Mitchell Roberts v. State of Mississippi , 229 So. 3d 1060 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-00659-COA
MITCHELL ROBERTS A/K/A JAMES APPELLANT
MITCHELL ROBERTS A/K/A MITCHELL
JAMES ROBERTS A/K/A MITCHELL J.
ROBERTS A/K/A JAMES ROBERTS
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/06/2016
TRIAL JUDGE: HON. LESTER F. WILLIAMSON JR.
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA W. BYRD
DISTRICT ATTORNEY: BILBO MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED: 10/17/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
GRIFFIS, P.J., FOR THE COURT:
¶1. Mitchell James Roberts was convicted of aggravated driving under the influence
(DUI) after a jury found that he operated a motor vehicle while under the influence of an
intoxicating substance, specifically, Xanax, which impaired his ability to drive, and
negligently caused the death of Arnold Altman Jr. Roberts was sentenced to twenty-five
years, with seven years suspended, leaving eighteen years to serve in the custody of the
Mississippi Department of Corrections, followed by five years of postrelease supervision.
Additionally, Roberts was ordered to pay all court costs, a $2,000 fine, and restitution in the
amount of $7,150. Following the denial of his posttrial motions, Roberts timely appealed.
Upon review, we find no error and affirm.
FACTS
¶2. On July 13, 2013, around 3:00 p.m., fourteen-year-old Altman Jr., who was a
passenger in his father’s automobile, died when his father’s vehicle was struck head-on by
a truck driven by Roberts. The accident occurred on a four-lane bridge on Highway 19 in
Meridian.
¶3. At the time of the accident, Altman Jr. and his father were traveling to the store. As
they were driving, a truck, driven by Roberts and traveling in the opposite direction, crossed
the median-like lane, veered into the Altmans’ lane of traffic, and struck the passenger side
of the Altmans’ vehicle head-on, killing Altman Jr. Many witnesses observed the accident
and offered their assistance. Two of the witnesses, Margaret Davis and Stephanie Ruffin,
were nurses and testified at trial.
¶4. Davis testified that she and her husband were traveling on Highway 19 when
Roberts’s truck veered toward their vehicle. Davis commented to her husband that the driver
almost hit them. As her husband continued to drive, Davis turned around and saw the truck
veer into oncoming traffic and “implode” into the Altmans’ vehicle. Davis and her husband
turned around in order to provide assistance. Davis initially went to Roberts’s vehicle and
attempted to give him aid. However, Roberts was incoherent. Davis stated that Roberts was
awake, but out of it and could not form a sentence.
2
¶5. In an attempt to explain Roberts’s behavior following the accident, defense counsel
suggested that Roberts was suffering from retrograde amnesia. While Davis acknowledged
that retrograde amnesia was common in people involved in automobile crashes, she did not
think Roberts was suffering from amnesia, but instead thought he appeared to be under the
influence of drugs or alcohol. Davis described Roberts’s face as “diaphoretic,” or sweaty,
and his pupils as “pinpoint.”
¶6. Ruffin also saw Roberts veer out of his lane of traffic. Ruffin stated it was not an
abrupt move, but instead described Roberts as “gradually drifting” out of his lane. Based on
Roberts’s driving, Ruffin assumed he was texting and driving. However, Ruffin stated her
assumption changed when she saw the impact.
¶7. Ruffin initially went to the Altmans’ vehicle and helped Altman out of the car.
However, she noticed Altman Jr. was not responsive and did not have a pulse. She then went
to Roberts’s truck. Ruffin described Roberts as “in and out” and stated his speech was
slurred. When Ruffin asked Roberts what had happened, Roberts responded that he had
“blacked out” or “blanked out.”
¶8. Detective Greg Crain of the Meridian Police Department testified that he was called
to the scene of the accident at approximately 3:30 p.m. After Crain assessed the scene and
took photographs, he went to the hospital, where he eventually spoke with Roberts. Roberts
told Crain that the last thing he remembered was leaving his friend’s house in Collinsville.
Roberts asked Crain how the passenger of his truck was doing. However, Crain explained
to Roberts that he was the only person in his vehicle. Although Roberts did not recall what
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he was doing at his friend’s house, he admitted to Crain that he had consumed two beers
prior to the accident.
¶9. Crain executed an affidavit and obtained a search warrant in order for a sample of
Roberts’s blood and urine to be seized and tested for the presence of drugs and alcohol. The
samples were collected at 6:35 p.m., over three hours after the accident occurred.
¶10. Kara Jackson, a hospital nurse who treated Roberts in the emergency room, testified
that Roberts arrived at 3:28 p.m. and was agitated and cursing, but alert, oriented, and able
to follow commands. Jackson described Roberts’s eyes as reactive, equal in size, and small,
but not pinpoint. According to Jackson, Roberts’s skin was not diaphoretic when he arrived
at the hospital.
