IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-00347-COA RANZ I NO AHMAD HARRIS A/K/A RANZ INO HARRIS A/K/A RANZ INO A. HARRIS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 09/06/2013 TRIAL JUDGE: HON. LEE SORRELS COLEMAN COURT FROM W HICH APPEALED: LOW NDES COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: RICHARD SHANE MCLAUGHLIN NICOLE H. MCLAUGHLIN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE DISTRICT ATTORNEY: SCOTT W INSTON COLOM NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 09/26/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GREENLEE, J., FOR THE COURT: ¶1. Ranzino Ahm a d Harris appeals his con v i c t i o n in Lowndes County Circuit Court of

m urd e r a s s e rting (1) the trial court e rred when it adm itted an unavailable witness’s pr e l im inary

- hearing testim ony because it violated his S ixth Am endm ent right of conf rontation; (2) the trial court erred when it adm itted a witness’s h earsay statem ent as an excited utterance; (3) the evidence was insuf f icient; and (4) the verdict was against the overwhelm ing weight of

the evidence. Finding no error, we af f irm

. BACKGROUND¶2. On the m orning of May 17, 2010, Harris a t tem pted to contact his e x-girlf riend, Ashley Lee, to no avail. I n f

urther ef f orts to m ake c o ntact, he went to her house, w here he discovered Ashley an d h er sister, Tericia Lee, each with their own overnight guest, Justin Murray (Ashley ’ s) and Michael Brewer (Tericia’s). Harr i s c o n f r o nted A shley , cornered her in her bathroom , and b egan choking h e r. Murray and Brewer cam e to Ashley ’s aid, p inning Harris

on a bed, where the two assaulted H a r r i s , punching him repeatedly

. Ashley and Tericia im p lored the two to stop, and they subsequently unpinne d H a r r i s . Af ter he was unpinned, Harris lef t. Then, m o m ents later, he returned with his pistol d rawn and, as the outside kitchen door opened, f

i red two shots. Both shots struck Murray , who died shortly thereaf ter f rom his wounds. At trial, Harris testif ied he returned to Ashley ’s h om e to retrieve his cellular phone, which he p urportedly lef

t i n the house. B oth T e ricia and Brewer testif ied that H arris f

orced the d o or open. Brewer also testif ied he and M urray were both standing a nd not m oving toward the door or Harris. ¶3. Detective George Harris 1 of the Colum b us P olice Departm ent was one of two of f icers who r esponded to a 911 call reporting a po s s i b l e h o mi c i de at Ashley ’s hom e. Am ong his discoverie s upon arriving at the scene, Detective Harris f ound Brewer “walking around,” repeatedly stating, “he didn’t h a v e t o d o this, h e didn’t have to do this.” Harris later surrendered at the Colum bus Police Departm ent. ¶4. H a r r i s was indicted o n O ctober 27, 2010, f or one count of m

urder in vio l a t i o n o f Mississippi Code Annotated section 97-3-19 (Rev

. 2 0 0 6 ) a n d one c ount of aggravated assault

1 O n th e d ay

o f th e in cid en t, D etectiv e H a r ris w as ran k ed a p atro lm an . 2in violation of Mississippi C ode Annotated section 9 7-3-7 (Rev. 2006). A f o ur-day jury trial

was conducted during Septem b er 3-6, 2013. T estim ony was heard f rom Detective H arris and Ashley , am ong others. ¶5. Detective Harris testif ied, “W hen we walked u

p on the porch, I noticed a y o ung m an, I know him as Mike, we call him Little Mike, he was walking around in the living room and by the doorway area. Kept s tating, ‘ H e d i dn’t have to do this, he d idn’t have to do this.’” Harris d id not object, and D etective Harris continued his testim ony , describing a diagram of the scene. Later, the State asked, “How would y o u d e s c r i b e [ Brewer’s] dem eanor and his

