IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2013-KA-01629-COA ROBERT BUFFORD A/K/A ROBERT K. BUFFORD A/K/A “LIL ROB” A/K/A “ROD” APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/17/2013 TRIAL JUDGE: HON. JEFF W EILL SR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, MURDER, AND COUNT II, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCED AS A HABITUAL OFFENDER TO LIFE FOR COUNT I AND TEN YEARS FOR COUNT II, W ITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS W ITHOUT ELIGIBILITY FOR PAROLE OR PROBATION DISPOSITION: AFFIRMED: 11/03/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., CARLTON AND FAIR, JJ. LEE, C.J., FOR THE COURT: ¶1. Robert Buf

f o rd w as convicted i n Hinds County Circuit Court of Count I, m urder, andCount II, p ossession of a f irearm b y a convicted f

elon. Buf f o rd was sentenced, as a habitual of f ender, to lif

e f o r C ount I and t en y e ars f or Count II, with the sentences to run consecutively , without e ligibility f or parole, i n the custody of t he Mississippi Departm ent of C o r r e c tions (MDOC). In his appeal, Buf f ord argues the trial court erred by : (1) adm itting testim o nial s t a tem ents in violation of the Conf rontation Clause, (2) e xcluding res gestae evidence in support of his theory of the case, a nd ( 3) adm itting e v idence of the autopsy report in violation of

the Conf rontation Clause. W e af

f i rm . FACTS AND PROCEDURAL HISTORY ¶2. On July 5, 2011, at approxim ately 4:40 a.m . , Buf f ord, a l so known as “Little Rob” and “Rod,” and Davie Miller w ere seen leaving N orthsid e Legends, a club in Jackson, Mississippi. Miller was driving, and Buf f ord was in the passenger seat. ¶3. Of f icer Ahvegail W hite of the Jackson Police Departm ent (JPD) w a s c o nducting a traf f i c stop when she heard s hots f ired a couple of blocks away f rom h er l o c ation. At approxim a tely 5:37 a.m . , Of f i cer W hite r esponded to t h e s h ooting. Upon arrival, Of f icer
W h ite f ound Miller ly ing on the ground, covered in blood. Of f icer W hite asked Miller f or his nam e, where he was com ing f rom , and why his car was f a cing the o pposite d irection. In between questions M iller w as m o aning and groaning. Miller stated that he and his f riend

were com ing f

rom N orthside L egends, and they were engaged in a n argum e nt inside the car when his f

riend started shooting. Miller identif ied the f riend as “Rod.” ¶4. At 5:47 a .m ., param edics arrived at the scene. Miller stated to o ne o f t he param edics, Larry Sm ith, that he was “assaulted by a f riend” while “com ing f

rom a nightclub.” Having

2sustained m ultiple gunshot wounds, Miller was then transported to the em ergency room at University

Medical Center. ¶5. At approxim ately 6 a.m ., Detective Carlotta Bacon 1 of the JPD began an investigation

at the scene. Im m ediately af t er, Detective Bacon went to the e m ergency r oom and spoke with M iller a s he was being p repped f or surgery . Detective B a con’s f irst question to Miller

was: “Do y ou want t o press charges against the person who did t h i s to y o u? ” Miller responded: “Yes.” S ubsequently , Miller gave a description of t he person, identif ied the person as “Rod,” and gave a detailed account of what happened. ¶6. Miller underwent surgery and t h e n r em ained unconscious in the intensive care unit until July 10, 2011. ¶7. W h en Miller regained consciousness on July 1 0, 2011, Miller’s wif e , Lee A nn, was able to speak to M iller f or the f i rst t i me . L e e A n n a s ked Miller: “Do y ou know what happened to y o u ? ” Miller responded: “Rod.” ¶8. On August 3, 2011, Miller died as a result of his gunshot wounds. ¶9. Buf

f ord f iled a m otion to s uppress evidence of M iller’s statem e n ts to the JPD. In his

m otion, Buf

f ord claim ed that Miller’s statem e nts were (1) inadm issible hearsay , and (2) in violation of the Conf

ro n t a t i o n C lause. At a pretrial hearing on t he m otion, Buf f ord additionally sought to s uppress evidence of Miller’s statem ent to Lee Ann. The trial court ruled that the statem ents m a de to Of f icer W hite and Detective B a c o n w e r e a dm issible as exceptions to the hearsay r ule under Mississippi Rules of Evidence 803(1) and (2), and the

