IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2013-KA-01946-COA THEOTUS BARNETT APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 10/15/2013 TRIAL JUDGE: HON. C.E. MORGAN III COURT FROM W HICH APPEALED: ATTALA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH DISTRICT ATTORNEY: DOUG EVANS NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF DELIBERATE DESIGN MURDER AND SENTENCED TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED - 11/03/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. An Attala County Circuit Court jury convicted T heotus B a rnett of d eliberate design

m urder, and the t rial judge s entenced him t o lif e in the custody of the Mississippi D epartm ent of Corrections. On appeal, B arnett raises one issue: whether the trial j udge’s f a ilure to grant him f unds to hire an expert violated due process. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY¶2. On Friday , May 25, 2007, Danny Tavares, then f

if ty

- two y ears old, went to work at his f am ily ’s used car lot, T a vares M otors in Kosciusko, which his f ather had o perated bef

ore him

. Tavares t y

pically talked to his wif

e, Cindy , several tim es a day , and on this day , he last spoke to h er around 1:00 p.m . Tavares usually cam e hom e early on F riday s, so when he had

not com e hom e b y around 6:00 o r 6:30 p.m ., C indy and their daughter, Jenny , went to check on him

. ¶3. W h en Cindy and Jenny arrived a t Tavares Motors, they noticed that the f ront door of the of f ice building was pushed out f rom its f ram e. Upon entering the building, Cindy saw that the lobby area was torn apart, a table w a s k nocked over and b roken, and there were blood stains on the carpet and w alls. Cindy then saw her h usband’s legs protruding f rom the adjacent bathroom , and she f ound him kneeling with his head over the toilet, c lutching the
rim

. She t ried to pull him of f , hoping he was a l ive, but his body was extrem ely stif f so that

m oving him was dif

f icult. Once she was able to pry his body f rom the toilet and saw that he was dead, she called the police. ¶4. The police and the Mississippi Bureau of Investigation took s wabs f rom the num erous blood stains in the b u ilding. There was a larg e p o o l o f blood in the lobby and signif icant blood spattered on t he bathroo m w alls and f l oor, on the toilet s eat and lid, and inside the toilet. The pattern of

blood and hair on the underside of the toilet seat was consistent with the seat having been f

orced down on the back o f Tavares’s h ead. There w as also an em pty bottle o f Clorox b l each, a nd the bleach had been p oured out in the bathroom and on Tavares’s body

.

2¶5. Nearly all of the blood was Tavares’s, but one s am p le taken f

rom the bathroom

f loor

was later f

ound to m atch Barnett’s DNA prof ile. Alm ost f

our y ears later, B arnett t

urned up in Tennessee, where he h ad been arrested and was a waiti n g t r ial on charges of aggravated kidnapping and aggravated robbery

. 1 Law enf orcem ent of

f icers f rom Mississippi traveled

to Tennessee to interview Barnet t

. T h e interview was r ecorded and transcribed, and a partially redacted version of

the transcript was introduced into evidence at trial. ¶6. In the interview, B a r n ett initially denied that he h ad ever b een to Tavares Motors. However, af

ter of f icers t old him that DNA evidence linked him to the crim e scene, Barnett adm itted he had been there on the day of Tavares’s death. Barnett f irst stated that he went there to look at a t ruck. T hen he claim ed that he went there both because he was i nterested
in buy ing a truck f

or him self and al s o to conf ront Tavares about having “ s old [ his] son a lem on car” (a r ed Cadillac). Barnett said that things “ got out of h and” af ter he a nd Tavares exchanged “words.” Barnett s aid that Tavares accused his son of “ly ing,” w h i c h led to shoving and a f

istf ight; h oweve r , B a r n e tt told the interviewers that he “didn’t get injured” in the f ight and that Tavares was still alive when he lef t. ¶7. A s t h e interview progressed, Barnett c l aim ed that t he f ight started because Tava r e s “had a m outh on him ” and, specif ically , called Barnett’s son a “ly i ng . . . nigger . . . son of

1 In S ep tem

b er 2 0 1 0 , B arn ett ro b b ed a M em p h is self -sto rag e f a cility af ter p reten d i n g to b e in terested in r en tin g a sto rag e u n it. O n ly o n e em p l o y e e w as p resen t at th e tim e, an d sh e w as eig h t m o n t h s p reg n an t. B arn ett ch o k e d h e r, rep eated ly stru ck h er in th e f ace an d h ead w ith h is f

ists an d a g u n , h eld a k n if e to h er th r o at, an d th reaten ed to k ill h er. B arn ett w a s co n v icted o f ag g rav ated ro b b e ry an d ag g rav ated k i d na ppi ng a nd s e n ten ced to th irty -f

iv e y ears in p riso n , an d h i s c o n v i ctio n s an d sen ten ce w ere a f f i r m e d o n ap p eal. S

ee S ta te v. B a rn ett , N o . W 2 0 1 2 -0 0 0 4 8 -C C A -R 3 C D , 2 0 1 3 WL 2 2 9 7 1 2 8 (T en n . C r i m . A p p . M ay 2 2 , 2 0 1 3 ). N o ev i d en c e o f th e B arn ett’s crim es i n T en n essee w as i n t ro d u ced at trial in th is case. 3a bitch.” Barnett t hen said that he could not recall if Tavares ever h it h im and reiterated that

he was not injured i n t he f ight. Still later, Barnett told the i nterviewers that T avares initially denied having sold his son a car but eventually recalled his son, uttered the racial slur, and then told Barnett that he was “sick of talking to [ him ].” Barnett s aid “that’s when

. . . all hell broke l oose.” Barnett then claim ed: “[ Tavares] hit m e with som ething, and then I don’t know

. . . what exactly it was but I took it f rom him ,” “[ a]nd that’s when I started whooping h im
up w ith it.” B arnett s a i d t hat Tavares hit him only once in the arm —and, again, did not injure him

