IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-KA-01462-SCT MONTRELL CROFT a/k/a MONTREL LASHUN CROFT a/k/a G-MONEY a/k/a MONTRELL LASHAUN CROFT a/k/a MONTRELL L. CROFT

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 09/07/2017 TRIAL JUDGE: HON. LESTER F. W ILLIAMSON, JR. TRIAL COURT ATTORNEYS: KASSIE ANN COLEMAN LISA J. HOW ELL STEPHEN PAUL W ILSON THOMAS GOODW IN BITTICK COURT FROM W HICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER N. AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOE HEMLEBEN DISTRICT ATTORNEY: BILBO MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 05/16/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE RANDOLPH, C.J., MAX WELL AND BEAM, JJ. RANDOLPH, CHIEF JUSTICE, FOR THE COURT: ¶1. M o ntrell Crof

t, a/k/a “G-Money ,” was convicted of “participating in or co n d u c t i n g

or conspiring” i n illegal gang activity , possession of a f irearm by a f

elon, and attem

pted

m urder in Lauderdale C ounty Circuit Court f ollowing a jury t rial. Crof t n ow a p peals. TheCourt f

inds tha t a n i n s t r u c t i on perm itting a jury in a crim inal case to f ind an elem ent of a crim e by a preponderance of the evidence const i t u t e s plain error. A ccordingly , we reverse and rem and f

or a new trial on whether Crof t “participat[ ed] in or c onduct[ ed] or conspir[ ed]” in crim inal gang activity b ey ond a reasonabl e d o u b t

. Crof t’s f elon-in-possession and

attem pted-m urder convictions and sentences are af f irm e d.
FACTS AND PROCEDURAL HISTORY ¶2. On Septem

ber 23, 2015, Ma r c u s H a l l , a / k / a “Handy Dandy ,” was approached by a
group of m en including Crof t, who witnesses testif

ied w as a ranking m em

ber of t he “Rolling
60s Crips” gang. Crof

t told Hall, “y o u know y ou’re f ixing to die t onight; right? ” Hall replied that he did n ot have a problem w i t h t h e m en. Another g roup including Kenzavion
Wo o d ard (“Kenza”) approached Hall f rom a dif f e rent direction. Kenza scream ed Hal l ’ s

nam e, then C rof

t shot Hall. Hall f

ell in a ditch a s m e n in the group s c o n t i n u e d t o shoot at him . Af ter f iring m ultiple shots, the groups f led. ¶3. Hall received wounds to the abdom en and e ach thigh. A treating phy sician testif ied that any of the three wounds c ould have been f atal. Anthony Ball, a gang investigator with the M eridian Police Departm e nt, visited Hall in t he hospital. Hall told Ball t hat “G-Money ” was one of

the shooters. Ball knew “G-Money ” t o be Crof t. Af t er H all was released f

rom the h ospital, Ball had Hall l ook at group photos f r om the Rolling 6 0s Crips’ F acebook page. Hall identif

i ed Crof t as “G-Money ” and identif ied three other assailants f rom the photos. ¶4. A gra n d j u r y r e t u r n ed a m ulticount, m

ultidef endant indictm ent charging Crof t and others with crim es r elated to the shooting of Hall. Count I charged Crof t, Jim m y Marquez

2Johnson (“Johnson”), Em m itt J ordan, Ernest Scott, and Kenza with particip a t i ng in,

conducting, or conspiring in i llegal ga n g a c t ivity under Mississippi C ode Sections 97-1-1 and
97-44-19 (Rev. 2014). Count II charged Crof t with possession of

a f irearm by a c onvicted
f elon under M ississippi Code Section 97-37-5 (Rev. 2 014). Count III charged Crof t, Kenza, and J o h nson with attem

pted m urder under Mississippi Code S ections 97-1-7 and 97-3-19 (Rev. 2014). ¶5. Crof

t p l e a d e d n o t g u i l ty

. His trial was set to proceed with Kenza and Johnson as codef endants. Crof

t petitioned f

or appointm e n t of c ounsel, which was granted. Crof t then
f iled a p ro se m otion f

or r elease o n bond. C rof

t’s court-appointed attorney , Marcus Evans, then f iled a m otion f

or discovery

. C rof

t’s trial was reset three tim es over the course of

m onths f or various reasons, i ncluding substitution of c o unsel af ter Crof t sought Evans’s dism issal. Crof

t’s second court-appointed attorney , Stephen W ilson, f iled a m o tion to set bail. The trial court denied the m otion because Crof t w as already on bond f

o r a d r u g traf f i cking charge in Alabam a . ¶6. Crof

t subsequently

f iled a dem and f

or speedy trial. Crof

t then f iled his responses to discovery along with a notice of alibi def ense. 1 Crof

t’s trial was reset af

ter the w ithdrawal of cocounsel f

or Crof t’s codef endants, Kenza and Johnson. Crof t f iled a m otion to dism iss the indictm e nt f

o r violation o f his right to a speedy t rial and, alternatively , a m otion to sever

1 C ro f t’s n o tice o f

alib i d ef en se stated t h at h is g irlf

rien d , Z e-allicia Jo h n so n , w o u ld testif y th at sh e an d C ro f

t w ere at h er h o m e at 3 9 0 7 1 0 th S treet, M erid ian , M ississip p i, at th e tim e o f th e sh o o t in g . T h e S tate su b m itted th at a d d ress d id n o t ex ist, an d th e d ef en se h ad n o t su p p lem en ted to p ro v id e a d if f e ren t ad d ress. D u rin g a p retrial h earin g , th e t rial co u rt h eld th at i t w o u ld n o t let Jo h n so n testif y to a n y th in g o th er th an w h a t w as p ro v id ed in th e n o tice o f alib i d ef en se. Jo h n so n d id n o t testif y . 3his t rial f

r om those of his codef

endants. The trial court denied Crof t’s m otion to d ism iss but severed Crof

t’s trial. ¶7. The day bef

o re trial, Kenza accepted a plea deal and agreed to testif y . Crof t objected

to Kenza’s testif

y ing, claim ing unf

air surprise. T he trial court p erm itted Crof t and the State

to m eet w ith Kenza a nd to obtain his statem ent p rior to his testif y i ng. Af ter Crof t obtained
Kenza’s s t a t e me n t , Crof

t claim ed he needed to alter his trial strategy a nd call Ernest Scott and Em m itt Jordan, who previously had been disclose d a s w i t n e sses f or Crof t. Both witnesses were p r e s e n t i n the courtroom awaiting Crof t ’s trial. The trial court granted Crof t’s request to issue subpoenas f or both but declined to grant a continuance. Crof t f ailed

to h ave e ither witness served with a subpoena, and he did not call Scott and Jordan or his alleged alibi witness. ¶8. The State of

f ered f o u r w i t n e s s e s : t h e v i c t i m, H a l l ; Ball, an investigator f rom the Meridian Police Departm ent; Kenza, one of Hall’s assailants ; and the em ergency room phy sician who treated H all. Hall testif ied t o the f

acts d iscussed above, and he also provided an in-court identif

ication of Crof t

. ¶9. Ball q

uestioned about his i nvestigation. B all had been em ploy e d i n law enf

orcem ent f or twenty -two y ears and was a ssigned to the Meridian Police Departm ent’s Gang Unit. In addition to his on-the-job training and experience, he testif ied that he had specialized training in gang-related c ases f

rom t he Mississippi Association of Gang I n v e s t i gators (“MAGI”). Ball testif ied that h e attends a MAGI conf e r ence each y ear t o obtain recertif ication as a gang investigator. He testif

ied that he k

new Crof t a nd p rovided an in-court identif ication of him

.

