IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-01375-COA TAMEKA SMITH A/K/A TAMEKA MARQUIETA SMITH A/K/A TAMEKA M. SMITH APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 08/14/2015 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 07/24/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ. CARLTON, J., FOR THE COURT: ¶1. On October 16, 2013, Tam eka Sm ith was i ndicted b y a Forrest County g rand jury on

one count of arm ed robbery of a Dollar General s t ore on J une 5, 2013. The case p roceeded

to t rial on March 18, 2015, and the jury f ound Sm i th gui lty of arm e d robbery

. Sm ith was sentenced to serve twenty y e ars in the custody of t he Mississippi Departm ent of Corrections (MDOC), with twelve y ears to serve, eight y ears suspended, and f ive y ears of

post-release supervision. ¶2. On appeal, S m ith asserts that (i) the trial court erred i n overrulin g S mi t h ’s Batsonobjection; (ii) prosecutorial m i sconduct d uring closing argum ents violated Sm ith’s right to

a f air trial; (iii) testim ony f

rom the State’s witness, Detective Casey Sim s, violated Sm ith’s Sixth Am e ndm e nt Conf

r ontation Clause right to conf ront a d v e r s e witnesses; (iv) the trial

court erred in ref

u sing Sm ith’s r e q u e s t e d jury instruction on t he def ense’s theory of

m isidentif

ication; and ( v) the trial court erred in allowing the State to i ntroduce CD exhibits in envelopes containing written notations. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶3. This case con c e r n s a n a r me d robbery of a Dollar General store n ear Hattiesburg, Mississippi, on June 5, 2 0 13, at a round 8 p.m . Store m anager Paige Arnold and c ashier Kelly
Jam es were working at the Dollar General that night. Arnold was the State’s f irst witness. She testif ied that she was on the t oothpaste aisle when a wom an in a gray hoodie with a white towel over her f

ace approached her and said she had a toothache. Arn o l d t e stif ied that she

was 5' 9 1⁄2" tall, and she guessed that the wom an was around 5' 6" tall. Arnold showed the

wom an where the oral pain m edications were, then resum ed straightening up the t oothpaste aisle. Later, the cashier, Kelly Jam es, accom p anied t he s am e wom an to the toothpaste aisle, and showed her the sam e m edicine Arnold had shown her. Kelly returned to her register at the f ront of the store. ¶4. About ten m inutes later, a custom er approached Arnold a nd said she w as needed up f ront. Arnold testif

ied that she walked t o the f ront of the store, a nd the f

e m ale custom er f

rom
t h e toothpaste aisle told her she did not have the m o ney to buy the m edicine a n d n e e d e d
A r n old t o cancel the transaction, which Arnold did. The custom er was standing of f to t h e

2side when Arnold opened the cash register. A rnold testif ied that the f

em ale c ustom er ran between her and Jam es (the cashier) and started grabbing m oney o u t of the cash register. Arnold te s t i f

ied that she jum

ped on the wom an’s back a n d started taking the m oney back
f rom her, and Jam es also started grabbing the m oney back f rom the wom an. ¶5. Ac c o r d i n g t o A r n o l d, the wom a n dragged Arnold and Jam es outside, and Arnold pulled o f f the wom an’s jacket and towel and l ooked at the wom an. The wom an g ot in a car, and Arnold got a description of the vehicle and t h e vehicle’s tag num ber. Arnold recalled she watched t h e wom an f o r a b o u t a m inute while she w as in her c ar because t here was another car entering the p arking lot, so the wom an had to w ait to leave. A rnold t estif ied that she and the wom an m ade ey e contact as the w om a n drove away . Arnold called 911 and gave

a description of the wom an and the car and gave the tag num ber of the vehicle. 1 Arnold then waited f or the police to arrive. ¶6. The State showed A rnold several photographs, i ncluding a p hoto o f the vehicle driven by the wom an and the vehicle’s license plate (JDM 592). Arnold identif ied the vehicle and the license plate as the on e s i n v o l v e d in the arm e d r obbery

. A copy of the D ollar General surveillance video of the crim e w as presented, as was a r ecording of A rnold’s 911 call; both were play e d f

or the jury

. ¶7. Arnold test i f

ied that she was shown a photo lineup three day s af ter the robbery

and she was 80 percent s ure when she identif ied Sm ith. She explained in her trial testim ony that

1 A rn o l d to ld th e 9 1 1 d isp atch e r th at a w o m an ro b b ed th e sto re an d l ef t in a v eh icle w i th a Jef f erso n D a v i s C o u n t y tag w ith licen se p late n u m b er “JD M 5 2 9 o r 5 9 2 .” A rn o ld testif i ed th at s h e is d y s lex ic, s o sh e “alw ay s m ak e[ s] su r e t h a t if I th in k I h a v e a n u m b er rev ersed , I g iv e b o th n u m b ers.” 3“I t old Detective Sim s, m y gu t instinct is 80 percent sure it was the def endant; 20 percent

sure it w as the other person.” According to A r n o l d , the reason she did an eighty percent identif ication was that “[ t]here was . . . another person in the lineup that had been in m y store earlier that day that I went and d i d the police l ineup. She’s a regular c us tom er, and

. . . it threw m e a little b it.” At trial, Arnold identif ied Sm ith as the person who com m itted the

arm ed robbery

. ¶8. Jam es, the store c ashier, a lso testif ied f or the St a t e . S h e c o r r o b o r a t e d Arnold’s testim o ny about the wom an looking f or toothache m edicine. Jam es then testif ied that when the wom a n reached her c ash register to check out, Jam es rang up the m edicine and told the

wom an h er total. At t hat point, Jam es said the wom an cam e around the cash register and got behind her and said, “I have a gun. I have m y k ids in t he car. Just g ive m e a l ittle bit of the

m oney .” Jam es then testif i ed that the wom an also g rabbed a pair of scissors f rom the counter and put them a gainst Jam es’s b ack. At one point in t he surveillance video, a pair of scissors

can be seen hanging out of the wom an’s pocket. Jam e s told t he wom an that because she had already rung up t he sale, the cash register could not b e opened without t he m anager using her key t o void the sale. The wom an repeatedly t old Jam es t o just h it the “ e n t e r ” or “total” buttons to open t he cash register; Jam es hit the buttons, and the wom an hit buttons herself , but the cash register would not open. ¶9. In the m eantim e, o t h e r c ustom ers were waiting at the register to check o ut, and the

wom an walked f

rom behind the counter and stood n e arby

. Arnold arrived and voided the sale, and Jam es began ringing u p the next custom e r. According to Jam es, w hen the cash

4register opened, the wom an stuck her hand i n the c a sh register drawer and said, “I’m sorry .

Thank y ou.” Jam es s aid t hat the wom an grabbed “a whole bunch of mo n e y , a n d we just started w r e s t l i n g with her – m e and m y m a nager – o ut the door.” At t hat p oint Jam es’s boy f riend em erged and assisted. ¶10. Jam es positively identif ied Sm i th a s the robber in a photo lineup three day s af ter the robbery

. Jam es also identif ied Sm ith as the robber in c ourt. Jam e s gave police a description of the wom an a nd said the wom an was around 5' 2" tall, because she was t aller than Jam es, who is 4' 11" tall. ¶11. Of f icer Eric Prouix testif

i ed that he was w orking on patrol f or the H attiesburg Police
D e p a r t me nt on June 5, 2013. H e was d ispatched to the Dollar General and preserve d t h e register/counter area f

or potential f

ingerprints, if a ny could be f ound. He also helped secure the scene. Of

f icer Prouix testif

i ed that no f

ingerprints were f

ound. ¶12. Of f icer Tam m y Hoadley of the Hattiesburg Police Departm ent t estif ied that she was also working on patrol on the evening of June 5, 2013. S h e r e s p o n d ed t o a dispatch call around 8 p.m . regarding a n arm ed robbery and r eported to the Dollar General. W hen she got there, she helped secure the area and spoke with the victim s, A r nold and J am es. Of

f icer Hoadley testif

i ed t hat she did n ot c ollect any f ingerprints and she did not t ransport any thing to the crim e lab f

or DNA analy sis. 2 ¶13. Detective Casey Sim s worked f or the Hattiesburg P olice Departm ent and investigated

