IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

NO. 2003-CT-02170-SCT

TOMMY CHRISTOPHER BYNUM a/k/a TOMMY

BYNUM a/k/a TOMMY C. BYNUM

v.

STATE OF MISSISSIPPI

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 08/29/2003

TRIAL JUDGE: HON. LARRY EUGENE ROBERTS

COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JAMES A. WILLIAMS

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL 

BY: JEFFERY A. KLINGFUSS 

DISTRICT ATTORNEY: BILBO MITCHELL

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 05/18/2006

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

DICKINSON, JUSTICE, FOR THE COURT:

¶1. Although Tommy Bynum’s conviction of robbery by a Lauderdale County Circuit

Court jury was unanimously affirmed by the Court of Appeals, Bynum v. State, No. 2003-

KA-02170-COA, 2005 WL 894796, at *1 (Miss. Ct. App. Apr. 19, 2005), four judges

disagreed with the majority over the issue of whether Crawford v. Washington, 541 U.S. 36,

124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), should be applied retroactively. While we find

no merit to the issues raised by Bynum in his petition to this Court for writ of certiorari, we
nevertheless grant his petition for review because we regard as important the question of

whether the Court of Appeals should have applied Crawford retroactively.

BACKGROUND FACTS AND PROCEEDINGS

¶2. We begin with a brief review of the facts as set forth by the Court of Appeals:

On October 11, 2002, Tommy Bynum and another individual drove to

a grocery store parking lot in Meridian. Cindy Giles was in the parking lot

walking toward her vehicle. Tommy Bynum approached her and attempted to

take her purse. Bynum and Giles struggled, and Bynum pushed Giles to the

ground. As Giles fell to the ground her purse strap broke and Bynum ran away

with her purse. Giles chased Bynum across the parking lot, shouting as she

ran. This commotion alerted two bystanders: Adalberto Medina and Perry

Tubby. Medina was working in an adjacent store, and he saw Bynum running

with Giles’s purse. Medina saw Bynum get into a car in the parking lot, and

Medina wrote down the vehicle’s license number. Meanwhile, Tubby, who

saw Bynum running with Giles’s purse, recognized that a crime was in

progress and shouted at Bynum. Tubby testified that he watched Bynum run

from Giles, then get into a vehicle with another man and flee the scene. Tubby

followed behind the get-away car in his own vehicle, and collected Giles’s

personal items which Bynum had thrown out of the car window. Tubby

returned to the crime scene where he gave Giles the personal items he had

recovered. He also gave a description of Bynum to the police.

Four days after the robbery, police responded to a call of suspicious

activity at a local gas station. The get-away car used in the Giles robbery was

at that location. The vehicle was impounded and Giles’s change purse was

discovered in the car. The driver was arrested and he implicated a white man

in the Giles robbery. Acting on information they developed during their

investigation, police conducted a photo line-up for Giles, Medina, and Tubby.

Each identified Bynum as the robber, however, none of the witnesses had

gotten a good look at the driver of the get-away car. Bynum was indicted for

robbery, and tried as a co-defendant with the vehicle driver. 

Bynum, 2005 WL 894796, at *1.
¶3. At trial, the driver was acquitted, and Bynum was found guilty. Bynum’s appeal to

this Court was assigned to the Court of Appeals, which affirmed.

ANALYSIS

¶4. Bynum asserts we should consider his appeal in the light of Crawford, in which the

United States Supreme Court held that out-of-court statements by witnesses that are

testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and

defendants had prior opportunity to cross-examine, regardless of whether the court deems

such statements reliable. Crawford, 541 U.S. at 1365. The Court of Appeals, noting

Crawford was decided some seven months after Bynum’s conviction, opined that this Court

“has not spoken on the retroactivity of Crawford . . . .” Bynum, 2005 WL 894796, at *7.

We grant certiorari in this case to correct this statement regarding our prior application of

Crawford.

¶5. In Clark v. State, 891 So. 2d 136, 138-39 (Miss. 2004), the defendant had no

opportunity to cross-examine an alleged accomplice, who refused to testify at trial. Relying

on Crawford, we held the trial court erred in admitting the accomplice’s testimonial

statement. Id. at 140. However, after considering the overwhelming weight of admissible

evidence, we found the Confrontation Clause violation to be harmless error. Id. at 142.

While we did not specifically proclaim in Clark that Crawford is to be applied retroactively,

we clearly relied on Crawford and applied its holding retroactively.
¶6. Accordingly, because Bynum lacked the opportunity to cross-examine his codefendant, we find the trial court erred in allowing the police officer to testify concerning the

co-defendant’s statement. However, upon careful review of the evidence, we find the

erroneous admission of the statement was harmless error. Harmless errors are those “which

in the setting of a particular case are so unimportant and insignificant that they may,

consistent with the Federal Constitution, be deemed harmless, not requiring the automatic

reversal of the conviction.” Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L.

Ed. 2d 705 (1967). We find the impact of the erroneously admitted statement was so

insignificant that it could not have contributed in any meaningful way to the guilty verdict.

See Arizona v. Fulminante, 499 U.S. 279, 296, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)

(the impact of the erroneously admitted evidence should be weighed to determine what errors

are harmless). The overwhelming evidence of guilt includes the victim’s and two

eyewitnesses’ identification of Bynum, testimony that Bynum threw the victim’s property out

of the car window, and the presence of the victim’s change purse in the get-away car.

Considering the evidence, we find beyond a reasonable doubt that the trial court’s error in

admitting the co-defendant’s statement was harmless.

CONCLUSION

¶7. The Court of Appeals properly affirmed Bynum’s conviction. We grant certiorari in

order to clarify – and we now specifically hold – that Crawford must be applied retroactively.
¶8. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED.

CONVICTION OF ROBBERY AND SENTENCE OF TWELVE (12) YEARS IN THE

CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH

CONDITIONS, PAYMENT OF A FINE OF $5,000, PAYMENT OF RESTITUTION

IN THE AMOUNT OF $390, AND OTHER FEES AND COSTS, AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON AND GRAVES, JJ.,

CONCUR. EASLEY, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE

WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.