1 N o w C arlo tta B aco n Jo rd an . 3statem ent m ade to Lee Ann was adm issible as an exception u nder Mississipp i Rule of

Evidence 803(2). However, the trial court did not address whether the statem ents violated the Conf rontation Clause. ¶10. Buf

f ord also f

ile d a mo t i o n t o s uppress evidence of Dr. Erin Barnhart’s autopsy report. B uf

f ord claim ed t hat it would violate the Conf rontation Clause if ev i d e n c e of Dr. Barnhart’s autopsy r eport was adm itted since Dr. Barnhart was n o t t h e m edical exam iner who perf orm ed Miller’s a utopsy

. At a pretrial hearing, the trial court denied Buf f ord’s m otion under Mississippi Rule of Evidence 703. ¶11. The State f

iled a m otion i n lim ine t o e xclude evidence of m arijuana 2 f ound in the car that Miller was driving on July 5, 2011. 3 A t trial, Buf f ord p rof f ered the evidence was relevant a s part of his def

ense theory that the shooting had possibly been related to a bad drug deal. The trial court granted t he State’s m otion, f inding the e vidence w a s irrelevant. The trial court noted the evidence had n ot been tested, the evidence was f ound in a car registered

to som eone else, and there was no toxicology report. Further, the trial court f ound that even if the evidence were r elevant, under Mississippi Rule of Evidence 403, any probative value would b e s ubstantially outweighed by the danger o f u nf air prejudice, conf

usion of the issue,

or m isleading the jury

. DISCUSSION I. Confrontation Clause

2 We n o te th at th e su b stan ce h ad n o t b een tested

. 3 T h e car w as reg i stered to L ee A n n M iller. 4¶12. In his f irst i s s u e , B u f

f ord claim s that Miller’s statem ents t o the police of f icer, the
param edic, the detective, a nd his wif e were testim onial h earsay a n d t h a t t he statem ents’ adm ission violated the Conf rontation Clause o f the Sixth A m endm ent to the United States Constitution. ¶13. The Conf

rontation Clause guarantees a crim inal def endant the right “to be conf ronted with the w itnesses against him .” U.S. Const. am e nd. VI. “In [ Crawford v. W a shington, 541 U.S. 36 (2004)], t he United S tates Suprem e C ourt held t hat ‘testim onial’ evidence could not be adm i tted against a c rim inal def e ndant unless t he d eclarant was u navailable at trial, and the def endant had a prior opportunity to cross-exam i ne him .” Sanders v. S tate , 77 So. 3d 484, 488 (¶12) (Miss. 2012) (citing Crawford , 541 U.S. at 68). ¶14. The Crawford Court indicated that “[ a] s t a t e me n t i s l i k e l y t o b e d e t e r m ined testim o nial if it w as m ade ‘with an ey e toward’ using the s tatem ent at trial.” Batiste v. State, 121 So. 3d 808, 854 (¶107) (Miss. 2013) (citing Crawford , 541 U.S. at 56). ¶15. I n M

i c h i gan v. Bryant , 562 U.S. 344 (2011), the S uprem e C o u r t c l a r i f i e d t h e distinction between testim o n i a l a nd nontestim onial statem ents. The S uprem e Court articulated t he f

ollowing rule: “[ W ]hen a c o u r t m ust determ ine whether the Conf rontation Clause bars the a dm ission of a s t a t e m ent at t rial, it should determ ine the ‘ prim ary purpose of the interrogation’ by objectively evaluating t he statem ents a n d actions of the parties to the encounter, in light of the circum stances in which the interrogation occurs.” Id. If the court determ ines that t he prim ary p urpose of the interrogation was “to enable police assistance to

m eet an ongoing em ergency ,” then the statem ents are nontestim onial and m a y be adm itted

5pursuant to the rules of evidence. Id. at 356. But if the p rim ary purpose w as “to establish

or prove past events potentially relevant to later crim i nal prosecution,” then the statem ents are testim onial. Id.