—with the unknown object. B arnett stated that when he took the o bject f rom Tavares a nd began striking him with it, he kn o c k e d T avares into the bathroom a nd to the
f loor. Barnett t hen poured bleach on T a v ares’s b ody , washed his own h ands, and lef t. Barnett claim ed that h e did not know whether Tavares was alive w h en he lef t. Barnett said that he could not “rem em ber every thing” that happened, but the “ m ain part [ he did]

rem em b er” w as h i tting Tavares with the object. In his subsequent written statem e n t, Barnett identif ied the object as a leg f

rom the broken table in the building’s lobby

. ¶8. At trial, t he State proved t hat, contrary t o Barnett’s claim s, Tavares had never sold
Barnett’s son a car. Rather, about f ourteen m o nths bef

ore Tavares was killed, Barnett’s son bough t a r e d C a d illac f

rom Lindsay ’s Auto Sales, a used c ar d ealer d own the street f rom Tavares Motors. In 2005, Barnett had also purchased a used car f rom Lindsay ’s. ¶9. D r . S teven Hay

n e p erf orm ed Tavares’s autopsy

. At trial, Dr. Hay ne testif ied that t h e r e

wer e n u m e rous bruises, scrapes, lacerations, stab wounds, a nd slash wounds on m ultiple sites

on Tavares’s body , including his f ace, head, neck, b ack, chest, legs, arm s, and hands. Dr.

4Hay

ne testif ied that Tavares’s m ost extensive injuries were to his neck. D r . Hay ne f ound to

a reasonable degree of scientif ic certainty t hat the cause of death was not blunt f orce traum a

or stabbi n g . R ather, he f ound that the cause o f death was strangulation brought on by

com pression of the blood vessels in the neck, which s topped blood f low to t he brain. Dr. Hay ne based h is opinion on the signif icant bleeding he f

ound in the sof

t tissue of the neck, including extensive hem orrhaging around the right and lef t c arotid arteries and the jugular veins. He testif

ied that death would have o ccurred within one and a half to t wo m inutes of

com pression of t he b lood vessels a nd that Tavares would have lost consciousness within f ive

to thirty seconds o f com

pression. Dr. Hay

ne’s opinion w as consistent w ith the crim e scene investigators’ f

i ndings of

blood and hair on the underside of the toilet seat ( s e e supra ¶4). ¶10. The State initially indicted Barnett f or capital m

urder, with robbery as the underly ing
f elony

. 2 On Decem

ber 17, 2 012 , Barnett’s c ounsel f iled three m otions f

or f unds—one f

or “an independent expert in the f ields of cause o f death analy sis and i nvestigation,” one f or “an independent expert i n t he f ields of DNA analy sis and investigation,” and o ne f or a f act investigator. 3 A hearing o n these m otions was held the sam e d ay , a nd t he c ourt granted f unds
f or both a DNA expert and an investigator. ¶11. At the Decem

ber 17 hearing, one of Barnett’s attorney s stated, “[ W ]hat w e would like

t o have is an opportunity

. . . t o have another m edical exam iner g o back and review Dr.

2 T h e S tate later in d icted B arn ett f o r d elib erate d esig n m

u rd er an d ro b b ery an d d ism issed th e cap i tal m

u rd er in d ictm en t.

3 A f o u rth m o tio n f

o r f u n d s f o r a m itig atio n e x p ert b ecam e m o o t af ter th e S tate o p ted n o t to p u rsu e th e cap i tal m u rd er in d ictm en t. 5Hay

ne’s

. . . reports and autopsies and procedures

. . . . You know, there m ay be another possible cause of death t hat would be a nice def ense f or our client.” The district att o r ney

a r g u ed that there was n o b asis f or such an expenditure o f f unds in this case. In resp o n s e , Barnett’s attorney cited only Dr. H ay ne’s general “history ” as a n e x pert and a r gued that she did not “ think it would

. . . b e c ost prohibitive to h ave som e other m e dical exam iner review” his work in this c ase. T he t rial judge noted that the State had o nly recently nam ed a new state

m edical exam iner, and he suggested that the new exam iner review the a u t o p s y . One of
B a r n ett’s attorney s seem ed to agree w ith t his suggestion, but the other stated that he f elt “duty bound” to ask f

or a com pletely independent expert. However, c ounsel was unable to provide a nam e of such an expert, and so the trial judge granted Barnett f our wee k s to provide a nam e and details of the analy sis that the expert would conduct. ¶12. On Decem

ber 31, 2012, t he trial judge signed a n order granting Barnett the f unds “to obtain e xpert a ssistance in the f ield of cause of death analy sis and i nvestigation.” The order also stated, “ The d e f

endant s hall p rovide the court with the nam e and qualif ications of the proposed expert and details of the cost associa t e d w ith the i nvestigation by January 14,
2013.” On January 4, Barnett’s counsel f iled supplem ental inf

orm ation with the court, which provided only the nam e, curriculum vitae, and hourly rate o f his proposed expert. In the supplem ent, Barnett asked “that he be provided adequate f u nding to acquire her services to review the autopsy , cause o f death, and the work of the m edical exam iner in this m atter, and

to provide inf

orm a tion t hat m ay be b e n e f i c i a l to Mr. Barnett.” Barnett’s supplem ent provided no additional detail on the need f or her services in this case.

6¶13. The record is silent as t o w h a t , i f a n y t h i n g , o c c u r r e d between t he f iling of the supplem ental inf

orm ation and a p retrial hearing h eld on May 10, 2 0 1 3

. At the end of the May 1 0 hearing, the f

ollowing exchange occurred:
COUNSEL: The . . . other m otion that was pending was f or an independent f orensic p athologist. The Court ref used to grant u s f

unds f o r that. 4 A nd y o u . . . told us a t the tim e t hat if our investigation led us to believe that t here was s o m e concrete r eason f or one to be appointed. W e wanted one basically to review Dr. Hay

ne’s work due m ainly to the questions and concerns that h ad

. . . been raised about his legitim acy as an expert. COURT: W ell, y o u c an do that on [ a ] Daubert hearing. . . . You can f

ile a m otion and have a Daubert h e a r i ng. And if t hat

. . . reveals som e reason we sh o u l d do that, I will. But y ’all have not f urnished m e any reason why , w h y t h e r e is any debate about whether this is a hom icide or not.
COUNSEL: Okay

. COURT: [ T]he details of Mr. Tavares’s death a r e out there in the autopsy

.

