IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2013-KA-01151-COA NATYYO GRAY A/K/A NATYYO N. GRAY APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 02/28/2013 TRIAL JUDGE: HON. JEFF W EILL SR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF NATYYO GRAY (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF CAPITAL MURDER AND SENTENCED TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS W ITHOUT ELIGIBILITY FOR PAROLE OR EARLY RELEASE DISPOSITION: AFFIRMED 11/03/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., ISHEE AND CARLTON, JJ. ISHEE, J., FOR THE COURT: ¶1. A jury s i tting bef

ore the Hinds County Cir c u i t C o u r t f ound Naty

y o Gray guilty

of capital m urder. The circuit court sentenced Gray to lif e in the custody o f t h e M i s s issippi Departm ent of

Corrections (MDOC). Gray appeals. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY¶2. This appeal s t e ms f r o m t h e d e a th of A ubrey Z oe Brown, the thirteen-m onth-old daughter of Gray and Phy llis Brown. It is undisputed that Z oe was exclusively in Gray ’s care f or approxim ately two hours and f orty -f ive m inutes b ef

ore he called 911 a nd reported that she needed em ergency m edical attention. It is also undisputed t hat Zoe died due to internal bleeding caused by s ignif

icant blunt-f

orce traum a . The j ury ’s verdict supports the f ollowing version of

events. ¶3. Brown went to church at approxim ately 1 1:00 a.m . on Sunday , Novem ber 20, 2011. She l ef t Zoe at h om e with G ray . They were both asleep when she lef t. It was the last t im e that Brown saw Zoe alive. A t approxim ately 1:45 p.m ., three f iref ighters with the Jackson Fire Departm e nt were responding to Gray ’s 911 call. Two m inutes af ter t hey were dispatched, the f

iref ighters arrived at Brown’s apartm ent. ¶4. As they pulled up, Gray r an outside with Zoe, who was in cardiac a rrest. According
to one of the f iref i ghters, Gray

was pressing Zoe’s stom ach. Firef ighter Zeric W a shington took Z oe f

rom Gray and started perf orm ing chest com

p ressions. Lieutenant Mario English placed an “am

b u bag” over Z oe’s m outh to d eliver oxy gen. Because Lieutenant English had experience perf

orm ing CPR on inf

ants, he and W ashington soon switched places. ¶5. W h en an a mb u l a n c e a r rived m inutes later, Lieutenant English r ushed Zoe to EMT Andrew Ay co x a n d p a r am edic Joey Sanders. As Sanders placed leads on Zoe’s chest to

m onitor the electrical activity of her heart, he noticed bruising on her abdom en. Sanders later testif i ed that the bruising appeared to be the p roduct of a “ signif icant a m ount” of blunt-f

orce
traum a . A ccording to Sanders, it w as the “ty pe of injury that y ou would see in h igh[ -]speed

2. . . c ar accidents.” Gray told Sanders that he had pressed on Zoe’s a b d o m en to relieve

constipation, a nd later in an attem pt to perf orm CPR. B ecause Zoe’s injuries did not m atch Gray ’s version o f e vents, Sanders ref used to let Gray r i d e i n t h e am bulance. W a shington rode in the am

bulance and assisted with CPR while Zoe was rushed to Baptist Hospital a f ew

m iles away

. ¶6. Em ergency -room phy sicians Dr. Paul Z oog and Dr. P aul Petty were on duty when Zoe arrived. S he was still i n cardiac arrest. Dr. Zoog and Dr. Petty both n oticed b ruising on her abdom en. She also had bruises on her f orehead, cheek, a nd the b ack of her head. Additio n ally , there were lacerations in her m outh, a nd her m axillary f renulum was torn. 1 Through the ef

f orts of personnel at Baptist Hospital, Zoe’s heart began to b eat on its own. Approxim ately thirty -f

o ur m inutes af

ter s he arrived, Z o e was rushed to Batson C h ildren’s Hospital at the University of Mississippi Medical Center (UMMC). 2 ¶7. Dr. Nancy W ahl a nd Dr. Sarah Sterling t reated Zoe a t B a t s o n Children’s Hospital.
Dr. W ahl and Dr. Sterling b o th n oticed bruising on her abdom en. D r . W ahl also com pared
Zoe’s i njuries to the af

t erm ath of “a m oto r [

- ] v e h i c l e collision.” A CT scan of Zoe’s abdom en revealed t hat she was bleeding internally f rom m ultiple liver l a c e r a t i o n s and the

area around her duodenum

. Zoe had lost approxim ately one-half o f her entire blood volum e.

1 D r. Z o o g later testif

ied th at t h e m ax illary f

ren u lu m i s th e “little p i ece o f tissu e t h at [ attach es th e] u p p er lip to [ t h e] u p p er g u m . . . b etw een [ o n e’s] tw o f ro n t teeth .”

2 D r. Z o o g testif

ied th a t Z o e w as tran s f

erred t o B atso n C h ild ren ’s H o sp ital b ecau se, u n lik e B ap t ist H o sp i tal, it h as a p ed iatric in ten siv e-care u n it. Z o e w as in itially tak en to B a p t ist H o sp ital b ecau s e it w as t h e clo ser to B ro w n ’s ap artm en t, an d w as th e f i rst o p tio n av ailab le f

o r em erg en cy treatm en t. 3According to Dr. W ahl, Zoe was bleeding i nternally as f ast as they could give her transf usions. During the eighty m inutes the personnel at Batson Children’s Hospital treated Zoe, she received transf

usions a m ounting to alm ost h er e n tire blood volum e. Despite their ef f orts, Z oe’s blood pressure was never high enough to treat her surgically

. Z oe died at 4:29
p.m . ¶8. At that tim e, Gray was a detective w ith the Jackson Police Departm e n t. A num ber of his f ellow of f icers went t o the hospital in eithe r a p e r s onal or p rof essional c apacity

. Five of f icers later testif

ied that while they were a t Batson Children’s Hospital, Gray said that he h a d killed Zoe by pressing on her s tom ach to relieve her constipation and i mp r o p e r l y perf orm ing CPR. ¶9. Later that day , Gray w as transported to the police d epartm ent f or q uestioning. Gray waived his right to rem ain s ilent and gave a statem ent. Gray was l ater i n d i c t e d f or capital

m urder, which w as elevated based on the allegation of f elony ch i ld abuse. Gray pled not guilty

. G ray ’s trial a ttorney s and the p r o secution e xchanged num erous volley s o f pretrial

m otions, which we will address as necessary below. ¶10. Gray ’s trial b egan o n February 11, 2013. J u r y s e l e c tion l asted that entire day

. The prosecution called t wenty -six w itnesses over f o ur day s. Brief

l y sum m arized, num erous witnesses testif

i ed that t he blunt-f

orce traum a to Zoe’s abdom en lacerated her liver and essentially tore her pancreas in half

. A num ber o f witnesses also testif ied that Zoe’s injuries

were the product of child abuse, and they w ere n o t c a u s e d b y m assaging her stom ach or im p roperly perf

orm i ng C PR b y p r e s s i n g on her abdom e n. T he prosecution called f ive

4phy sicians as expert witnesses w ho testif ied that without m e d i c a l intervention, Zoe would have d ied less than an hour af ter sustaining her f

a tal injuries. The prosecution rested its casein-chief on February

19, 2013. ¶11. Gray testif

ied in his own d e f

ense. Gray claim ed that he was not responsible f or Zoe’s f atal injuries. His def

ense t heory was to blam e Brown f or Z oe’s f atal injuries. According
to Gray , Brown h a d spanked Zoe bef ore she went to church. Gray testif ied that Zoe behaved unusually f

rom the tim e t hat they woke up a f t er Brown lef

t. He claim ed t hat Zoe was lim p, she would not s t and u

p or w alk, she stared into space, and she would n ot eat or drink. W hen she started behaving a s t hough she was constipated, he rubbed her a bdom en. He c l aim ed that when she stopped breathing, he tried to perf orm CPR by pressing on her abdom en. ¶12. Gray also testif

ied that t he f

iref ighters who responded to his 911 c all never perf orm ed
CPR on Zoe af

ter they arrived, a nd all three who testif ied otherwise were ly i ng. According
to G ray , they sim

ply watched him push on Z o e ’ s a b d o m en a n d suggested that he hold her

nos e and breathe less f

orcef ully into her m outh. G ray claim ed that he carried Zoe to the

am bulance, and the em e rgency responders acted casually while he continued to press on her
stom ach. ¶13. Gray also testif

ied t hat Zoe did not have any bruising in his care or at any tim e bef ore

s h e arrived at Batson Children’s Hospital. According to Gray , “[ s]om ething happened to [ Zoe] while she

. . . was being treated.” Gray claim ed that the p olice of f icers w ho testif

ied that he had said that he killed Zoe were a ll either ly i ng or testif y ing based on rum ors that they had heard f

rom others.

