, 2009. In Flora v. State, 925 So.2d 797, (Miss.2006), this Court stressed the importance of making a clear record to allow proper review of speedy-trial claims. That said, the record clearly indicates that this was a complicated case, which required the use of experts for both sides, and it fairly indicates that neither side was ready for trial prior to the eight-month threshold. Indeed, both sides agreed to an initial trial setting of February 8, 2010. Thus, this factor appears close to neutral. But we are unable to reach that conclusion, as the State failed to provide us a more definite record from which to analyze this factor. Accordingly, this factor is weighed slightly against the State.
¶ 105. This factor weighs in favor of Galloway, as he asserted his speedy-trial rights.
¶ 106. To assist in analyzing this factor, the Barker Court identified three
¶ 107. Here, Galloway contends that he was "detained on capital charges, the most serious and anxiety-producing, for several months before a trial date was set." He further contends that the delayed trial may have affected the reliability of the memory of at least one state witness, Dixie Brimage.
¶ 108. Although Galloway's pretrial incarceration was lengthy, incarceration alone does not constitute prejudice. Johnson v. State, 68 So.3d at 1245. "Mississippi case law does not recognize the negative emotional, social, and economic impacts that accompany incarceration as prejudice." Id.
¶ 109. As to Galloway's contention that the delay may have affected the memory of Brimage, he fails to show us how. Galloway also made no assertion or argument to the trial court as to how he (or his defense) was (or would be) prejudiced by the delay. Instead, Galloway simply sets forth in his brief on appeal the following:
¶ 110. Ordinarily, we would dismiss this assertion out of hand for lacking explication. But, since Galloway pulls from this same portion of the record later in issue seventeen, where he attempts to bootstrap his speedy-trial claim alongside the claim that he was prejudiced by Brimage's "highly suggestive and unreliable in-court identification of [him]," we will relate what these pages of the trial transcript show (as well as a couple of other immediate pages — to keep it in context) and speak to them here.
¶ 111. (Dixie Brimage-Direct Examination, pp. 431-32):
(Dixie Brimage — Cross-Examination, pp. 442-43):
(Dixie Brimage — Redirect Examination, pp. 443-45):
¶ 112. Looking at this portion of Brimage's testimony, we find no basis for believing that Galloway was put at an evidentiary disadvantage by reason of the delay. Brimage no doubt would have testified with the same effect had the trial been held a week after indictment.
¶ 113. Still, both Galloway and the dissent contend that Galloway demonstrated to the extent possible that he suffered prejudice due to the impact on Brimage's memory. This is because Brimage, the only eye-witness in the case, was (1) unsure in her identification of the man talking to Anderson; and (2) certain that the man talking to Anderson had gold teeth, and Galloway did not have gold teeth at the time of trial.
¶ 114. First, as the record shows, Brimage did actually identify Galloway from a six-photo line-up a few days after the murder, but she told authorities at the time she was not 100 percent certain. Second, we are not at all troubled by the gold-teeth discrepancy. See the case of Thomas v. Dwyer, 2007 WL 2137807at *9 (E.D.Mo. July 23, 2007) for an illustration why.
¶ 115. Because Galloway has failed to show any actual prejudice due to the delay of his trial, this factor weighs in favor of the State.
¶ 116. Upon examination and analysis of the Barker factors, under the totality of the circumstances, we hold that Galloway's constitutional right to a speedy trial was not violated.
¶ 117. Galloway claims the trial court erred by denying his proposed sentencing instructions D2A, D3AA, D4A, and D7A. Since Galloway makes no argument with regard to the denial of D7A, we address only the trial court's refusal of proposed jury instructions D2A, D3AA, D4A.
Chandler v. State, 946 So.2d 355, 360 (Miss.2006) (quoting Ladnier v. State, 878 So.2d 926, 931 (Miss.2004)).
¶ 119. D2A provided:
¶ 120. The instruction was denied as cumulative to S-100A (typically referred to as the "long-form instruction"), which provided, in part:
¶ 121. Galloway argues that, under Mississippi law, a sentence of life in prison without parole is imposed if the jury cannot agree on a sentence. Miss.Code Ann. § 99-19-103 (Rev.2007). Galloway submits that almost all jurors know that a hung jury ordinarily means there will be another trial, before another jury. Therefore, the jury had a right to know that if they failed to reach an agreement, the trial court would impose a life sentence.
¶ 122. This argument was rejected by the Court in Stringer v. State, in which this Court found:
500 So.2d 928, 945 (Miss.1986) (quoting King v. State, 421 So.2d 1009, 1018 (Miss. 1982) (overruled on other grounds)). Here, the trial court properly refused D2A.
¶ 123. D3AA provided:
The trial court found that S-100A's inclusion of the sentence, "in the event that you find the mitigating circumstances do not outweigh or overcome the aggravating circumstances, you may impose the death penalty," adequately stated the proposition in the defense's proposed D3AA.
¶ 124. Galloway contends, however, that S-100A did not expressly inform the jury that it could impose a life sentence even if it found that the mitigating circumstances did not outweigh the aggravators.
¶ 125. In Thorson v. State, 895 So.2d 85 (Miss.2004), the trial court denied an almost identical sentencing instruction. We affirmed, holding that the "instruction is nothing more than a mercy instruction and was properly refused by the trial court." Id. at 108; see also Walker v. State, 913 So.2d 198, 248-49 (Miss.2005) (in which we upheld the trial court's refusal of a similar instruction on the basis that it constituted a "mercy" instruction); Edwards v. State, 737 So.2d 275, 317 (Miss.1999) (same); Watts v. State, 733 So.2d 214, 241 (Miss. 1999) (same); Foster v. State, 639 So.2d 1263, 1300 (Miss.1994) (same); Ladner v. State, 584 So.2d 743, 761 (Miss.1991) (holding that a defendant has no right to a mercy instruction); Williams v. State, 544 So.2d 782, 788 (Miss.1987) (same); Cabello v. State, 471 So.2d 332, 348 (Miss.1985) (same). Accordingly, the trial court properly refused D3AA.
¶ 126. D4A provided:
The trial court refused the instruction because it was included elsewhere. Galloway, however, contends that he was entitled to an instruction that adequately defined what is a mitigating circumstance.
¶ 127. This Court addressed a similar issue Branch v. State, 882 So.2d 36 (Miss. 2004). There, Lawrence Branch, who was sentenced to death for capital murder, complained the trial court erred by refusing his proposed instruction defining "mitigation." Id. at 72. Branch argued that mitigation is a legal term which is not commonly understood. Id. The Branch Court reviewed a previous decision in which where a similar argument was denied. Id. (citing Booker v. State, 449 So.2d 209, 218-19 (Miss.1984)). The Branch Court then held that, since the trial court had given the "standard long-form sentencing instruction informing the jury how to consider aggravating and mitigating circumstances," and that instruction tracked statutory language, the defense's proposed mitigation instruction was appropriately denied. Id. at 69, 72.
¶ 128. Similarly, we find Galloway's proposed mitigation instruction D4A was sufficiently covered in the long-form instruction; thus, the trial court did not err in refusing it.
¶ 129. This issue is without merit.
¶ 130. Galloway argues that the trial court erroneously sustained the prosecution's objections to the defense's argument pointing out the weakness of the State's evidence of sexual battery and the argument that a sentence of life without parole would "end all of the killing in this situation." Galloway contends these rulings, individually and cumulatively, violated his rights under Mississippi law and under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Article 3, Sections 14, 24, 26, and 28 of the Mississippi Constitution, including his right to closing argument, a constitutionally guaranteed, basic element of the adversary process.
¶ 131. During the penalty phase, the defendant is limited to introducing evidence relevant to his sentence. Holland, 705 So.2d 307 (Miss.1997) (citing Jackson v. State, 337 So.2d 1242, 1256 (Miss.1976)). The defendant generally may present any relevant mitigating evidence. Eddings v. Oklahoma, 455 U.S. 104, 113-14, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982). Both the State and the defendant shall be permitted to present arguments for and against the sentence of death. Miss.Code Ann. § 99-19-101(1) (Rev.2007).
¶ 132. Here, defense counsel addressed the jury as follows:
¶ 133. The State relies on Holland II for its argument that evidence of innocence or "residual doubt" is not a mitigating factor during the sentencing phase. Holland, 705 So.2d at 324. Holland II addressed whether Holland was barred from reintroducing evidence to dispute guilt at resentencing phase, to rebut aggravators offered by the prosecution, to dispute the Enmund factors which the prosecution must prove for imposition of the death penalty, or to support an argument on residual doubt. Id. at 321; see also Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376-77, 73 L.Ed.2d 1140 (1982). Holland II held that, because of the finding of guilt by the prior jury, Holland was barred by res judicata from relitigating the prior jury verdict of guilt and was collaterally estopped in the proceedings from attacking his guilt. Id. at 325. Drawing from Franklin v. Lynaugh, 487 U.S. 164, 172-73, 108 S.Ct. 2320, 2327, 101 L.Ed.2d 155 (1988), Holland II added there could be no error in denying Holland the right to argue residual doubt, since it was not a mitigating factor that is constitutionally recognized. Id. at 326. Notably, in a footnote, Holland II opined: "Residual doubt may have a place in a sentence phase conducted before the same jury that convicted a capital defendant. However, there is no residual doubt of guilt to be argued in cases such as that at bar." Id. at n. 7.
¶ 134. In Franklin, the Supreme Court said:
Franklin, 487 U.S. at 174, 108 S.Ct. 2320. In Oregon v. Guzek, 546 U.S. 517, 126 S.Ct. 1226, 163 L.Ed.2d 1112 (2006), the Supreme Court reaffirmed Franklin, finding no constitutional right to introduce residual-doubt evidence at sentencing. In Ross v. State, 954 So.2d 968, 1011-12 (Miss.2007), this Court, citing Franklin and Holland II, held that a capital defendant is not entitled to a jury instruction on residual doubt. In Minnick, this Court, in construing Franklin, expressed that "where a defendant argues residual doubt
¶ 135. Here, the State contends that Galloway was allowed to argue "residual doubt," because, even though the trial court technically sustained the objection, the trial court permitted the defense to point out alleged weaknesses in the evidence. The State points to the following argument defense counsel made to the jury immediately after the trial court sustained the prosecution's objection:
¶ 136. The State contends this exchange shows that the trial court was not disallowing the "residual doubt" argument but was concerned that the defense was attempting to challenge guilt.