If there is s om e . . . reason to believe that m ay be he was s hot or m a y be s om ebody beat him or m ay be he h ad a heart a ttack, t hen

. . . that w ould be reason f or the r e to be som e independent f orensic pathology

. Y’all have not p resented m e with any thing other than speculation as to it at this point. I am not going to order it on speculation. Now, if y ou want to f

ile a m otion f

or a D aubert hearing on Dr. Hay ne, we c an have a Daubert hearin g. And

. . . if in t hat Daubert hearing som ething com es up that would indicate t hat there needs to be [ an] independent analy sis of it we w ill do that.

. . . . I can’t determ ine what y o u are looking f or.

4 B arn e t t ’ s co u n sel r ef erred to th e m o tio n as b o th “p en d i n g ” an d “ ref u sed .” H o w ev er, as n o ted ab o v e, t h e o n ly m o tio n in th e r eco r d ap p ears to h av e b een co n d itio n ally g ra n ted p er th e trial j u d g e ’s o rd er sig n ed o n D ecem b er 3 1 , 2 0 1 2

. 7COUNSEL: Specif i cally , initially we w ere looking f or a review of his work.
COURT: For what purpose?
COUNSEL: To determ i ne if there is an issue there.
COURT: But y o u g o t t a determ ine what issue y ou are looking f or. . . . [ A]ll that is . . . is a f

ishing expedition is what y ou are doing.

. . . . There’s nothing—y ou’ve produce nothing, no reason to f ish.
COUNSEL: Your honor,

. . . what I would like the opportunity to do is revise

that m otion, ref

ile it, and we can . . . revisit it later.
COURT: Certainly , y o u can f ile whatever y ou w ant to f ile, but until y ’all get m e s o m e m ore specif

ics than what y ou’ve g ot, I m ean y o ur investigator m ay f

ind som e reason t o do that. But y ou’ve got to have s o me f

a c tual basis to do that. And there a gain, y ou can have a Daubert hearing. I p ref er the Daubert hearing to be pretrial. W e will get Dr. Hay ne up here.

. . . . If som ething com es out of

that, then I will be m ore than happy to give y ou a n independent pathologist. But just t o do it just to say we did it f

or no r e a s o n , I a m not going to d o that a t this point.

. . . . I m ean if it’s an issue , I will g et som ebody to c heck the issue. But

. . . this is way too general f or m e to o rder that at this tim e. I am not going to do that at this tim e. ¶14. Desp i t e t h e j u d g e ’ s r e p e a t e d s u g g e s t i o n s t h a t B a r n e t t r e q u e s t a Daubert hearing—which the judge specif ically of f ered to h old p rior t o trial—as a m eans of exploring his alleged need f

or a n independent expert, Barnett ne v e r r e q u e s ted such a hearing at any

8tim e prior to his trial in October 2013. Nor d id Barnett ever “revise” and “ref ile” t he m otion
f or f unds or seek to “revisit [ the i ssue] later,” as counsel indicated he would. Rather, af ter the trial j udge advised that he was not going to grant Barnett any f unds “at this tim e,” the issue was sim

ply abandoned. On the day of trial, Barnett’s counsel announced that Barnett was “withdraw[ ing] any

other m otions that we m ay have pending bef

o re the court.” ¶15. During Barnett’s two-day trial, the State called Cindy Tavares, Dr. Hay ne, the county

coroner, m em

bers of the K osciusko Police Departm ent, the crim e scene i nvestigator f rom the Mississippi Bureau of Investigation, two analy s t s f rom the state crim e lab, and the owner of Lindsay ’ s A u t o S a l e s. The jury f ound Barnett guilty o f d eliberate design m urder but not guilty of robbery

. 5 The trial judge then sentenced Barnett to lif e without parole, as required by statute. ANALYSIS ¶16. Barnett raises only o ne issue on appeal. He claim s t hat the trial court erred by deny ing
him f unds to hire an independent f orensic pathologist to rebut t he testim o ny of t h e S t a t e ’ s witness, Dr. Hay

ne. Barnett argues that he was e ntitled to f unds f or h is i ndependent expert because Dr. Hay

ne’s testim o ny

was the State’s sole basis f or proving the deliberate design elem ent of

the m urder charge. For the reasons that f ollow, we disagree.
A. The Constitutional Right to Ex pert Assistance at State Ex p ense

5 T h e ev id en ce o f ro b b ery w as th at T av ares’s w allet (in w h ich h e u su ally k ep t $ 3 0 0 to $ 5 0 0 ) an d h is p o ck etk n if e w ere m issin g an d n ev er reco v ered

. A t trial, B arn ett called o n e w i tn ess w h o t estif

ied th at h e saw so m eo n e else ru n n in g f ro m T av ares M o to rs th e af tern o o n th at T a v a r e s w as k illed

. B arn ett’s atto r n ey s arg u e d t h at th is u n id en tif ied m a n m ay h av e sto len T av ares’s w allet so m e tim e af ter B arn ett k i lled h im

. 9¶17. “W hether an indigent def endant m ust be provided expert f

unding is d ecided on a caseby -case basis, and we review this issue f or an a b use of discretion.” Barksdale v. State , 2013-KA-01949-COA, 2015 W L 1528975, a t *4 ( ¶18) ( Miss. Ct. App. A pr. 7, 2015) (citing
Lowe v. State , 1 2 7 So. 3d 1 78, 183 (¶20) (Miss. 2 013)). “[ A] trial court m ust provide expert assistance to an indigent def endant when denial o f such assistance would render the trial
f undam entally

unf air.” Id. (quoting Lowe , 127 So. 3d at 181 (¶13)). Thus, while the State need n ot “purchase f