5¶14. Gray called D r. S teven Hay ne as an expert witness. 3 Essentially , Dr. Hay ne testif ied that Zoe c o uld have lived up to f ive hours without m edical intervention af ter s he received her f atal i njuries. In other w ords, Dr. Hay ne’s t estim o ny indicated that Zoe would have been in
Brown’s care at the tim e she sustained her f atal injuries. D r. Hay

ne based his testim ony on the levels of certain biochem ical m arkers in Zoe’s tissues, rather than the rate at which she

was bleedi n g i n t e rnally , which he characterized as uncertain b ased on the undef ined characteristics of

the liver lacerations. ¶15. The prosecution called two rebuttal witnesses. Brown said that she did not spank Zoe the m orning that she died. The prosecution also recalled Dr. Scott Benton, 4 who h ad testif ied during the prosecution’s case-in-chief

. During his rebuttal testim ony , Dr. Benton ref uted Dr. Hay ne’s testim ony t hat Zoe sustained her f atal injuries a t a

pproxim a tely 9:30 o r 10:00 a.m . Dr. Benton reiterated h i s opinion that Zoe would have died within m inutes of h e r f a t al injuries without m edical intervention. He also ref uted t he m ethodology by which Dr. Hay ne arrived at his opinion. That is, Dr. Benton testif ied that concentrations of various s u bstances in the body

cannot be u sed to extrapolate the tim e o f an injury

. Quoting a 2012 article in a

m edical jo u r n a l , D r . Benton explained that hopef ully “som e day , som eone will discover a suitable chem ical biom arker within the hum an body whose concentrations can be quantitatively tracked over tim e to

. . . predict the tim e of death.” However, he t estif ied that

3 D r. H ay n e testif ied th at h e w as n o t b ein g co m p en sated f

o r h is ex am in atio n o f Z o e’s reco rd s o r h is testim o n y .

4 D r. B en to n w as an asso ciate p ro f esso r o f p ed iatrics an d ch ief o f th e d iv isio n o f f o ren sic m ed icin e at U M M C

. H e w as also t h e m ed ical d irecto r o f th e C h i ld ren ’s Ju stice C e n t er. 6there is no current m edical “ s c i ence that justif ies the use of biochem ical m arkers

. . . to backdate [ a ] d e a t h

. ” H e f urther explained that D r. H ay n e’s m e thodology w as i naccurate because there is no precise way to extrapolate t he tim e o f an i njury b ased on the num ber of white blood cells in hum an t issue. Finally , Dr. Benton testif ied that Gray ’s testim ony was inconsistent with Dr. Hay ne’s b ecause if Z oe suf

f ered t he f atal injuries a t 9:30 or 10:00 a.m ., and Gray had pressed on her abdom en, Zoe w ould have been “scream ing in pain,” and Gray did not testif

y that she had done so. ¶16. On February 21, 2013, the jury f ound Gray guilty o f capital m urder. A week later, the circuit court conducted a sente n cing hearing and sentenced Gray to lif e without the possibility of parole. 5 Following his unsuccessf ul m otion f

o r a judgm ent notwithstanding the verdict (JNOV), Gray

appeals. ¶17. On appeal, Gray ’s appointed attorney argues that Gray received inef f e c tive assistance of counsel at t r ial f

or m ultiple reasons, including that h is trial attorney s f ailed to adequately interview witnesses, f

a i l e d t o r e quest an a c cident instruction, and f ailed to request a

m anslaughter i nstruction. Gray has also f iled a pro se supplem ental brief

. Gray lists twenty

f our issues in h is supplem ental brief , but based on the s ubstance of his argum ents and the f act that they of

t en overlap, we are able to address them in f if teen issues.
ANALYSIS
I. Assistance of Counsel ¶18. Gra y a r g u e s t h a t h e r e c e i v e d i n e f f ective assistance of counsel because his trial

5 B ased o n G ray ’s em

p lo y m en t h isto ry a s a law -en f

o r cem e n t o f

f icer, t h e c ircu it co u rt req u ested th at M D O C p l ace G ray in p ro tectiv e cu s t o d y

d u rin g h i s in carceratio n . 7attorney s were n ot a ble t o in t e r v iew all of t he prosecution’s witnesses. During a pretrial hearing, th e p rosecution m entioned that Gray ’s trial attorney s had not interviewed six witnesses. Gray ’s trial attorney s explained that the witnesses ref u sed to talk to them

. ¶19. At trial, one of Gray ’ s trial attorney s cross-e x a m i n e d L i e u t e n a n t E n g lish, who testif

ied that he h ad not previously spoken to either of Gray ’s trial attorney s. There w e r e sim ilar
statem ents d

uring cross-exam ination of the next three witnesses f o r the prosecution. Additionally , Gray ’s trial attorney s had not previously spoken t o Zoe’s pediatri c i a n, Dr. Geraldine Chaney

. ¶20. Gray a lso claim s that one of his t rial a t t o r n e y s i m p r o p e r l y g a v e a witness an

o p p o r t unity to explain why his testim ony w as dif f erent t han the events he described i n a report, and h is c ross-exam ination of prosecut i o n w i tnesses resulted in answers that underm ined Gray ’s case. Additionally , Gray a r gues t hat one o f h is t rial attorney s was inef f ective b ecause h e asked q uestions that were f

ruitless, he asked questi o n s w i t h out knowing w hat the witnesses would say , and he was not adequately p repared to cross-exam ine witnesses. Gray also claim s that o ne of his trial attorney s c alled Dr. Hay ne, who was not an ef f ective witness. Finally , Gray argues that his trial attorney s were inef f ective b ecause they did not request an accident instruction, and their f requent objections becam e tedious. ¶21. “The benchm a rk f

or judging any claim of inef f ectiveness of counsel m

ust be whether counsel’s conduct s o underm ined the proper f unctioning of the a dversarial p rocess that the trial cannot b e relied on as having produced a just result.” Foster v. State , 687 So. 2d 1124,
1129 (Miss. 1996) ( quoting Strickland v. W ashington , 466 U.S. 668, 686 (1984)). “The test