em otional state at that point, sir? ” Detective Harris responded, “He was, l i k e , w a l k i ng in circles , k e p t r e p eating, ‘He didn’t have t o do this. That wasn’t called f or.’” Harris (the def endant) contem

poraneously object e d t o that answer as hearsay

. In r esponse, the State argued, “at that point it w ould have been an excited utterance, b ecause he had just been shot and saw his f

r iend killed.” The trial court overruled the objection. The S tate continued, “Ok ay . Yes, sir? ” D etective Harris resum ed, “ He was—this—‘He didn’t have to do that. This is m y b oy , he didn’t have to do my b oy like tha t
. ’ ” To w hich the State a sked, “Okay

. And was he visibly upset? Could y ou tell that, sir? ” “Yes, he was,” Detective Harris replied. ¶6. Ashley was deem ed unavailable to testif y a t trial. H owever, she had f orm erly testif ied during a p robable-cause hearing in which she appeared as a w itness f or Harris. Prior to trial, the State f

iled a m otion to use Ashley ’s prior testim ony . The trial court h eard argum ents on this m otion on two separate occasions, both of which occurred during trial, but outside the j u r y ’ s p r e s e n c e . D u

r i n g t hese argum ents, Harris did not contest Ashley ’s un av a i l a b i l i t y

— o n l y

3that he was lim ited in m aterial and scope during the developm ent of her testim ony , stating,

“it’s a conf

rontation clause i s s u e . ” Harris f urther claim ed: “ [ T]hroughout the entire transcript, as I tried t o develop t h e testim ony m ore with each witness, [ the State] would

o b j e c t a nd say , this is f

or discovery , Your Honor, we’re n ot here to have the trial on the whole case. So I was l im i ted on every w i tness i n my ability t o d e v e l o p t he crossexam ination.” T he transcript of A s h l e y ’s p rior testim ony (approxim ately f our pages in length) contained one objection to a question Harris a s ked: “And y ou h ad s ex w ith [ Murray ], had y ou not? ” Ashley did not respond. That questio n a n d o bjection colloquy was redacted f or trial. Later, Har r is m a intained the redacted question was “the m ost im portant question with regard to heat of passion,” stating he “wasn’t able t o develop the t estim o ny as [ he] saw f i t
. ” H o w ever, the q

uestion and answer imm ediately preceding the redacted portion o f Ashley ’s t estim o ny was included. There, Harris asked, “W e ll, Justin Murry [ sic] was in y our bed at the tim e, wasn’t he? ” Ashley responded, “Yes.” ¶7. Harris was f

ound guilty o f m

urder. 2 On the sam e day , he was sentenced to a term of lif e im prisonm ent in the custody of the M ississippi D epartm ent of Corrections. On the tenth day f ollow i n g t he v erdict and sentence, Harris m o ved f or a judgm e nt notwithstanding the verdi c t o r , i n t h e a lternative, a new trial. Approxim a tely three y ears later, the trial court denied Harris’s m otion. 3 Harris tim ely appealed to this Court.

2 H arris w as also ch arg ed w ith ag g rav ated assau lt, b u t w as f o u n d n o t g u ilty

. 3 W e n o t e th at u n d er th e n ew ly created M ississip p i Ru les o f C r im in al P r o c e d u r e , ef f ectiv e Ju l y 1 , 2 0 1 7 , H arris’s m o tio n f o r a JN O V o r, in th e altern ativ e, a n ew trial w o u ld h av e b een “d eem ed d en ied as o f th e th irtieth d ay ” o f

p en d en c y . M R C rP 2 5 .3

. 4DISCUSSION

I. Confrontation Clause ¶8. Harr i s a s s e rts the trial court erred i n adm i tting Ashley ’ s prior testim ony because it violated his Sixth Am endm ent right of conf rontation, and that he was not af f orded a “f

ull

cross-exa mi n a t i o n .” W e r e view a trial court’s ruling on the adm issibility o f evidence f or

a b u s e o f discretion. Barron v. State , 130 So. 3d 5 31, 538 (¶23) (Miss. Ct. App. 2013)