¶ 137. We agree. The trial court properly admonished defense counsel not to challenge the jury with regard to its guilty verdict. The court, in its discretion, allowed the defense to question the State's evidence in the case with regard to the aggravating factors. Accordingly, we find this point of contention is without merit.
¶ 138. As to Galloway's next assignment of error, defense counsel argued to the jury:
The prosecution objected at that point and the trial court sustained the objection. Galloway claims this violated his constitutional right to plead for mercy. The State argues that, while not articulated, the trial court likely sustained the objection on the basis that defense counsel's argument improperly enticed the jury.
¶ 139. Defense counsel's argument was not improper. King v. State explains:
King v. State, 784 So.2d 884 (Miss.2001).
¶ 140. Though the trial court erred by sustaining the State's objection, we find the error harmless. The jury already had heard the remark, and the jurors had been instructed that counsels' arguments were not evidence.
¶ 141. Galloway claims for the first time on appeal that disclosures by his defense during an omnibus hearing relating the general nature of his defense violated his right against self-incrimination and Rule 9.04 of the Uniform Rules of Circuit and County Court Practice. The hearing took place prior to trial, and the results were reduced to a court order without objection.
¶ 142. The portion Galloway now argues was objectionable is as follows:
(bold transcription in original). The bold portions indicate Galloway's anticipated defense as acknowledged by trial counsel at the omnibus hearing.
¶ 143. Galloway is correct that Rule 9.04 does not require pretrial disclosure of a criminal defendant's general defense. But, as the State points out, it does not proscribe such disclosure either.
¶ 144. Rule 9.05 requires a criminal defendant to disclose his or her intention to use an alibi defense. See URCCC 9.05. The United States Supreme Court spoke to such a requirement in Williams v. State of Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), in which it approved Florida's Notice of Alibi Rule, which is substantially similar in many respects to Rule 9.05. The Supreme Court said:
Id. at 82, 90 S.Ct. 1893.
¶ 145. Other jurisdictions provide for disclosure of defenses a criminal defendant intends to use at trial. Arkansas has a criminal rule of procedure which requires disclosure of defenses to be used at trial where the prosecuting attorney requests it. Arkansas Rule of Criminal Procedure 18.3 states:
California has a similar rule, which provides:
Cal. R.Crim. P. 16(II)(c).
¶ 146. Finding no constitutional violation in requiring a criminal defendant to disclose the general nature of defenses to be used at trial and based on Galloway's failure to object to the trial court's order, this point of contention fails under plain-error review.
¶ 147. At trial, Galloway objected to Dubourg's expert testimony based upon her not having a Ph.D. degree. The trial court overruled the objection, finding that qualifications for an expert do not require that she have a Ph.D. The trial court found that, by her education, training, and experience, Dubourg was qualified to testify as a forensic DNA analyst, and that she would be allowed to give opinions consistent with Rule 7.02 of the Mississippi Rules of Evidence.
¶ 148. This Court reviews a trial court's decision to accept expert testimony for an abuse of discretion. Smith v. State, 925 So.2d 825, 834 (Miss.2006). Acceptance or refusal of expert testimony falls within the sound discretion of the trial court, and this Court will reverse a trial judge's decision only if it was "arbitrary and clearly erroneous." Poole v. Avara, 908 So.2d 716, 721 (Miss.2005).
¶ 149. Rule 702 states:
M.R.E. 702.
¶ 150. The record shows that Dubourg earned a bachelor of arts in biology in 1978. She has sixteen years' experience
¶ 151. Given Dubourg's experience and training analyzing forensic DNA, combined with her education, we find that the trial court did not abuse its discretion in allowing Dubourg to testify as an expert in this matter.
¶ 152. Galloway contends that the trial court committed reversible error when it allowed, through Dubourg's testimony, the admission of out-of-court statistical probability assessment calculated by a software program without first providing him the opportunity to confront: the estimates used in the software program; the program's ability to calculate statistics for a DNA mixture; or the program's ability to calculate statistics where some of the defendant's alleles are missing.
¶ 153. The State argues that the issue is waived for Galloway's failure to lodge a contemporaneous objection at trial. We agree.
¶ 154. Procedural bar notwithstanding, we find no Confrontation Clause violation in the admission of this information. The testimonial hearsay at issue is the data that Dubourg relied upon in reaching her opinion regarding statistical probability assessments for DNA mixtures. On direct examination, Dubourg repeatedly identified Anderson's and Galloway's DNA, respectively, as being present on or in various pieces of evidence collected from underneath, inside and outside the Ford Taurus, as well as Galloway's residence. When Dubourg was asked to identify the DNA extracted from a particular piece of evidence, she typically would state to whom the DNA belonged and offer that the probability of finding the same DNA profile if the DNA had come from a randomly selected individual other than Anderson or Galloway was approximately one in more than 100 billion. Dubourg explained that the one-in-more-than-100-billion probability is generated from a statistical program called "pop stat" that was developed by the Federal Bureau of Investigations (FBI). She testified that the pop stat system is generally accepted and used by crime labs that have access to the CODIS database.
¶ 155. The Kansas Supreme Court addressed a similar question in State v. Appleby, 289 Kan. 1017, 221 P.3d 525 (2009). There, the defendant argued that he was denied the opportunity to cross-examine the FBI's random-match probability estimates because the witnesses presented at trial did not prepare the CODIS database and had no personal knowledge of the
Id. at 551-52.
¶ 156. This is persuasive reasoning from the Kansas Supreme Court. Likewise, we too view this type of information as nontestimonial. This issue is without merit.
¶ 157. Citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), Galloway argues on appeal that, as the only eyewitness in the case, Brimage's in-court identification of Galloway as the driver of the vehicle was unreliable, suggestive, and highly prejudicial, and requires reversal. Without it, the State would have been stuck with Brimage's inconclusive photo identification and her previous description to the police of a man with gold teeth who could not have been Galloway because he did not have gold teeth. And this would have strengthened
¶ 158. At trial, Brimage identified Galloway in court, with no objection raised by the defense. She described him as the man she saw standing by the white Ford Taurus parked in her grandmother's driveway and who drove the vehicle away with Anderson inside.
¶ 159. We find that Galloway waived this assignment of error by not entering an objection to Brimage's in-court identification of him at trial. McQuarter v. State, 574 So.2d 685, 687-88 (Miss.1990). Galloway's contention also fails under plain-error review.
¶ 160. Notably, Galloway made no assertion at or before trial that Brimage's out-of-court identification was either improper or unnecessarily suggestive, nor does he do so on appeal. He now simply claims that Brimage's in-court identification of him was inherently and impermissibly suggestive because he was the defendant; thus, it should have been excluded.
¶ 161. At the outset, we find that Galloway's reliance on Biggers and the five reliability factors described therein misses the mark. In Biggers, the Supreme Court said "[i]t is the likelihood of misidentification which violates a defendant's right to due process." Biggers, 409 U.S. at 198, 93 S.Ct. 375. "Biggers recognized the identification problem could come about in two different evidentiary situations: (1) an in-court identification based upon a suggestive pretrial identification procedure, and (2) testimony pertaining to the out-of-court suggestive identification proceeding itself." York v. State, 413 So.2d 1372, 1381 (Miss. 1982). Biggers held that, in order to satisfy due process, pretrial identifications resulting from a suggestive process must be examined under the totality of the circumstances in order to determine the identification's reliability. Biggers, 409 U.S. at 199-200, 93 S.Ct. 375. The reliability of a pretrial identification resulting from a suggestive process depends on: (1) the witness's opportunity to view the accused at the time of the crime, (2) the degree of attention exhibited by the witness, (3) the accuracy of the witness's prior description of the criminal, (4) the level of certainty exhibited by the witness at the confrontation, and (5) the length of the time between the crime and the confrontation. Id. As recognized in Latiker v. State, 918 So.2d 68, 74 (Miss.2005), Biggers essentially prescribes a two-step inquiry for allegations of an impermissible identification: (1) the court must first determine whether the identification was unduly suggestive; if that inquiry is answered affirmatively, then (2) the court must determine whether, under the totality of the circumstances and using the five Biggers factors, the identification was nevertheless reliable.
¶ 162. The United States Supreme Court has not decided whether Biggers applies to an in-court identification not preceded by an impermissibly suggestive pretrial identification. See, e.g., United States v. Domina, 784 F.2d 1361, 1369 (9th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987) ("The Supreme Court has not extended its exclusionary rule to in-court identification procedures that are suggestive because of the trial setting."). A majority of courts have concluded that Biggers does not apply to strictly in-court identifications. Byrd v. State, 25 A.3d 761, 767 (Del.2011). See also State v. Lewis, 363 S.C. 37, 609 S.E.2d 515, 518 (2005), where the South Carolina Supreme Court concluded, "as the majority of [courts] have," that Biggers "does not apply to a first-time in-court identification because the judge is present and can adequately address relevant problems; the jury is physically present to witness the identification, rather than merely hearing
¶ 163. The Georgia Supreme Court has reasoned:
Ralston v. State, 251 Ga. 682, 309 S.E.2d 135, 136 (1983). See also United States v. Bush, 749 F.2d 1227, 1231 (7th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1771, 84 L.Ed.2d 831 (1985) ("deference shown the jury in weighing the reliability of potentially suggestive out-of-court identification would seem even more appropriate for in-court identifications where the jury is present and able to see first-hand the circumstances which may influence a witness"); People v. Medina, 208 A.D.2d 771, 772, 617 N.Y.S.2d 491 (1994) ("where there has not been a pretrial identification and defendant is identified in court for first time, defendant is not deprived of fair trial because defendant is able to explore weaknesses and suggestiveness of identification in front of the jury"); State v. Smith, 200 Conn. 465, 470, 512 A.2d 189 (1986) (defendant's protection against obvious suggestiveness in courtroom identification confrontation is his right to cross-examination); People v. Rodriguez, 134 Ill.App.3d 582, 89 Ill.Dec. 404, 480 N.E.2d 1147, 1151 (1985), cert. denied, 475 U.S. 1089, 106 S.Ct. 1476, 89 L.Ed.2d 731 (1986) ("Where a witness first identifies the defendant at trial, defense counsel may test perceptions, memory, and bias of the witness, contemporaneously exposing weaknesses and adding perspective to lessen hazards of undue weight or mistake.").