8is two p ronged: The def endant m u st d em onstrate that h is counsel’s perf orm ance was def icient, and that the def

iciency prejudiced the def ense of the case.” Id

. (citations om itted). ¶22. “Generally , inef

f ective[ -]assista n c e c l a i ms a r e more appropriately b rought during post[ ] conviction proceedings.” Bateman v. State , 125 So. 3d 616, 633 (¶60) (Miss. 2013). The rationale f

or this is based on the f

act that on direct appeal, an appellate court is lim ited
to t he r e c o r d in the trial court, “and there m ay b e instances in which insuf f icient evidence exists within the record to address the claim adequately .” Archer v. State , 986 So. 2d 951,
955 (¶15) (Miss. 2008). “This C ourt will rule on the m erits on the rare occasions where (1) the r ecord af

f irm atively shows inef

f ectiveness of c onstitutional dim ensions, or (2) the parties stipulate that the record is adequate to allow the appellate court t o m ake the f inding without

c o n s i d eration of the f

indings of f

act o f t he trial judge.” McClendon v. State , 152 S o . 3 d 1189, 1192 (¶12) (Miss. Ct. App. 2014). ¶23. The record bef

ore us does not a f

f i r ma t i v e l y s how inef

f ectiveness of

constitutional dim ensions, and the parties have not stipulated t hat the r ecord is adequate to allow t his Court
to rule on the issue w ithout considering the circuit court’s f indings of f

act. “In s uch a case, the appropriate procedure is to deny relief , p reserving t he d ef

endant’s right to argue the issue through a petition f

or post[ ]conviction relief .” Archer , 986 So. 2 d a t 9 5 5 (¶15). Consequently , Gray

is f ree to seek postconviction relief , if he chooses to do so.
II. Subpoena Duces Tecum ¶24. According to G ray , the circuit court erred when it granted the prosecution’s m otion
to quash the subpoena duces tecum tha t h e h ad served on Brown. Through t he subpoena

9duces tecum , Gray sought to h ave Brown appear at his trial attorney ’s o f f i c e a n d p rovide twenty categories of m aterial. 6 The circuit court granted the prosecution’s m otion to quash the subpoena duces tecum because “it violated Rule 2.01 of t he” Unif orm Rules of Circuit and County Court. An appellate court “applies a de n ovo standard of review to questions of law, such as whether the trial c ourt erred in granting a m otion to quash a subpoena.” Miss. Dep’t. of Rev. v. Pikco Finance Inc. , 97 So. 3d 1203, 1205 (¶3) (Miss. 2012). ¶25. Rule 2.01(B) states:
A subpoena in a crim inal case m ay , without a m otio n or hearing, require the production of books, papers, docum ents or other o bjects at the date, tim e and place at which the trial, h earing or proceeding at which these items are to be offered in evidence is scheduled to take place

. (Em phasis added). Additionally , Rule 2.01(C)(1) provides:
No subpoena in a crim inal case m a y r equire the production of books, papers, docum ents or other o b

jects at a date and t im e or place other than t he date, tim e and place a t which the t rial, hearing or proceeding at which these item s are to be of f ered in evidence is scheduled to take p lace, unless the court h as entered an order pursuant to this rule authorizing the issuance of such subpoena. The subpoena duces tecum at issue com m anded Brown to appear at Gray ’s trial attorney ’s

o f f i c e and produce the m aterial at issue. T he circuit court had not e n tered an order authorizing the subpoena duces tecum . W e f ind no m erit to this issue.
III. Life Insurance ¶26. In the subpoen a d u c e s t e c um discussed in the previous issue, Gray requested the

6 A m o n g o t h er th in g s, th e m aterial G ray so u g h t th ro u g h t h e su b p o en a d u ces tecu m in clu d ed B ro w n ’s c ellu lar p h o n e, co m p u ters, em ails, all p ictu r es o f Z o e, B r o w n ’ s m ed ical reco rd s, i ns ur a

nc e pol i c i e s , e duc a t i ona l c e r t i f icates, p h o n e reco rd s, em

p lo y m e n t reco rd s, an d Z o e’s d ay care d o c u m en ts. 1 0disclosure of a ll m aterial regarding any lif e insurance that Brown “ sought on the lif e of ” Zoe. The prosecution f

iled a p retrial m otion to suppress evidence of t he two lif e-insurance policies

on Zoe: one with a $15,000 benef it, and the other w ith a $25,000 benef it. Brown was the sole benef

iciary under each p olicy

. 7 The prosecution a rgued that t he lif e - insurance policies

were irreleva n t

. T he circuit court took the m atter under advisem e n t until Brown could be prof f ered regarding the policies. ¶27. During the prof

f er, Brown testif

ied that she purchased the $ 25,000 whole-lif e policy
ten day s af

ter Zoe was born. B rown described the $15,000 policy as a “college f und” that also would pay a death benef it, i f necessary . Brown testif i ed that she contacted State Farm regarding the $25,000 policy on the day af ter Zoe died. Brown f

urther testif

ied as f ollows:
I can’t r em em

ber who exactly I spoke with, b ut they told m e that Zoe had to be m oved f

rom the hos p i t al and I needed to decide which f uneral hom e I wanted her to go to. S o I called [ m y i nsurance agent] to see if I needed like a policy num

ber, o r what did I need in order to give t o the f uneral hom e so they would be able to com e and pick up Zoe.
Brown explained that she did not have enough m oney t o pay f or Zoe’s f uneral without the benef it f r o m t h e l i f

e - insurance policy

. Af

ter the prof

f er, the c i rcuit court held that Gray would be allowed to introduce evidence of t he t wo policies a n d t h e t im e that Brown contacted State Farm regarding the $25,000 policy

. Gray ’ s trial attorney s u bsequently crossexam ined Brown regarding t he insurance policies. On appeal, Gray claim s the prosecution

w i t h h eld exculpatory m aterial by n ot disclosing evidence of the lif e-insurance poli c i e s d

u r i n g discovery

. “In reviewing rulings of a trial court regarding m atters of evidence, relevancy and

7 T h e $ 1 5 , 0 0 0 p o licy w as th ro u g h G erb er L if e In su ran ce. T h e $ 2 5 ,0 0 0 p o licy w as th ro u g h S tate F arm . 1 1discovery violations, the sta n d ard of review is abuse of discretion.” Montgomery v. State ,

891 So. 2d 179, 182 (¶6) (Miss. 2004). ¶28. Gray argues that the prosecution violated its obligatio n t o d i s c l o s e e x c u l p atory

m aterial as r equired by Brady v. Maryland , 373 U.S. 83, 87 (1963). In Brady , the United
States Suprem e Court held t hat “the sup p ression b y the prosecution of evidence f avorable
to an accused upon request violates due process w h ere the e vidence is m aterial either to guilt

or t o punishm ent, irrespective of the good f aith or bad f

a i th of the prosecutio n . ” I d

. T he
S u p r e m e Court l ater clarif ied that “evidence is m aterial only i f t here is a reasonabl e probability that, had the evidence been disclosed to the def ense, the result o f the proceeding would have been dif

f erent.” United St a t e s v
. B a g l ey , 473 U.S. 667, 682 (1985). “A ‘reasonable probability ’ i s a probability suf f icient to underm ine conf

idence in t he outcom e.” Id

. ¶29. Even as s u mi n g t h a t t h e policies are considered exculpatory toward Gray and the prosecution was obligated to disclose them during discovery , Gray cannot d e m onstrate a reasonable probability that the outcom e of t h e trial would have been d if f erent if the prosecution would have disclosed the policies during discovery

. “[ T]he question is whether there is a reasonable p r o b a b ility that the verdict would have been dif f erent but f

or
governm ental evidentiary s uppression which underm ines conf i dence in the o utcom e of the trial.” Montgomery , 891 So. 2d at 183 (¶8). Gray sought to create the inf e r ence that Brown

was f inancially m otivated to kill Zoe because s h e w a s t h e b enef iciary of t he policies. He succeeded. The jury heard Brown’s testim o ny that there w ere two lif e-insurance policies on

1 2Z o e, she was the benef iciary of both policies, and she subm itted a claim on t he $25,0 0 0 policy on the day af

ter Zoe d ied. The jury sim ply chose not to b elieve Gray ’s t heory

. There is no m erit to this issue.
IV. Gray ’s Prior Statem ents ¶30. On January 3 0, 2013, Gray f iled a pretrial m otion to s u ppress prior s t atem ents that he “purportedly m ade in or about J a n uary or February

