IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-KA-00533-COA DAVID LEE MOORE A/K/A “DAE DAE” APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/15/2014 TRIAL JUDGE: HON. ALBERT B. SMITH III COURT FROM W HICH APPEALED: COAHOMA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES MOLLIE MARIE MCMILLIN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH DISTRICT ATTORNEY: BRENDA FAY MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, DRIVE-BY SHOOTING, AND COUNT II, AGGRAVATED ASSAULT W ITH A FIREARM ENHANCEMENT, AND SENTENCED TO FIVE YEARS FOR COUNT I, AND TW ENTY YEARS FOR COUNT II, W I TH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED - 01/19/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND JAMES, JJ. BARNES, J., FOR THE COURT: ¶1. On May 23, 2012, K elcey Horton was stopped at an i n t e r s e c t i o n i n C l a r k s d a l e, Mississippi, when he heard a b arrage of eight or n ine gunshots. He turned to see David “DaeDae” Moore next to him in a red c ar. Noticing that h is l ef t hand was bleeding, Horton sped of f and drove him self to a nearby em e rgency room . Horton had b e e n s h o t i n h is lef t hand and right arm , and a bullet was lodged in his spine. Horton was later transf erred to a hospital in Jackson f

or recovery . ¶2. In the m eantim e, s everal C larksdale police of f icers h ad responded to the shooting call and went to the hospital t o i nvestigate. H orton told the police that he had been shot by “Dae
Dae.” Horton k

n ew Moore “ f

rom around,” but did not know his f ull nam e. Horton also told the o f f icer that his car, a 1997 green Grand Marquis, had been h it with gunshots on the right side, and his window was shot out. Of f icer Norm an Stark and Sergeant Randy Tom linson recovered six projectiles f rom Horton’s car, n o t i n g bullet holes in the c ar door. Police of f icers were also dispatched to the intersection, where they collected s hell c asings and noted broken glass on the street. ¶3. Moore was l ocated and detained at h is residence at 5:30 a.m . the f ollowing m orning.
He consented to a search of his vehicle. Of f icer Starks c o llected two spent p rojectiles f rom the windshield a rea o f Moore’s car. He a lso te s t e d t h e steering wheel, d river door, and
passenger door o f the car f or gunshot r esidue. Testing on the project iles r ecovered f rom Horton’s car and Moore’s car su b s e q u e n t ly revealed they all cam e f r om a .40-caliber gun. Gunshot residue f

rom the door handle of Moore’s car conf irm ed that a gun had been f ired. ¶4. Moore was indicted f o r Count I, drive-by shooting, and Count II, aggravated assault with a f i rearm enhancem ent in violation of Mississippi Code A nnotated section 97-37-37 (Rev. 2012). A g u ilty -plea hearing was held on February 2, 2013. Moore c laim ed he f elt it

2was in his best i nterest to plead guilty ; however, he explained to the trial cour t t hat he had

no recollection o f the incident, as he was under the inf luence at the tim e, and that he did not know the victim

. Af

t er f u r ther questioning, the trial court ref u sed to accept Moore’s guilty plea and ordered a jury

trial. ¶5. The j ury trial was held on Novem ber 12-13, 2013. Horton, w ho had p i c k ed Moore

out of a photographic lineup, testif ied that he saw Moore in the car next to him when he was shot. M ark Boackle, a f

i rearm s exam iner w ith the M ississippi Crim e Lab, testif ied that the bullets f ound by of

f icers were . 40 caliber and that the ones f ound at the scene a n d in Moore’s

car were f

ired f rom the sam e gun. Jacob B urchf ield, a trace-evidence a n aly st with the Mississippi Crim e Lab, testif ied there was g unshot residue f ound o n the driver’s door handle of Moore’s car. ¶6. Moore w as convicted on both counts a n d was sentenced t o f ive y ears f

or C ount I, and twenty y e ars f

or Count II , t o b e served in the custody of the Mississippi Departm ent of Corrections, with the sentence in Count I to run consecutively to the sentence in Count II.
Moore f iled a m otion f

or a judgm ent notwithstanding the verdict, which the circuit court denied. Moore now a

ppeals his c onvictions, alleging that his right to c onf ront witnesses was violated. Finding no error, we af f irm

. DISCUSSION ¶7. Moore argues that h i s Sixth Am endm e nt right to conf ront wit n e s s e s w a s violated because Burchf

ield, the trace-evidence analy st who t estif ied about the results o f the gunshotresidue test, did not p ersonally conduct the testing. Burchf ield was the t e chnical reviewer