A. Officer White ¶16. In h is m otion to suppress evidence o f Miller’s statem ents and a t the p retrial hearing, Buf f ord claim ed M iller’s statem ents to Of f i cer W hite were testim onial hearsay and violated the Conf rontation Clause. At the pretrial hearing, the trial court ruled the statem ents were adm issible as exceptions to the hearsay rule under Mississippi Rules of E vidence 803(1) and (2) but f ailed to address Buf

f ord’s Conf

rontation Clause claim

. ¶17. It was Buf

f o rd’s responsibility to obtain a r uling f rom the trial court on his mo t ion. See Craft v. State , 832 So. 2d 467, 471 (¶10) (Miss. 2002). Because Buf f ord did n ot take any additional steps to preserve this issue f or trial, 4 he ef

f ectively waived this issue. See id. ¶18. However, “ ‘[ u ]nder the plain-error d octrine, [ this C ourt] can recognize obvious error which was n ot properly raised by the def endant on appeal, and which a f f ects a def endant’s f undam ental, substantive r i g h t

. ’ ” E z ell v. State , 132 S o. 3d 611, 612 (¶3) (Miss. Ct. App. 2013) (quoting Smith v. State , 986 So. 2d 290, 294 (¶10) (Miss. 2008)). “A Conf rontation Clause violation is a violation of a ‘f undam ental, substantive right.’” I d. Theref ore, we will

a d d ress whether the adm ission of Miller’s statem ents to Of f icer W hite violate d t h e Conf r ontation Clause, and if

so, whether such an error requires reversal. See id.

4 A t trial, B u f

f o rd o b j ect e d to h earsay ; h o w ev er, “a g en e ral h earsay o b j ectio n is in su f f icien t to p reserv e an a lleg ed C o n f ro n tatio n C lau se v io l atio n f o r a p p e llate rev iew .” A n th o n y v. S ta te , 2 3 S o . 3 d 6 1 1 , 6 2 0 (¶4 1 ) (M iss. C t. A p p . 2 0 0 9 ) ( citin g B rig g s v. S ta te , 1 6 S o . 3 d 6 9 6 , 6 9 8 -9 9 (¶1 1 ) (M iss. C t. A p p . 2 0 0 8 )). 6¶19. In Bryant , the Suprem e C ourt held that a victim ’s statem ents to police soon af ter being shot were not testim onial, be cause the “circum stances of the encounter as well as the

statem ents and a c t i o n s o f the victim and the police objectively indicated that the prim ary purpose of the interrogation was to enable p olice assistance to m eet an ongoing em ergency .” Sanders, 77 So. 3d at 488 (¶14) (quoting Bryant , 562 U.S. 377-78). ¶20. W e f

ind t h e f a c t s i n B r y a nt sim ilar to the i nstant case. M iller was suf f ering f rom

m ultiple gunshot wounds w hen he m ade his statem ents to Of f icer W hite a nd was obviously in considerable pain. S

ee id. at 489 (¶17) (citing Bryant , 562 U.S. at 375). W e cannot say that a person in Mill e r ’ s s ituation would have had a prim a r y purpose to e stablish or prove past events potentially

relevant to later crim inal prosecution. See id. ¶21. Furtherm ore , the questions Of f icer W hite a sked were the “ ty pe of questions necessary

to allow t he police ‘to assess the situation, the threat to their own saf ety , and p ossible danger to the potential victim ’ and to the public[ .]” I d. at (¶18) (quoting Bryant 562 U.S. at 376).
“In other words, they solicited the inf orm ation necessary to enable them ‘to m eet an ongoing

em ergency .’” Id. This issue is without m erit.