. . . 2011, during the pe[ nd]ency of a paternity and child support a ction

. . . . ” Gray e la b o r a t e d t hat in the s tatem ents, he “purportedly ref

erred t o [ Zoe] as an ‘ugly b astard’ and o therwise den[ ied] that he was [ her] biological f

ather

. . . .” Gray claim ed that he had n ever m a de the statem ents at issue, which

w e re introduced as evidence during a paternity and child-support hearing t hat he did n o t attend. 8 A ccording to Gray , the statem e nts were “irrelevant, highly prejudicial[ ,] and would be s olely of

f ered to inf lam e the j ury and otherwise present inadm issible character evidence.”
He also argued that because the statem ents allegedly occurred n i n e mo n t hs prior to Zoe’s death, t he statem e n t s w ere too rem ote in tim e to h ave any probative value regarding his relationship with Zoe. ¶31. The circuit c ourt h e ard Gray ’s m otion to suppress the pri o r statem ents on February 5, 2013. During the hearing, the prosecution argued that the statem ents w ere relevant a nd adm issible t o s how that G ray did not want to b e involved with Zoe. 9 Gray ’ s trial attorney

8 G ray d id n o t d en y th at h e receiv ed n o tice o f th e p atern ity an d ch ild -su p p o rt h earin g . H e later stated th at h e d id n o t atten d it b e cau se o f a j o b -related in terv i ew . 9 A m o n g o th er th in g s, G ray p u rp o rted ly said th at h e h ad “n o em o tio n al ties” to Z o e, an d h e w as “co m

p letely f lat to w ard s h er.” 1 3noted that the statem ents also showed that Gray l ater sought a relationship with Zoe based

on the f ollowing statem ent: “I think of her a nd I want to change where we are today and be

a f am ily t o the both of y ou and her alone.” Gray ’s trial attorney f urther pointed out that Gray had later m oved into B rown’s apartm ent, and B rown had never a ccused Gray of abusing Zoe. The circuit court held that t he statem ents, which were approxim at e l y nine to ten m onths be f o r e Zoe’s death, were not too rem ote in tim e t o have any probative value. The circuit
court a lso held that t h e statem ents were “ r elevant t o the issue of [ Gray ] ’s m otivation.” Consequently , the circuit court denied Gray ’s m otion to suppress the prior statem ents. ¶32. F o r t he f

irst tim e on appeal, Gray claim s the prior statem ents were n ot p r o p e r l y authenticated. Gray is procedurally barred f rom raising this issue. Berry v. S tate , 75 So. 3d 1053, 1 060 (¶24) (Miss. Ct. App. 2011). “A contem poraneous objection is required in order
to preserve a n issue f

or appeal.” Id

. (citing Davis v. State , 43 S o. 3d 1 116, 1 126 (¶35) (Miss. 2010)). An objection on particular grounds at trial “waives all other grounds f o r objection on appeal.” Carter v. State , 722 So. 2d 1258, 1261 (¶13) (Miss. 1998).
V. Pictures of Z oe ¶33. In this issue, Gray claim s t he circuit co u r t erred when i t a llowed the prosecution to introduce pictures of Zoe t hat were taken af ter she died. Of

f i cer Robert B uf

k in took m ost of the pictures at i ssue while Zoe was at UMMC. T he rem ainder of the pictures were taken during Zoe’s autopsy

. Gray c laim s t hat the p ictures had no probative value beca u s e Dr.
Benton had illegally disturbed Zoe’s body

. Additionall y , G r ay c laim s that the p ictures should have been suppressed based on the prejudicial ef f ect of their gruesom e nature.

1 4¶34. “Although relevant, evidence m ay be e xcluded if its probative value is substantially

outweighed by the danger of unf a ir prejudice, conf

usion of the issues, or m i sleading the jury ,

or by c onsiderations of

undue delay , waste of tim e, or needless presentation o f cum ulative evidence.” M.R.E. 403. “[ A] trial court m ust conduct a two-part test to determ ine whether

a crim e victim ’s photograph is adm issible.” B onds v. S tate , 138 So. 3d 914, 918 (¶8) (Miss. 2014). “First, the trial court m ust determ ine whether the proof is a b solute or in doubt as to identity of the g uilty party

. Secondly , i t m ust b e d e t erm ined w hether the photographs are
necessary evidence or sim ply a ploy by the prosecutor t o arouse the passion and prejudice of the jury .” Id

. “Such photographs should not be adm itted where the killing is not contradicted

or denied, and the corpus d elicti and the identity of the deceased have been established.” Id

. ¶35. According to Gray , “[ p]hotos taken during the autopsy in regard[ ] to bruising about the deceased and the cut inside the deceased[ ’s] lip were all products o f [ D r . ] Benton’s disturbing the body .” First and f orem ost, there was no evidence that bruising can occur af ter death. A dditionally , G ray ’s c laim is contradicted by Dr. Benton’s testimo n y on crossexam ination that h e “did not rem ove [ Zoe] f rom the gurney ” that she was on. H e elaborated

as f ollows: “Did we pick up an arm and l o o k a t [ i t ] a nd look at t hings that w e c ould see externally visible on t he chil d [ ? Y ] e s . T h e nurses and I looked at the child f rom head to toe.” There was no evi d ence that any of Zoe’s injuries were caused a f t er her death. By extension, there was no evidence t hat Dr. Benton caused any o f Zoe’s injuries. It f ollows that the probative value of the pictures was not dim inished by the acts of any one who attem pted to resuscitate Zoe or docum ented her injuries af ter she died.

1 5¶36. W i thout question, all of the p i c t u r e s a t i ssue had s om e degree o f prejudicial ef f ect. Pictures o f a recently d eceased thirteen-m onth-old baby a re naturally d isturbing. That ef f ect is m ultiplied w hen the pictures depict num erous external injuries. And the reaction is even f urther e xacerbated by pictures of an inf a nt’s a u t opsy . If our analy s is solely involved determ ining whether the pictures were prejudicial, then we would go no f urther. However, the circuit court was obligated to weigh the probative value of t h e pictures against their “prejudicial potential to arouse the passions of the jury .” B onds , 138 So. 3d at 919 (¶13). ¶37. The pictures were helpf u l t o t h e jury because they were able to see Zoe’s injuries.
W i thout the pictures, the jury would have been lef t to im agine the f

r equency a n d severity of bruising on Zoe’s abdom en, f ace, head, and inside her upper lip. The picture of Z oe’s lacerated f

renulum c larif

ied the d egree of the laceration and its precise location. The pictures tak e n d u ring Zoe’s a

utopsy were the m o st a c curate way f or the j ury to com

prehend the severity o f Z o e ’ s liver lacerations and the f orce that would have b een necessary to cause them

. The sam e is true regarding Zoe’s “transected” pancreas and t he dam age to her bowel

m esentary

. Finally , the autopsy pictures h elped the jury to understand t he volum e of blood that Zoe lost due to internal bleeding. ¶38. A critical v ariable i n this case was the tim e that Zoe could have sur v i v e d w i t h o ut

m edical intervention a f

ter r eceiving her f

atal injuries. The prosecution’s experts opined that
Z o e w o u l d have died within m i nutes, and certainly no later than an hour. Gray ’s e x p e r t opined that Z oe would have survived f or approxim ately f

ive hours. The pictures helped the jury resolve that contradictory testim ony . T he circuit court acted w ithin its discretion when