3f

or the results; the analy st who perf orm ed t h e test, A licia S m ith, no longer w o rked at the crim e lab. T he S tate contends that the issue i s p rocedurally barred since Moore never objected to B urchf

ield’s testim o ny on this ground and, theref o re, the Court m

ust f ind plain

error i n o rder to reverse on this i ssue. See Hingle v
. State , 153 So. 3d 6 59, 662 (¶¶5-6) (Miss. 2015) (“[ A]s a C onf

rontation Clause v iolation is a violation of a ‘f undam e ntal, s u

bstantive right,” we m ay review it under th e p l a i n - e rror d octrine.) W hile Moore did not m ake a specif ic objection on the record to Burchf ield’s t e s tim ony on this ground, def ense counsel questioned B urc h f

i eld during cross-exam ination as t o whether he w as m erely testif y ing as
to what Sm ith had told him a nd if his conclusions were “ b ased only on what s h e w rote d o w n .” Furtherm ore, during closing argum ents, def ense c ounsel asserted: “[ The S t a t e ] didn’t even bring the person f rom the crim e l ab up here. They d idn’t subpoena that person that did the checking.

. . . T hey didn’t allow m e to cross-exam ine her. ” T h e r e f ore, as this issue was addressed during the trial, we will consider the m erits of Moore’s claim

. ¶8. In McGowen v. State , 8 59 So. 2d 320 (Miss. 2003), t h e M ississippi Suprem e Court considered w hether a d ef endant’s constitutional r i g h t to conf ront witnesses was violated when a c rim e-lab serologist testif ied on behalf of her coworker. The suprem e c ourt held that “when the testif

y ing witness is a court-accepted expert in the relevant f ield who participated in the analy sis i n som e capacity , such as by perf o rm ing procedural checks, then the testif y ing witness’s testim ony d oes not violate a def endant’s S ixth Am endm ent rights.” Id

. at 339 (¶6 8 )

. B e c a u s e the serologist, a court-accepted expert in the f ield, was “actively involved in the production o f the report and had intim ate knowledge of the analy ses even though she

4did not perf orm the tests f

irsthand,” the s u p r e me c o u r t concluded that it was not error to allow the testim ony and, a ssum i ng it had been, any error was harm less. Id. at 339-40 (¶¶68- 69). ¶9. In Crawford v. W

a shington , 541 U.S. 36, 59 ( 2004), the United States Suprem e Court held that an out-of

-court statem ent introduced at trial that is testim onial in nature violates the
Con f r o n t a t i o n C lause unless the witness is unavailable and the d ef endant had the prior opportunity to cross-exam ine the witness. Subsequently , the Supreme C o u r t addressed whether crim e-lab-analy sis reports a r e t estim onial in nature, “rendering the af f iants ‘witnesses’ subject to the def endant’s right of conf

rontation under the Sixth Am endm ent.” Melendez-Diaz v
. Massachusetts , 557 U.S. 305, 307 (2009). It concluded that such analy sis “certif icates,” which identif

ied the substance tested (cocaine), “are f u nctionally identical to live, i n-court testim ony , doing ‘precisely what a witness does on direct exam i nation.’” Id

. at 310-11 (quoting Davis v. W ashington , 547 U.S. 813, 830 (2006)).
In short, under our d e cision in Crawford [ ,] the analy sts’ af f idavits were testim onial statem ents, and the analy s ts were “witnesses” f or purposes of the Six t h A me n d ment. Absent a showing that the analy sts were unavailable to te s t i f y a t trial and that petitioner had a p rior opportunity t o cross-exam ine them , petitioner was entitled to “be conf ronted with” the analy sts at trial. Id . at 311 (citing Crawford , 541 U.S. at 54). ¶10. In Bullcoming v. New Mexico , 131 S. Ct. 2705 (2011), the Suprem e C ourt c onsidered whether testim ony b y a n analy st, who “had neither participated in nor o bserved the [ blood alcohol ] test on Bullcom ing’s blood sam p le,” to validate a report was a violation of the Conf r o n t a tion Clause. Id

. at 2709-10. On the day of trial, the state noted that the analy st

5who h ad perf orm ed the test, Curtis Cay lor, was on “ unpaid leave” and, i nstead, sought to introduce the report f

indings as a “business record” though a “ s c i e n t i s t who had neither observed or reviewed Cay l or’s analy sis.” Id

. at 2711-12. In a plurality d e c ision, the Suprem e Court said that the tes t i mony v iolated the def endant’s r ights under the Sixth
Am endm ent’s Conf

rontation Clause. Id . at 2713. However, Justice Sotom ay or’s separate concurring opinion f

u rther expounded: [ T]his is n ot a c ase in which the person testif y ing i s a supervisor, reviewer, or som eone else with a p e rsonal, albeit lim ited, c onnection to the scientif ic test at issue. [ Gerasim os] Razatos conceded on cross-exam ination that he play ed no role in producing the BAC report and did not observe any portion of Curtis Cay lor’s conduct of the t e s t i n g . The c ourt below also recognized Razatos’ total lack of connection to the test at i ssue. It would be a different case if, for example, a supervisor who observed an a n a l y s t conducting a test testified about the results or a report about such results