2 D etectiv e S im s, th e in v estig atin g o f f i cer, testif

ied th at t h e p o lice reco v ered n o f in g erp rin ts f

r o m t h e D o l lar G en eral sto re, an d n o D N A w as reco v ered f ro m th e g ray j ack et. A c co rd in g to D etectiv e S i m s, th e j ack et w as sto red i n a p lastic b a g w h ich d estro y e d an y p o ssib le D N A ev i d en ce. 5the arm ed robbery at D ollar General that took place on June 5, 2013. Detective Sim s testif ied that he ran the tag num

bers that were reported, and he determ i ned that the vehicle belonged

to an elderly wom an w ho lived out of town, a Ms. Bobbie Fairley

. He t estif ied that he asked
Ms. Fairley to com e to Hattiesburg on a pretense. He m et w ith her, seized h er v ehicle, and processed the v e h i c l e a s a crim e scene. D etective S im s f urther testif

i ed that during the

course of his investigation h e was able to determ ine the nam es of the people who were at Ms. Fairley ’s house on the evening of the robbery , w hich included Tam eka Sm ith, who was Ms. Fairley ’s grandson’s g i rlf r i end. Detective Sim s s aid he was inf orm ed that on June 5, 2013,
Ms. Fai r ley ’s grandson took Sm ith’s vehicle and lef t Sm ith a n d h er two children with Ms. Fairley

. Once Detective Sim s ascertained that Sm i th had been at Ms. Fairley ’s hom e on the evening of

the robbery , he brought Sm ith in f or questioning. ¶14. Det e c t i v e S i m s testif ied that about three day s af ter the robbery , he p resented photo lineups t o J a mes a nd Arnold. Detective S im s corroborated Arnold’s testim o ny that she circled Sm ith and another person; and D e t e c t i v e Sim s likewise conf i rm ed that Jam es positively identif

i ed S m ith in the photo lineup. Both Arnold and Jam es identif ied Sm ith in court as the robber. ¶15. Detective Sim s testif i ed that he arrested Sm ith f or arm ed robbery a nd t h a t S mith’s booking inf

o rm ation ref

l ects that she is 5' 7" tall and weighed 235 pounds. Detective Sim s also obtained Sm ith’s c ell phone records, which were adm itted a s a n e x h i b i t a t trial. The records showed t hat Sm ith m ade a call f rom around Prentiss, Mississippi, a t 7 p.m . that lasted
582 seconds (9 m inutes and 41 seconds). T he records a lso ref lected that Sm ith m ade a call

6f

r o m a round Prentiss at 8 :43 p.m ., which lasted 252 seconds (4 m inutes and 12 s econds )

. Detective Sim s testif

i ed that t he call reporti n g t h e r o b b ery c am e o ut “around 2000 hours, which is 8 p.m .” The tim e stam p on the store’s s urveillance video indicates that the robbery occurred at about 7 p.m ., or 19:00 hours. Arnold, the store m anager, t estif ied t hat the t im e

on the surveillance video was an hour behind because the district m anager was t he only one who c ould adjust the s y stem , and t h e d i s t r i c t m anager w as on sick leave when the t im e changed, s o the tim e had not been set f orward. Detective Sim s testif ied that the Prentiss area is about f orty m inutes f

rom the Dollar General store. ¶16. Steve Pazos, a n investigator wi t h t h e D i s t r i c t A t t o rney ’s of f ice, testif ied that he conducted a f

ollow-up investigation into the case. Specif ically , Investigator Pazos testif ied that he i nterviewed Sm ith’s m other and alibi w itness, Jennif er Sm ith. According to Investigator Pazos, J ennif er said she was on the phone with her daughter during t he tim e that the robbery took p lace because they spoke f rom 7:00 p.m . to 7:0 9 p .m . Investigator Pazos testif i ed that his phone conversation with J ennif er d iscredited Sm ith’s alibi that she was on
t he phone with her m other when the robbery t ook place because the actual call f or s e r v i c e

cam e in through the police departm ent’s line at 7:54 p.m . A recordin g o f I n v e s t igator Pazos’s interview with Jennif e r was play ed f

or the jury a n d adm itted into evidence. ¶17. J e nnif

er Sm ith testif

ied f or the def

ense. She t e s t i f

i e d t h a t t h e s u s p e c t i n t h e surveillance video was not her daughter because Sm i th was pigeon-toed, but the suspect was not; Sm ith’s legs are stra i g h t , b ut the suspect’s legs “bowed b ack”; the suspect was m uch wider than Sm ith; and the s uspect’s skin was darker than Sm ith’s skin. J ennif er testif ied that

7she was at her hom e in Pattison, Mississippi, on the night o f the robbery , and she talked to

Sm ith on the phone about a business-plan hom ewo r k a s s i g n m ent f rom about 7:00 p.m . to 7:10 p.m . On cross-exam ination, Jennif er acknowledged t hat Sm ith w as sta y i n g at Ms. Fairley ’s house in June 2013. ¶18. Sm ith t e stif

ied in h e r own def

ense at trial. Sm ith testif

ied t hat she was not the person in the surveillance video and that she never went to t he Dol l a r G eneral on the night in question. She s aid she got t o Prentiss (Ms. Fairley ’s h o me ) at about f our o’clock that evening with her children, and i m m ediately began to work o n hom ework. She m ade a fivem inute trip to a corner store right down the street j ust outside of Prentiss som e tim e between
7:30 p.m . and 8 :30 p.m ., and she l ef t the h ouse a second tim e with her boy f riend a t about 10
p . m. They w ent to t he Junior Food Mart in P rentiss. Sm ith denied ever g oing t o F o r r e s t County on the night in question. Sm ith t estif ied that she is about 5' 7 " t a l l a n d , under

cross-exam ination, Sm ith testif ied that she weighed 205 pounds a t t r i a l, w hich was about thirty pounds less than she weighed in June 2013. At trial, Sm ith stood up a n d showed the jury that she was pigeon-toed. She denied that she was guilty of the robbery

. ¶19. In response to question s b y t h e p r o s e c utor, Sm ith denied that she lived with her boy f riend’s grandm other (Ms. B o b b i e F a i r l e y ) i n 2 0 13, but she acknowledged that s he visited
f or a couple of day s an d w a s s t a y i n g the night at Bobbie Fairley ’s hom e o n June 5, 2013.
Sm ith acknowledged that Bobbie Fairley lived in Jef

f erson Davis County , and that Bobbie Fairley ’s car was t he car p o lice t racked down using t he tag num ber at issue. Sm ith testif

ied that B obbie Fairley lay

down in bed about 7 p.m . or 7:30 p.m . on the night in q uestion, but

8Sm ith testif ied t hat Bobbie F airley was n ot a sleep at that tim e. Sm ith also t estif ied that Bobbie Fairley ’s car was not accessible to her because Bobbie Fairley kept her key s in her
purse in th e b e d r o o m and usually locked t he bedroom door. S m ith acknowledged that Arnold r eported the vehicle being driven by a person m a tching her general description, but she m aintained that she never drove the v ehicle that night o r l e f t Prentiss to go to Hattiesburg. ¶20. The jury was instructed on the of f ense of arm ed robbery , the l esser-included of f ense of sim p le r obbery , and the alibi d ef ense. The trial court denied Sm ith’s r equested i nstruction

on mi sidentif

i cation. Af

t er retiring f

or d eliberations, the jury returned a verdict, f inding
Sm ith g uilty of arm ed robbery

. Sm ith was s e n t e n c e d t o serve twenty y ears in MDOC custody , with twelve y ears to serve, eight y ears suspended, and f ive y ears of post- r e l e ase supervision. Sm ith was a lso ordered to pay a $2,500 f ine, $100 to the v ictim com pensation
f und, a nd all c ourt costs. T he sentencing order was entered August 1 3, 2015. Sm ith’s trial counsel f i led no post-trial m otions. On Septem ber 3, 2015, Sm ith f

iled a n otice of appeal,
pro se. Sm ith w a s s u b s e q u ently appointed appellate counsel through t he Of f ice of State Public Def

ender, Indigent Appeals Division, and an a m ended notice of appeal was f iled on March 14, 2017.
DISCUSSION
I. Batson Challenge ¶21. Sm ith a s s e r t s t h a t t h e S t a t e ’s use of three of f ive perem

ptory challenges against

9Af

rican Am erican jurors constitutes a violation o f Batson v. Kentucky 3 because t hese jurors

were not struck f

or race-neutral reasons. As addressed in m ore d etail b elow, the t rial court f ound that Sm ith did not m eet her burden to go f orward with a Batson challenge, and even
if she had, the trial court f o und that the three Af

rican Am erican jurors were struck f or raceneutral reasons. Finding no error, we af f irm the trial court’s ruling on this issue. ¶22. The M ississippi Suprem e Court has directe d t h i s Court to “‘give great def erence to