o r the indigent def

endant a ll t he a ssistance t hat his w ealthier counterpart

m ight buy ,” he m

ust have “access to the raw m aterials integral to the building of an ef f ective def ense.” Ake v. Oklahoma , 470 U.S. 68, 77 (1985). ¶18. However, “[ t ]his does not ‘m ean that an expert m ust be s upplied any t im e an indigent def endant requests o ne.’” B a rksdale , 2015 W L 1528975, at *4 (¶18) (quoting Fisher v. City of Eupora , 587 So. 2d 878, 883 (Miss. 1991)). Rather, “[ a]n i ndigent’s right to def ense
expense s i s ‘conditioned u pon a showing that such expenses are needed to prepare and present an adequate d ef

ense.’” Green v. State , 631 S o. 2d 167, 1 71 (Miss. 1 994) (quoting Ruffin v. State , 447 So. 2d 113, 118 (Miss. 1984)); accord, e.g. , K i n g v. S tate , 960 So. 2d 413, 422 (¶10) (Miss. 2007) (def endant m ust e s t a b l i s h a “substantial need” f or expert assistance). “Concrete reasons f o r requiring an e xpert m

us t b e p r o vided by the accused.”
Green , 6 31 So. 2d at 171 (citing Hansen v. S tate , 592 So. 2d 114, 125 (Miss. 1991)). Accordingly , a court does n ot a b u se its d iscretion by deny i ng f unds when an indigent def endant of f e rs only “unsubstantiated assertions that assistance would be be n ef icial.”
B r o w n v
. State , 152 So. 3d 1146, 1166 (¶90) (Miss. 2014) (quoting Harrison v
. S tate , 6 3 5

1 0So. 2d 894, 901 (Miss. 1994)); see also Caldwell v. Mississippi , 472 U.S. 320, 323 n.1 (1985)

(“Given that [ the i ndigent def endant] of

f ered little m ore than undeveloped assertions that the requested [ expert] a ssistance w ould be benef icial, we f ind no deprivation of due process in the trial judge’s decision [ deny ing f unds].”). ¶19. W h en an indigent def endant is denied expert assistance despite having articulated a

concrete need f

or it, our Suprem e C o u r t h a s identif ied several f

actors a s r elevant to “determ ining whether [ he] was denied a f air trial because of t he f

ailure to appoint or allow
f unds f or an expert.” Townsend v. State , 847 So. 2d 8 25, 829 (¶13) (Miss. 2003). “[ S]om e of the f actors to consider are whether and to what degree t h e d e f e n d ant had access to the State’s experts, whether the def endant had the opportunity to cross-exam ine those experts, and lack of p rejudice or i ncom petence of the State’s experts.” Id. (citing Fisher , 587 So. 2d

at 883). “[ The Suprem e] Court has also considered to what extent the State’s case depends
upon the State’s expert, and the risk of error in resolving the issue f or which the expert is requested.” Id. (citing Tubbs v. State , 402 S o. 2d 830, 836 (Miss. 1981); Johnson v. State , 529 So. 2d 577, 5 9 2 ( M i s s . 1 9 8 8)); see a lso Brandon v. S tate , 109 So. 3d 128, 133 (¶16) (Miss. Ct. App. 2013) (trial judge properly “considered the f

actors f r om Townsend

”). 6 ¶20. Barnett argues that he w as entitled to an independent f orensic pathologist, at county
expense, because the State relied on Dr. Hay ne’s testim ony to prove the deliberate design elem ent of the m

urder charge. Barnett principally relies o n three recent Mississippi Suprem e Court decisions on the scope of an indigent def

endant’s right to expert assistance at public

6 B arn ett recites th ese f

acto rs in h is o p en in g b rief b u t o n ly ad d r esses th e sig n if ican ce o f D r. H a y n e’s testim o n y

to th e S tate’s case.

1 1expense: Lowe v
. S t ate , 7 Brown v. State , 8 and I sham v
. State

. 9 However, Barnett’s reliance

on these three decisions—which we discuss in detail below—is m isplaced, as all three are distinguishable in relevant and signif icant respects.
B. The Mississippi S upre me C ourt’s Recent Decisions in Lowe , Brown , and Isham ¶21. Brown and Isham each i nvolved a y ou n g c h i l d ( s i x m o nths o ld and two y ears old, respectively ) rushed t o the h o spital with s e r i ous internal injuries, but no visible external injuries, af

ter being a l one in the care of a parent o r stepparent. See I sham , 161 So. 3d at 1077-78 (¶¶2-8); Brown , 152 So. 3d at 1149-50 (¶¶2-6). In Brown , Dr. Hay n e testif ied that the child’s i njuries were consistent w i t h “ S h a ken Baby Sy n drom e,” a nd in I

sham experts testif i ed t hat the child’s injuries w ere caused by abusive blunt f orce traum a to the head, rather than a n accidental f

all or som e other cause. See Isham , 161 So. 3d at 10 7 9-80 (¶¶14-17);
Brown , 1 52 So. 3d at 1155-58 ( ¶¶41-49). I n each case, the def endant d e n i e d h aving ever

7 L o w e , 1 2 7 S o . 3 d at 1 8 1 (¶1 3 ) ( “ [ T ] h e c i r cu it co u rt d ep riv ed L o w e o f a f u n d am en tally f

air trial b y d en y in g h i m th e assistan ce o f a c o m p u t er f o r en sics e x p ert w h en th e S tate relied ex clu siv ely o n its o w n ex p ert to id en tif y L o w e a s th e p erp etrato r[ .] ”).

8 B ro w n , 1 5 2 S o . 3 d at 1 1 6 7 (¶9 3 ) (“D r. H ay n e o f f ered th e o n ly ev id en ce o n b o th th e u n d erly in g f

elo n y o f ch ild ab u se an d th e cau se an d m an n er o f d e ath , an d B ro w n h ad n o w ay to reb u t it.”).