4¶10. Ball testif i ed t hat t he victim , Hall, was a “hang-around” w ith the Black Disciple gang,

m eaning he was f

r iends with Black Disciples but was not an actual m em ber. W hen the State questioned B all about whether the Black Disciples and t he Rolling 6 0s Crips w ere rivals, he

tes t i f ied that “ [ t]hey ’re not f

riends. They are r ivals. T hey been—I don’t quite understand what they beef

ing about a ll the tim e, b ut they just alway s i nto it.” The S tate then questioned Ball about his personal knowledge of whether Crof t was af f iliated w ith any p articular gang. Ball t estif ied that he had known C rof t f or six or seven y ears and that it was com m o n f or h im

to k eep up with who w as associated with what gang. Ball stated, “I have talked t o Montrell Crof t on several occasions, and he is f irm —believe m e, he will tell y ou he’s a 60 Crip.” ¶11. The State asked Ball h i s o p inion on w hat had p rom pted t he shooting. The f

ollowing colloquy took place: Q: Based on y o ur inf

orm a t i o n o f knowing that t he victim , Marcus Hall, regularly associated with people that were [ Black D isciple] and knowing t hat Montrell Crof

t was a [ R olling 60s Crip]; what, if any thing, did y ou determ ine about this case and what prom pted it?

. . . . [ Ball]: It can be a guess or a theory that they was i nto it with t h e [ Black Disciples] and they

thought Marcus was one and saw him and shot him

.

. . . . [ Crof t’s attorney ]: Your Honor, at this ju n c t u re, then I’d also i m p ose an objection to the extent that this m a y enter into expert t estim o ny and that he was not disclosed as an expert in discovery

. BY THE C O U R T: That again is overruled. He’s n ot tendered as an expert. He’s tendered as som ebody that’s been i nvolved in the gang investigations in this com m

u nity since 2013. You m a y proceed.

5Q. Investigator Ball, based on y our determ ination t h a t t h i s case was gangrelated; what, if

any , charges did y ou f

ile against Montrell Crof

t? A. Under the Street Gang Act, the attem pted m urder.

. . . . Q. And based on y our i nvestigation, e very body that y ou talked to and all the investigation that y ou did, did y ou believe that it was m otivated as a result of this gang rivalry ? A. Yes, m a’am

. ¶12. Kenza was called to testif y on the second d a y o f t r i a l

. K e n z a ’ s t e stim ony was consistent with H all’s testim ony a bout what o ccurred bef

ore and during t he shooting. Kenza testif i ed t hat t he s hooting began af ter he, C rof

t, and others observed Hall wearing orange, a color a ssociated with the “Hoover Crips” gang. Kenza testif ied t hat they believed Hall was try ing t o sneak up o n them because the Hoover Crips and t he Rolling 60s Crips were “beef ing” with each other. Kenza later testif i ed that h e had also tried to shoot Hall because Hall w as a Black Disciple but t hat his gun would not f ire. Kenza testif

ied that h e tri ed to shoot Hall becau s e h e w a n t ed t o “try to get s om e stripes of f [ of H all],” which would have entitled him

to a higher ranking in his gang. ¶13. Following the doctor’s testim ony , the State rested. Crof t m o ved f or a directed verdict and judgm ent as a m a tter o f law on Counts I and I II. The trial court denied Crof t’s m otion. ¶14. A total of twenty -one jury instructions were given. The t rial court gave the f ollowing jury instruction detailing the elem ents of the crim e of participating in o r conducting crim inal gang activity :

6The Court instru c t s t he J ury that the Def endant has been charged with Participating i n or Conducting Crim inal Street Gang Activit y i n Count I

. If y ou f ind f rom the evidence in this case bey ond a reasonable doubt that: 1) On or about Septem

b er 23, 2015, in Lauderdale County , Mississippi; 2) The d e f

endant, MONTRELL LASHUN CROFT, A KA “G-MONEY,” individually or while a iding and abetting and/or acting in concert w ith another, 3) did willf

u lly , u nlawf

u l l y , f eloniously , and intentionally conspire, direct, participate, conduct, f

urther, or assist in the com m ission of i llegal g ang activity by purposely and/or knowingly attem pting to m urder Marcus Devon Hall, with a f irearm , by

shooting him then it is y our s worn d

uty to f ind said Def

endant, M ONTRELL LASHUN CROFT, AKA “G-MONEY,” guilty of Participating in or Conducting Crim inal Street Gang Activity in Count I. Should the State f

a il to prove any one or m ore of these ess e n tial e lem ents bey ond a reasonable doubt, then y ou shall f ind said Def

endan t not guilty of Participating in or Conducting Crim inal Street Gang Activity in Count I. ¶15. T o def

ine “gang,” the State of

f ered the f ollowing jury

instruction, which tracks the language of

Mississippi Code Section 97-44-3(a) (Rev. 2014): The Court instructs the J ury that f or t he purpose of this t rial “Streetgang” or “gang” or “organized gang” or “crim inal streetgang” m e ans any com bination, conf ederation, alliance, network, conspiracy , understanding, or other sim i lar conjoining, in law or in f

act, of three (3) of m o re persons with an established hierarchy that, through its m em bership or through the a g ency of any m em ber, engages in f

elonious crim inal activity

. It shall not b e necessary f or the State t o show that a particular conspiracy , com bination or conjoining of

persons possesses, acknowledges or is known by any com m o n n a me , i n s i gnia, f lag, m eans of recognition, secret signal or c o d e, creed, belief

, structure, leadership o r com m a n d structure, m eth o d o f operation or crim inal enterprise, concentration or s pecialty , m em bership, age or other qualif

ications, initiation rites, geographical or t erritorial s itus or boundary or location, or other unif y ing m a r k, m anner, protocol or m ethod of expressing or indicating m em bership when t he conspiracy ’s e xistence, in law or in f act, c an b e dem onstrated by a preponderance of the c o mpetent

7evidence

. However, any evid e n c e r e a sonably t ending to show or dem o nstrate,

in law o r in f

act, t he existenc e o f o r mem bership in any conspiracy , conf ederation or other association described herein, o r pro b ative of the existence of or m em

bership in any s uch association, s hall be adm issible in any act i o n o r proceeding brought under the Crim inal Street Gang Act of Mississippi. (Em phasis added.) The trial court gran t e d t h i s instruction without objection f rom Crof t’s trial attorney

. ¶16. The jury f

ound Crof

t guilty on all c o unts. A f

ter a sentencing hearing, the trial court sentenced Crof

t to twenty y ears in the custody of the Mississippi Departm ent of Corrections (“MDOC”), with ten y ears suspended and f ive y ears of post-release supervision on Count I,
ten y ears in the custody o f MDOC on Cou n t I I , a n d t hirty y ears in the c ustody of MDOC, with ten y ears suspended and f ive y ears of

post-release supervision on Count III. The trial judge ordered each sentence to be served c onsecutively