a trial court’s determ i nations under Batson because t hey a re b ased largely on credibility .’”
W illiams v. State , 126 So. 3d 85, 9 4 (¶37) (Miss. Ct. App. 2013) (quoting Flowers v. State , 947 So. 2d 9 10, 917 (¶8) (Miss. 2007)). A Batson ruling m ay not be overturned unless the record indicates that the r uling “was clearly erroneous or a gainst the overwhelm i ng weight of the evidence.” Id. (internal quotatio n m ark om itted) (quoting Thorson v. State , 721 So. 2d 590, 593 (¶4) (Miss. 1998)). ¶23. As the Mississippi Suprem e Court has explained, a Batson challenge should proceed as f o llows: First, the def

endant m ust establish a prim a f

acie case of discrim ination in the s e l ection o f jury m em

bers. The prosecution t hen has the burden of s tat i n g a racially neutral r e a s o n f

or the challenged strike. If the State gives a racially neutral explanation, the def endant can rebut the explanation. Finally , the trial court m ust m ake a f

actual f inding to determ ine if

the prosecution engaged in purposef ul discrim i nation. If t he def endant f ails to r ebut, the t rial j udge m ust base his decision on the reasons given by the State. Berry v. State , 802 So. 2d 1033, 1037 (¶11) (Miss. 2001). ¶24. In this case, af

ter the trial court allowed two jurors to be struck f o r cause (Jurors 11

3 B a tso n v. K

en t u cky , 4 7 6 U .S . 7 9 (1 9 8 6 ).

1 0and 19), the State s ubm itted its f i rst twelve jurors, going up through, and including, Juror 20.
Juror 17 was absent. Out of the rem aining s eventeen panel m em bers, t he r ecord ref

lects that the S tate exercised the f

irst f i ve of its six perem

ptory challenges, striking three Af rican
Am erica n s a n d two C aucasians. At this point t he def ense raised its B atson challenge.
Sm ith’s i nitial Batson c hallenge was based on her trial counsel’s m istaken be l i e f t h a t the
St a te h ad used f

our (not three) of its perem p tory c hallenges to strike Af rican Am ericans,

nam ely J urors 9 , 10, 12, and 1 3. The t rial court c o r r e c t e d Sm ith’s counsel, noting on the record that Juror 12 was a Caucasian f em ale. ¶25. In response t o Sm ith’s Batson challe n g e , t h e trial court judge stated that h e did not know w hether Sm ith h a d m et her burden of showing a prim a f acie case of discrim i nation in the s election p rocess, given that three of the S tate’s perem ptory strikes were a gainst Af rican
Am ericans, and two were a gainst Caucasians. T h e trial court, however, a llowed the State to go f orward and provide its race-neutral reasons f o r its strikes. ¶26. The State provided the f ollowing explanations:

J uror Num b er State’s reason(s) f or exercising perem

ptory strike Juror 9 “[ W ]e observed that she seem ed to be disinterested, was not m aking ey e

contact.” Juror 10 “[ I]t was our observation that she f rowned a lot during our voir dire and gave us the im

p ression that she just didn’t want to be here.” Juror 13 “[ S]he also seem ed to be disinterested and not really engaged in the voir dire process.”
The State also provided the reason i t s truck Juror 1 2 (a C aucasian f em ale): “As to [ Juror]

num ber 12, she seem ed not only disinterested, but also aggravated, at tim es with the entire

1 1v o i r dire process.” Lastly , t he State pointed out that of the twelve jurors s ubm itted by the

State at that point, f

our were Af

rican Am ericans. ¶27. The trial court t hen af f orded Sm ith an opportunity t o r e but the S tate’s race-neutral
reasons. Sm ith’s counsel of f e red the f ollowing rebuttal:
Your Honor, the only thing that the State has prof f ered as a race-neutral reason is that they didn’t w ant to be here. N obody wants to be here, Your Honor. That’s not a valid excuse or a reason t o excuse som ebody , and he said nothing else. In response, the trial court held:
I think he said m ore than sim ply they don’t want to be here. And quite f rankly , I disagree with y ou that nobody wants t o be here. These are m y people. T hey like to com e to court. But i n any event, I don’t think y ou’ve m et y our burden to go f o r w a r d w i th a Batson [ c]hallenge. And in the event y ou have, I do not think that t hese jurors were -- well, I do think they were struck f

or race-neutral reasons.
In short, t he only rebuttal of f e red by Sm ith was that “

juror disinterest” was not a race-neutral

reason because “nobody wants to be [ on the jury panel].” T h e tria l c o u r t r e j e c ted this
argum ent based on its own experience and observation that “[ t]hese are m y people. They like

to com e to court.” 4 ¶28. On appeal, Sm ith asserts that the State’s reasons f o r excluding the jurors in question included s everal of the f i v e indicators of pretext. The Mississippi S uprem e Court has specif ied f ive indicia of

pretext f or use in analy

zing a race-based Batson challenge: (1) disparate t reatm ent, that i s , t h e p resence of unchallenged jurors of the

4 We tak e j u d icial n o t ice o f th e f act th at at th e tim e o f trial, th e trial co u r t j u d g e h ad serv ed as a circu it co u rt j u d g e i n F o rr e s t C o u n ty , M ississip p i (T w elf th D i strict) f

o r o v er th irteen y ears; h is o b serv atio n in th is reg ard is p lain ly en titled to d ef eren ce. 1 2opposite race who share t he characteristic given a s the basis f or the c hallenge; (2) the f ailure to voir dire as to the characteristic c ited; (3) the characteristic cited is unrelated to the f a cts of the cas e ; ( 4) lack o f record support f or the stated reason; and (5) group-based traits. Lynch v
. S t a t e , 877 S o. 2d 1254, 1272 (¶52) (Miss. 2004). Sm ith, as the o pponent of the strikes at issue here, b ears the burden in determ ining whether a race-neutral explanation is
p r e t e x t u a l

. Id. (citing Berry , 802 So. 2d a t 1042 (¶29)). Sm ith’s trial counsel, howeve r , of f ered n o evidence supporting his rebuttal argum ent that “nobody w ants t o be [ on the jury panel];” nor did he address any of the above-cited indicators of pretext. A s such, Sm i th is procedurally barred f

r om raising this issue on a

ppeal. See Sudduth v. State , 562 So. 2d 67,
71 (Miss. 1990) (“In the absence of an actual prof f er of e vidence by the def

e n dant to rebut the State’s neutral explanations, this Court m ay not reverse on this point.”). ¶29. Procedural bar notwithstanding, we a l s o r e j e c t S m i t h ’ s B a t s o n c h a l l e n ge on t he m erits.
As an initial m atter, w e recognized that when a Batson challe n g e i s a p p e aled, “‘[ i]t is the responsibility o f the appellant to f urnish the court with a record which is adequate to review the iss u e s p r e s e n t ed.’” W atson v. State , 991 So. 2d 662, 665 (¶7) (Miss. Ct. App. 2008) (quoting W

ard v. State , 958 So. 2d 1233, 1236 ( ¶9) (Miss. Ct. App. 2006) (citing W illiams

v. State , 522 So. 2d 201, 209 (Miss. 1988))). In W atson , we held that the trial court did not

err in deny ing t he def

e n d ant’s Batson challenges. W atson , 991 So. 2d at 665 (¶7). W e

exam ined the record in reaching this conclusion, as f ollows: Nothing in the record s uggests that race p l a y e d a r ole in the a rrest or prosecution of W atson. The race of the two arresting o f f icers is not m entioned in the record. T he record i s quite sparse concerning the racial com position of the entire v enire panel, which consisted of approxim ately f if ty p eople. Of the seventeen m em

bers on t h e venire panel f irst considered f

o r perem ptory

1 3challenges by the State f or tendering t o t he def

e nse, n ine of t h o se seventeen were Af rican Am ericans. The State exercised f ive of its six available strikes. The State a ccepted and tendered f our Af r ican Am erican panel m em bers even though it h a d one r e m a ining perem ptory strike. There is no indication in the record of the race of any of the s ix jurors perem ptorily stricken by the def e nse. Likewise, t h e r e is n o i ndication in the r ecord of the race of the f inal juror excused by

the State when it used its last perem ptory strike. Needless to say , no inf orm a tion exists in the record t o i ndicate the racial c o m position of the jury that actually

tried W atson. Id. ¶30. Just as w e determ i ned in W atson , we likewise f

ind here no abuse of discretion in the trial court’s Batson d e term ination, as the r ecord display s no racial discrim ination in the jury selection in this c ase. In the A ppendix t o this opinion, w e s e t f o r t h the juror and jury selection i nf

orm ation t hat this Court was able to glean f rom the record. From our review of the record, we f

ind that it contains no inf

orm ation concerning the r acial com position of the entire venire panel. As to the race of the seventeen m e m bers of the panel f

irst considered f

or
perem ptory challenges by t he State f or tendering to the def

ense, the record indicates that the
S tate exercised f

ive of its six available strikes, s triking t hree A f rican Am erica n s a n d t w o Caucasians. At this p oint, Sm ith’s counsel m ad e his Batson challenge. The record shows that at this t i me , t h e S tate had selected f our Af rican Am erican panel m em bers, although it had one rem aining perem ptory strike. The record contains no evidence of the race of any of the six jurors perem

ptorily struck b y the def

ense; nor is there any indication of the race of the
f inal juror struck by

the State when in exercised its f inal perem

ptory challenge. ¶31. Having r e

j e c t e d t h e sole rebuttal argum e n t of f ered by Sm ith, we f

ind no abuse of discretion in the trial court’s Batson decision herein based upon the race-neutral reasons