9 Ish a m v. S ta te , 1 6 1 S o . 3 d 1 0 7 6 , 1 0 8 3 ( ¶3 4 ) (M iss

. 2 0 1 5 ) ( d e n ial o f ex p ert assistan ce v io lated d u e p ro cess b ecau se it w a s “u n q u estio n a b le t h a t t h e S tate’s ex p erts w ere th e o n l y so u rce o f testim o n y co n cern in g . . . essen tial co m p o n en ts o f t h e p ro secu tio n ’s p ro o f ,” i.e., p ro o f th at Ish am p h y sically ab u sed h is step c h ild an d cau s ed h is in j u ries “to th e ex clu sio n o f ev ery reaso n a b le h y p o th esis co n sisten t w ith i n n o cen ce”); see a lso id

. at (¶3 3 ) (“T h e m an d ate o f L o w e an d B ro w n is ab u n d an tly clear: if th e S tate relies o n e x p ert testim o n y alo n e to p ro v e o r co rro b o rate an elem en t o f th e crim e, th e n th e d ef en d an t is en titled to an ex p e rt to assist in h is d ef en se an d p rep aratio n f

o r cro ss-ex a m in atio n .”). 1 2abused the child, and there were n o witnesses to any alleged abuse. T hus, in each case, the

prosecution’s case was p u rely circum s tantial and rested entirely o n whether the jury believed its experts. See Isham , 161 So. 3d at 1083 (¶34); B rown , 152 So. 3d at 1164 (¶83). ¶22. In Brown , the Court held that the trial court’s denial o f f unds f o r a d ef e n se e xpert was

an ab u s e o f discretion a nd a denial of d ue process because “D r. H ay n e o f f ered th e o n ly

ev id e n c e o n b o th th e u n d erly in g f elo n y o f ch ild ab u se an d th e cau se an d m an n er o f d eath ,

an d B ro w n h ad n o w ay to reb u t it.” B ro w n , 1 5 2 S o . 3 d at 1 1 6 7 ( ¶9 3 ) ( em p h a sis a d d ed ); see

a lso id

. a t 1 1 7 0 (¶1 0 7 ) (K itch e n s, J

. , j o in ed b y all o th er Ju s t ices, sp e cially c o n cu rrin g ) (“U tilizatio n o f a n ex p ert w itn ess w as th e o n ly w ay th at B r o w n co u ld d e f en d h im self ag ain st th e testim o n y o f D r . H ay n e.”). In d eed , th e C o u r

t reaso n ed th at, g iv en t h e n atu re o f D r. H a y n e’s testim o n y i n th at c ase, B ro w n n eed ed h is o w n ex p ert “ev en to d eterm in e th e p ro p er
q u estio n s to ask to ch allen g e [ h im ] o n cro ss.” B ro w n , 1 5 2 S o . 3 d a t 1 1 6 6 (¶9 2 ) (m aj o rity

o p in i o n ). ¶23. N o tab ly , in B ro w n , th e S u p rem e C o u rt spe c i fi c a l l y distin g u ish ed B ro w n ’s claim f r o m th e claim th at t h i s C o u rt rej ected in M cF a d d en v. S ta te , 9 2 9 S o . 2 d 3 6 5 (M iss. C t. A p p . 2 0 0 6 ). S ee B ro w n , 1 5 2 S o . 3 d at 1 1 6 7 (¶9 4 ). M cF a d d en also i n v o lv ed alleg atio n s o f ch ild ab u se, w ith D r. H ay

n e as th e S t ate’s ex p ert w itn ess. S ee M cF a d d e n , 9 2 9 S o . 2 d at 3 6 7 -6 9 (¶¶3

- 1 4 ). H o w e v er, in th at case, w e af f irme d t h e trial c o u rt’s d en ial o f ex p ert assistan ce, f i n d in g th at th e d ef

en d a n t h ad f

ailed to sh o w th at su ch assistan ce w as n ecessary t o h i s d ef en se. S ee id

. at 3 6 8

- 6 9 (¶¶9 -1 4 ). A n d in B ro w n , th e S u p rem e C o u r t sp ecif ically

reco g n i zed th at M

cF a d d en w as d istin g u ish ab le f

o r t w o reaso n s: u n lik e B ro w n , M cF ad d en

1 3(1 ) “h a d ch a n g ed h i s sto ry sev eral tim es ab o u t

h o w th e in

j u ries to t h e ch ild o ccu rred ” an d also (2 ) a d

m itted t o h av in g c au sed th e ch ild ’s d eath an d d isp u ted o n ly th e p recise m an n er

o r cau se o f

d eath

. B r o w n , 1 5 2 S o . 3 d at 1 1 6 7 (¶9 4 )

. ¶24. O n e y ear later, th e S u p r em e C o ur t a ppl i e d Br own ’ s r e a so n in g to I sh a m ’s s im ilar f

acts.
T h e C o u rt said th at B r o w n ’ s “ ma n d a t e . . . is clear: if th e S tate relies o n ex p ert testim o n y alo n e t o p ro v e o r co rro b o rate an el e me n t o f th e crim e, th en th e d ef en d an t i s e n titled to an

ex p ert to a ssist in h is d ef en se an d p rep aratio n f

o r c r o ss-ex am in atio n .” I sh a m , 1 6 1 S o . 3 d

at 1 0 8 3 (¶3 3 ). A s in B ro w n , b e cau se “th e S tate’s ex p erts w e re th e o n ly so u rce o f

. . . p ro o f ” th at th e ch ild ’s in

j u ries r esu lted f

ro m ab u se an d n o t so m e o t h e r cau se, th e d ef en d an t w as

en titled to ex p ert a s s i s t a n c e o f h is o w n a s a m atter o f d u e p ro cess. Ish a m , 1 6 1 S o . 3 d at 1 0 8 3 (¶3 4 ). B ecau se “[ t] h e S tate co u ld n o t h av e p ro v ed its case a g ain st Ish am w i t h o u t

ex p ert testim o n y , . . . th e trial c o u rt d ep riv ed Ish am o f h is rig h t to a f air trial w h en it d en ied
h im f u n d s to p ro c u re o p p o sin g ex p erts.” Id. at 1084 (¶38). Moreover, Isham had provided the trial judge with concrete reasons why h e needed f u nds f or an expert b y i dentif

y ing experts who would of

f er specif ic alternative causes (m edical conditions) f o r the child’s injuries. See id. at (¶37). ¶25. Finally , Lowe was a d if f erent ty pe o f case but involved a sim ilar need f or an expert. Lowe was c h a r g e d with downloading child pornography to his com p uter, but he of

f ered proof t hat num e r o u s o t hers had a ccess to a nd used his com p uter. See Lowe , 127 So. 3 d at 179-80 (¶¶3-9). N o w i t nesses claim ed personal knowledge that Lowe downloaded such

m aterial; rather, t he State’s c ase rested entirely on its expert’s opinion t h at the “digital