. W e need n o t a d d r e s s what degree of involvem ent is suf f icient because h ere Razatos had n o involvem ent whatsoever in the relevant test and report. Id . at 2722 (Sotom a y o r, J., concurring in part) (em phasis added). ¶11. S i n c e t h e s e S u p r e me Court cases, the Mississippi Suprem e Court h a s f u r t h e r addressed this issue. Conners v. S tate , 92 So. 3d 676 (Miss. 2012), i nvolved the adm ission of two reports: a ballistics report and a toxi c ology r eport. Neither analy s t who c onducted the tests was called t o testif y . Id

. at 682 (¶¶14-15). I nstead, the reports were adm itted during the testim ony of the detective who had i nvestigated the crim e. The s uprem e court held that the reports were testim onial and inadm issible “ absent the analy sts’ live t estim ony [ .]” Id

. at 684 (¶19). However, it concluded that the violation was harm less error “ due t o t h e other evidence of the cause of death and in light of the overwhelm ing evidence o f the def endant’s guilt of m urder.” Id . at (¶20).

6¶12. A f

ew m onths later, in Jenkins v. State , 102 So. 3d 1063 (Miss. 2012), o ur suprem e
court c larif

ied that “[ n]one of these cases stand f or t h e p r o p o s i t i o n that, in every case, the only person perm itted to testif y is the prim ary analy st who perf o rm e d the test and prepared the report.” Id

. at 1067 (¶13). In Jenkins , the State called Tim oth y G r o s s , the associate director of the Mississippi Crim e Lab and m anager o f the Gulf Coast Regional Laboratory , to testif y concerning the identif

ication of a c o ntrolled s u

bstance ( cocaine). The analy st who had perf orm ed the analy s i s was on m edical leave, and Gross, the supervisor and technical reviewer f

or the case, was c a l l e d t o t e s t i f y in her p lace. Id

. at 1064 (¶3). “Gross did not participate in or observe [ Alison] Sm i th’s testing of the substance, but he was the ‘case technical reviewer’ assigned to the m atter.” Id at (¶4). The trial judge h eld that Gross’s participation a s a reviewer “was suf f icient t o s a t i s f

y the Sixth Am endm ent right to conf rontation.” Id

. a t 1 0 6 5 (¶6). In a 5-4 decision, our suprem e court af f irm ed the trial court’s holding, stating: The d issent im

plies that McGo w e n i s n ot good law f o llowing the S uprem e Court’s decision in Crawford v. W ashington , 541 U.S. 36 (2004). The dissent relies on a com m ent in Justice Kennedy ’ s dissenting opinion in Melendez

- Diaz that Mississippi’s Sixth Am endm ent p r a c tices m ay not be capable of reconciliation with Melendez

- D iaz. Dis. Op. at ¶30 (c i t i n g M elendez

- Diaz , 1 29 S. C t. at 2558 (Kennedy , J., dissenting)). W i th the utm ost respect f or J ustice Kennedy , his statem ent that M ississippi “ e x c u s e s the prosecution f rom producing the a naly st who conducted the test, so long as it produces som eone” is a n inaccurate representation of our law. Melendez

- Diaz, 129 S. Ct. at 2558 (Ke n n e d y , J., dissenting). Mississippi l aw requires f ar m ore than a “custodian” or “som eone” who can authenticate the docum ent; w e require a witness – an analy st – who n ot only knows about t h e a naly sis perf o rm ed, but is knowledgeable about the docum ent as well. McGowen, 859 So. 2d at 340. A s in the case at h and, we d o n o t alway s require “the p articular analy s t w ho conducted the t est” to testif y , bec a use w e recognize that som e tests involve m ultiple analy sts. Melendez

- Diaz recognized this f

a ct as well.