1 4given by the State. Thorson , 721 So. 2d at 593 (¶2) ( “If the def endant f ails to rebut, the trial judge m ust base his decision on the reasons given by the State.”); see a lso W atson , 991 So. 2d a t 6 65 (¶8). T he trial court determ ined that even if Sm ith had m et her burden with proceeding with a Batson c hallenge, the three A f rican Am erican jurors at issue were struck
f or race-neutral r e asons—juror disinterest and inattention. Precedent suppor t s that juror disinterest and inattention are race-neutral reasons f or a perem

ptory challenge. See Horne
v. State , 825 So. 2d 627, 636 (¶24) (Miss. 2002) (“Inattentiveness alone has b een accepted

as a r ace-neutral explanation f or the exercise of a perem ptory strike.”); see also Berry , 802
So. 2d at 1043 (¶36) (“This Court ha s h eld [ that] ‘[ i]nattentiveness, boredom , dress, dem eanor, unem

ploy m ent, a nd sleeping during voir d ire have all been determ ined by t h is Court to be racially

neutral reasons.’”). ¶32. W e also f

ind no m e rit in the pretextual argum ents t hat Sm i th asserts on appeal. Sm ith
appears to be m aking a “disparate treatm ent” argum e nt in asserting that it is “ not sensible”
f or the trial court to h ave “assum ed” that unchallenged Caucasian jurors w ere not “disinterested.” Sm ith, however, points to no evidence i n t he record that indica tes that selected Caucasian jurors showed disinterest. In f act, the record ref

lects that Ju r o r 12, a Caucasian f

e m a le, w as struck b y t h e S t a t e f or the sam e reason, as f

ollows: her d isinterest and a ggravation with the process as a whole. T h i s s u p p o r t s a race-neutral reason f or the
State striking jurors on the basis of disinterest, rather t han a purposef u lly racially discrim inatory

m otive. ¶33. Sm ith also asserts that the race-neutral reasons provided by the State are “unrelated

1 5to the f

a c ts of the c ase” and theref o re indicate pretext. Rely ing upon precedent, we disagree.
In L ockett v. State , f

or exam ple, the Mississi p pi Suprem e Court expressly recognized that “[ a]n e xpression of contem pt or hostility m ay reasonably be a ssum ed to spell trouble f or the prosecution. S uch dem eanor is a legitim ate r eason, r elated to any case , f or a prosecutor to exercise a perem

ptory challenge.” Lockett v. State , 517 So. 2 d 1346, 1351-52 (Miss. 1987) (c i t i n g c a s es) (em

phasis added). In the sam e way , we f ind that the dem eanor of the three jurors in question is related to Sm ith’s case, and does n ot constitute a p retextual basis f or exercising a perem

ptory challenge. ¶34. Finally , Sm ith asserts that the f act that neither t he p rosecution nor the trial court judge questioned t he three j urors regarding t heir dem eanor and lack of interest indicates that these

reasons were m erely a pretext. Sm ith als o a r g ues that there is no record evidence that the three jurors in issue were d i sinterested or f ailed t o m ake ey e contact. W e also reject these contentions. As we recognized in W atson , “although lack of sup p o r t in the record m ay be

an indication of pretext, ‘the basis f or the prosecutor’s strike need not b e in the record.’”
W atson , 9 91 So. 2d at 665 (¶9) (quoting Manning v. State , 765 So. 2d 5 16, 520 (¶10) (Miss. 2000)). Moreover, “‘a trial court’s determ ination of whether or not a reason is race-neutral largely depends o n the credibility of the prosecutor.’” Ma n ning , 765 So. 2 d a t 520 (¶11) (quoting Thorson , 721 S o. 2d at 597 (¶23)); s e e Wi l son v. State , 72 So. 3 d 1145, 1155 (¶¶28-29) (Miss. Ct. App. 2011). ¶35. In Manning , the Mississippi Suprem e Court f ound it relevant that “ [ t]he dem eanor of

a potential j ur o r w o u l d n ot be ref lected in the record a

bsent com m ent f

rom counsel or the

1 6t r i a l j u d g e, which did not occur in this case. As a result,

. . . the p rosecutor’s prof f ered

reason is neither supported n o r disproved by the record.” Id. U nder t hose circum stances, which are the sam e c ircum stances as in this case, the Court recognized that “[ w]e have previously accepted a juror’s dem e anor as a valid race-neutral reason f or a perem

p tory strike, and theref ore give def

e r e nce t o t he trial judge’s acceptance o f this race-neutral r eason of f ered by the [ prosecutor i n t his case].” I d. W e apply this sam e reasoning h ere i n rejecting Sm ith’s pretextual contentions on the m erits. 5 ¶36. In light of th e g r e a t d e f e r e n c e g i v e n a t r i a l court’s determ ination on a Batson challenge, the applic a b l e l a w , and the lack o f evidence of f ered by Sm ith in support of her
Batson challenge, we af

f irm the trial court’s denial o f S m ith’s Batson challenge i n this case. II. Prosecutorial Misconduct ¶37. S mi t h a s s e r t s that t he State com m itted prosecutorial m iscondu c t i n i t s c l o s i n g
argum ents by a llegedly (1) m aking burden-shif ting argum ents; and (2) com m e nting on Sm ith’s f ailure to call Bobbie Fairley as a witness. B obbie F airley was the grandm other of

5 S m i th relies o n S

n yd er v. L o u isia n a , 5 5 2 U .S

. 4 7 2 , 4 7 7 (2 0 0 8 ), in arg u in g th at th e trial j u d g e is req u ired to m a k e an o n -th e-reco rd , in d ep en d en t f in d in g o n a j u ro r’s d em ean o r w h en a p erem

p t o ry c h allen g e is b ase d o n th a t f acto r. I n T

h a ler v
. H

a yn es , 5 5 9 U .S

. 4 3 ( 2 0 1 0 ) , h o w ev e r, th e U n ited S tates S u p rem e C o u rt m ad e c lear t h a t S n yd er d o es n o t s t a n d f o r th at “categ o r i c a l r u l e;” an d th ere w as n o su g g estio n in S n yd er o r B a tso n t h at “in th e ab sen ce o f [ th e trial j u d g e’s] p erso n al reco l lectio n o f th e j u ro r’s d e m ean o r, th e j u d g e co u ld n o t h av e accep ted th e p r o secu t o r ’ s ex p lan atio n .” Id

. at 4 8 -4 9 (also reco g n i zin g th at “th e b est e v id en ce o f th e in t en t o f th e atto r n ey ex ercisin g a s trik e is o f ten th at atto rn ey ’s d em ean o r.”). In f

in d in g n o ab u se o f d iscretio n b y th e t rial c o u rt h ere in h is B a t so n ru lin g , w e rely o n th ese sam e p rin cip les w h ich are also ref l ected i n M ississip p i p reced en t. S ee, e.g
. , M a n n in g , 7 6 5 S o . 2 d at 5 2 0 (¶¶1 0 -1 1 ) (reco g n izin g th e g reat d ef eren ce g iv e n a trial j u d g e’s race-n eu tral d eterm i n atio n a n d assessm en t o f th e p ro secu to r ’ s cred ib ility o n a B a tso n ch allen g e); Wilso n , 7 2 S o . 3 d at 1 1 5 5 (¶¶2 8 -2 9 ). 1 7Sm ith’s boy f riend at the tim e. Sm ith was v isiting Bobbie F airley ’s h om e in Prentiss, Mississippi , i n cluding spending t he night a t Bobbie Fairley ’s hom e o n June 5, 2013—the evening of

the robbery

. ¶38. Where lawy er-m isconduct during opening or clos i n g a r g u me n t s i s a l l e g e d , t h e applicable s tandard of review requires the Court to determ ine “whether the n atural and probable ef

f ect of the im

p roper argum ent is to create unjust p rejudice against t he accused so

as to r esult in a d ecision i nf luenced by the prejudice s o created.” Terrell v. State , 237 So. 3d 717 (¶92) (Miss. 2018).