1 4f

ingerprint”—i.e., the t im e s, p asswords, and networks tha t t h e e xpert associated with the downloads—“pointed to Lowe a s the individual w ho had d ownloaded the f iles.” Id. at 180- 81, 1 83 (¶¶11, 21). W hen Lowe initially requested f unds f or expert assistance, the trial court directed his attorney to speak w ith the State’s expert f irst; however, the State’s expert ref used

to discuss the specif

ics of his f

orensic analy sis an d was unwilling to m eet until two weeks prior to t he trial date. Id. at 1 80 (¶7). Nonetheless, the trial court denied Lowe’s request f or f unds. Id. at (¶8). ¶26. On appeal, the Su p r e me C o u r t held t hat the trial court’s denial of Lowe’s renewed

m otion f or expert assistance was an abuse o f discretion b ecause “the State relied solely on

. . . its expert to establish that the f iles e xisted on Lowe’s laptop a nd that Lowe, rather than another individual using his laptop, downloaded the im ages f rom t he i nternet.” I

d. a t 1 83 (¶21) ( em phasis added). Put sim

ply , “the State could not have convicted Lowe” without the expert, and y et Lowe had no reasonable m eans of cross-exam i ning him or rebutting his testim o ny . Id. a t (¶¶21-22). The Supreme C o u r t also em phasized that “Lowe’s counsel repeatedly e xplained to the trial court

. . . specific needs f or an independent e x p e r t i n

com puter f o r e n s i c s ” —i.e., “to exam ine t he com puter’s hard drive and to r ef ute the State

e x p e rt’s allegations that the hard drive contained [ child pornography ],” and “to determ in e who downloaded the content and under what user nam e a nd p a ssword.” Id. at (¶22) (em phasis added).
C. Whether Barnett p rovided concrete reasons w hy he needed e x pert assist a n c e and w hether the denial o f such assistance rendered his trial fundam e ntally unfair.

1 5¶27. At the outset, we are tem pted to conclude t hat Barnett waived his only claim o n appeal by f ailing to develop it i n the trial court. As discus s e d a b o v e , t h e trial judge s pecif ically urged Barnett to notice a hearing at which he c ould cross-exam ine Dr. H ay ne a n d thereby develop his need, if any , f or i ndependent expert assistance. For ins t a nce, the trial judge stated, “[ Y]ou c an have a Daubert hearing [ prior to trial].

. . . W e will get D r . H a y ne up here.” The judge c ontinued, “If som ething c om es out of t hat, then I w ill be m ore than happy

to give y ou an independent pathologist.” T he judge explained that he thought that a hearing

was necessary because he could not “ d e t e r m i ne what [ Barnett’s was] looking f or”—i.e., what assistance Barnett thought a n expert could pr o v i d e . The judge’s com m ents are certainly understandable given that B arnett did not seem to know eit h e r . A t t he f i rst hearing on the

m otion, his a ttorney s of

f ered only speculation that “there m ay be another possible cause of death that would b e a nice d ef ense.” Months later, counsel still cou l d o n l y s a y t hat they wanted a “review” “[ t]o determ ine if there [ w as] any i ssue.” T he judge responded that this

was “way too general,” and so h e was not going to grant the request “at this tim e”—and he again urged Barnett to notice a hearing. Barnett’s counsel said that he would “revise” and “ref ile” the m otion, but he never did. The trial judge’s urging t o develop t he record and his of f ers to hold a hearing were sim ply ignored. ¶28. Moreover, “[ t ]he well-recognized rule is that a trial court will not be put in error on appeal f o r a m atter not presented t o it f or decision.” Moffett v. State , 49 S o. 3d 1073, 1088 (¶41) (Miss. 2010) (quoting Mills v. Nichols , 467 So. 2d 924, 931 ( Miss. 1985)). I n this case, i t i s f a r f rom clear that the issue raised on appeal i s the sam e “m atter

. . . presente d t o [ t h e

1 6trial judge] f or decision.” Id. On appeal, Barnett argues that an independent expert m ight have disagreed with Dr. Hay ne’s f inding that Ta v a r e s w a s strangled, w hich m ight have bolstered Barnett’s “theory of

. . . m anslaughter.” F or reasons explained below, we f ind this
argum ent unpersuasive, b ut we f irst note that the issue was n ever a rticulated t o t he trial judge
in t hese term s. Again, d ef ense counsel sim

ply stated that they wanted som eone to “review”
Dr. Hay ne’s o pinions o r that som e o t h e r “ p ossible c ause of death” m ight be helpf ul to Barnett in som e unspecif

ied way . The trial judge questioned whether there was “reason to believe t hat m ay

be [ Tavares] was shot o r m ay be som ebody beat him or m ay be he had a heart attack,” but Barnett p r ovided no clarif ication in response. Prior t o trial, Barnett never articulated his t heory o f the d ef ense o r why he t hought the precise cause of death was im p ortant in this case; rather, he s im ply asked t he trial judge to rule that he was entitled to
f unds f or an independent f

orensic pathologist because Dr. Hay ne was the State’s expert. ¶29. Thus, B arnett not o n ly f ailed to avail him self of the trial judge’s express i nvitation to develop the f

actual basis o f h i s c laim but also f ailed to present the claim to the trial judge with a ny d egree of particul a r i t y . This arguably am ounts to a w aiver of the claim