¶ 164. Here, we see no reason to expand the Biggers two-step inquiry to an in-court identification where no impermissibly suggestive pretrial identification is alleged to have preceded it. The trial itself affords the defendant adequate protection from the general inherent suggestiveness present at any trial. The defendant receives the full benefit of a trial by jury, presided over by an impartial judge, with representation by counsel, and witnesses subject to oath and cross-examination.
¶ 165. The extent to which there were inconsistencies between Brimage's pretrial identification and her subsequent in-court identification goes to the weight of the evidence, not to its admissibility. This issue is without merit.
¶ 166. This argument was addressed in issue two. It is without merit.
¶ 167. Galloway contends that, if Dr. McGarry had given scientifically valid testimony
¶ 168. In deciding whether the State presented legally sufficient evidence to support a jury's verdict, this Court must determine whether, when viewing the evidence in the light most favorable to the State, any rational juror could have found that the State had proved each element of the crime charged beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843 (Miss.2005). Under this inquiry, all evidence supporting the guilty verdict is accepted as true, and the State must be given the benefit of all reasonable inferences that can be drawn from the evidence. McClain v. State, 625 So.2d 774, 778 (Miss. 1993).
¶ 169. At the outset, we find Williams distinguishable from this case. There, the defendant was convicted on two counts of sexual battery, one against each of his two daughters. Williams, 35 So.3d at 483. The defendant challenged the sufficiency of the evidence supporting the sexual-battery charge in Count II against his younger, ten-month-old daughter. Id. at 485. This Court reversed and rendered Count II because the State's only evidence on that count was the doctor's testimony, and the doctor had couched his opinion in terms of "suspicion of probability." Id. at 485-87, 492. On Count I, the doctor had testified that the older child's injuries were "`definitely consistent' with someone who had been sexually abused `to a reasonable degree of medical certainty.'" Id. at 486. But the doctor "did not recount his findings in such unequivocal terms" when discussing the younger daughter. Id.
¶ 170. Here, Dr. McGarry did not use the phrase, "to a reasonable medical certainty." But, unlike the physician in Williams, Dr. McGarry expressed his opinion with the requisite certainty necessary to deem it reliable. Again, when asked on direct examination whether he had an expert opinion as to what caused the injury to the victim's anus, Dr. McGarry stated:
¶ 171. Dr. McGarry's opinion was predicated on his findings that:
¶ 172. In Catchings v. State, 684 So.2d 591 (Miss.1996), this Court thoroughly addressed the use of the phrase, to a reasonable medical certainty, as follows:
Id. at 597 (citations and footnote omitted).
¶ 173. Here, as found in the first issue, Dr. McGarry's opinion that the anal tear was evidence of "anal rape" did not go beyond his scope of expertise and did not improperly invade the province of the jury. The State's evidence as a whole, which included the crime scene, the condition of the body, the victim's defensive wounds, the "fresh" injury to her anus, was sufficient to sustain the jury's ultimate determination that Galloway committed sexual battery against Anderson, and the act occurred during the commission of her murder. This issue is without merit.
¶ 174. Galloway argues that he had a right under the Mississippi Rules of Evidence and the United States and Mississippi Constitutions to present evidence of prior sexual behavior of the victim to demonstrate that (1) any sexual behavior between him and Anderson was consensual; and/or (2) another person caused her anal injury and was the source of the DNA found her vaginal cavity.
¶ 175. Prior to trial, the State moved in limine to exclude any evidence of Anderson's prior sexual activity, including letters found in Anderson's school locker. The letters were addressed to "Demetri Lamar Brown," and signed "Shakeylia." One of the letters contained a sexually graphic solicitation for oral sex, and closed with: "Demetree and Shakeylia FOR EVER. I love you." Galloway contends the trial court ruled that he could introduce evidence of prior sexual activity between him and Anderson only if he took the stand. And the court would not allow the defense to call witnesses to testify that they had sex with Anderson. Galloway argues that the trial court's rulings violated Rule 412(c) of the Mississippi Rules of Evidence, and denied him due process or a fair trial.
¶ 176. The State argues the motion was granted to the extent that the defense might offer testimony of Anderson's prior sexual conduct, excluding any such contact
¶ 177. As with all evidentiary rulings, a trial court's denial of a motion in limine regarding a Rule 412 motion is reviewed under an abuse-of-discretion standard. McDowell v. State, 807 So.2d 413, 421 (Miss.2001). The purpose of Rule 412 is "to prevent the introduction of irrelevant evidence of the victim's past sexual behavior to confuse and inflame the jury into trying the victim rather than the defendant." Hughes v. State, 735 So.2d 238, 273 (Miss.1999).
¶ 178. Prior to the court's ruling, the following exchange occurred with regard to the State's Rule 412 motion:
¶ 179. Based on our review of the record, despite the trial court's conditional offer, Galloway made no attempt to introduce any such witness(es) at trial. Accordingly, this issue is without merit.
¶ 180. Galloway contends the trial court erred in denying his motion to suppress evidence collected from his mother's Ford Taurus. He claims (1) Carbine did not have probable cause to conduct a warrantless search of the vehicle; (2) the inventory
¶ 181. This issue is without merit. "In reviewing the denial of a motion to suppress, we must determine whether the trial court's findings, considering the totality of the circumstances, are supported by substantial credible evidence." Gore v. State, 37 So.3d 1178, 1187 (Miss.2010) (quoting Moore v. State, 933 So.2d 910, 914 (Miss.2006)). Review of the record is not limited to evidence presented to the trial judge at the suppression hearing; this Court may look to the entire record to determine whether the trial judge's findings are supported by substantial evidence. Holland v. State, 587 So.2d 848, 855 (Miss.1991); see also Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 285-86, 69 L.Ed. 543 (1925).
¶ 182. Individuals are protected under both the United States Constitution and the Mississippi Constitution from unreasonable searches and seizures. U.S. Const. amend. IV; Miss. Const. art. 3, § 23; see also Graves v. State, 708 So.2d 858, 861 (Miss.1997) (noting that Mississippi's Constitution provides greater protection from unreasonable search and seizure than the U.S. Constitution). As a general rule, our state and federal Constitutions prohibit searches without a valid warrant unless an exception applies. Eaddy v. State, 63 So.3d 1209, 1213 (Miss.2011). Such exceptions include "a consensual search, a search incident to arrest, an inventory search, a search under exigent circumstances if probable cause exists, and a search of a vehicle when making a lawful contemporaneous arrest." Bradley v. State, 934 So.2d 1018, 1022 (Miss.Ct.App. 2005) (citing Graves v. State, 708 So.2d 858, 862-63 (Miss.1998)). The State bears the burden to show that a warrantless search comes within an exception for evidence seized thereupon to be admissible. Jackson v. State, 418 So.2d 827, 829 (Miss. 1982).
¶ 183. Here, the trial court denied Galloway's suppression motion after finding that Galloway's vehicle was stopped lawfully and Carbine had probable cause to conduct a walk-around inspection of the vehicle. The record supports the trial court's findings.
¶ 184. Carbine testified that, immediately upon inspecting Anderson's body and the crime scene, they began "looking for a vehicle as a murder weapon." Carbine determined that the victim was last seen leaving her grandmother's house in a white Ford Taurus with a light skinned black male called "Bo" from the Moss Point area. The investigation identified two individuals who went by the nickname "Bo," who lived in Moss Point and drove a white Ford Taurus. One of the individuals was Galloway, who investigators determined possibly resided at 6425 Shortcut Road. On December 9, 2008, Carbine drove by the residence, viewed the vehicle's license plate number, and learned that the vehicle was registered to Galloway's mother, Ollie Varghese. McClenic also drove by the residence and observed a white Ford Taurus in the driveway. Through his investigation, McClenic learned that Galloway had an outstanding arrest warrant for a misdemeanor and a suspended driver's license. McClenic and his deputies "began running constant surveillance on 6425 Shortcut Road." After about an hour and a half of surveillance, at approximately 10:00 p.m. on December 9, the white Ford Taurus reportedly left the residence. Authorities stopped the vehicle a short distance away and arrested Galloway on the outstanding warrant. Galloway's friend Triplett also was in the vehicle when it was stopped. When Carbine arrived at the
¶ 185. On appeal, Galloway and the State both provide this Court a thorough discussion with regard to warrantless searches and seizures under Fourth Amendment law and state constitutional law. But we need not respond in kind because it is plain from the record that there was no violation of either.
¶ 186. This record before us abounds with evidence justifying a finding of probable cause and exigent circumstances. See Deeds v. State, 27 So.3d 1135, 1144 (Miss.2009) (warrantless searches are permissible in exigent circumstances if shown that grounds existed to conduct the search that, had time permitted, reasonably would have satisfied a disinterested magistrate that a warrant properly should issue). The investigation in this matter rapidly came together on December 9. That was when investigators spoke to the victim's family-Brimage in particular, who described the person with whom Anderson had left and the white Ford Taurus in which they had driven away. Brimage was certain it was a Ford Taurus because her school district uses these type vehicles. As a result of Carbine's and McClenic's ensuing investigative efforts, Galloway became a suspect. Investigators determined his possible location and there observed a parked white Ford Taurus fitting Brimage's description. Based on the underlying facts and circumstances attending the case, the vehicle itself was believed to be evidence in a crime. And sufficient probable cause existed at that point to obtain a search warrant. Whether authorities were in the process of obtaining one, the record does not disclose. No matter, because the record illustrates that Jackson County authorities, armed with a valid arrest warrant, lawfully stopped the white Ford Taurus shortly after it left its location, en route to who knows where. Through prudent police work, Carbine thereafter obtained a piece of evidence from the vehicle's undercarriage prior to the vehicle being towed.
¶ 187. For these reasons, we find the trial court correctly overruled Galloway's suppression motion. This issue is meritless.
¶ 188. Galloway contends the prosecution introduced improper and highly prejudicial victim-impact evidence during the guilt/innocence phase of trial through its first witness, Graham, the victim's uncle. Galloway contends this evidence bore no relevance to the issue of Galloway's guilt and served only to inflame the jury.
¶ 189. During Graham's testimony, he described Anderson as "beautiful, healthy, fun loving. She had dark eyebrows. She was like what we might call light skinned with a tan." Graham called her "Ching" because she looked Asian when she was a baby. He told the jury Anderson was "the baby," the youngest of four siblings. He
¶ 190. On appeal, Galloway acknowledges that the State called Graham because he was present at the grandmother's house with Anderson on the night she disappeared. But he contends Graham's testimony far exceeded his account of the circumstances that night and instead focused on Anderson's physical appearance, the family members that she left behind, and the promising future that was taken from her.