A. Alleged Burden-shifting Argum ents ¶39. Sm ith takes issue w ith the prosecutor’s com m ents in closing that “[ t]he d ef ense hasn’t put on o ne shred of evidence contr a d i c t i n g t he elem ents of

. . . the c r im e . . . of arm ed robbery ];” and his argum ent later in closing t hat Sm ith’s testim ony and theory of def ense was “no proof at a ll.” S m ith also takes issue with t h e f o l l o w i n g portion of the S tate’s closing
argum ent: 6
That’s all they ’ve g i ven y ou. Not a s hred of evidence to support their defense

. As jurors, y ou have to take the evidence, a pply that e vid e n ce to the law. Rem e m ber we talked about letting sy m pathies slip into y our p rocess? Okay

. Other ty pes of f a ctors. T hings outside of looking at the evidence and apply ing it to the law. I submit to you that if you do your duty as a juror , if y o u f ocus not on all this nonsense b ut on the e vidence, and y o u apply the evidence to the law, you have to find her guilty ‘cause there’s n othing else to consider. Nothing has been provided to you by the Defense that would . . . .
At this point d

uring the argum ent, Sm ith’s c ounsel objected, stating, “Your Honor, I would

6 T h e p o r tio n s o f th e p ro s ecu to r’s arg u m en ts th a t S m ith arg u es are o b j ectio n ab le are in italics. 1 8object to this line. W hat he’s say ing is that the def ense has a duty to do any

thing t o present evidence. T h a t is not the law, Your Honor.” T he trial court sustained the objection, instructing the def

ense to “stay

away f rom that area [ of

argum e nt].” ¶40. W e acknowledge t hat “[ t]he burden of proof in a crim inal c a se never shif ts f rom the
State to the def

endant.” Randall v. State , 806 So. 2 d 185, 211-12 (¶61) (Miss. 2001). In this

case, however, reading the prosecutor’s com m ents in “the context a nd circum stances of the case,” as we m

ust , 7 w e f

i nd that the record r ef

lects that the prosecutor was m erely

com m enting on the inadequacy and weakness of Sm ith’s def ense. Precedent establishes that this is not error. 8 The M i ssissippi Suprem e Court has spe c i f i c a lly recognized that it is “clearly proper” f

or a prosecutor to com m ent on the weakness of a def endant’s def

e n s e . Holland v. State , 7 05 So. 2d 3 0 7, 349 (¶179) ( M i s s . 1 9 9 7 )

. This Court likewise has determ ined that “it is not error to com m ent on the def ense’s f ailure t o o f

f e r a n y evidence whatsoever to counter or explain the State’s evidence.” Johnson v. State , 89 So. 3d 630, 637 (¶23) (Miss. Ct. App. 2011). Nor is it “im p roper to argue in closing t hat a def endant’s case is i nadequate.” H

u g g i n s v
. S tate , 911 So. 2d 614, 619 (¶14) (Miss. Ct. App. 2005); see Johnson , 8 9 S o . 3 d at 637-38 (¶23); Dora , 986 So. 2d at 923 (¶12) (recognizing that the prosecution is p erm itted to com m ent on the a bsence of evidence to support def endant’s def ense and to point out that the d e f ense’s position (theory ) i s unsupported by the evidence). ¶41. A s a d d r e s s e d a bove, the record shows that the prosecutor’s co mme n t s d i d n o t

7 Jo h n so n v. S t

a te , 8 9 S o . 3 d 6 3 0 , 6 3 7 ( ¶2 2 ) ( M iss. C t. A p p . 2 0 1 1 ) ( q u o tin g S a n d ers v. S ta te , 9 3 9 S o . 2 d 8 4 2 , 8 4 6 (¶9 ) (M iss. C t. A p p . 2 0 0 6 )).

8 S ee D o ra v. S ta te , 9 8 6 S o . 2 d 9 1 7 , 9 2 3 (¶¶1 2 -1 3 ) (M iss. 2 0 0 8 ). 1 9constitute error and the t rial court sustained the def endant’s objection. Furthe r , j u r o r s a re
presum ed to f

ollow the court’s instructions. S e e Johnson v. State , 475 So. 2d 1136, 1142 (Miss. 1985). In this case, t he jury was proper l y instructed t hat their exclusive duty is to consider and weigh the evidence; that they m ust g i v e S mi t h t he benef

it of a ny r easonable doubt; and that they could o nly f ind Sm ith guilty if t he State proved all the elem e nts of arm ed robbery bey ond a reasonable d o u b t

. A dditionally , j ury instruction D-3 addressed Sm ith’s
presum ption o f innocence, and the jury was also told t hat Sm ith was not r equired t o establish the “truth of h er alibi to [ t he jury ’s] satisf action.” I n short, the State’s com m e n ts on the inadequacy of Sm ith’s def ense did not shif

t t he burden of proof

, and, particularly in light of these jury instructions, we f ind that the natural and probable ef f ect of the State’s argum ents did n ot create unjust prejudice agai n s t S mi t h

. S ee J ohnson , 89 So. 3d a t 638 ( ¶¶22-24). 9 Finding no error, this issue lacks m erit.

B . Failure to Call Bobbie Fairley

9 S m ith r elies o n R a n d

a ll v. S t a te , 8 0 6 S o . 2 d 1 8 5 (M iss. 2 0 0 1 ) t o s u p p o rt h er b u r d e n -sh if

tin g arg u m en t

. We f

irst o b serv e th at ev en in R a n d a ll , a b u rd en -sh if

tin g arg u m en t b y

th e p ro secu to r w as n o t f

o u n d t o b e rev e rsib l e erro r in an d o f itself , b u t rath er th e C o u rt h eld th a t c o m

b in ed w ith o th er p r o secu to rial m i sco n d u ct e rro rs, th e c u m u lativ e erro rs w arran ted rev ersal. Id

. a t 2 1 4 ( ¶ 7 4 ). In an y ev en t, R a n d a ll is also d istin g u ish ab le b ecau se t h ere th e p ro secu to r to ld th e j u ro rs t h a t “[ t ] h ere is n o evid en ce o r e xh ib it th a t so m e o th er p erso n d id th is [ i.e., k ill th e v ictim , E u g en e D an iels] .” I d

. at 2 1 2 (¶6 4 ) (em

p h asis in o rig i n al). T h e M ississip p i S u p r em e C o u r t h e l d th at th is lin e o f arg u m en t w as erro r, sp ecif ically reco g n izin g th at t h e d ef en d an t, “R an d all[ ,] h ad n o b u rd e n to p r o v e th at th e t w o u n id e n t if i ed m en w ere th e actu al k illers.” Id

. at 2 1 2 (¶6 6 ). N o su ch b u r d e n - s h if tin g arg u m en t w as m ad e in th is case; t h ere w a s n o su g g estio n b y th e p r o secu to r th a t S m ith w as req u ired to sh o w th at “so m e o th er p erso n ” co m m i t t e d t h e a r m ed ro b b ery . A s ad d ressed a b o v e , w e f

in d n o e rro r b e cau se it w as n o t im p ro p er f o r th e S tate to co m m en t o n th e in ad e q u acy o f S m ith ’s d e f e n s e , an d , f

u rth er, th e j u ry w as am

p ly in stru c ted o n t h e S tate’s b u rd en o f p ro v in g its case b e y o n d a reaso n ab le d o u b t

. 2 0¶42. S mi t h a l s o a s s e r t s that the State m ade an im p roper com m ent during its c l o s i n g
argum ent about her f

a ilure to call Bobbie Fairley a s a witness to support Sm ith’s alibi. The prosecutor said, “[ Sm ith] d o esn’t have any evidence of a l i b i b e c ause s h e doesn’t have an alibi. Ms. Bobbie Fairley – y ou know, s he w as stay ing at Ms. Bobbie Fairley ’s house, and she wasn’t here to testif

y .” ¶43. Sm ith’s trial counsel o b j e c t e d t o t h i s c o m m e n t a nd the t rial court s u stained the objection, adm onis h i ng the State to “[ s]tick t o the evidence that’s b een presented.” Sm ith did not r equest a curative i n s t r u c t i o n , nor did Sm ith request a m istrial. A s such, we reject
Sm ith’s assignm ent of error on this issue based upon the Mississippi Supreme Court’s determ ination on sim ilar grounds in W alker v. State , 671 So. 2d 581, 616 (Miss. 1995). ¶44. In W

a lker , the def

endant asserted on appeal that h e was deprived of a f air t rial based
upon a num

ber of incidences of alleged prosecutorial m isconduct. In o ne i nstance, W alker’s counsel objected to the prosecutor’s rem arks regarding s t i p u l ations m ade throughout trial, and the trial court instructed the prosecutor not to “raise a com m ent on w hy the stipulations

were m ade.