. Constitutional issu e s a r e r eviewed de novo. Jenkins v. State , 102 So. 3d 1063, 1065 (¶7) (Miss. 2012). ¶9. The United States Suprem e Court has held that the Sixth Am endm ent Conf rontation C l ause bars the adm ission o f “testim onial statem ents” m a de b y a w itness who d o e s n o t

a p p e ar a t trial, unless the witness is unavailable and the def e ndant had a p rior opport u n i t y to cross-exam ine the witness. C rawford v. W

ashin g t o n , 541 U .S 36, 5 3-54, 59 (2004). Although the Court in Crawford declined to def ine “testim on i a l ” statem ents, it noted the
term , at a m i nim

um , includes “ prior testim ony at a prelim inary h earing, bef ore a grand jury ,
o r at a f orm er trial; and

. . . police interrogations.” Id. at 68. According l y , A s h l e y ’ s prelim inary -hearing testim ony is testim onial, and b ecause s he was unavailable, our inquiry turns to whether Harris had a prior opportunity to “cross-exam ine” or, a s here, to exam ine, because Harris called Ashley as his witness. ¶10. A def

endant’s right to cross-exam ination is not unlim i ted, and “[ t]he Conf rontation Clause guaran t e e s o nly ‘an opportunity f o r ef f ective c ross-exam ination, not crosse x a mi n a t ion that is ef

f ective in whatever way , and to whatever extent, the def ense mi g h t

5wish.’” Goforth v. State , 70 So. 3d 174, 184 (¶46) (Miss. 2011) (em phasis added) (quoting Kentucky v. Stincer , 482 U.S. 730, 739 (1987)). F urther, no Conf rontation Clause violation will be f ound where def

ense counsel was not “signif icantly lim ited in a n y way in the scope
or n ature of his c ross-exam ination of the witness

. . . at the p relim inary hearing.” California v. Green , 399 U.S. 149, 166 (1970). ¶11. Here, Ashley w as Harris’s w itness at the earlier probable-cause hearing and was thus subject to his direct a n d r e direct exam ination. Theref ore the only p ertinent question is whether Harris was “signif icantly lim ited in any way in the scope o r n ature of his crossexam ination” or, as here, “exam i nation” of Ashley

. ¶12. Harris’ s p r e mi e r a r g u m e nt is that he was unable to f ully d evelop Ashley ’s crossexam ination. In support, Harris s tat es (1) discovery i s necessary to s upport a m eaningf ul

cross-exam ination; (2) his questioning of Ashley was l im ited to the i ssue of p robable cause; and (3) the nature of a prelim inary hearing inherently c h a n ges cross-exam ination strategy
. However, Harris f

ails to specif

ically address how these i ssues lim ited Ashley ’s testim ony in
nature and scope: he d oes not show how his exam ination of Ashley would be any dif f erent at the pre l i mi n a r y h earing g iven the benef it of discovery , and f

ails to dem onstrate how lim itation to the issue of pro b a ble cause changed his course of q uestioning with respect to Ashley

. Harris neverthe l e s s had the opportunity to exam i ne Ashley d uring the prelim inary hearing, despite any

perceived change in strategy

. ¶13. Further, we a re un persuaded by H arris’s a rgum e n t that Ashley ’s p rior testim ony did
not m a ke clear e nough that Ashley and M urray were in bed together, as o v e r n i g h t l o v e rs,

6when Ashley ’s e x - b o y fr i e n d arrived f or an unexpected visit. The question bef ore the redacted portion of Ashley ’s testim ony

asked whether Murray

and Ashley

were in bed together that

m orning. Ashley a nswered in the af f irm ative. The t

r i a l c o urt f

ound the jury could “reasonably conclude” any rom antic i nvolvem ent between Ashley and Murray that m orning. W e agree. In sum , we f

ind Harris’s exam ination of A s h l e y w a s not signif icantly lim ited in scope or nature, as there w as no showing of such lim itation within either the r ecord o f the case or the
t e s t i mo n y i tself