1 6it declined to suppress the pictures at i ssue. See id . It f ollows that we f

ind no m erit to this issue.
VI. Ex p ert Testim ony ¶39. This issue stem s f r o m G r a y ’ s ef

f orts to p revent the prosecution’s e xpert witnesses f rom rebutting Dr. Hay

n e’s testim ony that Zoe sustained h er f a tal i njuries approxim ately f ive hours bef ore m edical intervention was necessary . On January 3 0 , 2 0 1 3, Gray m oved to
suppress any e xpert testim ony f r om the prosecution’s expert witnesses “regarding the t im e

or duration between i nf

liction of wounds or injuries to [ Zoe] and [ her] death[ .]” Gray argued that t h e p r o s e c u tion’s experts h ad not provided a ny reports s pecif y ing the tim e that Zoe sustained her f

atal injuries. ¶40. The next day , Gray served the prosecution with a letter written by D r. Hay ne. W ithin the letter, Dr. Hay

ne o pined that Zoe’s injuries o ccurred approxim ately f ive hours bef

ore she died, which m eant that Zoe w ould not have been i n G ray ’s exclusive care, and he could not have caused her f

atal i njuries. According to Dr. Hay ne’s l etter, he arrived at h i s o p i n i on b a s e d o n “ b l o o d [- ] c h e m i s t r y r e s u l t s , m i c r o s c o p i c fi n dings, clinical h istory , and h em atologi c a l and chem i stry values.” T hat was the prosecution’s f irst notice that there would be an issue about the tim e that Z oe s u f f ered her f atal injuries. The prosecution responded by dem anding that Dr. Hay

ne elaborate regarding his m ethodology

. ¶41. O n F e b r u a ry 5, 2013, the circuit court heard several m otion s t h a t G r a y a n d t h e prosecution had f

iled. Gray ’s trial attorney s reiterated their position t hat the prosecution had provided insuf

f icient inf orm ation regarding its experts’ opinions as to when Zoe’s f atal

1 7injuries occurred, and they reasoned that t he prosecution’s e xperts should not be allowed to

testif y o n the subject. Gray ’s trial attorney s also a rgued t hat the prosecution’s experts were

n ot qualif

ied t o t estif

y o n t he subject because, aside f rom Dr. Barnhart, t h e y w e r e n o t f orensic p athologists. As f or D r. Barnhart, Gray ’ s t rial attorney s claim ed that she was only
“m arginally

qualif ied” because she had been board certif ied f or a relatively

short tim e. ¶42. The prosecution noted that it had not disclosed i ts experts’ opinions r egarding when
Zoe’s injuries had o c curred becaus e t hat f i rst becam e an issue w hen Gray provided Dr. Hay ne’s report six day s earlier. The prosecution f urther noted that i t needed tim e to contact its e xp e r t s a n d obtain additional inf orm ation. 1 0 T he circuit court ordered Gray and the prosecution to supplem ent discovery with additi o nal inf orm ation no later than F ebruary 7, 2013. On that date, the prosecution com plied and provided Gray w ith additional inf orm ation regarding the anticipated testim ony of its seven proposed expert witnesses. ¶43. On February 8, 2013, Gray f iled a supplem ental m otion t o prevent the prosecution’s experts f rom testif y ing regarding the tim e that Zoe’s f atal injuries occurred. Gray claim ed that the p rosecution’s supplem ental disclosures did not provide suf f icient inf orm ation. Gray again claim ed that n one of the prosecut i o n ’ s proposed expert witnesses were qualif ied to of f er expert testim ony about t he t im e that Z o e’s f atal injuries o c c u r r e d

. At a hearing that

sam e day , Gray ’s t rial attorney s argued that the prosecution’s p roposed experts had n ot “of f e red any scientif

ic f acts or l iterature or peer review or tests t hat t hey have actu a l ly

10 T h e p ro s ecu tio n ex p lain ed th at it h ad co n t acted D r. S terlin g an d D r. B a r n h art, b u t D r . P etty w as at a sem in ar in C alif o rn ia, an d D r. B en to n w as in v o lv ed i n a t r i a l

. T h e p ro secu t io n p lan n ed to m eet w ith D r. Wah l later th at d ay . 1 8perf

orm ed” to s upport their conclusion that Zoe’s f atal i njuries occurred less than an hour bef ore m edical intervention becam e necessary . The circuit court t ook Gray ’ s m otions under advisem ent. Af

ter addressing the issues as the prosecution called i t s e x p ert witnesses, the

c i r c u i t c ourt f

ound that they were qualif ied t o testif

y t hat Zoe’s f

atal i njuries occurred between “m inutes” and an hour f rom the tim e that Gray

called 911. ¶44. Next, Gray claim s that the prosecution’s me d i c a l e x p e r t s s h o uld not have been allowed to t estif

y regarding the tim e that Zoe’s f a tal injuries occurred. He claim s that the prosecution did n o t disclose their anticipated testim ony in a tim ely m anner. He also claim s that the circuit c ourt f

ailed t o conduct an adequate heari n g under Daubert v. Merrell Dow Pharmaceuticals Inc. , 509 U.S. 579, 5 93 (1993). Finally , Gray claim s that Dr. Benton was not qualif ied to testif

y regarding the tim e that Zoe’s injuries occurred.
A. Disclosure ¶45. Gray claim s the prosecution’s e xperts should n ot have been allowed to testif y because the prosecution did not provide his trial attorney s with tim ely or a dequate reports regarding their anticip a t e d t estim ony . Essentially , Gray argues that t he prosecution com m itted a discovery violation, so its experts should n ot have been allowed to testif y regarding the t im e
t h a t Zoe suf

f e red her f a tal injuries. Gray never requested a continuance. Although we d o
not f ind that the prosecution c om m itted a discovery violation, even if we f ound that there was
one, “the f

ailure to r e q u e s t a continuance constitutes a waiver of the discovery violation.” Murray v. State , 20 So. 3d 739, 743 (¶13) (Miss. Ct. App. 2009). This issue is procedurally barred.

1 9B. Daubert Hearing

¶46. Gray claim s the circuit court erred b e c a u s e i t d i d n o t conduct a D aubert hearing regarding the prosecution’s expert witnesses. W e are m indf u l that “[ t]he adm ission of expert testim o ny is within the discretion of the trial court.” Bateman , 125 So. 3d at 625 (¶28). W e “will not reverse t he trial court’s decision to adm it e xpert testim ony unless the decision was arbitrary and clearly

erroneous, am ounting to an abuse of discretion.” Id

. ¶47. Gray appears to m isunderstand what is required. The Mississippi Suprem e Court has unequivocally stated that a trial court “is not required to hold a n actual hearing t o com ply with D aubert .” Edmonds v. S tate , 955 So. 2 d 787, 792 ( ¶10) (Miss. 2007). “[ T]he basic requirem ent under the law is that the parties have an opportunity to be heard bef ore the [ trial]
court m akes its decision.” Id

. Based on the logistics involved with the prosecution calling

m ultiple expert witnesses, the circuit court addressed G ray ’s Daubert c laim s outside of the jury ’s presence at the tim e that the prosecution called each of its experts. ¶48. Rule 702 of t h e M i s s i s s i ppi Rules of Evidence g overns the adm issibility of expert
t e s t i mo n y . It a llows a witness q ualif ied as a n expert to testif

y in the f orm of an opinion i f “(1) the t estim ony is based on suf f icient f acts or data, (2) t he testim ony is the product of reliable principles and m ethods, and (3) the witness has applied the p rinciples and m ethods
to t he f acts of the case.” M.R.E. 702. The Mississippi Supreme C o u r t has adopted the United States Suprem e Court’s standard f or j udging the adm i ssibility of expert t estim ony set f orth in Daubert and later m odif ied by Kumho Tire Co. v. Carmichael , 526 U.S. 137 (1999).
See Miss. Transp. C

omm’n v. McLemore , 8 6 3 S o . 2d 3 1, 39 (¶23) (Miss. 2003). “Expert

2 0testim o ny m ust b e r e levant and r eliable to be adm issible.” Bateman , 125 So. 3d at 625 (¶29). Additionally , “the trial court m ust m ake a prelim i nary assessm ent of whether the r easoning

or m ethodology u n derly ing the testim ony is scientif ically valid a nd o f whether that r easoning and m ethodology

properly can be applied to the f

acts in issue.” Id . at 626 (¶29). ¶49. In m

ultiple issues, Gray c laim s that the circuit court should not have allowed any of the prosecution’s expert w itnesses to testif y regarding the t im e that Z oe could have survived af ter sustaining h e r f

a t al injuries. Gray repeatedly argues that the prosecution’s experts “collectively f

a iled to point to a ny m edical authority in support of t heir o pinions,” and “f ailed
to s ubstantiate their opinions and testim ony based upon m edical f acts and properly supported

m edical peer review and authoritative m edical support.” ¶50. Daubert does not state t hat expert testim ony is per se inadm i ssible if the substance of

t h e t e s tim ony has n ever been the subject of peer review. Kumho , 526 U .S. at 1 5 1