. . . P r o ceed.” W alker , 671 S o . 2d at 616. W alker’s counsel did n ot seek a curative instruction, n or did he s eek a m istrial. Id. The Court held that “[ b]ecause the trial

court a d m o n i s hed the p r osecutor in response t o W alker’s o bjection, ef f ectively sustaining the objection, and because W alker requested no f urther action, this a s s i g n m ent of error is rejected.” Id. 1 0 W e f

ind the sam e analy sis applies here. Not only did Sm ith’s trial counsel

10 S ee a l so F o s ter v. S ta t e , 6 3 9 S o . 2 d 1 2 6 3 , 1 2 8 2 ( M iss. 1 9 9 4 ) (“F o ster [ th e d ef en d a n t ] n eith er req u ested th at t h e trial co u rt ad m o n ish th e j u r y to d i sreg a rd th e testim o n y [ reg a rd in g b ad acts b y F o s ter] , n o r req u ested a m istrial. H is o n ly o b j ectio n w as su stain ed

. We are o f th e o p in io n th at an y erro r created b y H arris’s u n resp o n siv e rem ark w a s e f f ectiv ely 2 1f

ail t o r equest a curative instruction or a m istrial, but h e also f i l e d n o p o s t-trial m otion in which this objection could have been raised. W e reject Sm i th’s a s s i g n me n t of error regarding the State’s ref

erence to her f

ailure to call Bobbie Fairley on this basis. ¶45. W e also r eject this assignm ent of error on the m erits. “Mississippi caselaw recognizes that, generally , it is im

proper to com m ent on the f a i l u r e of either party t o call a witness equally accessible to both parties.” Lathan v. State , 164 So. 3 d 4 8 4 , 4 8 8 (¶16) ( Miss. Ct. App. 2014) (internal quotation m a rk om itted). H owever, an exception exists to this general rule, as f ollows: [ T]he rule barring com m ent [ does] not apply where a witness, while technically accessible to b o th parties, stood m ore available t o the com plaining party

. Wh e r e a d e f

e ndant f ails to call a witness m ore available to him and presump t i vely in a closer relationship with him , the state is f ully entitled to com m ent on the party ’ s f ailure to call the witness.
W allace v
. State , 229 So. 3d 7 23, 7 26 (¶16) (Miss. Ct. App. 2017) (quoting Ross v. State , 603
So. 2d 8 5 7 , 8 6 4 ( M i ss. 1992)). Additionally , the State is allowed to com m e nt on the evidence a nd point out that the def ense’s theory is unsupported by the evidence. Dora , 986 So. 2d at 923 (¶¶12-13). ¶46. I n t his case, Bobbie Fairley was m ore accessible t o Sm ith than to t he State beca u s e Sm ith was presum

ptively in a c loser relationship to Bobbie F airley

. As noted above, Bobbie Fairley w as the grandm other of Sm i th’s boy f ri e n d , and Sm ith was spending the night at Bobbie Fairley ’s hom e on t he night of the r o bbery , working on hom ework except f or a fivem inute trip to the corner store and, later t hat e v ening, a s hort trip t o the Junior Food Mart in

cu red w h en th e trial j u d g e su stain ed F o ster’s o b j ectio n .”). 2 2Prentiss. It was not im proper f or the State to com m ent o n Bobbie Fairley ’s a bsence f or this

reason. See W

allace , 229 So. 3d at 726 (¶16) (no e rror f or State to com m ent o n def endant’s
f ailure t o call h is f

riend as a witness); see also Ross , 6 0 3 S o . 2 d at 8 64 (no error f or prosecutor to ref

er to def endant’s f ailure to call his brother as a witness); Pearson v. State , 64 So. 3d 569, 576 (¶24) (Miss. Ct. App. 2011) (“Based on Pearson’s testim ony that he was
at hom e with his wif

e at the tim e the sale took place, w e f ind t he State was perm itted to delve into whether Pearson intended to call his wif e to verif y his alibi.”). Further , i t w a s also
perm issible f

or the State to com m ent on the lack of evidence supporting Sm ith’s alibi def ense due to Ms. Fairley ’s absence. Dora , 986 So. 2 d at 923 (¶¶12-13). W e f ind this assignm ent of error without m erit f

or these reasons.
III. Six th Am endm ent Right to Confrontation ¶47. Sm ith claim s that h er S ixth Am endm e nt Conf rontation Clause 11 r i g h t t o c onf ront adverse w itnesses w as violated w hen the State’s w itness, Detective S im s, testif ied that through his questioning of Bobbie Fairley and her g randson, he was inf orm ed that Sm ith was at Ms. Fairley ’s house on the night of the robbery ; and that the grandson took Sm ith’s car, leaving Sm i th at Ms. Fairley ’s h ouse w i t h n o v e h icle except Ms. Fairley ’s car, which was used in the robbery

. “The standard of r eview f or the adm ission or suppression of evidence is a buse of discretion.” Fullilove v. State , 101 S o. 3d 669, 674 (¶16) (Miss. Ct. App. 2012). ¶48. Sm ith acknowledges that although her trial c o unsel objected t o D e t e c t i v e S i ms’s testim o ny on the basis of “lack of f oundation,” he did not object to i t on the basis that it was

11 U .S . C o n st. am en d . V I; M iss. C o n st. art. 3 , § 2 6

. 2 3testim o nial hearsay in violation of her rights u nder the Conf rontation Clause. “The assertion

on a p peal of grounds f

or a n o b j e c t i o n w h i ch was not the a ssertion a t trial is not an issue properly p reserved on appeal.” S mith v. State , 925 So. 2d 825, 835 (¶26) (Miss. 2006) (quoting Haddox v. State , 636 So. 2d 1229, 1240 (Miss. 1994)). ¶49. Sm ith’s f

a ilure to m a ke a contem

p oraneous Sixth A m endm ent objection requires that she rely on the plain error doctrine. Fullilove , 101 So. 3d at 675 (¶21); Foster , 639 So. 2d

at 1289 (“[ A] d e f

endant who f

ails to m ake a c o ntem

poraneous objection m

u st r ely on plain

error to r aise the assignm ent on appeal.”). “Under the plain-error doctrine, ‘we can r ecognize obvious error which was not properly r a ised by the def e ndant on appeal, a nd which af f ects

a d ef endant’s f undam ental, s ubstantive right.’” Fullilove , 101 So. 3d at 675 (¶21) (internal quotation m ark om itted) (quoting Neal v. State , 15 So. 3d 388, 403 (¶32) (Miss. 2009)). ¶50. It is well-established that “only testim onial hearsay is c apable of violating the Sixth
Am endm ent.” Neal , 15 S o. 3d at 403 (¶34) (citing Crawford v. W a shington , 5 4 1 U

. S

. 36,
68 (2004)). As such, we m ust f irst exam ine whether t he c h a l l e n g e d testim ony c onstitutes hearsay by determ ining “the purpose f or a d m itting the testim o ny into evidence and review its relevance.” Fullilove , 101 So. 3d at 675 (¶18) (citing M.R.E. 401 & 402). ¶51. Mississippi R

ule of Evidence 801(c) def ines “hearsay ” as “a statem ent, other than one

m ade by the declarant while testif y ing at the t rial or hearing, o f f ered in evidence to prove the truth of the m atter asserted.” W e f ind that Detective Sim s ' s t e s tim ony did not c onstitute hearsay