B. Param edic ¶22. Buf

f ord raises the Conf

rontation Clause claim with respect to Miller’s statem ents to Sm ith f or the f irst tim e on appeal. 5 This Court has held that “the trial court cannot be put in error, unless it has had an opportunity of com m itting error.” Banks v. State , 36 So. 3d 492,

5 A t trial, B u f

f o rd o b j ected to h earsay ; h o w e v er, “a g en eral h earsay o b j e c tio n is in su f f icien t to p reser v e an alleg ed C o n f ro n tatio n C lau se v io latio n f o r ap p ellate rev iew .” A n th o n y, 2 3 S o . 3 d at 6 2 0 (¶4 1 ) (citin g B rig g s , 1 6 S o . 3 d 6 9 8 -9 9 (¶1 1 )). 7493 (¶5) (Miss. Ct. App. 2010) (quoting Stringer v. State , 279 S o. 2 d 156, 158 (Miss. 1973)).

However, we will review f or plain error. ¶23. Miller’s statem ents t o t h e p a r a me d i c w e r e m ade f o r the purpose of diagnosis or

treatm ent. See Bullcoming v. New Mexico, 1 31 S. Ct. 2705, 2722 (2011). A t this point, we
cannot say that a p erson in Miller’s situation would have had a prim a ry purpose t o establish

or p rove past events p otentially r elevant to later crim i nal prosecution. This issue is without

m erit. C. Detective Bacon ¶24. Again, in his m otion to suppress and at the pretrial h earing, Buf f ord claim ed Miller’s

statem ents t o Detective Bacon were t estim onial hearsay and violated the Conf rontation Clause. At the pretrial hearing, t h e trial court ruled t he statem e nts were adm i ssible as exceptions to the hearsay rule u n der Mississippi Rules of Evidence 803(1) and (2) b ut f ailed

to address Buf

f ord’s Conf

r o n t ation Clause c l aim

. Although Buf f ord did not take any additional steps to preserve this issue f or trial, we will review f

or plain error. ¶25. T h e S u p r e me C o u r t h a s s t a t e d : “ [ I ]n m any instances, the prim ary [

- ]p u r p o s e [ determ ination]

. . . w ill be m ost accurately a s certained by looking to t he contents of both the questions and answers . ” B ryant , 562 U.S. at 3 67. Because Detective Bacon’s initial question to Miller was, “ Do y ou want to press charges a gainst the person who did this to
y ou? ” to which Miller responded, “Yes,” Miller’s prim ary purpose was likely t o establish or prove p ast events potentially relevant to later crim inal prosecution. As such, we f ind the trial court erred by not suppressing Miller’s statem ents to Detective Bacon.

8¶26. “Conf r o ntation-Clause violations are subject to harm less-error analy s i s.” Conners v. S t a t e , 92 So. 3d 676, 6 84 (¶20) (Miss. 2 012). To af f irm despite a Conf

rontation C l a u s e violation, a reviewing court m ust f ind f rom a consideration of all the evidence that the error was harm less bey o nd a reasonable doubt. Id. ¶27. Even if Miller’s statem ent to Detective Bacon had been s uppressed, the evidence of Buf f ord’s guilt i s abundant. Such evidence i ncludes Miller’s earlier statem ents to Of f icer
W h ite and the param edic as well as his later statem ent to his w if e. A dditionally , Miller and Buf f ord were seen l eaving Northside Legends together prior to t he shooting. Although the trial c ourt adm itted Miller’s statem ents t o Detective Bacon i n violation of the Conf rontation Clause, the error was at m ost harm less. 6

D. Wife ¶28. Buf

f ord did not raise t he Conf rontat i o n C l a u s e c l a i m w i t h r e s p ect to Miller’s

statem ent to Lee Ann in his m otion to suppress. H owever, Buf f o rd did raise the argum ent
at t he p retrial hearing. The t rial court ruled the statem ent was adm issible as an exception to the hearsay rule pursuant to Rule 803(2) but did not address Buf f ord’s Conf

rontation Clause claim

. Although Buf

f o rd did not take any additional steps to preserve this issue f or trial, we will review f

or plain error. ¶29. “[ A] statem ent is testim onial when it is given to the police o r individuals working in connection with the police f o r the purpose of prosecuting the accused.” Hobgood v. State ,