¶ 191. "Victim impact statements are those which describe the victim's personal characteristics, the emotional effect of the crimes on the victim's family, and the family's opinion of the crimes and the defendant." Wells v. State, 698 So.2d 497, 512 (Miss.1997) (citing Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987)). In Hansen v. State, 592 So.2d 114, 146-47 (Miss.1991), this Court adopted the United States Supreme Court's holding in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), that the Eighth Amendment does not bar victim-impact evidence during the penalty phase at trial.
¶ 192. This Court points out that, in reaching its holding, the Payne Court noted that various pieces of evidence regarding the victim's background likely would have been presented during the guilt phase of the trial. Id. at 823. Accordingly, the Court concluded that it would be anomalous to require strict exclusion of such evidence at the sentencing phase because the jury already would have heard that evidence at the guilt phase. Id. at 840-41. Thus, Payne suggests that limited victim-background evidence may be admitted — indeed, may have to be admitted — during the guilt phase of trial.
¶ 193. In Goff v. State, 14 So.3d 625, 652 (Miss.2009), we found testimony provided by the State's witness, who identified himself as the victim's "husband of eight years, who reiterated they had two children together, and stated where the [the victim] worked," did not constitute victim-impact evidence. Rather, it "`concerned the background of the victim' and merely set the stage for the presentation of relevant evidence." Id. (quoting Spicer v. State, 921 So.2d 292, 307 (Miss.2006)). In Spicer, this Court found that testimony "concerning the background and habitual actions of the victim was not `victim impact' testimony, but instead was admissible to explain the circumstances surrounding the crime and establish guilt." Spicer v. State, 921 So.2d at 307 (quoting Scott v. State, 878 So.2d 933, 963-64 (Miss.2004), overruled on other grounds by Lynch v. State, 951 So.2d 549 (Miss.2007)). In Scott, the victim's wife testified that she and her husband had been married almost fifty-two years, hunted and fished together, and both were enjoying retirement. Scott v. State, 878 So.2d at 963. This Court found the wife's testimony was not victim-impact testimony. Id. at 964.
¶ 194. Here, Graham was the State's first witness. He merely provided some background information concerning Anderson. Graham did not state any emotional effect the crime had on him or his family, nor did he state an opinion of the defendant. In our opinion, however, the trial court erred in not sustaining Galloway's objection to Graham's statement regarding
¶ 195. Galloway contends the totality of trial counsel's errors, including those noted in issues 4, 8, 9, 10, 14, 15, 16, 17, 19, 20, 21, 22, and 24 (incorporated here), and those described below, violated his right to effective assistance of counsel.
¶ 196. As previously discussed, we apply the two-pronged test set forth in Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052, for ineffective-assistance-of-counsel claims. Galloway must show that his counsel's performance was deficient, and that counsel's alleged deficiency prejudiced his defense to such extent there is a reasonable probability the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. Because we are limited to the trial record on direct appeal, we will address an ineffectiveness claim only if the presented issues are based on facts fully apparent from the record. M.R.A.P. 22.
¶ 197. The ineffectiveness claim under issue 4 already has been addressed. We find the ineffectiveness claims made under previously discussed issues 8, 9, 10, 14, 15, 16, 19, 20, 21, and 22 are based on facts fully apparent from the record. Having considered the claims associated therewith, we find that Galloway has failed to show prejudice sufficient to satisfy the second Strickland prong. With regard to issue 17, dealing with Brimage's in-court identification of Galloway, Galloway claims defense counsel failed to ask for a ruling on a pretrial motion to suppress any show-up identifications of Galloway. This cannot be addressed based on the record before us. Galloway may argue this claim through a petition for post-conviction relief. Galloway's ineffectiveness claim with regard to issue 24 will be addressed under that issue.
¶ 198. We will now speak to Galloway's other ineffectiveness claims.
¶ 199. Galloway alleges that trial counsel was ineffective for failing to challenge potential juror McCoy for cause. He contends McCoy should have been challenged because he initially indicated that he automatically would impose the death penalty for capital murder. This contention is without merit. McCoy was not chosen as a juror or an alternate juror. And the record shows that after additional individual voir dire, McCoy explained that he had misunderstood the question and changed his answer by indicating he would be fair and consider all possible punishment that could be imposed.
¶ 200. Galloway next contends that Juror Smith should have been challenged because she indicated that she would have very strong feelings and would impose the death penalty for any crime involving sexual assault. This contention is without merit because, like McCoy, Smith was not chosen as a juror or an alternate juror.
¶ 201. Galloway contends that defense counsel failed to request a ruling on a motion to suppress Galloway's police statement challenging his waiver of his Miranda
¶ 202. Galloway contends another pretrial failure occurred when defense
¶ 203. We agree with the State. Manning did not find the trial court erred by requiring the defense to provide notice regarding the possible retention of an expert. Nor does Manning stand for the proposition that trial counsel was ineffective by requesting an expert on the record in the prosecution's presence. The case, rather, reiterates that the determination of a defendant's use of experts is left to the discretion of the trial court.
¶ 204. As this Court noted in McGilberry v. State, 741 So.2d 894, 916 (Miss.1999), the federal courts have held that hearings concerning an indigent's need for expert assistance and the services of an investigator must be held ex parte. But "[a]ll involve the interpretation of 18 U.S.C. § 3006A(e)." Id (citation omitted). Mississippi "has not seen fit to adopt this requirement either by statute or court rule." Id.
¶ 205. Accordingly, this claim fails under both Strickland prongs. There being no per se requirement in this State that Galloway's request for expert assistance be made ex parte, defense counsel cannot be deemed to be deficient by failing to pursue an ex parte motion or ruling from the trial court. Moreover, Galloway has failed to demonstrate how this was prejudicial to the assurance of a fair trial.
¶ 206. Defense counsel promised the jury in its opening statement at the penalty phase that the jury would hear from Dr. Beverly Smallwood, a psychologist who had met with Galloway and had performed testing on him. But defense counsel failed to call Dr. Smallwood.
¶ 207. We cannot address this claim based on the record before us. Therefore, Galloway will be allowed to raise it in a post-conviction proceeding.
¶ 208. Galloway also contends that defense counsel was ineffective for failing to object to the trial court's sentencing instruction defining mitigation evidence as "any matter or aspect of the defendant's character or record and any other circumstance of the offense brought to you during the trial of this case which you, the jury, deem mitigation of behalf of the defendant." This argument was addressed in issue eleven. This language was part of jury instruction S-100A, the "long-form instruction." As mentioned, this instruction was approved by this Court in Branch, 882 So.2d at 69. Thus, there was no basis to object to it.
¶ 209. During the penalty phase, the State submitted a certified "pen
¶ 210. In Russell v. State, 670 So.2d 816, 831 (Miss.1995), this Court held that a "pen pack," containing essentially the same kind of documents here, submitted as evidence during the penalty phase of a capital-murder case, was relevant under Section 99-19-101(5)(b) to prove beyond a reasonable doubt the two statutory aggravators charged in that case.
¶ 211. Likewise, we find the "pen pack" submitted in this case sufficiently established that Galloway had a prior felony conviction involving the use or threat of violence to the person and was under sentence of imprisonment. This issue is without merit.
¶ 212. Galloway argues that the trial court's sentencing instruction on the "especially heinous, atrocious, or cruel" aggravator was unconstitutionally vague and overbroad. The instruction provided as follows:
¶ 213. The exact language of this instruction has been found to be legally sufficient so as to satisfy constitutional requirements recognized in previous decisions by this Court. See Bennett, 933 So.2d at 955-56; Havard v. State, 928 So.2d at 799-800 (Miss.2006); Knox, 805 So.2d at 533; Stevens v. State, 806 So.2d 1031, 1060 (Miss.2001). Thus, this contention is without merit.
¶ 215. Dr. McGarry testified at length regarding the condition of Anderson's body both at the crime scene and upon autopsy. When Dr. McGarry arrived at the crime scene he found the body "lying on a dirt road, twisted and distorted, smeared with blood and dirt, with parts of her body gouged out." Where Anderson's body lay, there was "evidence of tire tracks in a turning pattern around her and over her body at least three places." Dr. McGarry "found teeth and pieces of bone and flesh ten feet from her body." In examining Anderson at that location, Dr. McGarry found evidence of her body "having been rolled over and crushed, distorted, mangled. She had a swollen face. She had injuries of her hands and face that preceded the rollover."
¶ 216. From his autopsy report, Dr. McGarry related that he found evidence of defensive wounds on Anderson. He explained:
¶ 217. Dr. McGarry stated that Anderson had three cuts on the skin of her neck, two close together, two inches long, along the left side, and one around the right side that came across the midline. He said, "These were not part of her general injuries. These were throat cutting type of injuries, three in a row by some kind of sharp object. It did not go all the way through the skin." When asked by the prosecution if these cuttings caused Anderson's death, Dr. McGarry replied, "No."
¶ 218. Dr. McGarry described the burns found on Anderson's body and opined what caused them:
When asked by the prosecution if a human would be able to retreat with this type of burn, Dr. McGarry replied: "This would be so painful that it would be a paralyzing
¶ 219. Dr. McGarry's examination also revealed that Anderson suffered a fractured breast bone, broken ribs in front and back, and her "chest was crushed in a band of injury across the heart and lung." Her lungs, liver, and spleen were ruptured. She had tears of both kidneys, and both sides of the front of her pelvis were fractured.
¶ 220. Dr. McGarry determined that Anderson had died from "crushing injuries causing punctures of the lungs, rupture of internal organs, internal bleeding, inability to breathe." And he testified that the type of injuries Anderson received were consistent with being set on fire and run over by a vehicle.
¶ 221. The evidence more than sufficiently supports the jury's finding that Anderson's death was heinous, atrocious, and cruel. And there is nothing about this evidence that preponderates so heavily against this jury's finding on this aggravator that would sanction an unconscionable injustice by allowing it to stand.
¶ 222. Reasonable minds rationally could conclude from these facts that Galloway inflicted physical and mental pain upon Anderson prior to her death, as evinced by the defensive wounds discovered on her body. Reasonable minds also could conclude that Anderson suffered a torturous death by being set afire before being crushed to death by Galloway's vehicle. A burn location was some feet from the clearing where Anderson's body was found, and Dr. McGarry and Carbine observed a drag pattern from that location to the spot where Anderson's body was found among tire tracks. Since Dr. McGarry determined Anderson's cause of death was her being crushed by an automobile, and her body was found surrounded by tire tracks, one could reasonably infer from these facts that Anderson was burned while still alive and dragged to the logging road where Galloway ran his vehicle over her. And then there is the actual method of killing Galloway utilized, repeatedly rolling over Anderson with his vehicle, which crushed the life out of her and left her body in a "mutilated" state.