. In any event, it clearly d em onstrates t hat Barnett f ailed to m eet his burden of showing a “substantial need” f or expert assistance. King , 960 S o. 2 d at 422 (¶10). “Concrete reasons f o r requiring

a n e x p e r t m u s t b e p rovided by the accused.” Green , 631 So. 2d a t 171 (em phasis added).
Barnett f a iled to support his m otion with any concrete reasons. Because Barnett m ade only “unsubstantiated assertions t hat assistance would be benef icial,” the trial judge did not abuse his d iscretion b y

deny ing the request f

or f u nds. Brown , 152 So. 3 d a t 1166 (¶90) (quoting

1 7Harrison , 635 So. 2d at 901); a c cord Caldwell , 4 72 U.S. at 323 n.1. I ndeed, in a p rior case

in w hich the only “reason given f or [ trial] counsel’s request f or a state-f

unded expert was that she w anted to challenge D r. Hay n e’s autopsy ,” we af

f i rm ed the trial judge’s ruling that the d e f e ndant had “f

ailed to show a concrete need why a state-f unded expert [ should ] b e provided.” Brandon , 109 So. 3d at 132-33 (¶¶15-16). ¶30. Barnett’s f

ailure to provide any concrete need f or a n expert di s t i n g u i s h e s this case
f rom Lowe , Brown , and Isham

. The def endant in Lowe explained that he needed an expert
to rebut the State’s expert testim ony that child pornography was downloaded to his c om puter and that he, as opposed to som eone else, had downloaded it. Lowe , 1 27 S o. 3 d at 183 (¶22).
In both Brown and Isham , the def endant needed an expert to rebut the State’s expert testim o ny that the victim ’s injuries were t h e r e s u lt of c hild abuse, r ather than som e other

cause. See Isham , 161 So. 3d at 1084 (¶¶36-37); Brown , 152 So. 3d at 1166-67 (¶¶92-94). Here, in c ontrast, B arnett sim ply asserted—without explanat i o n

— that an expert m ight identif y som e o ther possible cause of death which m ight be helpf u l to him

. Such assertions are insuf f i cient to establish a substantial need f or the testim ony . ¶31. Moreover, the cases on w h i c h B a r n e tt relies are also d istinguishable because the
State’s case against Barnett did not rest entirely o r even prim arily on Dr. Hay ne’s testim ony . Barnett argues t hat he is entitled to r e lief u nd e r t h e h o ldings of Lowe , Brown , and Isham because the State r elied solely on Dr. Hay ne’s testim ony to prove t he deliberate d e s i gn elem ent of the m

urder charge. Specif

ically , Barnett em

phasizes that in h is closing a rgum ent, the assistant district attorney characterized Dr. Hay ne’s testim ony t hat Tavares was strangled

1 8as “ the m o st dam ning e vidence” against Barnett. However, although the assistant district

attorney ultim ately t u r n ed to Dr. Hay ne’s testim ony , he f

irst em phasized the m any inconsistencies and apparent contradictions in Barnett’s own version of events as w ell as the brutal nature of t he attack as a whole—the signif icant b lood throughout the lobby and bathroom , including a large p ool of blood in the lobby area, and the num erous wounds that
Bar n ett inf

licted o n Tavares bef

o re he died. Thus, although Dr. Hay ne’s testim ony was certainly cited as evidence, it was f ar f r om the only evidence that the State of f ered to convict Barnett of

deliberate design m

urder. ¶32. DNA evidence placed Barnett at the scene, and—af ter he changed his story m ore than
once—Barnett adm itted that he killed Tavares. Specif ically , h e a dm itted b eating Tavares to the ground and then pouring Clorox on h i m as he l ay m otionless on the bathroom f loor. Thus, Barnett’s own c hanging statem ents to law enf o rcem ent provided am

ple evidence that he m urdered T avares. As the Suprem e C ourt recognized in Brown , o n ce th e d ef en d an t h as

n o t o n ly ad m itted th at h e k illed th e v ictim b u t also “ch an g ed h is sto ry sev eral tim es ab o u t h o w t h e [ crim e] o ccu rred ,” ex p ert testim o n y c o n cern in g th e p recise cau se o f d eath i s n o lo n g e r so essen t ial to th e S tate’s case th at t h e d ef en d a n t is e n tit l e d to f

u n d s f o r an ex p ert.
B r o w n , 1 5 2 S o . 3 d a t 1 1 6 7 (¶9 4 ) (citing M cF a d d e n , 9 2 9 S o . 2 d at 3 6 7 -6 9 (¶¶3 -1 4 )); see also
Lowe , 127 So. 3d at 184 (¶24) (holding that a def endant is entitled to his own expert where “the State relies on expert testim ony alone to connect the def e n dant to the o f

f ense charged” (em phasis added)). ¶33. Bey ond B arnett’s own sta t e me nts, additional e vidence supported the jury ’s verdict

1 9f

inding Barnett guilty of deliberate design m u rder. As our Suprem e Cou r t h a s e xplained, “Deliberate design to kill a person m ay be f o rm ed v ery quickly , and p erhaps o nly m om ents bef ore the act of c onsum m ating the intent.” Brown v. S t ate , 965 So. 2d 1 023, 1030 (¶28) (Miss. 2007) (quotation m arks and brackets om it t e d )

. Deliberate d esign “m ay be inf erred through the intentional use of any instrum e nt which, based o n its m anner of use, is calculated

to produce death or serious bodily injury .” Id. The blood and hair f o und on the u nderside of t he toilet seat indicated t hat the seat had been f o rced down o n Tavares’s head. The blood that had pooled and spattered throughout the lobby and bathro o m a n d Tavares’s m any injuries showed that B arnett beat Tavares brutally and t horoughly

. In a d dition, alm ost all of the blood a t the crim e scene was Tavares’s, and crim e scene investigators recovered only one

sm all sam ple of Barnett’s DNA. Barnett him self told law enf orcem ent that Tavares never hit him (or m ay

be hit him o nce) and did not injure him

. Af ter Barnett h ad killed Tavares, he washed his hands and poured Clorox on t he body bef ore leaving. All of

this was evidence of deliberate design m

urder. 10 Thus, unlike in Lowe , Brown , and Isham , the expert testim ony in this case was f

a r f rom the only evidence on which the State relied to prove its case. ¶34. This case is also distinguishable f rom L o w e , B r o wn , and Isham in that Barnett was able to a dvance his theory of d e f e nse through “ rigorous c ross-exam i nation” o f Dr. Hay ne. I sham , 1 61 So. 3d at 1084 ( ¶34). This case did n ot involve com plex or highly technical