6 O f f icer Wh ite also testif

ied as to w h at sh e o v erh eard f ro m D etectiv e B aco n an d M iller’ s c o n v e r s a t i o n , w h ich w as also erro r . H o w ev er, f o r th e sam e reaso n s, w e f in d th e erro r w as also h arm less. 9926 So. 2d 847, 852 (¶12) (Miss. 2006). Lee Ann was not working in connection with the

police. Furtherm o re, we cannot say that a person in Miller’s s i t u a t i o n w o u ld have had a prim ary purpose to e stablish or prove p ast events p oten t i ally relevant to l ater crim inal prosecution. This issue is without m erit.
II. Res Gestae Evidence ¶30. In his second issue, Buf f o rd claim s the t r i a l c o urt e r red i n excluding evidence of

m arijuana f

ound at the scene of the shooting. Specif ically , Buf

f ord claim s the m arijuana was

res gestae evidence in support o f his def ense t heory suggesting that the shooting had possibly been related to a bad drug deal.

A. Relevance ¶31. “It is well-settled law that we will not o verturn a trial judge’s adm ission of evidence unless the adm ission am ounts to an abuse of discretion.” Townsend v. State , 933 So. 2d 986, 991 (¶13) (Miss. Ct. App. 2005). “ The adm ission of res gestae e vidence is largely lef t to the sound discretion of

the trial judge.” Collins v. State , 513 So. 2d 877, 879 (Miss. 1987). ¶32. Mississippi Rule o f Evidence 401 p rovides: “‘Re l e v a n t Evidence’ m eans evidence h a v ing any tendency t o m ake the e xistence o f any f a ct that is o f consequence t o t h e d eterm ination of the action m ore probable or less probable than it would b e without the evidence.” H owever, relevant “evidence m ay b e excluded if its p r o b a t i v e value is substantially outweighed b y the danger o f unf air prejudice, conf

usion of t he i s sues, or

m isleading the j ury [ .]” M.R.E. 403. “Rule 403 is the ‘ultim ate f ilter t hrough w hich all otherwise adm i ssible evidence m ust pass.’” Flowers v. S t a t e , 7 7 3 S o. 2d 309, 318 (¶25)

1 0(Miss. 2000). “Evidence which is not relevant is not adm issible.” M.R.E. 402.

¶33. Because the s ubstance that Buf f ord claim s was m arijuana had not been tested and was f ound in som eone else’s car, the e vidence did not have a tendency to m ake the existence of
any f act m ore or less p robable. This Court agrees with the trial court’s determ i nation that the evidence is irrelevant. Even if t he evidence was relevant, the trial court properly excluded the evidence under Rule 4 03 so as to avoid m i sleading t he jury

. This issue is without m erit.

B. Theory of the Case ¶34. “ [ A] party has the right t o have his theory of the ca s e p r e s e n t e d t o t h e j u r y b y instructions, provided there is credible evidence that supports that theory .” Splain v. Hines , 609 So. 2d 1234, 1239 (Miss. 1992) (citation om itted). ¶35. The only evidence to support Buf f ord’s t h e o r y s u g g e s t i n g t h a t t he shooting had possibly been related to a bad drug deal was not credible. This issue is without m erit.
III. Autopsy Report ¶36. In his f

inal issue, B uf

f ord claim s it was a v iolation of his right to conf rontation under the Sixth Am endm e nt to the United Stat e s Constitution when e v idence of Dr. Barnhart’s autopsy report was a dm itted since Dr. Barnhart w as not t he m edical exam iner who perf orm ed Miller’s autopsy

. ¶37. “The standard of review f or adm ission of evidence is abuse of discretion.” Brown v. State , 9 99 So. 2d 853, 860 (¶14) (Miss. Ct. App. 2008) ( quoting Debrow v. State , 972 So. 2d 550, 552 (¶6) (Miss. 2007)). “Constitutional i ssues are reviewed d e novo.” Jenkins v. State , 102 So. 3 d 1063, 1065 (¶7) (Miss. 2012) (citing Smith v. State , 25 So. 3d 264, 269 ( ¶ 11)

1 1(Miss. 2009)).