¶ 223. There is no merit in this issue.
¶ 224. Prior to voir dire, the trial court administered the petit juror oath, pursuant to Mississippi Code Section 13-5-71, requiring the prospective jurors to swear that they "will well and truly try all issues and execute all writs of inquiry that may be submitted to you by the Court during the present week and true verdicts according to the law and the evidence so help you God?" Miss.Code Ann. § 13-5-71 (Rev. 2002). Then, before general voir dire questioning by the parties, the judge asked the jurors to "commit to me now ... even though you don't know what the law will be until I give it to you, do you commit to me that you will follow the law that I give you at the end of the case?" After the jury was selected, the trial court administered the capital juror oath pursuant to Section 13-5-73.
¶ 225. Galloway argues that administration of the petit juror oath and
¶ 226. Indeed, Morgan acclaims juror oaths.
¶ 227. As recognized by the Fifth Circuit, Morgan "involves the narrow question of whether, in a capital case, jurors must be asked whether they would automatically impose the death penalty upon conviction of the defendant." United States v. Greer, 968 F.2d 433, 437 n. 7 (5th Cir.1992). Morgan held that a capital defendant "must be permitted on voir dire to ascertain whether his prospective jurors" would "impose death regardless of the facts and circumstances of conviction." Id. at 735-36, 112 S.Ct. 2222. Morgan explained that due process demands that, "if a jury is to be provided the defendant, regardless of whether the Sixth Amendment requires it, the jury must stand impartial and indifferent to the extent commanded by the Sixth Amendment's holding." Id. at 727, 112 S.Ct. 2222. In capital cases, a juror is constitutionally unqualified if he has "views on capital punishment" that would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Id. at 728, 112 S.Ct. 2222 (emphasis added). "[A] juror who in no case would vote for capital punishment, regardless of his or her instructions, is not an impartial juror and must be removed for cause." Id. at 728, 112 S.Ct. 2222 (emphasis added). Likewise, "[a] juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do[,]" and must also be removed for cause. Id. at 729, 112 S.Ct. 2222 (emphasis added).
¶ 228. Morgan rejected Illinois' argument that "general fairness questions and `follow the law' questions ... are enough to detect those in the venire who automatically would vote for the death penalty." Id. at 735, 112 S.Ct. 2222. Morgan said "such jurors could in all truth and candor respond affirmatively, personally confident that such dogmatic views are fair and impartial, while leaving the specific concern unprobed." Id. at 735, 112 S.Ct. 2222. "More importantly, however, the belief that death should be imposed ipso facto upon conviction of a capital offense reflects directly on that individual's inability to follow the law." Id. (emphasis added). The Morgan Court added, "It may be that a juror could, in good conscience, swear to uphold the law and yet be unaware that maintaining such dogmatic beliefs about the death penalty would prevent him or her from doing so." Id. (emphasis added). Thus, "[a] defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under such misconception." Id. at 735-36, 112 S.Ct. 2222.
¶ 229. Here, the record shows that, after the petit juror oath was administered and before voir dire examination began, the trial court informed the venire this was a capital case, where the death penalty is a possible punishment. The court explained
¶ 230. Afterward the trial court queried the venire, as follows:
¶ 231. The record illustrates that eleven venire members indicated that they could under no circumstances impose the death penalty, and ten members indicated that they would automatically impose the death penalty. The record shows that, upon further examination by the trial court and attorneys from both sides, of the eleven who initially indicated that they absolutely opposed the death penalty, one later withdrew his original response and stated that he could find circumstances where the death penalty was appropriate. Of the ten who stated they automatically would impose the death penalty, four revised their initial responses and stated they would not indiscriminately impose the death penalty. They told the court they would consider the aggravating and mitigating circumstances and could make a determination whether life in prison without parole should be imposed.
¶ 232. The record before us belies Galloway's notion. And we find his argument meritless.
¶ 233. Galloway next contends that the trial court erred by limiting the
¶ 234. Galloway claims there are six reasons why Mississippi's capital-punishment scheme is unconstitutional on its face and as applied to him. First, Galloway contends that the jury made no specific-intent finding, and it is constitutionally impermissible to execute a defendant without a finding of specific intent to commit a crime. Second, Galloway submits that, by treating the nature of his mens rea as a threshold aggravating issue, Mississippi's capital-punishment statute put beyond the effective reach of the sentencing jury the mitigating fact that Galloway did not kill, attempt to kill, or intend that a killing take place, which violated the Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Mississippi Constitution. Third, under Mississippi's capital-punishment scheme, persons such as Galloway convicted of murder simpliciter automatically are guilty of capital murder and eligible for the death penalty, but persons convicted of killing a human being with "deliberate design," or by committing "an act eminently dangerous to others and evincing a depraved heart" are guilty only of simple murder and are ineligible for the death penalty. Fourth, the sexual battery in this case was used both to make the murder death-eligible and as a means of narrowing the class of murders. Fifth, the death sentence in this case is wanton, freakish, excessive, and disproportionate. And sixth, the death penalty in Mississippi has been and is being imposed discriminatorily against defendants convicted of killing whites, against defendants convicted of killing white women, against males, and against poor people.
¶ 235. For his first contention, Galloway's cites Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), in which the Supreme Court held that it was unconstitutional to execute a criminal defendant without the jury finding specifically that the defendant actually had killed, attempted to kill, intended to kill, or contemplated that lethal force would be employed. This Court has interpreted Enmund to hold that "the factors are read in the disjunctive, so that it is sufficient and necessary that the jury find one Enmund factor before a defendant can be sentenced to death." Jordan v. State, 786 So.2d 987, 1029 (Miss.2001) (citing Holland, 705 So.2d at 327). All that is constitutionally required is that the jury find, as they did here, that Galloway actually killed, regardless of intent. Id. This point of contention is without merit.
¶ 236. Galloway's second contention is a rehashing of the first and likewise is without merit.
¶ 237. As to Galloway's third and fourth contentions, he claims that Mississippi's capital-punishment scheme, as applied to felony murders, violates the
¶ 238. As this Court has held:
Blue v. State, 674 So.2d 1184, 1216 (Miss. 1996) (quoting Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188 (1993)). Not every defendant eligible for the death penalty will have committed murder while in the course of sexual battery or the other statutorily enumerated felonies. See Miss.Code Ann. § 97-3-19 (Rev.2006). Therefore, the felony-murder aggravator genuinely narrows the class of defendants eligible for the death penalty. Further, "[t]he legislature has a very great latitude in prescribing and fixing punishment for crime." Thorson v. State, 895 So.2d 85, 106 (Miss.2004) (quoting Wilcher, 697 So.2d at 1109). Use of the underlying felony as an aggravating factor during sentencing has been upheld consistently by this Court in capital cases. Wilcher, 697 So.2d at 1108.
Id. (quoting Walker v. State, 671 So.2d 581, 612 (Miss.1995)). The United States Supreme Court has held that this practice does not render a death sentence unconstitutional. See Lowenfield v. Phelps, 484 U.S. 231, 246, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) (fact that aggravating circumstance duplicated one of the elements of the crime does not make a death sentence constitutionally infirm).
¶ 239. Galloway next argues that the offense for which he was convicted was, though tragic, simply not within that "narrow category of the most serious crimes" that the Eighth Amendment contemplates punishing with the ultimate penalty. We find that it is, for reasons already discussed.
¶ 240. Lastly, Galloway claims Mississippi's death-penalty scheme is applied in a discriminatory and irrational manner in violation of the of the Eighth Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment and corresponding clauses of the Mississippi Constitution. The United States Supreme Court rejected an almost identical argument in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). There, Warren McCleskey argued that Georgia's capital-punishment statute violated equal protection, based upon a study showing that black defendants were more likely to be sentenced to death than white defendants, and defendants murdering
¶ 241. Likewise, Galloway offers no proof that the death penalty is applied in a discriminatory manner in Mississippi, or that he suffered discriminatory application of the law. His only support for this claim is insufficient statistical data, similar to that rejected by the McCleskey Court. This point of contention is without merit.
¶ 242. Galloway contends Mississippi lacks statewide standards governing the discretion of local prosecutors to seek or decline the execution of death-eligible defendants. As a result, the decision whether to seek the death penalty turns on personal policies of the local prosecutor. Relying on reasoning from Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000), Galloway claims Mississippi fails to provide even an "abstract proposition" or "starting principle" as to how local prosecutors should make these life-and-death decisions.
¶ 243. Both this Court and the Supreme Court repeatedly have rejected this type of argument. See McCleskey, 481 U.S. at 296-97, 107 S.Ct. 1756 (presentencing decisions by actors in the criminal justice system that may remove an accused from consideration for the death penalty are not unconstitutional); Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ("Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution."); Jordan v. State, 918 So.2d 636, 658-59 (Miss.2005) (there is no constitutional requirement that all equally culpable defendants receive the same punishment); Jackson v. State, 672 So.2d 468, 484 (Miss.1996) (finding the issue meritless because "the capacity of prosecutorial discretion to provide individualized justice is `firmly entrenched in American law'") (quoting Ladner v. State, 584 So.2d 743, 751 (Miss.1991)).
¶ 244. As the Supreme Court in McCleskey expressed, "Discretion in the criminal justice system offers substantial benefits to the criminal defendant." McCleskey, 481 U.S. at 311, 107 S.Ct. 1756. The local prosecutor "can decline to charge, offer a plea bargain, or decline to seek a death sentence in any particular case." Id. at 312, 107 S.Ct. 1756. With that power of leniency is the power also to discriminate. Id. But "a capital punishment system that did not allow for discretionary acts of leniency `would be totally alien to our notions of criminal justice.'" Id. (quoting Gregg, 428 U.S. at 200 n. 50, 96 S.Ct. 2909).
¶ 245. This issue is without merit.
¶ 246. Galloway claims that the cumulative effect of the errors in his trial warrants reversal.
¶ 248. After conducting a thorough review of the record, the briefs, and the argument, this Court has determined that there are no individual errors, or cumulative near-errors, which require reversal of either Galloway's conviction or his sentence.