10 See, e.g. , W

estbrook v
. State , 29 So. 3d 8 28, 832 ( ¶11) ( Miss. Ct. A pp. 2009) (jury could inf er deliberate design f

rom the f act that the def

endant struck the unarm ed victim three tim es with a baseball bat); Wrig h t v. S ta te , 9 1 5 S o . 2 d 5 2 7 , 5 3 1 (¶8 ) (M i ss. C t. A p p . 2 0 0 5 ) (j u ry co u ld in f

er d elib erate d esig n f

ro m th e sev erity o f th e v ictim ’s i n j u r i e s an d th e d ef en d a n t ’s u se o f

a b r o k en b o ttle an d w o o d en tray ). 2 0issues of com puter f orensics a nd “digital f

ingerprinting,” the validity or applicability of “Shaken Baby Sy

n drom e,” or a claim that a s m all child’s unwitnessed internal injuries were the result of a m edical condition. The issue at trial w as whether deliberate design could be
inf erred f rom the evidence of a brutal killing to which Barnett adm i tted. Barnett’s counsel

was able to advance Barnett’s position on this issue through c r oss-exam ination of Dr. Hay ne. For exam p le, Dr. Hay

ne adm i tted o n c r o s s -exam ination that he c ould testif y only that his
f indings were “consistent with strangulation,” which he acknowledged m eant that there was

som e degree o f u n certainty as to the cause of

death. Dr. Hay

ne also adm itted that som e of the usual s igns of strangulation were not present—f or exam p le, t here w as no def

initive line around t he neck and no apparent f acial swelling. Thus, Barnett’s theory of what t he phy sical evidence s h owed—that he beat Tavares brutally and thoroughly but w ithout m alice or deliberate design—was f

airly p r e s e n t e d through c ross-exam ination. See King , 960 So. 2d

at 422-23 (¶10) (def

e ndant f ailed to show a s ubstantial n eed f or an indepen d e n t expert pathologist where th e S t ate’s e xpert adm itted on cross-exam ination that the def endant’s theory was possible); King v. State , 784 So. 2d 884, 888-89 (¶15-18) (Miss. 2001) (sam e). ¶35. Finally , “whether and to what degree t he def endant had access to the State’s experts” is a f actor to be considered in determ ining whether there is a substantial need f or f unds f or

an independent e xpert. McFadden , 929 So. 2d at 368 (¶12) (citing Townsend , 847 So. 2d at 829 (¶13)). In this c ase, as discussed above, the trial judge of f ered Barnett an opportunity

to explore Dr. Hay

ne’s o pinions at a pretrial h e a r i ng. S ee W ilkerson v
. State , 731 So. 2d 1173, 1 179 (¶19) ( Miss. 1 999) (trial judge’s orders granting t he def endant an opportunity to

2 1depose all of t h e State’s expert witnesses weighed against the need f or a n independent expert). That B arnett f

ailed to avail him self of that opportunity does not alter the f act that the court expressly

of f ered him m eaningf

ul pretrial access to Dr. Hay n e. 11
CONCLUSION ¶36. T h e t r i a l judge did not abuse his discretion b y deny ing Barnett’s m otion f or public
f unds to r etain an independent f o rensic pathologist. First, the trial j udge’s ruling was not an

a b u s e of discretion because Barnett of f ered n o concrete reason why such a ssistance wa s
necessary to an adequate def ense—indeed, Barnett arguably waived t he claim by f ailing to develop t he issue and articulate the claim clearly in the t rial court. Second, the trial judge’s ruling was not an abuse of discretion because Dr. Hay ne’s testim ony was not essential to the
State’s case, the State presented am ple additional evidence of deliberate design, Barnett was able to present his theory of m anslau g h t e r through c ross-exam ination, and Barnett was of f ered m eaningf

ul pretrial a ccess to Dr. Hay ne. Accordingly , we f

i nd n o error and af

f irm Barnett’s conviction and sentence. ¶37. THE JUDGMEN T O F T H E CIRCUIT COURT O F ATTALA C OUNTY OF CO N V I C T ION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF

11 T h e S u p rem e C o u r

t h as also listed t h e “lack o f p r ej u d i ce o r i n co m p eten ce o f th e S tate’s ex p erts” a s a f

acto r t o b e c o n sid ered

. T o w n sen d , 8 4 7 S o . 2 d a t 8 2 9 ( ¶ 1 3 )

. Wh ile

“ [ w ] e a ck n o w led g e t h at D r. H ay n e’s w o rk h as receiv ed criticism , ” “w e n o t e [ th at ] t h e [ S ] u p r em e [ C ] o u r

t [ h as] m ad e ab u n d an tly clear t h a t ‘ D r. H a yn e is q u a l ified to p ro

ffer exp ert o p in i o n s i n f

o r e n sic p a th o lo g

y [ .] ’” C o o

p er v
. S ta te , 7 6 S o . 3 d 7 4 9 , 7 5 5 (¶2 4 ) ( M iss. C t. A p p . 2 0 1 1 ) (q u o tin g Edmonds v. State , 955 So. 2d 787, 7 92 (¶8) (Miss. 200 7 ) ) ( e mp h asis added in Cooper ). “And since Edmonds , the [ S]uprem e [ C]ourt has consistently f ound Dr. Hay ne qualif i e d to r e nder expert opinions in the f ield of f orensic pathology i n crim inal cases.” Cooper , 76 So. 3d at 7 55 (¶24) (collecting additional cases). Dr. Hay ne’s opinions in this case were restricted to issues of f orensic pathology , and Barnett did n ot object to his being allowed to testif

y as an expert in that f

ield. 2 2THE MIS S I S S I P PI D EPARTMENT OF C ORRECTIONS IS AFFIRMED. ALL

COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA COUNTY. LEE, C.J., IRVING AND GRIFFIS, P .JJ., B A R N E S , I SHEE, CARLTON, MAX W ELL, FAIR AND JAMES, JJ., CONCUR.

2 3