IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-00309-COA FREDRICK SMITH JR. A/K/A FREDERICK J. SMITH A/K/A FREDERICK SMITH A/K/A FREDRICK SMITH A/K/A FREDERICK SMITH JR. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/17/2015 TRIAL JUDGE: HON. W ILLIAM A. GOW AN JR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: JOHN M. COLETTE SHERW OOD ALEXANDER COLETTE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED - 01/02/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GREENLEE, J., FOR THE COURT: ¶1. Frederick Sm i th appeals h is conviction f rom H i n d s C o u n t y C i r c u i t C o u r t , First Judicial District, of two counts of a ggravated assault with a deadly weapon. More specif ically , the jury f

ound him g uilty of shooting two people. On appeal, his asserted errors

are that: (1) the trial court did not allow an alibi witness to testif y ; (2) the trial court allowed im p erm issible hearsay t estim o n y in violation of Crawford v. W ashington ; 1 and (3) the

1 C ra w f o rd v. Wa sh in g to n , 5 4 1 U .S . 3 6 (2 0 0 4 ).evidence was insuf f icient as to one of the c ounts. U pon r e v i e w, we f ind the circuit court erred b y disallowing Sm ith’s alibi witness to testif y . W e rever s e S mi t h ’ s conviction and

rem and f or a new trial. BACKGROUND ¶2. On July 13, 2013, a t approxim ately 1:30 a.m ., Jessica Key s and Cam eron Conner were both shot at a gas station in Jackson, Mississippi. Key s was riding passenger in a car operated by her coworker when they pulled into the gas station, and parked f acing the station, with the
gas pum p on the driver’s side. Conner was inside the s tation, a nd when he e xited, K ey s recognized him

. Key s o pened her car door and stood up o utside the car but f rom behind the door, calling out to Connor. Connor then cam e over to Key s , alm ost reaching her door. ¶3. Earlier, while Key s’s vehicle was parked and Conner was inside, a car had pulled in and parked on the opposite side of the sam e stall, also f acing the station. No occupants exited until a pproxim ately two m inutes later, when Conner reached K ey s’s door. At that tim e, three individuals exited the c ar and opened f ire on Key s and Conner. B o t h K e y s and Conner dropped to the ground f

or cover. K ey s a ttem

pted to wedge herself under the car, ly ing along the car’s length w ith her head toward the rear, while Conner used the outside o f the still-open

car door f o r protection. One of the three shooters pivoted around the rear of K ey s ’s vehicle, f iring his weapon as he m oved along the rear-passenger side. Conner c r awled f rom the car door to the f

ront of the vehicle, attem

p ting to seek better cover. As Conner m oved, the sam e shooter continued to f

ire, pivoting to get a better angle at Conner. ¶4. Key s was shot three tim e s and rem ained alongside the car until she was transported

2by am

bulance to University of Mississippi Medical Center. Conner lef t the scene prior to the f irst responders’ arrival, when other individuals helped him inside their vehicle. 2 ¶5. Key s viewed a photo lineup and identif ied Fredrick Sm it h a s o n e of the shooters. Sm ith was indicted on January 29, 2014, on two counts o f aggravated a ssault with a weapon in violation of Mississippi Code A nnotated s ection 97-3-7(2)(b) (Supp. 2012). On June 10, 2014, the Hinds County District A ttorney ’ s O f f ice w ithdrew because one of Sm ith’s coindictees was serving as a c ooperating witness f or the State in another prosecution. On June 23, 2014, the Mississippi Of f ice of the Attorney General w as appointed as special prosecutor in Sm ith’s case. ¶6. D u r ing trial, the court granted Sm ith’s m otion in li mi n e t o e x c l u d e t h i r d

- p a r t y identif ications ty ing S m i t

h t o t h e s h o o t i n g , i n c l uding any identif ications within tips subm itted

to Crim e Stoppers. 3 D e t ective R ozerrio Cam e l of the Jackson P olice Departm ent, the assigned investigator, testif ied f o r the State. Prior to his testim ony , the trial judge advised the State to i nf

orm Detective Cam el he could not m ention any inf o rm ation contained within the Crim e Stoppers t i ps, stating “[ the nature of the tips] is hearsay .” However, during his

t e s t i m o ny , Detective Cam el stated, “during the course of investigat i o n , I r e c e i v e d i n fo r m a t i o n and t i p s —and tips regarding Frederick Sm i th. Tips was stating that Frederick Sm ith— [ (interrupted by c olloquy regarding an objection)]

. . . . Tips. I received t i p s r e g arding

2 A secu rity cam e ra cap tu red th e a b o v e in cid en t in its e n tirety , an d th e j u ry v iew ed th e f o o tag e d u rin g trial.