. C rof t f iled a m otion f

or a new trial, which was denied. Crof

t appealed.
ISSUES ¶17. Crof

t raises three issues:
I. Wh e ther the t rial court plainly erred i n i nstructing t he jury t h a t t h e gang’s existence could be dem onstrated by a p r e p o n derance of the evidence.
II. W hether the trial c ourt erred by allowing the gang investigator to of f er im proper expert testim ony . III. W hether the trial c ourt erred by declining to grant C rof t a continuance af ter learning that a codef

endant would testif

y against him

. DISCUSSION
I. Jury Instruction

8¶18. “This Court m u s t r eview jury instructions as a whole to ascertain whether the jury was f ully a n d f airly instructed regarding the applicable law.” White v. S tate , 195 So. 3d 765, 768 (Miss. 2 016) (citing Conner v. State , 138 So. 3d 143, 149 (Miss. 2014)). “W e will not f ind error if the instructions f

airly , though not perf

ectly , announce the a

pplicable rules of

law.”
Id. ( quoting Conner , 138 So. 3d at 149). “If the instructions, read a s a w h ole, f airly announce the law of the case and create no injustice, no reversible error will be f ound.” Windless v. State , 185 So. 3 d 956, 960 (Miss. 2015) (citing Harris v. State , 861 So. 2d 1003, 1014 (Miss. 2003)). ¶19. Crof

t argues, f

or the f irst tim e on appeal, that t he trial court erred by instructing the jury that t he existence o f a gang could be dem onstrated by a preponderance of the e vidence.
Because the jury i nstruction was n ot challenged in the t rial court proceedings, C rof t argues that this Court s hould reverse u n der the p lain-error d octrine. He argues that the i nstruction “seriously af

f ected the f

airness, integrity , or p ublic reputation o f judicial p roceedings,” inter alia

. F itzpatrick v. State , 175 So. 3d 515, 521 ( Miss. 2015) (quoting Flowers v. State , 158
So. 3d 1009, 1043 (Miss. 2014), cert. granted, judgment vacated b y Flowers v. M

ississippi , 136 S. Ct. 2157, 195 L. Ed 2d 817 (2016)). ¶20. The jury instruction at i ssue tracked the language of Mississippi Code Section 97-44- 3(a). The statute includes the f ollowing pertinent language:
For purposes of this chapter, it shall not be necessary to show t hat a particular conspiracy , com

bination or conjoining of persons possesses, a c knowledges or is known by any c om m on nam e, insignia, f lag , m e a n s o f recognition, secret signal or c o de, creed, belief , structure, leadership o r com m and structure, m ethod of operation or crim inal enterprise, conce n tration or specialty , m em bership, age or o ther qualif ications, in i t i ation rites, geographical or

9t e r r itorial situs or boundary or location or other unif y ing m ark, m a nn e r , protocol or m et h o d of expressing or indicating m em bership when the conspiracy ’ s e xistence, i n law or in f act, c an b e d

e m o n s trated by a preponderance o

f the competent evidence

. However, any evidence reasonably tending to s how o r d e mo n s t rate, in law or in f act, the existence of or m em bership in any consp i r a c y , conf ederation or other association described herein, or probative of the existence of or m em bership in any such association, shall be adm issible in any action or proceeding brought under this chapter. Miss. Code Ann. § 97-44-3(a) (em phasis added). ¶21. The S tate now conf esses that the jury i nstruction w as given in error, but it insists that the error was harm less. The State directs the Court to another i n s t r u ction, C-16, which instructed the jury on the appropriate standard of proof —bey ond a r easonable doubt—f or the charge of “participating i n or c onducting or conspiring” in illegal gang activity under Count
I

. T h e State argues that C-16 cured the conf essed error. Indeed, C-16 clearly and

em phatically instructed the jury that the State was required to p rove each and every elem ent of Count I bey ond a reasonable doubt. ¶22. Although the jury instruction at issue w as a near-verbatim replication of Mississippi Code Section 9 7-44-3(a), the Court f inds that the ins t r uction, as given, “seriously af f ected the f airness, integrity , or public reputation of judicial proceedings,” because it allowed the jury to f ind the existence of a gang by a preponder a n c e of the evidence, instead o f bey ond a reasonable doubt. Fitzpatrick , 175 So. 3d at 521 (quoting Flowers , 158 So. 3d at 1043). ¶23. S e ction 9 7-44-3(a) is included in the M ississip p i S treetg a n g A ct, w h i c h p r o v i d e s b o th civ i l an d crim in al cau ses o f actio n . S ee M iss. C o d e A n n . § § 9 7 -4 4 -1 to

- 1 9 (R ev . 2 0 1 4 ). T h e d ef

in itio n sectio n b eg in s w ith stat in g th at f o r p u rp o s es o f th e c h ap ter, th e “w o r d s an d p h r ases sh all h av e th e m ea n i n g s ascrib ed h erein , u n less th e co n t ext clea rly

1 0req u ires o th erw i se [

. ] ” M iss. C o d e A n n . § 9 7 -4 4 -3 (em p h asis ad d e d )

. A j u ry in stru ctio n t h at
t r a ck s th e lan g u ag e o f S ectio n 9 7 -4 4 -3 (a) (as w as t h e case h ere) w o u ld b e v alid in c i v i l actio n s, b u t su ch an in stru ctio n f ails to p ass m

u ster in c rim i n al p ro c e ed in g s. “[ T]he Due
Process Clause p rotects t he accused against co n v i c t i o n except upon proof bey ond a reasonable doubt of every f act necessary t o c onstitute the crim e with which he is charged.”
In re Winship , 397 U .S. 3 58, 364, 90 S. Ct. 1 068, 25 L. Ed. 2 d 368 (1970). “The touchstone
f or d eterm ining whether a f act m u st be f ound by a jury bey o nd a reasonable doubt is whether the f act c onstitutes an ‘ elem ent’ or ‘ingredient’ of the charged of f e n se.” Alleyne v. United
States , 570 U.S. 99, 107, 133 S. Ct. 2151, 186 L

. E d. 2d 314 (2013) (citing U nited States v. O’Brien , 560 U.S. 218, 130 S. Ct. 2169, 176 L. Ed. 2d 979 (2010)). ¶24. Here, Crof

t was charged with “participating i n or conducting or conspiring” in illegal gang activity

under Mississippi Code Section 97-44-19. To f ind Crof t guilty , the jury

was required t o f

ind, inter alia , that the State proved bey ond a re a s o n a b l e doubt that Crof t “intentionally d irect[ ed], participate[ d], conduct[ ed], f urther[ ed], or assist[ e d ] i n the

com m ission of

illegal gang a ctivity ” under M ississippi Code Section 97-44-19(1). Yet the jury received a conf

licting instruction that the gang’s existence need not be proved bey ond

a r easonable doubt b u t that the gang’s existence c o uld be dem onstrated b y a p reponderance of the com

p etent evidence. The existence of a g a n g is clearly a f act c onstituting an “elem e nt” or “ingredi e n t ” of “participating in or conducting o r conspiring” in illegal gang activit y ; t h e r e f

o r e , the gang’s existence was required to be proved to the jury bey ond a reasonable doubt. Alleyne , 570 U.S. at 109.

1 1¶25. The State’s harm less-error argum ent is unavailing. “W e have said that the rule which

requires that all instructions should be read together ‘does not c u re an erroneous i nstruction in c onf lict with a proper instruction on a vital i ssue where the pr o p e r i n s t r uction does not

m od i f y o r c larif

y the erroneous instruction.’” Banyard v. State , 47 So. 3d 676, 684 (Miss. 2010) (quoting McHale v. Daniel , 233 So. 2d 764, 768 (Miss. 1970)). The giving o f an e rroneous instructi o n containing reversible error cannot be cured b y the giving of an inconsistent and correct instruction.