. T h e subject m atter of the testim ony at issue in this case illustrates exactly why peer review is not required in all instances. Gray takes issue with the prosecution’s experts who testif ied that without m edical intervention, Zoe would have lived f or an h our or less af

ter her f atal injuries occurred. As Dr. Benton explained during his p rof f ered cross-exam ination testim o ny , “these

are experiential issues

. . . . [ W ]e can’t go beating kids in the abdom e n and f inding out what happens

. . . . [ W ]e don’t have a reproduc i b l e [ , ] t e s t a b le event where we beat the child or injure the child [ and] s e e how long it takes f or them to bleed.” Thus, t he a bsence of peerreview articles to support the prosecution’s experts does not render t heir expert opinions inadm issible. The prosecution’s expert phy sicians explained that their opinions were based

2 1on their education, experienc e , a n d t r a ining. Based o n t he subject m atter of the testim ony

at issue – the tim e that a thirteen-m onth-old child could survive af ter sustaining f

atal internal injuries – it was within the circuit court’s discretion to a llow the expert testim ony . W e f ind

no m erit to this issue.

C. Qualifications ¶51. According to Gray , Dr

. B enton’s testim o ny exceeded his q ualif ications. However, Gray does not elaborate regarding which portion of Dr. Benton’s testim ony allegedly exceeded his qualif

ications. On appeal, errors in the adm ission o f e vidence, including expert testim o ny , are reviewed f or an abuse of discretion. Parvin v. S tate , 113 So. 3d 1243, 1246 (¶12) (Miss. 2013). Unless the circuit court’s decision was a rbitrary and clearly erroneous, the decision will stand. Galloway v. State , 122 So. 3d 614, 632 (¶27) (Miss. 2013). ¶52. Expert testim o ny is g overned by Rule 7 0 2 , w h i c h states that a properly qualif ied witness m ay testif

y “in the f orm of an opinion or otherwise, if (1) the testim ony is based upon suf f i cient f acts or data, (2) the testim ony is the p roduct of r eliable principles and m ethods, and (3) t he witness has applied the principles and m ethods reliably to the f acts o f the case.” The opinions given “m

ust rise above m ere speculation” and “ b e [ f ound] relevant and reliable.” Parvin , 113 So. 3d at 1247 (¶14) (quoting W illiams v
. State , 3 5 So. 3d 480, 486 (¶19) (Miss. 2010)); R oss v. State , 954 So. 2d 968, 996 (¶57) (Miss. 2007). “Testim ony is relevant i f it will assist t he t rier of f act in understanding or determ i ning a f act at issue.” Ross , 954 So. 2d at 996 (¶57). Testim ony is r e liable i f i t is “ based on the m ethods and procedures of science, and not m erely

on subjective belief

s or unsupported speculation.” Id

.

2 2¶53. Dr. Benton testif ied t hat he was an “associate prof essor of pediatrics,” “chief

of the division o f f

orensic m edicine,” and “the m edical d irector of the C hildren’s Justice Center.”
Dr. Benton also noted t hat he had testif ied i n num erous cases as an expert i n pediatric f orensic m edicine. Although Dr. Benton’s testim ony was c ertainly prej u d icial to Gray ’s def ense that Zoe sustained her f atal injuries approxim ately f ive hours bef

ore she died, we do
not f i nd that the circuit c ourt abused its discretion when it held that Dr. Benton was qualif ied to testif y as an expert in pediatric f orensic m edicine. There is no m e rit to this issue.
VII. Evidence of Brow n’s Mental Health ¶54. In this issue, Gray claim s he should have been allowed t o obtain Brow n ’ s me n t a l

h e alth r ecords and introduce t hem into evidence. Gray s ought t o i ntroduce evidence t h a t Zoe’s death was due t o Brown’s m ental instability

. As m entioned above, we w ill n ot disturb the circuit court’s decisions regarding the adm issibility o f evidence unless the circuit court abused its discretion. Montgomery , 891 So. 2d at 182 (¶6). ¶55. O n January 3 1 , 2013, Gray f iled a m otion f

or disclosure of Brown’s m e n t a l

- h e a l t h records. W i thin the m otion, G ray claim ed that Brown’s phone records indicated that she had

com m unicated w ith a m ental-health counselor on the day that Zoe died. Gray also claim ed tha t Brown “has a history o f m ental and em o tional problem s .” Gray f urther alleged that because B rown was f

rom Meridian, Mississippi, “inf o rm ation suggests that she has sought therapy at W eem s Mental Health Center.” ¶56. During a s u

bsequent hearing, it becam e c l ear that there was no specif ic i ndication that
Brown had ever suf

f ered f rom m ental-h e a l t h problem s. Although Brown’s phone records

2 3indicated that she had spoken w ith som eone f r om the Boston, Massachusetts a rea on the day that Z oe ha d d i e d , t here w as no evidence regarding the substance of the c om m unication.
W i thout any m ore specif

ic indication that Brown had been treated f or m e ntal-health issues, the circuit court stated t hat “ it just sounds like there’s a serious f ishing expedition going on
to f ind out what m ay be i n m ental[ -]health r ecords,” and he needed to h ear “som ething that would suggest that there’s other than just an ef f o rt to root around in Ms. B rown’s record to see if there’s som ething that m ay be usef ul” to Gray

. ¶57. At trial, Gray ’s trial attorney elicited testim ony f rom Brown during a prof

f er. Brown stated that she had sought som e unspecif ied treatm ent “y ears ago” regarding her relationship with her m other, and she had sought grief counseling af ter Zoe died. Otherwise, she had not sought any treatm ent f

or her m ental health. She also c larif i ed that she had not spoken with

a me n t a l

- h e alth counselor f rom Boston on the d ay Zoe died. Brown explained that the
Boston p hone num

ber belonged to a f

riend who happened to b e a public-health advisor f or
teen pregnancy . Following the prof f er, the c i rcuit court held that Brown’s p revious t reatm ent f or g rief a n d her relationship with her m other were i rrelevant, and Gray was prohibited f rom eliciting testim ony

on the subjects. ¶58. R u l e 4 0 1 o f t h e M i s s i s s i p p i R u l e of Evidence def ines “relevant evidence” a s “evidence having any tendency to m ake the existence o f any f act that is of

consequence to the determ ination of the action m ore probable or l ess probable than it would be without the evidence.” It is u n clear exactly w h e n B rown sought counseling or som e other f orm of
treatm ent based on her relationsh i p w i t h her m o ther. The record m erely s tates that it was

2 4“y ears” bef ore Gray ’s trial. Brown was not asked to elaborate during the prof f er. On appeal,
G r a y d oes not clarif

y how B rown’s previous treatm ent would be relevant to his tr i a l f o r capital m urder. There is n o e vidence that Brown w as m entally unstable, violent, or that she had ever been hospitalized or m e dicated f or a m ental-health issue. There is no m erit to this issue.
VIII. Character Evidence ¶59. Pr i o r t o G r a y ’ s t rial, t he State m oved to prohibit testim ony f rom three of