¶38. “W hen the testif

y ing w i t n e s s i s a court-accepted expert in the relevant f ield who participated in the analy sis in som e capacity , . . . then the testif y i ng witness’s testim ony does

not violate [ the C onf

rontation Clause].” Brown , 999 So. 2d a t 8 60 ( ¶14) (quoting Debrow , 972 So. 2 d at 554 (¶14)). Further, “[ the Mississippi Supre me C o u r t has held] that a supervisor, reviewer, or other anal y s t i n v o lved m ay testif y in p lace of t he prim ary analy st where that person w as ‘actively involved in the production of the report and had intim ate knowledge of analy ses even though he o r s he did not perf orm the tests f

irsthand.’” Grim v. State , 102 So. 3 d 1073, 1081 (¶22) (Miss. 2 012) (quoting McGowen v. State , 859 So. 2d 320, 340 (¶68) (Miss. 2003)). ¶39. I n B rown , “the a naly st called to testif y [ at trial] w as the laboratory m anager, r a t h e r than the prim ary analy st w ho h ad perf orm ed the DNA tests at issue.” J e nkins , 102 So. 3d at 1068 ( ¶16) ( citing B rown , 999 So. 2d at 8 6 0). “The analy st who had perf orm ed the DNA

tests was not called t o testif y . ” I d. “The testif

y i ng analy st had reviewed t he w ork of the analy st w ho had perf

orm e d the DNA tests, had conducted her o wn analy sis o f the testing, and had reached her own conclusions.” Id. This Court “held that the laboratory m anager was ‘suf f iciently involved with the analy sis and overall p rocess so as to avoid violating Brown’s Sixth Am endm ent right of conf rontation.’” Id. a t 1068-69 ( ¶16) ( quoting Brown , 999 So. 2d at 861). ¶40. In th e i n s t a n t case, Dr. Shaker was the m edical exam iner w ho perf orm ed Miller’s autopsy

. Af

ter Dr. Shaker resigned f

rom t he m edical e xam iner’s of f ice in Novem

ber 2011,

1 2Dr. Barnhart r eviewed and com pleted over 100 of D r . Shaker’s rem aining cases, including Miller’s case. This i nvolved reviewing D r. Shaker’s c ase n otes and photographs. From this, Dr. Barnhart com

p iled an autopsy

report f rom which she testif

ied at trial. ¶41. Buf

f ord claim s h is right to c on fr o n t a t i o n w as violated since the m edical exam iner who actually p e rf

orm ed the autopsy did not testif y at trial. However, Dr. Barnhart, the m edical

exam iner w ho did testif

y at trial, actively participated in the analy sis, f orm ing her own report base d o n D r . S h a ker’s case notes and photographs as well as her own e ducation and experience. This Court agrees with the trial c o urt’s d eterm ination t h a t Dr. Barnhart was suf f i ciently involved with t he analy sis and overall process so as to a void violating Buf f ord’s right to conf

rontation. This issue is without m erit. ¶42. T H E J U D G M E N T O F T H E H I N D S C O U N T Y C I R C U I T C O U R T O F CONVICTION OF COUNT I, MURDER, AND C O U N T II, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND S E NTENCE AS A HABITUAL OFFENDER OF LIFE FOR COUNT I AND TEN Y EA R S FOR C OUNT II, WITH THE SENT E N CES T O RUN CONSECUTIVELY IN THE CUSTODY OF THE M I S S I S S I PPI DEPARTMENT OF CORRECTIONS WITHOUT ELIG I B I L I T Y F O R PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS A PPEAL ARE ASSESSED TO HINDS COUNTY. IRVING A ND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, JAMES AND WILSON, J J ., CONCUR. MAX WELL, J., CONCURS IN PART AND IN THE RESULT.

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