. . . A m a terial error in an instruc t i o n , c o mp l ete in itself , i s not cured by a correct statem ent o f law in another i nstruction, f or the jury cannot know which instruction i s correct and the court cannot know which instruction inf luenced the jury

. Banyard , 47 So. 3d at 684 (quoting McHale , 233 So. 2d at 769). Although Instruction C-16 was a proper instruction, the State did not of f e r any instruction m odif

y ing or clarif

y ing the

erroneous instruction. Theref ore, the def

icient instruction was n ot “ cured” as claim ed by the State, and we cannot deem the error harm less. ¶26. We reco g n ize th at t h e t rial co u rt sim p ly f o llo w ed th e statu t e i n ap p ro v in g t h e S tate’s

o f f ered in stru ctio n . Neverthel e s s , t he instruction constitutes plain error in this crim inal proceeding. T his def

inition should not be u sed in crim inal trials. W e reverse Count I f o r a

new trial on whether Crof t w a s “ participating in or conducting or conspiring” in crim inal gang activity

bey ond a reasonable doubt.
II. Ex p ert Testim ony ¶27. Crof

t argues that the trial court erred by perm itting t he g ang investigator, Ball, to of f er

an e x pert opinion. “A t rial c ourt’s adm ission of testim ony is r eviewed f or an abuse o f discretion.” Chaupette v. State , 136 So. 3d 1041, 1 045 (Miss. 2014) ( quoting F oster v. Noel ,

1 2715 So. 2d 174, 181 (Miss. 1998)). “‘W e give great def erence to t he discretion of the trial judge,’ and ‘unless we conclude that the discretion was arbitra r y a n d c l early erroneous,

am ounting to an abuse of discretion, [ the trial judge’s] decision will stand.’” Chaupette , 136
So. 3d at 1045 (alteration in original) (quoting United Am . Ins. Co. v . M e rrill , 978 So. 2d 613, 631 (Miss. 2007)). ¶28. T h e q u e s t i o n b e f

ore the C ourt is whether Ball t estif ied o nly as a f

act w i t n e s s o r whether his testim ony included expert opinions governed by M ississippi Rule of Evidence 702. Af ter review, we f

ind that Ball’s testim ony

was a com

b ination of

both. ¶29. “[ A] f

act witness m a y be virtually any com petent p erson whose testim ony is based on personal knowledge.” C

rist v. Loyacono , 65 So. 3d 8 37, 844 (Miss. 2 011) (citing Miss. R. Evid. 601, 602). If a witness’s testim ony is i n the f orm of a n o p inion and if t he witness is

not testif y ing as an expert, his or her testim ony i s lim ited to testim o ny that is “(a) r ationally based o n the witness’s perception; (b) helpf ul to clearly understanding the witness’s testim o ny or to determ ining a f act in issue; and (c) not b ased on scientif i c, technical, or other specialized knowledge within the scope of R ule 702.” Miss. R

. Evid. 701. “[ I]f an opinion is b ased on s c i e n t i f

ic, technical, or other specialized knowledge, it can be adm itted only under the guidance of Rule 7 02 as an expert opinion.” Chaupette , 136 S o . 3 d a t 1 0 45-46 (citing Miss. R. Evid. 701). Mississippi Rule of Evidence 702 states that
A witness who is qualif ied as an expert by knowledge, skill e xperience, training, or education m ay t estif y i n the f o rm of an opinion or otherwise if : ( a) the expert’s s cientif

ic, technical, or other specialized knowledge will help the trier of f act to understand the e vidence or t o determ ine a f act in issue; ( b) the testim ony is based on suf f i cient f acts o r data; (c) the t estim ony is the product

1 3of reliable p r inciples and m ethods; and (d) the expert has reliably applied the

principles and m ethods to the f acts of the case. Miss. R. Evid. 702. ¶30. An opinion is b ased on specialized knowledge when “‘the witness m ust p ossess som e experience o r expertise b ey ond that of t he average random ly selected adult’ to express the opinion.” Chaupette , 1 3 6 So. 3d at 1046 (quoting Langston v. Kidder , 67 0 So. 2d 1, 3-4 (Miss. 1995)). ¶31. Portions of Ball’s testim ony were grounded in f acts learned during his investigation of the shooting and based on his personal k nowledge. For instance, Ball testif ied that Hall had i dentif

ied “G-Mon e y ” a s one of the shooters. Ball testif ied t hat Hall later positively i d e n t i f ied Crof t as “G-Money ” and several other shooters f r om the Rolling 60s Crips Facebook page. He t estif ied about the location of the shooting based on his i n vestigation. Ball also testif

ied about his personal knowledge of Crof t’s gang af

f iliation. W e f

ind that Ball testif i ed as a f

a c t w itness during portions of his testim ony under Mississippi Rule of Evidence 602, which provides that “[ a] witness m ay test i f y t o a ma t t e r only if evidence is introduced suf

f icient to suppor t a f

inding that the w itness has personal knowledge of the

m atter.” Miss. R. Evid. 602. ¶32. However, B all’s testim ony also included expert opinions under Mississippi Rule of Evidence 702. This t estim ony a rose when Ball testif ied about Hall’s gang m em bership vel

non . B all opined that he did not be lieve Hall was a m em b er of any gang based on Hall’s being a “ h ang-around” with m em bers of a g ang. W hen asked to cl a r i f y what a “hangaround” w as, Ball testif

ied, “[ t]hat’s som ebody that h ang around gang m em b ers. He was

1 4hanging a round in t he a rea with som e of t hem if they was f riends o r whatever.

. . . He hung around w ith the BDs, Black Disciples, m o stly on Valley and 33rd.” W e f ind t hat this portion of Ball’s testim ony was based on specialized knowledge under Mississippi Rule of Evidence 702, because an average, random ly selected adult likely would not b e a b l e t o i d entif y the Black D isciples o r testif

y about the dif

f erence between a gang m e m ber a nd a “ hang-around.”
See Chaupette , 136 So. 3d at 1046 (quoting Langston , 670 So. 2d at 3-4). ¶33. Additionally , B all p rovided expert opinions about what he believed precipitated the shooting. The State asked Ball, “what, if any thing, did y o u d e t e rm ine about this case and what prom

pted it? ” Ball opined that a rivalry e xisted b etween the Rolling 60s Crips and the Black D isciples, based o n his specialized k nowledge that these gangs were alway s “ beef ing”

w i t h each other. Ball ultim a tely opined that the s hooting w as t he result of a gang rivalry

. These portions of Ball’s testim ony were based on his specialized k nowledge, on-the-job trai n i n g , a n d e xperience. Miss. R. Evid. 702. Again, an average person likely could not ide n t if y , m uch l ess distinguish between, the Black Disciples and the Rolling 60s Crips or testif y about a rivalry between them

. Indeed, t h e State spent m u ch tim e questioning Ball about his qualif

i cations as a gang investigator bef ore questioning him about a g ang rivalry

. See Langston , 670 So. 2d at 4 (“[ I]f a trial court m

ust delve into a witness’ b ackground to determ ine if he p o ssesses the necessary educatio n , experience, knowledge or training in a specif ic f ield in order f

or the witness to testif

y as to h is opinions concerning that particular
f ield, t hen M.R.E. 702 applies.” (citing Hardy v. B r a n t l e y , 4 7 1 So. 2d 358, 366 (Miss. 1985))).