¶ 249. Pursuant to Mississippi Code Section 99-19-105(3), in addition to reviewing the merits of those issues raised by Galloway, we are required to determine:
Miss.Code Ann. § 99-19-105(3) (Rev.2007).
¶ 250. After reviewing the record in this appeal as well as the death-penalty cases listed in the appendix, we conclude that Galloway's death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. We further find that the evidence is more than sufficient to support the jury's finding of statutory aggravating circumstances. The jury did not consider any invalid aggravating circumstances. In comparison to other factually similar cases in which a death sentence was imposed, the sentence of death in this case is neither excessive nor disproportionate.
¶ 251. For the reasons set forth above, Galloway's arguments are without merit. We affirm Galloway's conviction and the sentence of death imposed by the Harrison County Circuit Court.
¶ 252.
WALLER, C.J., RANDOLPH, P.J., LAMAR AND COLEMAN, JJ., CONCUR. CHANDLER, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION JOINED IN PART BY DICKINSON, P.J., AND KITCHENS, J. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KITCHENS, J.
CHANDLER, Justice, concurring in part and in result:
¶ 253. I concur in part and in the result. I write separately to express my agreement with the analysis of the Confrontation
DICKINSON, P.J., AND KITCHENS, J., JOIN THIS OPINION IN PART.
DICKINSON, Presiding Justice, dissenting:
¶ 254. During deliberations, the jury sent the trial judge a note asking, "Does murder escalate the sex automatically to sexual battery?" The jury obviously wondered whether — because there was a murder involved — conduct that did not amount to sexual battery should be "escalated" to sexual battery. The clear, unequivocal, indisputable answer to the jury's question was "no."
¶ 255. In order to find capital murder based on sexual battery, the elements of the alleged sexual battery must be established, regardless of the murder. Rather than assisting the jurors, the trial judge allowed them to convict Galloway without an adequate understanding of a crucial element of capital murder. For this reason, I must dissent.
¶ 256. If the jury believed beyond a reasonable doubt that Galloway's conduct met the elements of sexual battery, there would have been no reason for them to inquire about "escalating" that conduct to sexual battery. It is no answer — as the majority finds — to simply refer the jurors to the jury instructions — the source of their confusion to begin with.
¶ 257. Since the trial judge refused to clarify
KITCHENS AND KING, JJ., JOIN THIS OPINION.
KITCHENS, Justice, dissenting:
¶ 258. While I fully join the dissents of Presiding Justice Dickinson and Justice King, I write separately to clarify the analysis of the Confrontation Clause issue in section three of the majority opinion. The majority ultimately is correct in finding that Leslie Galloway's Confrontation Clause rights were satisfied through the testimony of Bonnie Dubourg, the DNA analyst who did not physically test the samples but who analyzed the results of those tests to determine that the DNA samples matched and to implicate Galloway as a perpetrator. However, I disagree that this Court's analysis in Grim v. State, 102 So.3d 1073 (Miss.2012), regarding forensic testing of a substance to determine whether it was cocaine, is the proper lens through which to view the question presented in this particular case. In Grim, this Court addressed the receipt into evidence of a testimonial statement. Under Williams v. Illinois, ___ U.S. ___, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), the challenged statements of the nontestifying DNA analyst, Julie Golden, are nontestimonial. The testimonial statements that implicated Galloway were made by Dubourg, who performed an analysis of her own and testified. Therefore, Galloway's confrontation rights were not violated. Accordingly, our analysis should proceed under the Supreme Court's reasoning in Williams, not this Court's reasoning in Grim.
¶ 259. In order for a statement or an item of evidence to implicate a defendant's right to confront one or more witnesses against him, it must be testimonial. See Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In
¶ 260. I dissented in Grim because I found that the testimonial report which concluded that the substance the defendant had sold was cocaine invoked the Confrontation Clause under Melendez-Diaz and Bullcoming, and the person who actually conducted the testing should have testified. Grim, 102 So.3d at 1082 (Kitchens, J., dissenting). See also Jenkins v. State, 102 So.3d 1063, 1070 (Miss.2012) (Kitchens, J., dissenting). However, I noted, based on the holding in Williams, that the complex nature of DNA testing could involve a "primary analyst." Grim, 102 So.3d at 1084 (citing Gray v. State, 728 So.2d 36, 56-57 (Miss. 1998)). In the case of DNA testing, the underlying reports of the nontestifying expert, if used only as a premise to support the testifying expert's opinion, may not be testimonial. Id. (citing Williams, 132 S.Ct. at 2221). In Williams, the testifying expert was the person who had analyzed the results of the DNA testing to determine whether the sample from the crime scene and the test sample matched. Id. at 2240. The underlying report upon which the expert's conclusions were based was not admitted into evidence. Id. The Court found that the expert's assertion that the two samples matched was true and not reliant at all upon the validity of the underlying testing used to generate the DNA profiles. Id. The expert simply had compared the two profiles and determined that they matched. Id. The "testimonial statement" and the statement that was incriminating of the defendant was that the two profiles matched, not that the report contained an accurate profile of the defendant's DNA. The Court found that this holding was in line with Melendez-Diaz and Bullcoming, in which the reports clearly were testimonial, as they were facially incriminating and were offered for the truth of what they asserted, while in Williams, the report was not offered for the truth of what it asserted, but instead was offered "to establish that the report contained a DNA profile that matched the DNA profile deduced from the [defendant's] blood." Id.
¶ 262. Because the challenged report is not testimonial, and the expert with whom the testimonial statement had originated testified at trial, Leslie Galloway's right to confront the witnesses against him was not violated. The majority takes a much longer route to reach this conclusion by analyzing the issue under Grim, in which this Court addressed the admission of a clearly testimonial statement. The challenged statement in this case is nontestimonial under Williams, and should be treated as such in our analysis. Therefore, I respectfully disagree with the majority's analysis of that issue, I also fully join the dissents of Presiding Justice Dickinson and Justice King.
DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.
KING, Justice, dissenting:
¶ 263. Because I disagree with the majority's conclusions on several of the issues Galloway raises, I respectfully dissent.
¶ 264. One of Galloway's defense theories was that the DNA found on the Taurus may have gotten on the vehicle while it was left unattended overnight at Bob's Garage after authorities arrested Galloway. Lieutenant Ken McClenic, an officer
¶ 265. Rule 602 of the Mississippi Rules of Evidence states that "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter."
¶ 266. Such error was not harmless. See Jones v. State, 678 So.2d 707 (Miss. 1996). In Jones, this Court found the speculative testimony of a welfare worker to be reversible error. Id. at 711. Carolyn Smith, the welfare worker investigating the case of a child killed by cocaine overdose and medical neglect, testified that she felt "certain that that's how the child got an overdose of cocaine through vaporization," despite a toxicologist for the State testifying as to the many different ways in which the child could have overdosed on cocaine. Id. at 710. The State argued that her testimony was cumulative and thus harmless. Id. at 709. This Court noted that the evidence was ample to support the findings of culpable negligence, concluding that the "portion of Smith's testimony pertaining to the vaporization of cocaine was not necessary to establish guilt based on culpable negligence." Id. at 710-11. However, the Court found that "because of the certainty of Smith's testimony and her official capacity, her testimony likely was instrumental in the jury's decision." Id. at 711.
¶ 267. Lieutenant McClenic's testimony was extremely certain — he interrupted an exchange between an attorney and the judge to (unresponsively) state the factual nature of his assertion.
¶ 268. An accused is guaranteed the right to a speedy and public trial by both the United States Constitution and the Mississippi Constitution. U.S. Const. amend. VI; Miss Cost. art. 3, § 26. The United States Supreme Court sets out four factors this Court must examine in determining if a defendant has been deprived of his right to speedy trial: "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). "No one factor is dispositive; all factors must be considered together." Burgess v. State, 473 So.2d 432, 433 (Miss. 1985) (emphasis added).
¶ 269. The length of delay was 424 days, a delay that, exceeding eight months, is presumptively prejudice, as the majority acknowledges. Johnson v. State, 68 So.3d 1239, 1242 (Miss.2011); Maj. Op. ¶ 103. This presumptively prejudicial delay shifts the burden of persuasion to the State to establish good cause for the delay.
¶ 270. A presumptively prejudicial delay, as here, shifts the burden of persuasion to the State to establish good cause for the delay. Johnson, 68 So.3d at 1242. As the majority notes, the State, which has the burden of persuasion, failed to make a clear record as to the reason for the delay. Maj. Op. ¶ 104. The majority concludes that this is a complicated case, and this factor "appears close to neutral. But we are unable to reach that conclusion, as the State failed to provide us a more definite record from which to analyze this factor." Id. Thus, the majority weighs this factor "slightly" against the State. Id.
¶ 271. The State has the burden of persuasion, and, as admitted by the majority, utterly fails to establish good cause for the delay in this case. I therefore disagree that this factor should only weigh "slightly" against the State. Such a determination impermissibly shifts the burden of persuasion to the defendant. I would weigh this factor more heavily against the State, given that it completely failed to meet its burden of persuasion. However, even the majority weighs this factor against the State, if only "slightly."
¶ 272. As the majority concedes, Galloway asserted his speedy-trial rights, thus this factor weighs in his favor. Maj. Op. ¶ 105. "The more serious the deprivation,
¶ 273. I disagree with the majority's conclusion that Galloway was not prejudiced, an issue that I will discuss below. However, even if I accepted the majority's conclusion that this factor weighs in favor of the State, I would still find that Galloway's right to speedy trial was violated. See, e.g., Johnson, 68 So.3d at 1253-59 (Dickinson, P.J., dissenting). The majority admits that the other three Barker factors weigh in Galloway's favor. These three factors "outweigh item (4) prejudice, if the Barker and Bailey
¶ 274. That being said, I do not agree with the majority's analysis of the prejudice factor. The prejudice factor weighs in favor of Galloway. Personal prejudice "is not always readily identifiable." Barker, 407 U.S. at 531, 92 S.Ct. 2182. The United States Supreme Court has identified three interests that the speedy-trial right was designed to protect, and which should all be considered in determining prejudice.
Id. at 532-33, 92 S.Ct. 2182.
¶ 275. Furthermore, Galloway alleges that the memory of a prosecution witness was unreliable due to the delayed trial, thus impairing his defense. The record demonstrates that shortly after the crime, Dixie Brimage, the only eyewitness in the case, was unsure in her identification of
¶ 276. The majority argues that Galloway fails to demonstrate how Brimage's memory was affected. Maj. Op. ¶ 109. Brimage's certainty in her ability to identify Galloway changed in the time period between her pretrial identification and her identification at trial, which certainly evinces possible prejudice to Galloway.