. In result, adm i ssion o f Ashley ’s prior testim ony did not violate the Conf r ontation Clause. ¶14. B u t , even if adm ission of A shley ’s prior testim ony was an abuse o f disc r e t i o n , t h e
error was harm l ess. Ashley ’s prior testim ony m e ntioned Harris tried to choke her and that Harris f ought with Murray and Brewer. But it d id not m ention any thing af ter H arris was pinned down by Murray and Brewer—not even the shooting. Nor did it include that Harris lef t, or that he cam e bac k

. F urther, the substance of Ashley ’s testim ony was thoroughly covered by

Tericia’s and Brewer’s testim ony . In result, we f ind this issue is without m erit. II. Ex c ited Utterance ¶15. Harris asserts the trial c ourt erred whe n it f ound Brewer’s statem e nts m ade in f ront of Of f icer Harris w ere e xcited utterances under Mississippi Rule of E vidence 803(2). Again,

we review a trial court’s ruling on the adm issibility of evidence f or abu s e o f d i s cretion. Barron , 130 So. 3d at 538 (¶23). ¶16. Rule 803(2) all o w s f o r a h earsay exception f

or an excited u tterance, which is “[ a]
statem ent relating to a startling event or condition, m a de while the d eclarant w a s under the

7stress of excitem e nt that i t caused.” The advisory

- comm ittee notes shed f u r t h er light on adm itting an excited utterance: The underly ing theory of the excited utterance exception is that circum s t ances m ay create s u ch an excited condition that the capacity f or ref lection is tem porarily im

peded and that statem ents uttered in that condition are thus f ree of conscious f

abrication.

. . . [ T]he essential i n g redient here is spontaneity

. W i th respect to the t im e elem ent, the issue is the duration of the e xcited state. This, depending on the exact circum stances o f a case, can vary greatly

. . . . An excited u tterance need only “relate” to the startling event, and, theref ore, the scope of the subject m atter of the statem ent m ay

be f airly broad. M.R.E. 803 advisory

comm ittee’s note. ¶17. Brewer was standing r ight next to Murray when he was shot twice, a n d B r e w e r’s
statem ent was m ade within approxim ately t e n mi n u tes of the s hooting. The statem ent was unsolicited, and when Detective Harris w a s a s k e d i f he c ould tell whether Brewer was “visibly u pset,” he t estif

ied, “Yes, he was.” I n Barron , we f o und no abuse of d i s c r e t i on in adm itting sim ilar comm e nts m ade ten t o twenty m inutes a f ter the shooting in response to questions f

rom by standers, and where there was testim ony that the declarant was “visibly shaken up.” Barron , 130 So. 3d a t (¶21). Here, we f ind no abuse of the trial c ourt’s discretion in adm i tti n g Brewer’s statem ents as excited utterances. Thus, we f ind this issue is without

m erit. III. Sufficiency of the Evidence ¶18. Harris a sserts the evidence was insuf f icient to convic t h i m o f m urder. T he critical inquiry in addressing a challenge to the suf f iciency of evidence is “whether the evidence shows bey ond a r easonable doubt that the a c cused comm itted the act charged, and that he did

s o under such circum stances that every elem ent of the of f e nse existed; and where t h e
8evidence f

ails to m eet this test it is insuf f icient to support a conviction.” Bush v. State , 895 So. 2d 836, 843 (¶16) (Miss. 2 0 0 5 ) ( q uoting Carr v. State , 208 So. 2d 886, 889 (Miss. 1968)). “The relevant question is whether, af t er viewing the evidence i n th e light m ost f avorable to the p rosecution, any rational trier o f f act c ould have f