1 5¶34. T h e S t a te argues that Ball was m erely a l a y w i t n e s s u n d e r M i s s i s s i p p i R u l e o f

Evidence 701 because his testim ony was based on h is personal o b servations of the f acts gathered during his investigation a nd his “f irst-hand knowledge” obtained o ver several y ears working as a gang i nvestigator in Meridian. The State’s argum ent is without m erit. Mississippi Rule of Evidence 703 specif ically states that “an expert m ay base an opinion on f a c t s o r d a t a i n the case that t he expert has been m ade aware of or personally observed.” Miss. R

. Evid. 703. Sim

ply b ecause Ball’s testim ony relied on p ersonal knowledge does not
autom atically place h is t e s t i mo n y o u t s ide the scope of Rule 702. The critical inquiry is whether t he witness’s opinion testim ony is based on scientif ic, technical, or o ther specialized knowledge

. . . .” Miss. R. Evid. 701; Miss. R. Evid. 702. The portions o f Ball’s testim ony concerning H all’s g ang m em bership and his opinion about a gang rivalry were based on his specialized knowledge, experience, and t raining, and, t heref o re, the S t ate was required to tender Ball as an expert f or those portions of h is testim ony . C haupette , 136 So. 3d at 1046 (“Bef ore providing expert o pinion t estim o ny , a witness m u st be q ualif ied, ten d e r e d , and accepted as an expert under Rule 702 of the M ississippi Rules of Evidence.” (citing Cotton

v. State , 675 S o . 2 d 3 0 8 , 312 (Miss. 1996))). Notwithstanding, we f ind that t he State’s f ailure to do so in this case was harm less.
Harm less-error analy sis prevents “setting aside convictions f or sm all errors or def ects that have little, if any , likelihood of having changed the result of the trial.” W e d o not reverse a conviction f or an erroneous evidentiary ruling unless “the error adversely af f ects a s u b s tantial right of a party , ” or i n other words, u n less the r

uling prejudiced the a ccused. Thus, where i t is “clear bey ond a reasonable d oubt that the error did not contribute t o the verdict,” we need not reverse the conviction.

1 6Collier v. State , 183 So. 3 d 885, 892 ( Miss. 2 016) (quoting Sm i th v. State , 136 So. 3d 424, 435 (Miss. 2014)). ¶35. In C

haupette , the def

endant argued on appeal that the t rial court erred by a llowing a phy sician to testif

y about diagnosing the victim as sexually abused, although the phy sician had n ot been tendered as an expert witness. C haup e t te , 136 So. 3d at 1046. This Court reviewed the phy s ician’s testim ony and f ound that “it was b ased on t he patient history taken,

as well a s [ the phy sician’s] phy s ical exam ination of [ the v ictim ].” Id. The Court c oncluded that the phy sician’s testim o ny was “no doubt

. . . based on her s p ecialized k nowledge, which

can be presented only u nder the strictures of Rule 702.” Id. However, t his Court also f ound that the patient’s history , which the phy sician had r elied on, had been placed in evidence by
f ive other witnesses. Id. at 1046-47. As a r e sult, the C ourt held that any error in the adm ission of the phy s ician’s testim ony regarding the diagnosis was harm less. I d. at 1047. ¶36. The instant case is s im ilar. Sim ilar to Chaupette , the jury in this case heard testim ony f rom Hall that Crof

t w as a m em

b er of the Rolling 60s Crips. Hall also t estif ied that he hung around the Black Disciples. Hall testif ied that he hung around people that Crof t “had a problem with o r had anim osity with or had s om ething going on with[ .]” The victim of f ered testim o ny parallel to the im proper expert t estim o ny of f e red through Ball. A m ajority of this
Court is unwilling to i gnore H all’s testim ony when presented with a h arm less-error analy sis. ¶37. The jury also heard testim ony f rom Kenza that the shooting was the result of a gang rivalry

. Kenza testif

ied that the shooting was p r o mp t ed w h en his g roup observed Hall

w a l k i n g down the s treet wearing the color of a rival gang, the Hoover Crips. K enza als o

1 7testif

i ed that he had attem

pted to shoot Hall “just b ecause h e was [ Black Disciple]” and that he “wanted to

. . . try to get som e stripes of f him ” in order to advance to a higher rank in his

own gang. Thus, although the State f ailed to tender Ball as a n expert f or the portions of his testim o ny based on h is speciali z e d k n o w ledge, training, and e xperience, t he error was harm less because those port i o ns of Ball’s testim ony paralleled Hall’s and K enza’s testim ony . Chaupette , 136 So. 3d at 1046-47. ¶38. Finally , Ball’s testim ony did not have a likelihood of changing the result o f the trial.
See Collier , 183 So. 3d a t 8 9 2. The victim ’s testim ony that he was shot by Crof t, who was

a f elon, is at odds with the dissent’s rationale f o r reversing the rem a i n i n g t w o

c o u nts—attem

pted m urder and f

elon in possession of a f irearm

. W e w ill not ignor e t h e
t estim o ny of t he v ictim when determ ining whether the State’s f ailure to of

f e r B a l l a s a n expert witness is harm less error. ¶39. If the State chooses to call Ball as a witness w hen C ount I is retried, the State should of f er h im not only as a f

act witness but also as an expert witness under R u l e 702 f or the portions of

his testim o n y

that rely on his specialized knowledge. ¶40. Crof

t dedicates one sentence in his brief to argue that the State violated Mississippi Rule of Crim inal Procedure 17.2(4) because Ball was not disclosed as an expert during discovery , even though Ball had been disclosed as the State’s witness in discovery . Based

on t he holding i n Chaupette , the Stat e ’ s f a i l u r e to tender B all as an expert w as harm less

error. See Chaupette , 136 So. 3d at 1045 (f inding harm less e rror e v e n t h o u g h a State’s

1 8witness, w ho had not been tendered as an expert in discovery , had o f f ered an e xpert opinion at trial).
III. Continuance ¶41. Crof

t argues that the trial co u r t e r r e d in declining to grant him a continuance af

ter learning that his codef

endant, Kenza, had accepted a plea deal o n the e ve of trial and would testif y as a witness f

or the State. Crof

t unconvincingly claim s that K enza’s d ecision to testif y unf airly surprised him , altered h is trial strategy , lef t him without an adequate o pportunity to
prepare, a nd resulted in a m anif est injustice. Crof

t additionally argues that the d isclosure was untim e ly and am ounted to a discovery violation. ¶42. “This Court has of t en stated that the decision w hether to grant o r d eny a continuance is a m a tter lef

t to the sound discretion of the trial court.” Walker v. State , 671 So. 2d 581,
592 (Miss. 1995) (citing J ohnson v. State , 631 So. 2d 185, 189 (Miss. 1994)). “In considering whether the denial of the continuance w as error, this Court has stated that ‘the
qu estion of whether the def endant had a reasonable opportunity to prepare to conf ront the
State’s evidence at trial depends upon the p articular f acts and circum stances of each case.’”
Walker , 671 S o. 2 d at 592 (quoting Traylor v. State , 582 So. 2 d 1003, 1006 (Miss. 1991)).
“Un l e s s manif

est injustice i s evident f

rom t he denial of a continuance, this Court will n ot reverse.” Walker , 671 So. 2d at 592 (citing J ohnson , 631 So. 2d at 189). ¶43. “Judicial analy ses on this subject are necessarily f act intensive.” Fulks v. State , 18 So. 3d 803, 805 (Miss. 2009). T he trial judge sum m arized the f acts surrounding the denial of Crof t’s m otion f

o r a continuance as f

ollows:

1 9There i s a situation where t here w ere m u ltiple Def

endants, and M r. C rof

t say s, [ l]ook, the other Def

e ndants aren’t ready to go t o trial and they ’ve g ot issues, but I am , and I dem and a speedy trial. And I agreed with him

. I said, [ y ]ou’re entitled to a speedy trial. And I told the State, I d on’t care t hat other codef endants aren’t ready

. Mr. Crof t is in jail. He wants a trial, and he’s entitled to a trial. Y’all pro c e e d w i t h i t even though it m i ght cost the State m ore trouble t o have m

ultiple trials. I’m not going to h ave som e body sit in jail f o r alm ost two y ears and through no f ault of his own not h ave a tri a l

. S o I directed t hat the trial be conducted, a nd the trial is what we’ve had here today

. And Mr. Crof

t through his m otions a nd things has press e d t h e m a tter t o be done. I want i t done, and I want it done no w . A n d I g o t i t—y ou know, I required the State t o proceed, and now to ask m e to grant a m istrial because the Def endant is surprised a

bout witnesses or j u s t

— whatever i nconvenience it m ay have been h ad I think doesn’t rise to the level of a m istrial. Certainly , in this case it’s—what was unusual, and it wasn’t u nexpected, but a codef endant has decided that he would take a plea of f er, and part of that plea of f er was to testif y in this case. And h e didn’t m ake that decision until T u esday night about 5:00. T here was a statem ent that was g iven b y his attorney the next m orning bef ore we actually started voir dire in t he case, and I dir e c t e d t h a t t hat statem ent b e g iven to the S tate a s w e l l a s to Mr. W ilson. They got i t at the sam e tim e. I also directed that M r. W ilson h ave an opportu n i t y t o interview and consult with this codef endant W oodard bef

ore his testim ony . I gave him the tim e he requested plus som e . . . . ¶44. The trial court recognized that the State and Crof t received Kenza’s s tatem ent at the

sam e tim e, and C rof

t was given m ore tim e than he requested to interview Kenza bef ore his testif y ing. Further, t he trial c ourt recognized t hat it was not u n e x p e c ted that Kenza m ight testif y a t t rial. Indeed, Kenza was Crof t’s codef endant who h ad been s c heduled—f or m ore
t han o ne y ear—to be t ried alongside Crof t. 2 Ever present was the p ossibility t hat Kenza , Crof t’s c odef endant, m ight e xercise h is right to testif y at trial w hen they were scheduled to be tried together. See Miss. C o n s t

. a r t

. 3, § 26 (“In a ll crim inal p rosecutions the accused

2 Trial was initially set f

or Crof t, Kenza, and Johnson on June 1, 2016. The m en were scheduled to be tried together u ntil the trial court granted Crof t’s m otion to sever on August 1, 2017. Crof

t’s trial was held on August 24, 2017. 2 0shall have a right to be h eard be him self or counsel, or both

. . . . ” ) K e n z a ’ s d e cision to

t estif y cannot be deem ed an “ unf air surprise” to Crof

t

. See Surprise , W ebsters I I N e w College Dictionary (2001) (“1. To encounter suddenly or unexpectedly : catch unaware[ ]

. .

. 3. T o c a use to f eel wonder or astonishm ent

. . . . ”). Further, the record ref lects that Crof

t’s trial attorne y b e l ieved that Kenza had been listed in discovery as a w itness. W hen Crof t learned that Kenza was going t o t estif y , Crof t’s a ttorney stated, “[ a] n d w hile we’re on the Motions in Lim ine and discovery issues, we l isted as a potential witness Mr. – I believe we had listed Mr. Kenzavion W oodard. It’s com e to m y attention that he is going to t estif y f or the p rosecution.” Crof

t ’s claim that he was unf

airly surprised b y Kenza’s decision to testif y is unsupported by the record. ¶45. As this Court has repeatedly r ecognized, “[ i]n considering whether the d enial of the continuance was error, this C ourt has stated that ‘the question of w hether t he def endant had

a r easonable opportunity to prepare to conf ront t he State’s e vidence at trial depends upon the particular f

acts and circum s tances of each case.’” Walker , 671 So. 2d at 592 (quoting Traylor , 582 So. 2d at 1006). Under the particular f acts and circum stances of t his case, Crof t had a reasonable opportunity to prepare to conf

ront Kenza, his codef

endant, w h o had been scheduled f

or m ore than one y ear to be tried alongside him

. Accordingly , we f ind that the trial court did not abuse its discretion in deny i ng Crof t’s m otion f

or a co n t i n u a n c e . S

ee Walker , 671 So. 2d at 592. ¶46. Crof

t additionally argues that the State com m itted a discovery violation even though the State and Crof

t received the statem ent at th e s a me t im e. W e discern no discovery

2 1violation by the State. It is undisputed that the State did not have Kenza’s sta t e me nt i n its

possession, custody , o r control until both parties received it. 3 Assum ing arguendo that the
S t a t e p ossessed the s tatem ent but f ailed to disclose it under Rule 1 7.2(1), the trial c o u r t
p r o p e r l y f

ollowed Mississippi Rule of Crim inal Procedure 17.9(a), which sets f orth the procedures that a t rial court m ust f ollow when it discovers that the State has f ailed to com

ply with discovery requests prior to trial. 4 The trial court gave C rof t tim e to interview Kenza and

to obtain his statem e nt prior to trial. Additionally , the trial court allowed Crof t to subpoena

two other witnesses who h a d a l r e a dy been disclosed in discovery and who were in the

3 Mississippi Rule of Crim inal Procedure 17.2(1) states Subject to the e xceptions of Rule 17.6(a) and 1 7.7, the pro s e c ution m ust disclose to each def

e ndant or t o the def

endant’s attorney , and p erm i t t he def endant or def

endant’s attorney t o inspect, copy , test, and photograph upon written request and without the necessity of court order, the f ollowing which is in the possession, custody , or control of the State, the existence of which is known or by the exercise of due diligence m ay becom e kno w n t o the prosecution: (1) Nam es and addresses of all w itnesses in chief proposed t o b e of f ered by the prosecut i o n a t trial, t ogether with a copy of the contents of any statem ent (written, recorded or otherwise preserved) of e ach such w i t n e s s a nd the substance of

any oral statem ent m ade by

any such witness[

. ] MRCrP 17.2(1).