¶ 277. Thus, due to Galloway's lengthy incarceration, and the potential adverse effects to Brimage's memory, I find that the prejudice factor weighs in favor of Galloway. Therefore, Galloway's right to speedy trial was violated. As stated, supra, even if I agreed with the majority that this factor favored the State, I must still conclude that, in light of the totality of the circumstances, Galloway's right to speedy trial was violated, as the other three factors clearly weigh in his favor.
¶ 278. As Presiding Justice Dickinson has so aptly observed in previous cases, the "elephant in the room" is that the constitutional right to speedy trial in Mississippi is dead. Ben v. State, 95 So.3d 1236, 1258 (Miss.2012) (Dickinson, P.J., dissenting); Johnson, 68 So.3d at 1247 (Dickinson, P.J., dissenting).
¶ 279. D3AA provided, in pertinent part, that "[e]ven if mitigating circumstances do not outweigh aggravating circumstances, the law permits you, the jury to impose a sentence of life imprisonment without the possibility of parole." The majority argues that this type of instruction is an impermissible "mercy" instruction. Maj. Op. ¶ 125.
¶ 280. Such an instruction is not a plea for mercy and does not impermissibly play on the sympathies of the jury, but merely tracks the sentencing statute, which provides that the jury should decide, based on several considerations, "whether the defendant should be sentenced to life imprisonment, life imprisonment without eligibility
¶ 281. Furthermore, I find it incongruous that a defendant is allowed by law to argue emotionally for mercy or sympathy in the sentencing phase, but not allowed to include a jury instruction that merely reflects the law that a jury is not forced to impose the death penalty, but may instead impose life imprisonment. See Maj. Op. ¶ 123; King v. State, 784 So.2d 884, 889-90 (Miss.2001). As the majority notes, "[a] defendant is entitled to have jury instructions given which present his theory of the case." Chandler v. State, 946 So.2d 355, 360 (Miss.2006). Instruction D3AA did not incorrectly state the law, was not covered fairly elsewhere in the instruction, nor was it without foundation in the evidence. Id. Thus, I would find that the trial court abused its discretion in denying Instruction D3AA and reverse the trial court on this issue.
¶ 282. During the pretrial hearing on several issues, the State requested that the court "address some of the motions that did not require testimony first." The court responded: "I'm looking at a motion that looks like was recently filed for expert funds for Dr. Riddick?" Defense counsel responded in the affirmative. The court replied: "All right. Let me hear you on that." After defense counsel argued his motion, the court asked the State if it had any opposition to the motion. Counsel for the State responded that "it's generally something between the defense and the court," but went on to affirmatively argue against providing Galloway funding for his expert, objecting to the same. Defense counsel then responded to the objection, indicating in detail why Galloway felt the expert was necessary, thus revealing defense strategy to the State. The court then granted Galloway's request, but required Galloway to send the State the expert report as soon as Galloway received it, without any provision that such was conditioned on Galloway's intent to actually use the expert report.
¶ 283. The majority is correct that in Manning v. State, this Court did not find that the trial court erred by requiring the defense to provide notice regarding the possible retention of an expert. Manning v. State, 726 So.2d 1152, 1191 (Miss.1998), overruled on other grounds by Weatherspoon v. State, 732 So.2d 158 (Miss. 1999). However, neither did this Court find a lack of error in the trial court's actions — this Court did not squarely address the issue at all. Instead, we found that "Manning had no right to an independent mental examiner and he suffered no prejudice in not having one. This assignment of error is meritless." Id. at 1191. The Court went
¶ 284. As this Court has noted, "[t]he purpose of the federal [statute] that requires the hearing to be ex parte is to protect the defendant from being forced to reveal his strategies and theories to the prosecutor." McGilberry v. State, 741 So.2d 894, 917 (Miss.1999)
¶ 285. Thus, to the extent Mississippi has not formally adopted the rule that hearings regarding an indigent defendant's need for expert assistance should be ex parte, we should now formally adopt such a rule. A nonindigent defendant does not experience the disadvantage of being forced to reveal his defense strategy to the State, prematurely or otherwise; likewise, an indigent defendant should not experience such a disadvantage merely due to his financial status. Forcing an indigent defendant to reveal his defense strategy and other evidence, as Galloway was forced to do here, violates the very basic premise of Ake. See also Ex parte Moody, 684 So.2d 114 (Ala.1996) ("we find it necessary to hold that an indigent criminal defendant is entitled to an ex parte hearing on whether expert assistance is necessary, based on the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution"); Brooks v. State, 259 Ga. 562, 385 S.E.2d 81 (1989) (finding that an application for funds should be heard ex parte so that a defendant does not have to reveal his theory of the case); Moore v. State, 390 Md. 343, 889 A.2d 325 (2005) (requiring an ex parte hearing because an indigent defendant "should not be required to disclose to the State the theory of the defense when non-indigent defendants are not required to do so"); State v. Barnett, 909 S.W.2d 423 (Tenn.1995) (ex parte hearing required for psychiatric expert because indigent defendant should not have to reveal his theory of the defense when his affluent counterpart does not); Williams v. State, 958 S.W.2d 186
¶ 286. Because I believe that Galloway's arguments on issues 10, 11, 12, and 23 have merit, I am compelled to consider what remedy each requires. This Court has held that the remedy for issue 10, a violation of Mississippi Rule of Evidence 602, and the remedy for issue 12, improperly refusing a jury instruction, are reversal and remand for a new trial. Jones, 678 So.2d at 711; Miss. Valley Silica Co., Inc. v. Eastman, 92 So.3d 666, 673 (Miss.2012). This Court has never squarely addressed issue 23, whether a defendant is entitled to an ex parte hearing regarding funding for experts. Some courts have determined that reversal and remand is the appropriate remedy. See, e.g., Williams, 958 S.W.2d at 195-96 (failure to hold hearing ex parte affected sentencing phase of trial, thus court reversed and remanded for retrial of sentencing phase); United States v. Abreu, 202 F.3d 386 (1st Cir.2000) (limited remand on sentencing phase for failure to handle issue ex parte); United States v. Sutton, 464 F.2d 552 (5th Cir.1972) (reversing conviction where trial court refused to hold hearing ex parte, so defense counsel refused to reveal information disclosing his defense, and trial court thus denied defendant's request on the grounds of inadequate showing of necessity). It seems in this case, where defense strategy has already been announced, but under a cloud of unclear Mississippi law, no present remedy exists. The only remedy appears to be the prospective remedy of adoption of the rule that a defense request for expert funding must be conducted and heard ex parte. Regarding issue 12, the violation of Galloway's right to speedy trial, this Court and the United States Supreme Court have concluded that dismissal is the only remedy to a speedy-trial violation. Bailey, 463 So.2d at 1064; Strunk v. United States, 412 U.S. 434, 439-40, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56 (1973).
DICKINSON, P.J., AND KITCHENS, J., JOIN THIS OPINION.
Roger Lee Gillett v. State, 56 So.3d 469 (Miss.2010).
Moffett v. State, 49 So.3d 1073 (Miss. 2010).
Goff v. State, 14 So.3d 625 (Miss.2009).
Wilson v. State, 21 So.3d 572 (Miss. 2009).
Chamberlin v. State, 989 So.2d 320 (Miss.2008).
Loden v. State, 971 So.2d 548 (Miss. 2007).
King v. State, 960 So.2d 413 (Miss.2007).
Bennett v. State, 933 So.2d 930 (Miss. 2006).
Spicer v. State, 921 So.2d 292 (Miss. 2006).
Hodges v. State, 912 So.2d 730 (Miss. 2005).
Walker v. State, 913 So.2d 198 (Miss. 2005).
Le v. State, 913 So.2d 913 (Miss.2005).
Brown v. State, 890 So.2d 901 (Miss. 2004).
Powers v. State, 883 So.2d 20 (Miss. 2004)
Branch v. State, 882 So.2d 36 (Miss. 2004).
Scott v. State, 878 So.2d 933 (Miss.2004).
Lynch v. State, 877 So.2d 1254 (Miss. 2004).
Dycus v. State, 875 So.2d 140 (Miss. 2004).
Byrom v. State, 863 So.2d 836 (Miss. 2003).
Howell v. State, 860 So.2d 704 (Miss. 2003).
Howard v. State, 853 So.2d 781 (Miss. 2003).
Walker v. State, 815 So.2d 1209 (Miss. 2002).
Bishop v. State, 812 So.2d 934 (Miss. 2002).
Stevens v. State, 806 So.2d 1031 (Miss. 2002).
Grayson v. State, 806 So.2d 241 (Miss. 2002).
Knox v. State, 805 So.2d 527 (Miss.2002).
Simmons v. State, 805 So.2d 452 (Miss. 2002).
Berry v. State, 802 So.2d 1033 (Miss. 2001).
Snow v. State, 800 So.2d 472 (Miss.2001).
Mitchell v. State, 792 So.2d 192 (Miss. 2001).
Puckett v. State, 788 So.2d 752 (Miss. 2001).
Goodin v. State, 787 So.2d 639 (Miss. 2001).
Jordan v. State, 786 So.2d 987 (Miss. 2001).
Manning v. State, 765 So.2d 516 (Miss. 2000).
Eskridge v. State, 765 So.2d 508 (Miss. 2000).
McGilberry v. State, 741 So.2d 894 (Miss.1999).
Puckett v. State, 737 So.2d 322 (Miss. 1999).
Manning v. State, 735 So.2d 323 (Miss. 1999).
Hughes v. State, 735 So.2d 238 (Miss. 1999).
Turner v. State, 732 So.2d 937 (Miss. 1999).
Smith v. State, 729 So.2d 1191 (Miss. 1998).
Burns v. State, 729 So.2d 203 (Miss. 1998).
Jordan v. State, 728 So.2d 1088 (Miss. 1998).
Gray v. State, 728 So.2d 36 (Miss.1998).
Manning v. State, 726 So.2d 1152 (Miss. 1998).
Woodward v. State, 726 So.2d 524 (Miss. 1997).
Bell v. State, 725 So.2d 836 (Miss.1998).
Evans v. State, 725 So.2d 613 (Miss. 1997).
Brewer v. State, 725 So.2d 106 (Miss. 1998).