. In Fullilove , we concluded that an investigating of f icer’s testim ony was n ot hearsay where he stated t hat another of f icer had identif

ied three m en, including the def endant

2 4Fullilove, on a store surveillance tape. Fullilove , 101 So. 3d a t 674-76 (¶¶15-21). T he Court

f ound that the testim ony showed the investigator’s reasons f o r p roceeding to interrogate Fullilove, and was not adm itted f or the purpose o f proving the truth o f t he other of f i c er’s assertion as to his alleged identif i cation of Fullilove on the tape. Id. at 675-76 (¶¶20-21). ¶52. In apply ing prece d e n t t o t h i s c a s e , s i mi l a r c ircum stances lead us to the sam e conclusion h ere. T he State claim s, and the record supports, that the inf o rm ation f

rom Ms. Fairley and her g randson r e f erenced by Detective Sim s was given to D etective Sim s during the course of h i s i n vestigation. The record f urther indicates that this i nf orm ation was presented to the jury to explain Detective Sim s’s c ourse of investigation and t he r eason he brought Sm ith in f

or questioning. “Statem ents do not constitute hearsay when adm itted to explain an of

f i cer’s course of investigation or m otivation f or the next investigatory step by that of f icer.” Fullilove , 101 So. 3d at 675 (¶20); see also Birkley v. State , 203 So. 3d 689,
696 (¶16) (Miss. C t. App. 2016); Jefferson v. State , 214 So. 3d 1071, 1 078 (¶19) (Miss. Ct. App. 2016) (“An of

f icer’s testim ony

being of f e red to explain why he o r she a cted as he or she did, and not f

or the truth of the m att e r asserted, is not hearsay and is a d m issible.”). In this regard, “[ o]ut-of

- court statem ents m ade to police d u r i n g t h e c o u r s e o f their investigations are adm issible.” Fullilove , 101 So. 3d at 675 (¶20). ¶53. Based on precedent, the record ref lects that h a d a h e a r s a y / c o n f r o n t a t i o n clause objection been m ade, the trial court would not have a bused its discretion in overruling that objection and allowing adm ission of Detective Sim s’s testim ony f or the f ollowing purpose served h ere: explaining Detective Sim s’s course of investigation and the reason he p roceeded

2 5to bring Sm ith in f or q uestioning. In short, Detective S i ms ’ s testim ony was relevant and related to his decisionm aking in his investigatory process. Th e j ury was not exposed to inadm issible hearsay , and Sm ith’s rights under the Conf rontation Cl a

u s e w e r e n o t i m

p l i c a t e d.
S mi t h h as not m et her burden of showing that adm i ssion of this t estim ony v iolat e d a f undam ental, s u b s tantial r ight. W e theref ore f ind t hat the a dm ission of Detective Sim s' s testim o ny was not plain error. See Fullilove , 101 So. 3 d at 6 74-76 (¶¶15-21); Neal , 15 So. 3d at 404 (¶36) (determi ning that investigator’s testim ony regarding inf orm ation learned
f rom a neighbor w a s a dm itted to explain Investigator’s d ecision to proceed in his investigation; it theref

ore was not hearsay in violation of t he Conf rontation Clause and thus the plain error doctrine was not im plicated).
IV. Jury Instruction on Misidentification Defense ¶54. Sm ith asserts that one of her def enses was m isidentif

i cation, and thus the trial court erred in f ailing to give her prof

f ered identif

ication j u r y i n struction D-9. The standard of review f or the giving or r ef

using of jury instructions is abuse of discretion. Victory v. State , 83 So. 3d 370, 373 (¶12) (Miss. 2012). In undertaking this review, “ [ n]o one instruc tion should be singled o u t.” Id

. Instead, the Court will “review[ ] the j ury i nstructions a s a whole

to determ ine whether an error has occurred.” Id. Although a def endant is e ntitled to present his theory of the c a s e t h rough jury instructions, he is not entitled to an instruction “[ that] incorrectly states the law, is covered f airly elsewhere in the in s t r uctions, or i s without
f oundation in t he evidence.” H arris v. State , 861 So. 2d 1003, 1012-13 (¶18) (Miss. 2003). “There is no error i f all i nstructi o n s t a k e n as a whole f a irly , but n ot necessarily perf ectly ,

2 6announce the applicable rules of law.” Newell v
. State , 4 9 So. 3d 66, 73-74 (¶18) (Miss.

2010). ¶55. It is well-established under Mississippi law that “the trial court is required to provide [ an identif

ication] instruction when ‘the i dentif i cation o f t he accused rests entirely upon the testim o ny of a single witness.’” Taylor v. State , 109 So. 3d 589, 595 (¶20) (Miss. Ct. App. 2013) ( quoting Tugle v. State , 68 S o. 3d 691, 696 ( ¶21) (Miss. Ct. App. 2010)). A def endant, however, “is only entitled to s uch an instruction i f r e q u e s ted and if he is identif ied as the guilty party by , a t m ost, one witness to his alleged crim e.” Id. ; see W arren v. State , 709 So. 2d 415, 421 (¶28) (Mi s s . 1 9 9 8 ). That is not the situation here. Although Sm ith requested

an identif ication i nstruction in this case, Sm ith was iden t i f i e d a s the g uilty party by two witnesses. Under t he p recedent disc u s s ed above, Sm ith was not, theref ore, entitled to an identif ication instruction, and the trial court did not err in ref using to give it. ¶56. Sm ith argues, however, that there was really o nly one ey ewitness-identif ication in her

case because o nly the store cashier, Kelly Jam es, i dentif ied Sm i th as the robber i n a p hoto line-up. Store m anager, Paige Arnold, identif ied two wom en in a photo lineup, and testif ied

at trial t hat she told t he i nvestigating of f icer that she was eighty percent sure that one wom an

was t he robber (Sm i th) and twenty percent sure it was the other person. Arnold also testif ied

at trial that t h e r e a s o n s h e was unsure was that the other person in the photo lineup was a regular c ustom er, and that is what conf used her. At trial both Jam e s and Arnold identif ied
Sm ith in court as the robber. ¶57. W e addressed nearly identical circum stances in Tugle , and f ound that the trial court

2 7did not err in ref using an identif

ication instruction, as f

ollows:
A l t h o ugh i t is t rue t hat W illiam a nd Brassel f a i led to correctly identif

y [ th e def endant] prior to trial, they did in f act testif y that Tugle was t he individual who had attem

pted t o arm rob them

. Further, t hrough cross-exam ination, the jury w as m ade aware of W illiam ’s pretrial m i sidentif ication. As such, we f

ind that the trial court did not err in ref using jury instruction D-2. This issue lacks m erit. Tugle , 68 So. 3d at 696 (¶22). T he sam e analy sis applies here. Sim ilar to the witnesses in Tugle , Arnold was only eighty percent sur e S mi t h was the robber i n the photo line-up, but she did, in f

act, p ositively identif

y Sm ith at trial. The jury also h eard about Arnold’s pre-trial

m isidentif

ication and the reason f

or her conf

usion. Further, this case is even stronger than Tugle , because Jam es, the cashier, positively identif ied Sm ith i n both t he photo-line-up and

at trial. As w e held i n Tugle , we also f ind here that the trial court did not abuse its discretion in ref using the identif

ication jury

instruction in this case. ¶58. Additionally , in addressing jury instructions dealing with ey ewitness identif icati on, the Mississippi Suprem e C ourt, a n d t h i s Court, repeatedly recognize that “‘the general instruction given to t he jury to t he ef f ec t t h a t t h e State h as the burden of proving each elem ent of the of

f ense charged b e y o n d a r e a sonable doubt,’ includes the m isidentif ication issue.” Smith v
. State , 802 So. 2d 82, 88 (¶20) (Miss. 2 001) (quoting Robinson v. State , 473
So. 2d 957, 963 (Miss.1985)); see, e.g. , Taylor , 1 09 So. 3d at 595 ( ¶ 2 0 ) ; B r unner v. State , 37 So. 3d 645, 649-50 (¶¶15-18) (Miss. Ct. App. 2009). ¶59. The j ury instructions given in this case included the m isidentif ication/identif

ication issue. The record ref

lects that instructions C-2, S-1, and D -3, i n s t r u cted the jury that the
State had to prove bey ond a reasonable doubt that on June 5, 2013, Tam eka Sm ith com m itted

2 8the elem ents of arm ed robbery . Instruction D-6 inf orm ed the jury , in part, “[ y ]ou have the duty to determ ine the believability of the witnesses. In p erf orm ing this d

uty , y ou m

ust consider each w itness’s intell i g e n c e , the witness’s ability to observe and accurately

rem em b er the witness’s sincerity , and the witness’s dem e anor while testif y ing.” ¶60. Def

ense counsel’s prof

f ered identif

ication jury instruction D-9, w hich the trial court ref used, provided as f

ollows: The Court instructs the Jury that in reaching y o ur verdict y ou are to consider all of the evidence concerning the e ntire case and the circum s t ances surrounding the crim e. One of the issues i n t h i s c a s e is the identif ication of Tam eka Marquieta Sm ith a s the perpetrator of the crim e. As with each elem ent of the crim e charged, the State has t he b urden of p r o v i n g identity bey ond a reasonable doubt, and bef o re y ou m a y convict Tam eka Marquieta Sm ith y ou m ust be satis f

i e d bey o nd a reasonable doubt of the accuracy of the identif ication of Tam eka Marquieta Sm it h