¶11. Jackson noted that Roberts was experiencing “amnesia event retrograde,” since he
could not recall any details of the accident. However, Dr. Lindsey Prewitt, an internal-
medicine doctor, testified that based on her consultation with Roberts, there was no
indication of retrograde amnesia, and there was nothing in his medical history to support such
a finding. Additionally, Dr. William Billups III, a surgeon who treated Roberts in the
emergency room, testified that based on his consultation with other specialists, there was no
indication of any underlying medical problems, including head injury or seizure, which might
have caused or contributed to the accident.
¶12. When asked about his medical history, Roberts advised the hospital staff that he was
not taking any medications and was not being treated for any medical issues. However, the
blood test revealed Roberts had benzodiazepines in his system. Specifically, the compound
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identified in his system was alprazolam, otherwise known as Xanax.1 Further testing
revealed Roberts had fifty-one nanograms per milliliter of Xanax in his system. According
to expert testimony, this amount of Xanax is within the therapeutic range. Roberts did not
test positive for alcohol.
¶13. Maury Phillips, the State’s toxicology expert, testified that Xanax is usually prescribed
to manage anxiety or panic disorders. Phillips stated that the two most common side effects
of Xanax are drowsiness and light-headedness, but also include confusion, sweating, slurred
speech, pinpoint pupils, and “syncope,” which “means that you might faint or black out.”
Phillips explained that the effects of and tolerance to Xanax varied from person to person and
were influenced by the duration of use and the amount taken.
¶14. Importantly, Phillips testified that impairment can still occur within the therapeutic
range. He explained that there was not a direct correlation between driving impairment and
drug concentration “like we have for alcohol to say that if you’re a certain number, you’re
impaired.”
¶15. Phillips admittedly did not review Roberts’s medical records and was unable to render
an opinion as to whether Roberts was driving impaired based on the concentration of Xanax
alone, since the amount in his system was within the therapeutic range. According to
Phillips, in order to make an assessment about drug-induced driving impairment, you must
consider all of the evidence, including the particular events surrounding the accident, any
eyewitness testimony, the results of the toxicology report, and the individual’s information,
1
It is undisputed that Roberts was not administered Xanax while in the hospital.
5
such as his medical history, drug tolerance, and reason for the drug use.
¶16. Roberts’s information and medical history regarding his use of Xanax, including the
duration of use, the amount taken, and the reason for use, or whether the medication was
even prescribed, was unknown.2 However, Phillips stated that Davis’s and Ruffin’s
observations at the accident scene, along with the testimony regarding Roberts’s erratic
driving, were indicators of impairment.
¶17. Dr. Richard Ogletree Jr., an expert in toxicology and pharmacology, testified on behalf
of Roberts. When asked whether Roberts was impaired, Ogletree, like Phillips, stated that
such a determination required specific clinical observations in addition to blood-
concentration levels. However, unlike Phillips, Ogletree reviewed Roberts’s medical records
and stated there was no evidence of impairment in the records. Ogletree stated he could not
consider Davis’s and Ruffin’s observations at the accident scene, since they were not made
under clinical conditions, nor were they contemporaneously recorded.
¶18. Ogletree testified that while fifty-one nanograms of Xanax per milliliter of blood is
in the middle of a therapeutic range, a person could still be impaired with such a blood-
concentration level. Ogletree agreed that tolerance is important in determining impairment,
but could not state whether Roberts had built up a tolerance, since he had not spoken with
Roberts or reviewed any medical history or medical records, other than those related to the
accident.
¶19. Prior to trial, Roberts moved to suppress the results of the blood sample seized
2
The record shows Roberts did not disclose to anyone, including his own expert, any
information regarding his use of Xanax.
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pursuant to the search warrant obtained by Crain. Roberts claimed “there was no probable
cause to believe that [he] was operating a motor vehicle under the influence of drugs and/or
alcohol,” and, therefore, no “substantial credible evidence” existed to support the issuance
of the search warrant. A motion hearing was held wherein Crain and the municipal court
judge who issued the search warrant testified. The circuit court subsequently denied the
motion to suppress.
¶20. Following his conviction, Roberts filed a motion for a judgment notwithstanding the
verdict and a motion for a new trial, both of which were denied. Roberts now appeals and
argues: (1) the evidence was insufficient to support the verdict , (2) the verdict was contrary
to the overwhelming weight of the evidence, (3) his confrontation rights were compromised
since the circuit court allowed the technical reviewer to testify in lieu of the actual crime-lab
analyst, (4) the circuit court erroneously denied his motion to suppress since there was
insufficient probable cause to issue the search warrant, and (5) he received an “unfair” trial
as a result of the prosecutor’s improper closing arguments.
ANALYSIS
I. Sufficiency of the Evidence
¶21. In considering whether the evidence is sufficient to sustain a conviction, “the relevant
question is whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citation omitted).
Where the facts and inferences “point in favor of the defendant on any element of the offense
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with sufficient force that reasonable men could not have found beyond a reasonable doubt
that the defendant was guilty,” the proper remedy is to reverse and render. Id. However, if
“reasonable fair-minded men in the exercise of impartial judgment might reach different
conclusions on every element of the offense, the evidence will be deemed to have been
sufficient.” Id. (citation and internal quotation marks omitted).