Crawford v. State, 716 So.2d 1028 (Miss. 1998).
Underwood v. State, 708 So.2d 18 (Miss. 1998).
Holland v. State, 705 So.2d 307 (Miss. 1997).
Wells v. State, 698 So.2d 497 (Miss.1997).
Wilcher v. State, 697 So.2d 1087 (Miss. 1997).
Wiley v. State, 691 So.2d 959 (Miss. 1997).
Brown v. State, 690 So.2d 276 (Miss. 1996).
Simon v. State, 688 So.2d 791 (Miss. 1997).
Jackson v. State, 684 So.2d 1213 (Miss. 1996).
Williams v. State, 684 So.2d 1179 (Miss. 1996).
Davis v. State, 684 So.2d 643 (Miss. 1996).
Taylor v. State, 682 So.2d 359 (Miss. 1996).
Brown v. State, 682 So.2d 340 (Miss. 1996).
Blue v. State, 674 So.2d 1184 (Miss. 1996).
Holly v. State, 671 So.2d 32 (Miss.1996).
Walker v. State, 671 So.2d 581 (Miss. 1995).
Russell v. State, 670 So.2d 816 (Miss. 1995).
Ballenger v. State, 667 So.2d 1242 (Miss. 1995).
Davis v. State, 660 So.2d 1228 (Miss. 1995).
Carr v. State, 655 So.2d 824 (Miss.1995).
Mack v. State, 650 So.2d 1289 (Miss. 1994).
Chase v. State, 645 So.2d 829 (Miss. 1994).
Foster v. State, 639 So.2d 1263 (Miss. 1994).
Conner v. State, 632 So.2d 1239 (Miss. 1993).
Hansen v. State, 592 So.2d 114 (Miss. 1991).
Davis v. State, 551 So.2d 165 (Miss. 1989).
Minnick v. State, 551 So.2d 77 (Miss. 1989).
Woodward v. State, 533 So.2d 418 (Miss. 1988).
Nixon v. State, 533 So.2d 1078 (Miss. 1987).
Cole v. State, 525 So.2d 365 (Miss.1987).
Lockett v. State, 517 So.2d 1346 (Miss. 1987).
Lockett v. State, 517 So.2d 1317 (Miss. 1987).
Faraga v. State, 514 So.2d 295 (Miss. 1987).
Wiley v. State, 484 So.2d 339 (Miss. 1986).
Johnson v. State, 477 So.2d 196 (Miss. 1985).
Gray v. State, 472 So.2d 409 (Miss.1985).
Cabello v. State, 471 So.2d 332 (Miss. 1985).
Jordan v. State, 464 So.2d 475 (Miss. 1985).
Wilcher v. State, 455 So.2d 727 (Miss. 1984).
Billiot v. State, 454 So.2d 445 (Miss. 1984).
Stringer v. State, 454 So.2d 468 (Miss. 1984).
Dufour v. State, 453 So.2d 337 (Miss. 1984).
Neal v. State, 451 So.2d 743 (Miss.1984).
Booker v. State, 449 So.2d 209 (Miss. 1984).
Wilcher v. State, 448 So.2d 927 (Miss. 1984).
Caldwell v. State, 443 So.2d 806 (Miss. 1983).
Irving v. State, 441 So.2d 846 (Miss. 1983).
Tokman v. State, 435 So.2d 664 (Miss. 1983).
Leatherwood v. State, 435 So.2d 645 (Miss.1983).
Hill v. State, 432 So.2d 427 (Miss.1983).
Pruett v. State, 431 So.2d 1101 (Miss. 1983).
Gilliard v. State, 428 So.2d 576 (Miss. 1983).
Evans v. State, 422 So.2d 737 (Miss. 1982).
King v. State, 421 So.2d 1009 (Miss. 1982).
Wheat v. State, 420 So.2d 229 (Miss. 1982).
Smith v. State, 419 So.2d 563 (Miss. 1982).
Johnson v. State, 416 So.2d 383 (Miss. 1982).
Edwards v. State, 413 So.2d 1007 (Miss. 1982).
Bullock v. State, 391 So.2d 601 (Miss. 1980).
Reddix v. State, 381 So.2d 999 (Miss. 1980).
Jones v. State, 381 So.2d 983 (Miss. 1980).
Culberson v. State, 379 So.2d 499 (Miss. 1979).
Gray v. State, 375 So.2d 994 (Miss.1979).
Jordan v. State, 365 So.2d 1198 (Miss. 1978).
Voyles v. State, 362 So.2d 1236 (Miss. 1978).
Irving v. State, 361 So.2d 1360 (Miss. 1978).
Washington v. State, 361 So.2d 61 (Miss. 1978).
Bell v. State, 360 So.2d 1206 (Miss.1978).
Ross v. State, 954 So.2d 968 (Miss.2007).
Flowers v. State, 947 So.2d 910 (Miss. 2007).
Flowers v. State, 842 So.2d 531 (Miss. 2003).
Flowers v. State, 773 So.2d 309 (Miss. 2000).
Edwards v. State, 737 So.2d 275 (Miss. 1999).
Smith v. State, 733 So.2d 793 (Miss. 1999).
Porter v. State, 732 So.2d 899 (Miss. 1999).
Kolberg v. State, 704 So.2d 1307 (Miss. 1997).
Snelson v. State, 704 So.2d 452 (Miss. 1997).
Fuselier v. State, 702 So.2d 388 (Miss. 1997).
Howard v. State, 701 So.2d 274 (Miss. 1997).
Lester v. State, 692 So.2d 755 (Miss. 1997).
Hunter v. State, 684 So.2d 625 (Miss. 1996).
Lanier v. State, 684 So.2d 93 (Miss. 1996).
Giles v. State, 650 So.2d 846 (Miss. 1995).
Duplantis v. State, 644 So.2d 1235 (Miss. 1994).
Harrison v. State, 635 So.2d 894 (Miss. 1994).
Butler v. State, 608 So.2d 314 (Miss. 1992).
Jenkins v. State, 607 So.2d 1171 (Miss. 1992).
Abram v. State, 606 So.2d 1015 (Miss. 1992).
Balfour v. State, 598 So.2d 731 (Miss. 1992).
Griffin v. State, 557 So.2d 542 (Miss. 1990).
Bevill v. State, 556 So.2d 699 (Miss. 1990).
West v. State, 553 So.2d 8 (Miss.1989).
Leatherwood v. State, 548 So.2d 389 (Miss.1989).
Mease v. State, 539 So.2d 1324 (Miss. 1989).
Houston v. State, 531 So.2d 598 (Miss. 1988).
West v. State, 519 So.2d 418 (Miss.1988).
Davis v. State, 512 So.2d 1291 (Miss. 1987).
Williamson v. State, 512 So.2d 868 (Miss.1987).
Foster v. State, 508 So.2d 1111 (Miss. 1987).
Smith v. State, 499 So.2d 750 (Miss. 1986).
West v. State, 485 So.2d 681 (Miss.1985).
Fisher v. State, 481 So.2d 203 (Miss. 1985).
Johnson v. State, 476 So.2d 1195 (Miss. 1985).
Fuselier v. State, 468 So.2d 45 (Miss. 1985).
West v. State, 463 So.2d 1048 (Miss. 1985).
Jones v. State, 461 So.2d 686 (Miss. 1984).
Moffett v. State, 456 So.2d 714 (Miss. 1984).
Lanier v. State, 450 So.2d 69 (Miss. 1984).
Laney v. State, 421 So.2d 1216 (Miss. 1982).
Reddix v. State, 547 So.2d 792 (Miss. 1989).
White v. State, 532 So.2d 1207 (Miss. 1988).
Bullock v. State, 525 So.2d 764 (Miss. 1987).
Edwards v. State, 441 So.2d 84 (Miss. 1983).
Dycus v. State, 440 So.2d 246 (Miss. 1983).
Coleman v. State, 378 So.2d 640 (Miss. 1979).
Fulgham v. State, 46 So.3d 315 (Miss. 2010).
Rubenstein v. State, 941 So.2d 735 (Miss.2006).
King v. State, 784 So.2d 884 (Miss.2001).
Walker v. State, 740 So.2d 873 (Miss. 1999).
Watts v. State, 733 So.2d 214 (Miss. 1999).
West v. State, 725 So.2d 872 (Miss.1998).
Smith v. State, 724 So.2d 280 (Miss. 1998).
Berry v. State, 703 So.2d 269 (Miss. 1997).
Booker v. State, 699 So.2d 132 (Miss. 1997).
Taylor v. State, 672 So.2d 1246 (Miss. 1996).
Russell v. State, 607 So.2d 1107 (Miss. 1992).
Holland v. State, 587 So.2d 848 (Miss. 1991).
Willie v. State, 585 So.2d 660 (Miss. 1991).
Ladner v. State, 584 So.2d 743 (Miss. 1991).
Mackbee v. State, 575 So.2d 16 (Miss. 1990).
Berry v. State, 575 So.2d 1 (Miss.1990).
Turner v. State, 573 So.2d 657 (Miss. 1990).
State v. Tokman, 564 So.2d 1339 (Miss. 1990).
Johnson v. State, 547 So.2d 59 (Miss. 1989).
Williams v. State, 544 So.2d 782 (Miss. 1989); sentence aff'd 684 So.2d 1179 (1996).
Lanier v. State, 533 So.2d 473 (Miss. 1988).
Stringer v. State, 500 So.2d 928 (Miss. 1986).
Mhoon v. State, 464 So.2d 77 (Miss. 1985).
Cannaday v. State, 455 So.2d 713 (Miss. 1984).
Wiley v. State, 449 So.2d 756 (Miss. 1984); resentencing affirmed, Wiley v. State, 484 So.2d 339 (Miss.1986); cert. denied, Wiley v. Mississippi, 479 U.S. 906 (1988); resentencing ordered, Wiley v. State, 635 So.2d 802 (Miss.1993) following writ of habeas corpus issued pursuant to Wiley v. Puckett, 969 F.2d 86, 105-106 (5th Cir.1992); resentencing affirmed.
Williams v. State, 445 So.2d 798 (Miss. 1984). *Case was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.
M.R.E. 703 cmt. (quoted in Gray, 728 So.2d at 57).
(Emphasis added.) As is also quoted by the majority, Lieutenant McClenic did not testify as to his belief, but rather affirmatively asserted that he was testifying as to fact. Part of this testimony was not adduced by defense counsel questioning, but interrupted a colloquy between defense counsel and the judge.