7J

e n k i n s , 1 02 So. 3d a t 1 0 68 (¶14) (internal citations o m i tted). Reasserting this analy sis in
Grim v S tate , 102 So. 3d 1073, 1 080-81 (¶¶17,20) (Miss. 2012), the suprem e court held that testim o ny by the laboratory supervisor who had s igned t h e r e p o r t “ a s the ‘ case technical reviewer’” did not violate the Conf rontation Clause. T his C ourt has f ollowed this p recedent in subsequent cases. See M i l l e r v. State , 144 S o. 3d 199, 203 ( ¶13) (Miss. Ct. App. 2014) (f i nding Grim and Jenkins to be “dispositive” o f this issue and holding that testim ony by the analy st who reviewed the report “did not violate M i l l e r ’ s S i x th Am endm e n t right to conf rontation”). 1 ¶13. More recently , in Hingle , 153 So. 3d at 662-65 (¶¶9,13), the suprem e court, in another
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- 4 d e c i s ion, upheld its holdings in Jenkins and Grim “ that a def endant’s right o f conf rontation is s a tisf

ied by the testim ony of a n analy s t who reviewed the report f or accuracy and signed it as a technical reviewer.”
In the instant case, the report itself was not adm i tted into evidence, but [ Gary ] Fernandez t estif

ied about the results of the t e sts. Fernandez provided m eaningf ul testim ony and adequat e l y r e sponded to all questions asked on direct and cross-exam ination. Fernandez was well versed in the general process f o r substance testing as well as the specif ic testing of the s ubstance at issue. He explained that every test perf orm ed a t the Mississ i ppi Crim e Laboratory m

ust be reviewed by a second a naly st of equal accreditation bef ore the test is considere d c o mp l e t e. The second analy st, or the “technical and

1 We ack n o w led g e th at th e U n ited S tates D i strict C o u rt f o r th e N o rth e rn D istrict o f M ississip p i recen tly

v acated G r im ’s co n v ictio n o n f ed eral h ab eas rev iew in G rim v. E p p s , N o . 3 :1 4

- C V -0 0 1 3 4

- D M B -D A S , 2 0 1 5 W l 5 8 8 3 1 6 3 , a t * 1 5 (N .D

. M iss. O ct. 8 , 2 0 1 5 ). R e j ectin g th e M ississip p i S u p rem e C o u rt’s h o l d in g , th e d istrict co u rt co n clu d ed th at th e testim o n y b y th e tech n ical rev iew er in th at case v io lated th e p etitio n e r’s r i g h t to co n f r o n tatio n as h e “ h ad n o f irsth an d k n o w led g e r e g a r d i n g w h at [ th e a n aly st] k n ew o r o b serv e d d u rin g th e co u rse o f h is ex am i n atio n o f th e ev id en ce.” Id

. at * 1 2

. T h is case is cu rren tly o n ap p eal to th e U n ited S tates C o u rt o f A p p eals f o r th e F if th C ircu i t. H o w e v er, th is C o u r t is o b l ig ated to f

o l lo w th e p reced e n t estab lish ed b y o u r su p rem e co u rt. 8adm inistrative reviewer,” reviews the report “line by line to m a ke sure

every thing is correct” and e nsures that the “ results a re com m ensurate w ith the inf orm ation p rovided by his instrum enta t i o n a n d his other tests.” The reviewing analy st reaches a conclusion based on his review of the report, and he signs the report if he is conf ident that it is correct. Id

. at 664 (¶11). Accordingly , “ [ t]he adm ission of Fernandez’s t estim ony was not error and did not result in prejudice to [ Danielle] Hingle.” Id . at 665 (¶13). ¶14. At Moore’s trial, Burchf ield explained his role as f ollows: Each gunshot residue collect i o n o r analy sis at the crim e laboratory i s p eer reviewed. Wh i c h m eans i t’s technically r eviewed f or its accuracy f

rom the report and also f

rom t he analy st’s notes and printout and readouts f rom the actual[ ] m achine i tself

. Basically , m y role in t h i s p a rticular a naly sis was to peer-review or technically review this case to m ake sure that it is accurate. Burchf ield f urther n oted that he v erif ies what the a naly st p u t s i n to the com puter sy stem to

ensure that his conclusions “m atch[ ] what her work packet o r any other analy st’s w ork packet
say s , as long as they are verif iably the sam e and we h ave v erif iable proof that gunshot residue

was on the actual work packet.” Based on our s uprem e court’s f i n d i n g s in Grim , Jenkins , and Hingle , w e c onclude that Burchf ield’s testim ony did n ot v iolate Moore’s right to conf ront witnesses. ¶15. THE JUDGMENT O F THE CIRCUIT COURT OF COAHOMA C OUNTY OF CONVICTION OF COUNT I, D RIVE-BY SHOOTING, A ND COUN T I I , AG G R AVATED A SSAULT WITH A FIREARM ENHANCEMENT, AND SENTENCE OF F I V E Y E A R S F O R C O U N T I, AND T WENTY YEARS FOR COUNT II, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTM E N T OF CORRECTIONS, I S AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY. LEE, C.J., GRIFFIS, P.J., ISHEE, C ARLTON, FAIR AND J A M E S , JJ., CONCUR. IRVING, P.J . , A N D WILSON, J., CONCUR IN PART AND IN THE RESULT.

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