ound the e ssential elem ents of the crim e bey ond a reasonable d oubt.” Id

. ( citing Jackson v. Virginia , 443 U.S. 307, 315 (1979)). ¶19. Harris was convicted of deliberate-design m urder, w hich has three requirem ents: the def endant m ust have (1) killed the v i c t i m , ( 2) w ithout authority o f law, and (3) with deliberate design to e f

f ect death. Miss. Code Ann. § 9 7-3-19(1)(a) ( Rev. 2014). “ [ D ]eliberate design connotes an intent to kill.” W i lson v. S tate , 936 So. 2d 357, 364 (¶17) (Miss. 2006). “[ D]eliberate indicates a f ull awareness of

what one is doing and generally im plies caref

ul and unhurried consideration of the consequences.” Id

. “ H owever, deliberate design to k ill a person m a y be f

orm ed quickly and perhaps only m om ents bef ore the act.” Id

. “ D e l iberate des i g n, a s a m atter of law, m ay be inf erred through the intentional use of any instrum ent which, based on its m anner of use, is calculated to produce death or serious bodily injury .” Id

. ¶20. In a d d i t i o n t o a r g u i n g self -def ense, Harris asserts he killed Murray in the heat of passion upon discovering h i s ex-girlf riend with an apparent overnight lover. Harris claim s this of f ense, a t m ost, warrants a conviction of heat-of -passi o n ma n slaughter. For heat-of

passion m anslaughter to be im plicated, there m

u st be a provocation that is imm e diate and reasonable enough. Parker v. S tate , 119 So. 3d 987, 9 94 (¶16) (Miss. 2013). W ith regard to

9imm ediacy , th e p e r tinent question is whether there was a suf f icient cooling-of

f period between the provocation and t h e k i lling, which n egates a claim the killing occurred in the heat of passion. Id

. Heat of passion and imm ediacy , in particular, are questions of f act to be resolved by

the jury on a case-by

- case basis. I d

. ¶21. Here, Harris adm itted he killed Murr a y a n d t h a t h e l ef t the house and c am e back bef ore he shot Murray

. Although H a rris testif ied Murray a nd Brewer were com ing toward him at the tim e he shot Murray , testim ony to the contra r y w as subm itted. That testim ony claim ed Harris lef

t the house and r eturned “m om ents” l ater to f orcef ully enter the h ouse with

a p istol drawn, twice f

i ring it and killing Murray

. Given that evidence, “any rational trier of f act could have f

ound all the essenti a l e l em ents” of deliberate-design m urder without authority of law and “bey ond a reasonable doubt.” Thus, we f ind no m e r it in this issue. IV. Weight of the Evidence ¶22. Lastly , Harris asserts his m urder conviction is a gainst t h e w e i g h t o f t h e evidence. W h en reviewing a c laim that a conviction is against the w eight of the evidence, this Court will o nly disturb a verdict when i t is so contrary to the overwhelm i ng weight of the evidence that to allow it to s tand would sanction an unconscionable i njustice. Bush , 895 So. 2d at 844 (¶18) (citing Herring v. State , 691 So. 2d 9 48, 957 (Miss. 1997)). The v erdict here was not against the overwhelm ing weight of the evidence. ¶23. Harris adm itted to killing Murray and claim ed it was in self -def ense. He adm itted he reapproached the house with his gun drawn, a n d c laim ed h e r eturned to the house to retrieve his c ell phone. Harris also claim ed that as the door opened, M urray a nd Brewer were

1 0charging at him

. The State of f e red evidence that Harris f o rced the door open, and that neither Murray nor B rewer was m oving t oward Harris as the door opened. W e agree with the jury ’s resolution of

the conf licting testim ony . Thus, we f ind this issue is without m erit. CONCLUSION ¶24. W e af

f irm the judgm ent of the circuit c ourt f or Harris’s c o n v i c t ion of m urder and sentence of lif

e im p risonm ent. ¶25. AFFIRMED. LEE, C .J. , IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON AND WESTBROOKS, JJ., CONCUR

.

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