Gray ’s prospective witnesses: Tam ara M illiken, Y olanda Davis, and Morgan W ashington. Gray is the f ather of one of Davis’s children. The def ense planned to call Davis to testif y regarding the m anner in w hich Gray had disciplined their child. Milliken w as the f orm er deputy chief of p olice w ho had supervised Gray d u r i n g their t im e with the Jackson Police Departm ent. And although Gray was not W a s h i n g t o n’s biological f ather, he had treated her as his own chi l d. The prosecution argued that their a nticipated character testim onies were irrelevant and inappropriate character evidence. The circuit court t o o k t h e prosecution’s m otion under advisem ent, and opted to hear prof f ers bef o re ruling on the m otion. ¶60. At trial, Gray ’s trial attorney s chose not to call W ashington as a w itness or prof f er her
te s t i m ony . During Davis’s prof f er, s he testif

ied that Gray h ad n ever used corporal punishm ent to discipline their child. She also testif ied that she d id n ot know that Gray was

rom antically involved with Brown, or that t hey had a child. The circuit c o urt held that Davis’s testim ony was not relevant, and whatever probative v a l u e her testim o ny had was substantially outweighed by the danger of m isleading the jury , c onf usion of the issues, and

2 5the unf

a ir prejudice her testim ony would produce. Consequently , the circuit court granted the prosecution’s m otion to exclude Davis’s testim ony . ¶61. During Milliken’s prof f er, she testif

ied t hat she had been the deputy chief of special operations when Zoe d i ed, and she was Gray ’s supervisor at the Jackson Police Departm ent. According to Milliken, she had been at a cookout w hen she h eard that Gray had been taken in f or questioning. Although s h e h a d b e en drinking, Milliken went to the Jackson Police Depa r t m e n t and had a “heated discussion” with the deputy chief in charge of m ajor investigations, because no one would tell her what was g oing on with Gray ’s investigation. As a result of

the “heated discussion,” Milliken resigned. ¶62. T h e c i r c u i t c o u rt held t hat Milliken’s prof f ered t estim ony was irrelevant, and it s probative value was outweighed by the likelihood of c o nf using and m isleading th e jury

. Citing Rule 403, the circ u i t c o u r t granted the prosecution’s m otion to exclude Milliken’s testim o ny . ¶63. Gray claim s the circuit court should have allowed Milliken to test i f y r e g a r ding his “prof e ssion[ al] c haracter.” H e f urther argues that Davis s hould have been allowed to testif y regarding his “private character.” To support h i s c l a i ms , Gray cites R ule 608(a)(1) of the Mississippi Rules of

Evidence and Hall v. State , 490 So. 2d 858, 859 (Miss. 1986), f or the general p rinciple t hat it is reversible error to prohibit a def endant f rom calling witnesses and questioning them bef

o re a jury

. However, Gray cites no authority that supports his specif ic claim s that Milliken and D a v i s should have been allowed to testif y regarding his personal and prof essional character. Argum ents advanced o n appeal m u st “contain t he contentions

2 6of the appellant with respect to the issues presented, and the reasons f or those contentions, with citations to the authorities, statutes, a n d p a r t s o f the record relied on.” M.R.A.P. 28(a)(6). “Failure t o com

ply with [ Rule] 28(a)(6) renders a n argum e nt p rocedurally barred.” Rogers v. State , 994 So. 2d 792, 800 ( ¶31) (Miss. Ct. App. 2008). Theref ore, this issue is procedurally

barred.
IX . Circum stantial-Evidence Instruction ¶64. Gray claim s the circuit court should have g iven a circum stantial-evidence instruction. However, Gray d id not request one. Consequently , Gray is procedurally b arred f rom raising this issue f

or t h e f irst tim e on appeal. See McCoy v. State , 147 So. 3d 333, 3 51 (¶48) (Miss. 2014).
X . Sufficiency of the Evidence ¶65. Next, G ray argues that t here was in s u f f i c i e n t e v i d e n ce to c onvict him of capital

m urder because there was no evidence that h e a bused Zoe. 11 In reviewing the suf f iciency of the evidence, “the relevant question is whether, af ter viewing the evidence in the light m ost f avorable to the p rosecution, any rational t rier of f act could have f

ound the e ssential elem ents of t he crim e bey ond a r easonable doubt.” Nolan v
. State , 61 So. 3 d 887, 893 (¶24) (Miss. 2011) (quoting Bush v. S

tate , 895 So. 2d 836, 8 43 (¶16) (Miss. 2005)). A ll credible evidence

11 T h is issu e en c o m

p asses G ray ’s a rg u m en ts th at th e circu it co u rt e rre d w h en it in stru cted th e j u ry reg ard in g th e elem en ts o f f elo n y ch ild a

b u se an d cap ital m

u rd er. In sep arate issu es, G ray s u b m its th at th ere w as in su f f icien t e v id e n ce to su p p o rt th e in stru ctio n s. S tated d i f

f eren t l y , G r a y a rg u es th at th e circu i t co u rt s h o u ld h av e g iv en a p erem p to ry in stru ctio n th a t h e w a s n o t g u ilty

. We r ev iew th e su f f i cien c y o f th e ev id en ce b ased o n th e last o ccasio n th at th e ch allen g e w a s raised in th e circu it co u rt. M c C la in v. S ta te , 6 2 5 S o . 2 d 7 7 4 , 7 7 8 (M iss. 1 9 9 3 ). G r ay last ch allen g ed th e su f

f icien cy o f th e ev id en c e in h i s m o tio n f o r a JN O V

. 2 7consistent with the def endant ’ s guilt will be accepted as true, together with all f avorable inf erences that m ay be reasonably drawn f rom the evidence. Robinson v. State , 940 So. 2d 235, 240 ( ¶13) (Miss. 2006) (citing McClain v. S tate , 6 2 5 So. 2 d 774, 778 (Miss. 1993)). The evidence will be considered in the “light m ost f avorable to the State.” I

d

. ¶66. Num erous phy sicians, including Dr. Hay ne, t estif ied that Zoe’s death was the result of child a buse. There was e vidence that Zoe had m u ltiple contusions o n h er head and bruises on her f ace. Her m axillary f

renulum was torn, which was c onsistent w ith a shearing f orce caused by som ething hitting her in the side of her f a c e. S h e a lso h ad bruises on the inside of her lip, which w ere likely caused when som ething hit her in the m outh and the inside of h e r lip im

pacted her teeth. The jury heard num erous witnesses testif y regardin g t h e substantial bruising on Zoe’s abdom en, which were caused by “ m ultiple im pacts” of bluntf orce traum a. The f

orce that caused her abdom inal injuries was com pared to being kicked by a ho r se, f

alling f rom a height, or b eing i nvolved in a “m otor[ -]vehicle collision.” The f orce was so s ignif

icant that it l acerated her liver, and her pancreas was “ b a sically torn in half ” when it im

pacted her spine. ¶67. Gray ini t i a l l y c laim ed that he had m erely m assaged Zoe’s abdom en to relieve her

c o n s t i p a tion b ef

ore she l ost consciousness. He testif ied that Brown adm itted that she ha d caused Zoe’s f

atal injuries, but Brown d isputed that. The testim onies of prosecution’s expert witnesses also supported the conclusion that Zoe’s f atal injuries o ccurred while she was in Gray ’s exclusive c are. Additionally , Gray testif ied t hat he had im

properly perf

orm ed CPR, and em ergency responders di d not stop him

. However, t hat was contradictory to the

2 8testim o ny of three f i ref ighters and the am

bulance crew. And Dr. Hay n e’s expert testim ony

s u g gested that Zoe’s f

atal injuries occurred when she was in Brown’s care, but the prosecution’s experts disagreed and clearly explained the f laws in Dr. Hay

ne’s m ethodology

. The jury is responsible f

or resolving conf

licts in the evidence and the credibility of witnesses.
Brown v. State , 7 9 6 So. 2d 223, 227 (¶12) (Miss. 2001). The j ury resolved the conf licting evidence in the prosecution’s f a vor. W e f

ind no m erit to this issue.
X I. Weight of the Evidence ¶68. Gray claim s t he jury ’s verdict is contrary t o t he o verwhelm ing weight of the evidence. According to Gray , the prosecution f ailed to prove that he abused Zoe. An appellate court will only disturb a verdict based on the weig h t o f t h e evidence “when [ the verdict] is so contrary to the overwhelm i ng weight of the evidence that to allow i t to stand would sanction an unconscionable injustice.” Bush , 895 So. 2 d at 844 (¶18). As we review this issue, we weigh the evidence in the light m ost f avorable to the verdict. Id