. I f , af ter considering all of the evidence concerning the crim e and the witness ' i d e n t if ication of Tam eka M a r q u ieta Sm ith as the person who com m itted the crim e , y ou are not convinced bey o n d a reasonable doubt that she i s t he p erson who com m itted the crim e, then y ou m

ust f i nd her not guilty

. 1) Did the witness have an adequate o pportunity to observe the of f ender? 2) Did t h e w itness observe the of f ender with an adequate degree of attention? 3) Did the witness provide an accurate des c ription of the of f ender af ter the crim e? 4) How certain is the witness of the identif

ication? 5) How m

uch t im e passed between t he crim e and the identif ication? If af ter exam ining all of the testim ony a nd the evidence, y ou have a r easonable doubt that Tam eka Sm i th was t he person who com m itted the crim e, t hen y ou m ust f ind Tam eka Sm ith not guilty

. In r eading the jury instructions as a whole, as w e m ust, 12 w e f ind no error in the trial court’s ref usal of the identif

ication jury instruction prof f ered b y t he def

ense. As detailed above, the

12 V icto ry v. S ta te , 8 3 S o . 3 d 3 7 0 , 3 7 3 (¶1 2 ) (M iss. 2 0 1 2 ). 2 9i nstructions given encom passed t he m isidentif

ication issue. They addressed the State ’ s burden of proving th a t T a me k a S m i th was the robber bey o nd a reasonable d oubt, and instruction D-6 explicitly w ar n e d t h e jurors that they have the d uty t o d eterm ine the believability of the witnesses. Sm ith’s assignm ent of error r egarding the t rial court’s ref usal of her identif

ication jury instruction is without m erit f or this additional reason. See Taylor , 109 So. 3d at 596 (¶23); Brunner , 37 So. 3d at 650 (¶18).
V. Error in Allow ing Ex hibits w ith Notations on the Envelopes ¶61. The State introduced three CD/DVD exhibits at trial. These exhibits were adm itted into e vidence and play ed f or the jury without objection. Each C D/DVD was i n an envelope, and these envelopes had notations on them regarding the r ecordings. Sm ith a s serts that the trial court erred when i t allegedl y allowed t he j ury to have the CD/DVD exhibits in these envelopes because, according to Sm ith, the notations on the envelopes were argum entative

com m ents; they highlighted s pecif ic po r t i o n s of the e v idence; and the jury could have believed the notations were m a de by the trial court j udge. The standard of review f or a trial
court’s r u l i n g s “ regarding m atters of evidence, relevancy and discovery v iolations,

. . . is abuse of discretion.” Montgomery v. State , 8 91 So. 2 d 179, 1 82 ( ¶6) (Miss. 2 004). W e f ind this assignm ent of

error without m erit f

or the f ollowing reasons. ¶62. The record contains t he original CD/DVD exhibits i n t h e e n v e l opes containing the
f ollowing notations:

3 0Ex hibit description Notation description

Ex. 5 - surveillance video f rom Dollar General 5:23 P. Arnold enters video 6:28  ’s f

ace is exposed It appears that  had a pair of scissors in her pocket  went f or the cash drawer use Quicktim e play er Ex. 6 - 911 recording Play this one * 06-05-13 19.56.05 911 call f rom m anager m anager gave dispatch  ’s license plate #. y ou can hear the panic in her voice. Use W indows m edia play er Ex. 9 - the recorded phone conversation between Investigator Pazos and Jennif er Sm ith Play Track 1 using W indows m edia play er “7:00-7:09 on phone” (AR occurred at 8:00) ¶63. Sm ith claim s that these exhibits, i n their e n velopes, w ere given to the jury . Even if they were, t he r ecord contains n o c o ntem p oraneous objection f

rom Sm ith’s trial counsel regarding the envelopes a nd the notations they contained. Further, Sm ith’s trial counsel did

not f ile any post-trial m otio n s , a n d t h u s this alleged error was n ever raised until Sm ith’s appeal. Accordingly , even assum ing the exhibits were given to the jury in t heir envelopes,

we f ind that this issue is procedurally barred. As the M ississippi a ppellate c ourts repeatedly recognize, “[ i]t is incum bent on the party asserting error t o m ake a contem p oraneous objection and obtain a ruling in order to p reserve the objection.” Ronk v. State , 172 So. 3d 1112, 1128 (¶29) (Miss. 2 0 15); s ee, e.g. , Terrell v. State , 952 S o. 2d 998, 1003 (¶17) (Miss. Ct. App. 2006). Sm ith did not do so. ¶64. Procedural b ar notwithstanding, we a l so f ind that Sm ith’s argum ent is without m erit.

3 1Although the r ecord ref l ects t hat the recordings were admi t t e d i n t o evidence, there i s no indication in the record that the envelopes, containing t he notations, w ere entered into evidence. There also is n o indication in the record that the jury w as given these exhibits in the envelopes. Even assum ing this did occur, Sm ith acknowledges t hat “the com m ents on the envelopes in this c ase were alm ost certainly m ade by investigators or a m em ber of [ the] prosecution team ; ” y et Sm ith then speculates that there exists the possibility that one or m ore of the jurors could have believed the com m ents were m ade by the trial court. ¶65. We a c k n o w l e d g e the principle that judges “should be ast u t e l y c a r e f u l s o t h a t unintentionally the jurors are not im properly inf

l uenced by t heir words and actions,” W ilson

v. S tat e , 4 5 1 So. 2d 724, 726 (Miss. 1984), but there is sim p ly no evidence that this took place here. The record contains no i ndication at all that the trial judge m ade the notations, endorsed t he notations, or that the judge even k new the notations were on the e n velopes. In this regard, “[ i]t is elem entary that a p arty s e eking reversal of the judgm ent of a trial court

m ust present this Court with a record a dequate to show that an error of reversible proportions has been com m itted and that the p oint has been procedurally preserved.” Hansen v. State , 592 So. 2d 114, 127 (Miss. 1991) (quoting Queen v. Queen , 551 So. 2d 197, 199 (Miss. 1989)). Further, “ [ t]his Cour t mu s t d e c i d e each case by the f acts shown in the record, not

a s s e r t i o n s in the brief

.” Id. (internal quotation m arks om itted). Under these guiding principles, we f

ind t h i s assignm ent of error without m erit because it is wholly unsubstantiated in the record. ¶66. AFFIRMED.

3 2LEE, C.J., IRVING AND G R I F F I S, P.JJ., BARNES, FAIR, GREENLEE,

WESTBROOKS AND TINDELL, JJ., CONCUR. W ILSON, J ., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

3 3APPENDIX JUROR AND JURY SELECTION INFORMATION ON FIRST TWENTY PANEL MEMBERS Juror # State Defense 1 subm itted accepted 2 subm itted accepted 3 struck by perem ptory challenge 4 subm itted struck by perem p tory challenge 5 subm itted struck by perem p tory challenge 6 subm itted struck by perem p tory challenge 7 subm itted struck by perem p tory challenge 8 subm itted accepted 9 (Af rican Am erican) struck by perem ptory challenge 10 (Af rican Am erican) struck by perem ptory challenge 11 struck f

o r cause without objection by def ense 12 (Caucasian) struck by perem ptory challenge 13(Af rican Am erican) 13 struck by perem ptory challenge 14 subm itted accepted

13 S m ith ’s trial co u n sel m ad e h is B a tso n ch allen g e af ter th e S tate ex ercised its f if th p erem p to ry ch allen g e ag ain s t J u ro r 1 3

. D u rin g arg u m en t o n S m ith ’s B a tso n ch allen g e, th e S tate p o i n ted o u t t h at o f th e 1 2 j u ro rs su b m itted b y th e S tate at th at p o in t in th e j u ry selectio n p ro cess, f o u r w e re A f

rican A m erican s. T h e trial co u r t also o b serv ed th at at th is p o in t in th e j u ry s electio n p ro cess, th r e e o f th e S tate’s p erem p t o ry strik es w ere a g a in st A f rican A m erican s, an d tw o w e re ag a in st C au casian s. 3 415 subm itted accepted

16 subm itted struck by perem p tory challenge 17 - Juror was absent 18 subm itted struck by perem p tory challenge 19 struck f

o r cause without objection by def ense 20 subm itted

3 5