4 Mississippi Rule of Crim inal Procedure 17.9(a) states
If , at any tim e prior to tria l , i t is brought to the a ttention of the court that a party has f

ailed to com

ply w ith an applicable discovery rule or an o rder i ssued pursuant thereto, the court m ay order such party to perm i t t h e d i s covery of m aterial and inf

orm ation not previously d isclosed, grant a continuance, or enter such other order as it deem s just under the circum s tances. MRCrP 17.9(a). 2 2courtroom

awaiting trial. Yet Crof

t f a iled to h ave the witnesses served or to of f er them as witnesses. This issue is without m erit.
CONCLUSION ¶47. The instruction p e rm itting the jury t o f ind an elem ent of Count I b y a preponderance of the evidence constitutes plain error. A ccordingly , we reverse C ount I a n d rem and f or a

n e w t r ial on that count. Further, the State’s f ailure to of

f er Ball a s a n expert under Mississippi Rule o f Evidence 702 constitutes harm less error; however, if B all is called a s a witness on the retrial of this m atter, the State s hould o f f er h im as an e xpert f

or the portions of his testim ony relating t o his specialized knowledge. Finally , t he trial court d id not abuse i t s d i s c r e tion in d eclining to grant Crof t a continuance, and t he State d id n ot com m i t a discovery violation. W e af

f irm Crof t’s convictions on Counts II and III. ¶48. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
C O L E M A N , M A X

W E L L , BEAM, CHAMBERLI N , I S H E E A N D G R I F F I S , J J . , CONCUR. KING, P.J., CONCURS I N PART A N D D I S S E NTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J. KING, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN PART: ¶49. W h ile I agree with this Court’s f inding that the jury instruction constituted p lain error and requires reversal, I d i sagr e e w i t h the m ajority ’s f inding that the expert testim ony of Investigator Anthony

Ball resulted in harm l ess error. 5

5 In ad d itio n to th e j u ry in stru ctio n ’s statin g an in c o rrect stan d ar d o f p ro o f , th e in stru ctio n p ro v id ed , [ a] n y ev id en ce reaso n ab ly ten d in g to s h o w o r d em o n strate, in law o r in f act, th e ex isten ce o f o r m e m b ersh ip in a n y c o n sp iracy , co n f ed eratio n o r o th er 2 3¶50. The adm i ssion of expert test i m o n y i s l e f t t o the s ound discretion of the trial judge.
Roberts v. G r a

f e Auto Co. I

nc. , 701 S o. 2d 1093, 1098 (Miss. 1997). “A witness m ust be qualif ied as an e xpert under [ Mississippi Rule of E vidence] 702 if her testim ony is such that the peculiar knowledge or inf o rm ation to be presented is not likely possessed by a lay m an.” Hobgood v. State , 926 So. 2d 847, 854 (Miss. 2 006) ( citing C rawford v. State , 754 So. 2d 1211, 1215-16 (Miss. 2000)). If a witness is n ot t estif y ing as an expert, M ississippi Rule of Evidence 701 lim its the opinion to one that is (a) rationally

based on the witness’s perception; (b) helpf u l to clearly understanding the w itness’s testim ony or to determ ining a f act in issue; and (c) not b a s ed on scientif

ic, technical, or o ther specialized knowledge within the scope of Rule 702.
M.R.E. 701. “There i s a b r ight line rule. That i s, where, i n order to express t he opinion, the witness m

ust possess som e experience or expertise b ey ond t hat of the averag e , r a n d o ml y selected adult, it is a [ Mississippi Rule o f E v idence] 702 opinion a nd not a Rule 701 opinion.” Sam

pl e v. State , 643 So. 2d 524, 529–30 (Miss. 1994) (citing Miss. Highway
Com m ’ n v. Gilich , 609 So. 2d 367, 377 (Miss. 1992)). ¶51. Investigator Ball testif ied that he had been in law e n f orcem ent f

or twenty

- two y ears and that he had b een an investigator f or the Meridian Police D epartm ent Gang Unit f or f our

asso ciatio n d escrib ed h erein , o r p ro b a tiv e o f th e ex isten ce o f o r m em b ersh ip in an y su ch asso ciatio n , sh a l l b e ad m i ssib le in an y a c tio n o r p ro ceed in g b ro u g h t u n d e r th e C r im in al S treet G an g A c t o f M ississip p i

. A l th o u g h th e in stru ctio n track s th e w o rd in g o f th e statu t e, I n o te th at th i s lan g u ag e also is in ap p ro p riate in a j u ry

in stru ctio n . 2 4y ears. B ef

ore the Meridian Police Departm ent, Investigator Ball stated t hat he w as em ploy ed with the East Mississippi Drug Task Force. He a dditionally testif ied that he attended the Mississippi Gang Association conf erence every y ear. Despite his experience i nvolving law enf orcem ent and the gang unit, Investigator Ball was never qualif ied a n d tendered as an expert witness. ¶52. However, I nvestigator Ball repeatedly was allowed to give expert opinion testim ony . Investigator Ball stated that he did not think Marcus Hall was a m em b er of a specif ic gang but that he knew Hall to be a “hang-around.” He t estif ied that a hang around was “som ebody that ha n g [ s i c ] around gang m em bers.” Investigator Ball stated t hat Hall hung around the Black Disciples (“BDs”). Af t er Investigator Ball’s testim ony that Hall w as a hang around, the prosecution’s direct exam ination of Investigator Ball proceeded as f ollows: Q: Now, y ou testif

ied earlier that y ou’ve g ot training and gang e xperience and that y ou also w ork gang cases here in Meridian. Can y ou tell t he jury whether or not the p e ople that ar e me mb ers or associated with [ B lack Disciples] are f riends, rivals or otherwise of the Rolling 60s?
A: They ’re not f

riends. They are rivals. T hey been – I d on’t quite understand what they beef ing about all the tim e, but they just alway s into it.

. . . . Q: Okay

. A nd did y o u know M ontrell C rof t and the other people that were identif ied as the shooters in this c ase to be associated w ith any particular gang? A: Yes, [ the Rolling] 60[ s].

. . . . Q: And as a gang investigator, was it com m on f or y ’all to keep up with and gather intel about who was associated with what gangs? A: Yes, we get out and talk to them

.

. . . .
2 5Q: And was i t com m on through those ty pes of investigative techniques f or y ou to determ ine who was associated with what gangs?
A: Yes. Q: W ere y ou able to determ ine what gang Montrell C rof t was associated with? A: Yes. They

tell us what – DEFENSE: Objection, y our Honor. Hearsay

. 6
COURT: Did Montrell Crof t ever tell y ou what gang he was associated with?
A: Sir, I have talked to Montrell Crof t on several occasions, and he is f irm

– believe m e, he will tell y ou he’s a 60 Crip. COURT: Okay . Objection’s overruled. Q: Based on y o ur in f

o r ma t ion of knowing that t he victim , Marcus Hall, reg ularly associated with people that were BDs and knowing that Montrell Crof t was a 60s; what, if any

thing, did y ou d eterm ine about this c ase a nd what prom pted it?

. . . . Q: [ D]id y ou know what the m otive w a s , o r did y ou have any evidence to support y our conclusions, or did y ou – or are y o u just guessing?

. . . . A: It can be a guess or a theory that they was into it w ith the B D s and they thought M arcus was one and saw him walking down the road and ran u p on him and shot him

.

. . . .

6 I add i tionally note that, although Montrell Crof t’s attorney d id not object, Investigator Ball m ade several m ore statem ents involving hearsay

. For exam ple, Investigator Ball was allowed to testif

y that, “Mr. Hall was being taken away in the a m bulance. And later on that night, I went to s ee Mr. Hall in the em e r gency room . And at that tim e where he stated that he had been shot, and a s ubject by t he nam e of “G-Money ” w h i c h I know him as Montrell Crof

t shot him .” In ad d itio n , h e testif ied , “[ w ] h at h e

– M r. H all stated to m e w as th ey w a s a l l a r o u n d h im

. T h ey h ad circled aro u n d h im

. A l l o f th em w alk ed u p o n h im .” T h ese s tatem en ts w ere im p ro p er an d sh o u l d h av e b een d isallo w ed h ad C ro f t’s atto rn ey o b j e c ted

. 2 6A: I’ve been in the gang unit since 2013.

COURT: So that’s a t least f our y ears, and he had personal knowledge of Mr. Hall, had personal knowledge of Mr. Crof t and their a ssociations with various dif f erent gangs a nd the relationships between the gangs and the rivalries t hat are there, and I think he can draw conclusions based on his e xperience a s a law enf orcem ent of

f icer. . . .