3 C rim e S to p p ers i s an o rg an izatio n th at so licits tip s f ro m th e p u b lic in e f

f o rt to g ath er in f o rm atio n co n cern in g crim es. 3Frederick Sm ith and—and the purple autom o bile that he drives.” F ollowing D e t e ctive

Cam el’s statem ent, the trial court issued a c autionary instruction: “Ladies and gentlem en of the jury , I’m instructing y ou to totally disregard the portion of the testim ony of this witness dealing with the identif

ication of any vehicle.” ¶7. On the s econd day of trial, Sm i th’s trial counsel, Darla P alm er, notif ied the court that there was a witness, Kenzoro W i lliam s, who would state he was with Sm ith at the tim e of the shooting. Palm er f

urther stated that, although s h e had spoken with S m ith on num erous occasions about the upcom ing trial, Sm ith’s f irst m ention of the potential alibi witness was

on the second day of trial. O utside the presence o f the jury , the court allowed a prof f er of W i lliam s’s t estim o n y . I n h i s prof f er, W illiam s stated that on the night of the shooting, he saw Sm ith at a local club. He f

urther stated that S m ith did not leave until he did, at approxim ately 2 a.m . on Saturday m ornin g . F ollowing W illiam s’s prof f er, Sm i th testif

i ed f or the lim ited
purpose of explaining the tim ing of his a l ibi-witness disclosure. The State objected to W i lliam s’s testim ony , and the trial court sustained the objection, disallowing W i lliam s f rom testif y ing. ¶8. Following trial, the jury f ound Sm ith guilty o n b oth counts. Sm ith was subsequently

sent e n c e d o n each c ount to a term of twenty y ears in the custody of the Mississippi Departm ent of Corrections, with f ive y e ars suspended and f if teen to serve, f

ollowed by f

ive
y ears of probation. T he sentences were ordered to run c oncurrently with one another. Sm ith appeals. DISCUSSION

4I. Denial of Sm ith’s Alibi Witness

¶9. On appeal, Sm ith challenges the court’s exclusion o f his proposed alibi witness. “In reviewing rulings of a trial c our t regarding m atters of evidence, r elevancy and discovery violations, the standard of review is abuse of discretion.” Sims v. S tate , 928 S o. 2d 984, 986 (¶8) (Miss. Ct. App. 2006). ¶10. Mississippi Unif

orm Rule of Circuit and County Court Practice 9.05 4 states: Upon t h e w ritten demand of t h e p r osecuting attorney stating the tim e, date, and place at which the alleged of f ense was c om m itted, t h e d e f endant shall serve within ten day s, or at such o ther tim e as the court m ay direct, upon the prosecuting attorney a written notice of the intention to of f er a def ense of alibi

. . . . (Em phasis added). ¶11. “The rule clearly states that the requirem ent to disclose an alibi witness is triggered by the p rosecution.” Ha l l v. State , 925 So. 2d 856, 8 57 (¶4) (Miss. Ct. App. 2 005). “Only af ter the prosecuting a t torney m a kes a written dem and is the def endant then required to provide written notice of his intent to of f er a d ef ense of alibi.” Id. (quoting Ford v. State , 862 So. 2d 554, 5 5 7 ( ¶ 1 1 ) ( M iss. Ct. App. 2003)). Upon thorough review, there is nothing indicating that the p r osecution m ade such a written dem a n d, and we are n ot inclined to

assum e one exists. W e theref ore f ind that Sm ith’s lack of disclosure w as not a f ailure to abide by Rule 9

. 05. On two prior occasions, we have r eversed and rem anded when a def endant’s alibi witness was excluded, where the State did not m ake a written dem and under Rule 9.05. See Hall , 925 So. 2d at 857 ( ¶¶3-5); Ford , 862 So. 2 d at 557 (¶¶10-12). The trial

4 M ississip p i R u le o f C r i m in al P ro ced u re 1 7 .4 rep laced R u le 9 .0 5 ef f ectiv e Ju ly 1 , 2 0 1 7

. B u t b ecau se th e p ro ceed in g s in th is case p red ate th is ch an g e , th e f o rm e r ru le ap p lies. 5court likewise erred here, in deny i ng Sm ith the opportunity to present his alibi witness. W e

reverse and rem and f

or a new trial. II. Detective Cam el’s Testim ony ¶12. Sm ith next argues testim ony of Detective R ozerrio C am el was adm i tted in violation of t h e Conf

rontation Clause of the Sixth Am endm ent. S m ith asserts that Detective Cam el
gave, over a sustained objection, testim onial evidence concer n i n g t he tips he received via Crim e S toppers. A cri m inal def endant’s argum ent is procedurally barred where he f ails to

m ake a contem

poraneous Sixth Am e ndm ent (Conf rontati o n Clause) objection to the adm ission of testimo n y a n d d o es not raise an o bjection i n his post trial m otions. Ezell v. State , 132 So. 3 d 611, 612 (¶3) (Mi s s . C t