. ¶69. W e do not f

ind that allowing the verdict to stand would sanction an unconscionable injustice. As m entioned above, t he jury is responsible f or resolving conf

licts in the evidence and the credibility of witnesses. Brown , 796 So. 2d at 227 (¶12). F urtherm ore, “[ f ]actual disputes are properly resolved by a jury and do not m andate a n ew trial.” Ealey v. State , 158 So. 3d 283, 293 (¶31) (Miss. 2015). This issue has no m erit.
X II. Prosecutorial Misconduct ¶70. In this issue, Gray c l a i ms t h e p rosecution knowingly presented f alse testim ony , but there is no support f

or his claim

. Additionally , G ray claim s the prosecution m ade

2 9inappropriate com m ents during its closing argum ent. However, G ray did not object at any tim e during the prosecution’s c losing a rgum ent. As an appellate c ourt, we have no original jurisdiction to review this issue. See Milano v
. State , 790 So. 2d 179, 1 89 (¶47) (Miss. 2001) (holding that a prosecutorial-m i sconduct claim was procedurally b arred w hen raised f or the f irst tim e on appeal). Accordingly , this issue is p rocedurally barred. Davis v
. State , 660 So. 2d 1228, 1255 (Miss. 1995).
X III. Com m ents by the Circuit Court ¶71. Next, Gray claim s the circuit court com m itted re v e r s i b l e e r ror by adm onishing his trial attorney s to “m ove along.” Gray also com plains that t he c ircuit court “hurried [ his attorney s]
to f i n i sh [ t heir] exam inations when it was obvious [ that they ] had not com pleted

exam inations of witnesses.” According to Gray the circuit court “sim ply w a n ted to conclude the trial.” Finally , Gray argues that he was prejudiced by the circu i t c o u r t ’ s “ countenance toward Gray , his counsel, his cross-exam inations[ ,] and evidence of innocence . . . .” ¶72. As stated previously , evidentiary m atters are s ubject to the circuit court’s discretion.
Zoerner v. State , 725 So. 2d 811, 813 (¶7) ( Miss. 1998). Rule 611(a)(2) of the Mississippi Rules of Evidence states that a circuit court “ s hall exercise reasonable control over the m ode

. . . of i nterrogating witnesses and presenting evidence so a s to

. . . a v oid needless

consum ption o f tim e . . . .” Furtherm ore, the circuit judge has a duty “to guide the procedure of [ a] trial, and i n so doing he is not

. . . a m ere m oderator

. . . .” Jackson Y ellow Cab Co. v. Alexander , 246 Miss. 268, 278, 148 So. 2d 674, 678 (1963). ¶73. Gray ’s trial began on February 11, 2 013, which w as spent on voir d ire and selecting

3 0the jury

. The rem ainder of the trial l asted eight day s . T h e p r o s e c u tion called num erous

witnesses during its c ase-in-chief , which lasted f

o ur f ull day s and a v e r y brief portion o f a f if th. Gray raised a num

ber of objections d

uring that tim e, and the circuit court adequately addressed each one. G ray p resented his own ca s e f o r mo re than two day s . His own testim o ny encom

passed nearly an entire day o f the trial. The prosecution’s rebuttal was very bri e f

. T h e t r a nscript of G ray ’ s trial e ncom passes m o re than two t housand pages of the record. Not once does Gray cite to any portion of it to support his claim in t h i s i s sue. Argum ents advanced on appeal m ust “contain the contentions of the appellant w i th respect
to t he issues presented, a nd the reasons f o r those contentions, with citations to t he authorities, statutes, and parts of the record relied on .” M.R.A.P. 28(a)(6) (em phasis added). “Failure
to com ply with Rule 28(a)(6) renders a n argum e nt procedurally barred.” Rogers , 994 So. 2d

at 8 00 (¶31). Additionally , Gray cites no authority to support his c laim t hat the circuit court

c om m itted reversible error by a dm onishing his attorney s to m ove along during som e unspecif i ed tim es during the trial. It f ollows that this issue is f

urther barred b ased o n Gray ’s f ailure to cite authority

to support his argum ent.
X IV. Sentencing ¶74. Gray claim s that the circuit court erred when it sentenced him to lif e without e ligibility f or parole. According to Gray , the circuit court should h ave considered sentencing him to lif e with the possibility of parole. Gray ’s reasoning is based on the prosecution’s decision not to pursue the death penalty

. ¶75. “Every person who sha l l b e c o n v i cted o f capital m urder shall be sentenced (a) to

3 1d e a t h ; (b) to im prisonm ent f

or lif e in the State Penitentiary without parole; or (c) t o im p risonm ent f

or lif e in the State Penitentiary with eligibility

f or parole .

. . .” Miss. Code
Ann. § 97-3-21(3) ( Rev. 2014). H ow e v e r, “[ n]o person shall be eligible f or p arole who is charged, tried, convicted and sentenced to l if e im priso n me n t u nder the provisions of [ Mississippi Code Annotated s ]ection 99-19-101 [ ( Supp. 2014).]” Miss. Code Ann. § 47-7-3(1)(e) (Supp. 2014). The s uprem e court has held that “[ t]he reading of t hese statutes together indicate[ s ] that a def endant on trial f

o r c a p i t a l mu rder m ay only be sentenced to death or lif

e im prisonm ent without eligibility [ f or] p arole.” Flowers v. State , 842 So. 2d 531,
557 (¶77) (Miss. 2 003). Furtherm ore, “a trial judge m ay im pose t he only possible sentence [ f or capital m

u rder] without f

orm ally returning the m atter to the j ury f or sentencing.” Pham
v. State , 716 So. 2d 1100, 1103 (¶21) (Miss. 1998). There is no m erit to this issue.
X V. Cum ulative Errors ¶76. Finally , Gray c laim s he is entitled to a new trial based on t he cum ulative ef f ect of the

errors. “This Court m ay reverse a conviction and sentence based upon the cum ulative ef f ect of errors that i ndependently w ould not require reversal.” M cLaurin v. State , 31 So. 3d 1263,
1270 (¶35) (Miss. Ct. App. 2 0 09) (citation om itted). “Ho w e v e r , w h e re t here was no reversible error in any part, there is no r eversible error t o t h e whole.” Id

. (citation and internal quotation m arks o m itted). Having f o u n d no i ndividual error, there c an be no

cum ulative error. This issue has no m erit. ¶77. T H E J U D G M E N T O F T H E H I N D S C O U N T Y C I R C U I T C O U R T O F CONVICTION OF CAPITAL MUR D E R AND SENTENCE OF LIFE IN THE CUST O D Y O F T H E M I S S I S S I P P I D E PARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE O R EARLY RELEASE IS A FFIRMED. ALL COSTS

3 2OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, M AX WELL, FAIR, JAMES AND WILSON, JJ., CONCUR.

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