. . . . Q: And I guess that’s specif ically what I want to get a t

. W hen y ou b elieve t hat a c ase i s m otivated by o r as a result of a gang rivalry , I want y o u to explain to the jury wh y t h e s e cases are in y our opinion, based on y our experience as a gang investigator and b ased on y o u r involvem ent in this case, m otivated by crim inal street gang activity ?
A: First of all, I’d like to s a y that it’s not illegal t o b e in a gang. It’s i llegal what the gangs do once they ’re together. In this pa r t i c u lar case, y ou had a group o f people got together and ran out and com m itted a f elony by shooting a suspect in the m iddle of the road. Q: And based on y our investigation, every body that y o u talked to and all the investigation t hat y ou d id, did y ou believe that it w as m otivated as a result of this gang rivalry ? A: Yes, m a’am

. ¶53. I w ould f

in d t h a t I n vestigator Ball’s testim ony requires reversal. As this Court has stated, “[ i]t is reversible error to a llow expert t e s t i mo n y f r o m a witness never qualif ied or tendered a s an expert.” Cotton v. State , 675 So. 2d 308, 312 (Miss. 1 996) (citing Robertson

v. St a t e , 5 6 9 So. 2d 691, 696 ( Miss. 1990)). The policy behind Rule 702 is to a llow the opposing party “am

ple opportunity to challenge t h e w i tness’ qualif ications to render such opinion bef

ore the question soliciting opinion is p osed i n f ront o f the jury .” Sam

ple , 643 So. 2d at 530. Here, Investigator Ball was allowed to testif y that, i n his o pinion, the shooting was

m otivated by gang rivalry

. H e a lso testif ied t hat he t hought Hall was shot because the Rolling

2 760s were “into it” with the BDs and that Crof t thought Hall was a BD. Investigator Ball did

not have f irsthand knowledge of t he shooting or of the reasons why it occurred. Yet, clearly his testim o ny was an expert’s opinion on specif ic aspects o f gangs, on g ang a f f iliation, and on the possible m o tive of the shooting. ¶54. I disagree with t he m a jority ’s c ontention that, b ecause portions of I nvestigator Ball’s testim o ny m irrored Hall’s and Kenza’s testim ony , Investigator B a l l ’ s im proper expert testim o ny was harm less. Although Hall testif ied that Crof

t was associated with the Rolling 60s, he did not state that Crof t had a ny i ssues with the BDs. Hall s t a t e d t h at he was not associated with a gang b ut t hat he had f riends that w ere BD m em

bers. He testif

i ed that he did

not know what B D stood f o r. Hall then said that h e had never had a n y ty pe of conf

rontation or trouble with Crof

t and had no reason to b elieve t hat Crof t had any anim osity or hostility toward him . Later in his testim ony , Hall stated that he g uessed he hung around people that Crof t had “a problem w ith or had anim osi t y w i t h o r had s om ething going on with them .” However, Hall did not testif y t hat the people that Crof t m ight have had a problem with were BDs. ¶55. In addition, Kenza’s t estim ony as a codef endant was unreliable and was a c ondition

to his plea deal. I n e xchange f or his testim ony , Kenza w ould be r el e a s e d f rom jail two

m onths af

ter the trial. Moreover, Kenza i nitiall y t e s t if ied that the Hoover C rips and the Rolling 6 0s had “beef

” with each other. He stated that the group f ollowed H all because Hall had been wearing an orange shirt and that the group thought t h a t h e w as a Hoover Crip.
Kenza later testif

ied that he w as personally attem pting t o shoot a t Hall “just because he was

2 8a BD, and I j ust wanted t o p robably try to get som e stripes of f on him .” He then testif

ied that he had never seen Hall at a BD m eeting, but he thought he was a BD “because I – because
I could j ust – when m y gang m em ber have beef with som e body , I a lso have beef with t hem

too. If I never seen them bef ore, I just take their word like he was a BD.” 7 Thus, Kenza did

not state that the BDs and the R olling 60s were at odds with each other or that C rof t had beef with the BDs. Kenza instead testif ied that af ter r ealizing that H all w as not a m em ber of the
Hoover Crips, he personally shot at Hall because he thought Hall w as a B D a nd wanted to get “stripes of

f on him .” ¶56. F u r t h e r , I n v estigator Ball testif i ed bef ore Kenza testif

ied. Theref

ore, h e w a s n o t

m erely corroborating or supplem e nting Kenza’s testim ony . Instead, Investigator Ball, af ter establishing his specialized knowledge and training i n gang units, introduced the theory that, because the Rolling 60s and the BDs continually had a “ beef ” with each other, Hall was shot. And bef ore questioning Investigator Ball about whether a rivalry existed between the BDs and the Rolling 6 0s, the p rosecution reiterated that Investigator Ball h ad training, gang experience, and that he had worked gang cases i n M eridian. “Yet, ‘[ a] lay w itness’s unique qualif ications have no bearing on the witness’s a bility to give a lay opinion.’” Collins v. State , 172 So. 3d 724, 744 (Miss. 2015) (quoting Heflin v. Merrill , 1 54 So. 3d 857, 863 (Miss. 2014)).

7 O n cro ss-ex am in atio n , K en za stated th at h e k n ew H all w as a B D

. H o w ev er, o n red irect, K en za clarif

ied an d s tated th at h e h ad n o p erso n al k n o w led g e th at H all w as a B D ; h e j u s t k n ew b ecau s e “it’s all o v er F a ceb o o k h e h an g w ith a w h o le lo t o f B D s.” 2 9¶57. Only Investigator Ball’s e xpert testim o ny established a connection between the BDs

and the Rolling 60s. “Because the public hold[ s] police of f icers in great t rust, t he potential harm to the objecting party requires reversal where a police of f icer gives expert test i m ony

w i thout f irst being q

ualif ied as such.” Roberts , 701 So. 2d at 1099; cf. P eople v. McCain , 177 A .D.2d 513, 514 (N.Y. App. Div. 1991) (“Furtherm ore, the court neglected to instruct the jury that in evaluating t he c redibility o f t h e p olice of f icers who t estif

ied at trial, the testim o ny of these of

f icers is to be accorded no greater weight than that of any other witness. Clearly , such a charge should b e given

. . . to h elp the jury accurately evaluate t he credibility of these witnesses.”). Investigator Ball’s status a s a police of f icer and a m em

ber of the gang unit was intended to and likely did hold great sway with the jury

. See Collins , 1 72 So. 3d at 744 (“Additionally , Detective Sim s, a s a p olice of f icer, held the public trust, and his giving expert testim o ny without being q ualif i ed as such was particularly harm f u l t o C ollins.”). Theref ore, his im

proper expert testim ony

should not be considered harm less error. ¶58. Crof

t had neither the benef

it of pretri a l d i s c l o s u r e o f I nvestigator Ball’s expert testim o ny nor t he basis of his o pinion, and Crof t had no opportunity to e valuate Investigator Ball’s testim ony i n advance of t rial. I would f ind that the trial court abused its discretion in allowing Investigator Ball to give his in-depth, expert o pinions on gang af f iliations and the possible m otive behind the shooting. Accordingly , I would reverse C rof t’s c o n v i c t i o ns in toto and would rem and his case f or a new trial. KITCHENS, P.J., JOINS THIS OPINION.

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