. A p p . 2013). A general hearsay objection is insuf f icient to preserve an alleged Conf rontation Clause violation f or appell a t e r e v i ew. Briggs v. State , 16 So. 3d 696, 698-99 (¶11) (Miss. Ct. App. 2008). ¶13. Sm ith f

a i l e d t o m ake a Sixth Am endm ent o bjection t o the adm ission of Detective C a me l ’ s testim o ny either at trial or in a post trial m otion (and instead asserted hearsay objections). Sm i th’s argum ents on this issue are theref ore procedurally barred. W e note that Detective Cam el’s statem ent, given over a sustained hearsay objection, was c l earl y i m p r o p er. However, we do not f

i nd this issue dispositive, and decline to review it f or plain error. III. Sufficiency of the Evidence ¶14. In his third assignm e nt o f error, S m i t h a s s e rts the State presented i nsuf f icient evidence

to convict him of aggravated a ssault, as t o the charge concerning Conner. Sm ith a rgues that: (1) Connor d id n ot testif

y ; (2) no w itnesses testif

ied that Sm ith shot C onner; and (3) Key s’s

6testim o ny

was unreliable. ¶15. In considering whether the evidence is legally suf f icient to su s t a i n S m i th’s conviction, the critical i nquiry is whether the evidence shows bey ond a reasonable doub t t h a t Sm ith

com m itted the act charged, and that he did s o under such circum stances that every elem ent of the o f f ense e xisted. Russell v. State , 924 S o. 2d 604, 6 08 (¶8) (Miss. Ct. A p p. 2006). “The key q uestion in this a naly sis is whether, af t er viewing the evidence in the light m ost f avorable

to the prosecution, any rational trier of f act co u l d h a v e f

ound the e ssential elem ents of the crim e b ey ond a reasonable doubt.” Id. (quotation m arks om itted) (quoting Bush v
. State , 895 So. 2d 836, 843 (Miss. 2005) (abrogated on other grounds)). If the evidence against Sm ith is such that “reasonable f air-m inded [

jurors] i n t h e exercise of im partial judgm ent m ight reach dif f erent conclusions on e ver y e l e m e n t of the of f ense,” we will deem the evidence suf f i cient. Id. W e will o nly reverse the jury ’s verdict when evidence of one or m ore of the elem ents of the charged of f ense are such that r easonable a nd f air-m inded jurors could only f ind the a ccused not guilty

. W i lson v. State , 936 So. 2 d 3 5 7 , 3 6 2 (¶16) (Miss. 2006). In analy zing such a c l a i m o f e rror, we are required to view the evidence in the l ight m ost f avorable to the State and c onsistent with the verdict. I d. The S tate receives the benef it of all f avorable inf

erences that m ay

be reasonably

drawn f rom the evidence. Id. ¶16. For the jury t o f

ind Sm ith guilty of aggravated assault, the State was r equired to prove bey ond a reasonable doubt that Sm ith: (1) a ttem p ted to cause or purposely o r k nowingly (2) caused bodily injury to an o ther (3) with a deadly weapon or other m eans likely to produce death or serious bodily

harm . Miss. Code Ann. § 97-3-7(2) (Supp. 2012).

7¶17. Looking to the record, w e f ind the evidence such that a r ational trier of f act c ould have f ound b ey ond a reasonable doubt that Sm ith attem pted to cause or purposef

u lly or knowingly caused bodily injury to Conner with a deadly weapon. K ey s picked Sm ith out o f a lineup, and identif ied him as one of the three shooters. She testif ied that she w a s able to identif y Sm ith because she r e c o g n i z e d h is ey es. Key s also identif i ed Sm ith during trial, and stated that during the shooting, while she was underneath her c ar, Sm ith c am e close t o where she was, and shot over the car at Conner. Key s stated that when she was under the car, she w as on her

stom ach, but had her head up, and her ey es open. ¶18. Sm ith’s assertion that Key s’s t estim o ny was unreliable is a n attem pt to a t t a c k h e r credibility , and w e h a ve consistently held that the jury d eterm ines a w i tness’s credibility at trial, a nd the weight and worth of her testim ony . See, e.g., Odom v. Roberts , 606 S o. 2d 114, 118 (Miss. 1992); Burge v. Spiers , 856 So. 2d 577, 580 (¶9) (Miss. Ct. App. 2003). Sm ith’s assignm ent of error regarding the suf f iciency of the evidence is without m erit. CONCLUSION ¶19. T h e S t ate d i d not issue a w ritten dem and that Sm ith disclose his intent t o o f f e r a n alibi, and theref

o r e, Sm ith was not required to disclose his intention to call W illiam s. Thus, the trial court erred when it denied Sm ith the opportunity to present h is alibi witness. Sm ith’s second assignm ent of error is procedurally barred, and we f ind that S m ith’s third assignm ent concerning the suf

f iciency of the evidence is without m erit. ¶20. REVERSED AND REMANDED. LEE, C .J., IRVING, P.J., BARNES, CARLTON, F AIR, WESTBROOKS AND TINDELL, JJ., CONCUR. W I L SON, J., CONCURS IN RESULT ONLY WITHOUT

8SEPARATE W RITTEN OPINION. GRIFFIS, P.J., DISSENTS W I T HOUT

SEPARATE WRITTEN OPINION.

9