¶22. Roberts was convicted of aggravated DUI in violation of Mississippi Code Annotated
section 63-11-30(5) (Rev. 2012). The essential elements for such offense are:
(1) that the defendant negligently caused the death, disfigurement, or
permanent disability . . . of another (2) while operating a motor vehicle under
the influence of alcohol or [any other substance,] which has impaired such
person’s ability to operate a motor vehicle.
Irby v. State, 49 So. 3d 94, 99 (¶11) (Miss. 2010) (citing Miss. Code Ann. § 63-11-30(1)(b),
(5)).
¶23. It is undisputed that Roberts negligently caused the death of Altman Jr. However,
Roberts claims the State failed to prove that he was “operating [his] motor vehicle under the
influence of . . . [any substance,] which . . . impaired [his] ability to” drive. Id. We disagree
and find sufficient evidence to support the verdict.
¶24. The testimonial evidence indicates Roberts swerved recklessly while he drove and was
unable to maintain his lane of traffic or control of his vehicle. Testimony further shows
Roberts exhibited the side effects of Xanax, including disorientation, confusion, slurred
speech, pinpoint pupils, diaphoretic, and syncope.
¶25. While both experts opined that the amount of Xanax in Roberts’s system was within
the therapeutic range, both agreed that the amount was at a level that could cause impairment
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and affect his ability to drive. Phillips testified that eight to 640 nanograms per milliliter was
the range for DUI-reported arrests. Thus, the amount in Roberts’s system was within a range
that caused or contributed to impaired driving in people who had been arrested for DUI.
¶26. Additionally, Ogletree testified regarding a study wherein the test subjects were given
one milligram of Xanax. The results showed that one milligram of Xanax, which would
equate to around ten nanograms per milliliter in the blood, had a significant impact on the
person’s ability to drive. In fact, six out of ten people fell asleep during the study and could
not continue to drive. The study showed photographs of the participants “swerving across
the road.” Here, the record shows Roberts had fifty-one nanograms per milliliter of Xanax
in his blood, five times the amount in the study.
¶27. Both experts agreed that how often a person takes Xanax would affect any reaction
he or she experienced. For instance, a person who takes Xanax acutely, or once in a while,
would experience more of an effect than a person who had been taking the drug chronically,
or multiple times a day for a period of weeks. Whether Roberts took Xanax once or whether
he had taken it chronically is unclear. However, it is clear, based on the record, that Roberts
was operating a motor vehicle while under the influence of Xanax and exhibited signs of
impairment.
¶28. Based on the evidence presented, and considering the evidence in the light most
favorable to the State, a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Accordingly, we find sufficient evidence exists to support
the verdict. Thus, Roberts’s motion for a judgment notwithstanding the verdict was properly
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denied.
II. Weight of the Evidence
¶29. “When reviewing a denial of a motion for new trial based on an objection to the
weight of the evidence, we will only disturb a verdict when it is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18). The evidence is weighed in the
light most favorable to the verdict. Id.
¶30. Here, the prosecution showed Roberts had Xanax in his system at the time of the
accident and exhibited signs of impairment. The fact that conflicting evidence was presented
does not warrant the granting of a new trial. See Williams v. State, 64 So. 3d 1029, 1032
(¶10) (Miss. Ct. App. 2011) (“[A] new trial should be [granted] only in exceptional cases in
which the evidence preponderates heavily against the verdict.”). “The jury is the sole judge
of the weight of the evidence and the credibility of the witnesses.” Id. at 1033 (¶13).
“Conflicts in the evidence are for the jury to resolve.” Id.
¶31. Having considered the evidence presented, we do not find the verdict to be so contrary
to the overwhelming weight of the evidence that to allow the verdict to stand would sanction
an unconscionable injustice. Accordingly, we find the circuit court’s denial of Roberts’s
motion for a new trial was proper.
III. Roberts’s Confrontation Rights
¶32. Phillips, the supervisor for the toxicology and implied-consent section of the
Mississippi Forensics Laboratory, testified regarding the results of Roberts’s blood and urine
10
tests. Although Phillips did not conduct the testing of Roberts’s blood and urine, he served
as the technical and administrative reviewer of the primary analyst’s testing and released the
report.3
¶33. Roberts claims that since Phillips was not actively involved in the production of the
lab report and did not reveal an intimate knowledge about the testing, he should not have
been allowed to testify in lieu of the primary analyst who conducted the tests and issued the
report. As a result, Roberts claims his “rights to confront his accusers were circumvented.”
¶34. In criminal cases, the accused has a constitutional right to confront the witnesses
against him. U.S. Const. amend. VI; Miss. Const. art. 3, § 26. The Mississippi Supreme
Court has held that a supervisor, reviewer, or other analyst may testify in lieu of the primary
analyst where the surrogate witness was “actively involved in the production of the report
and had intimate knowledge of the analyses even though [he or] she did not perform the tests
first hand.” McGowen v. State, 859 So. 2d 320, 340 (¶68) (Miss. 2003). Additionally,
when the testifying witness is a court-accepted expert in the relevant field who
participated in the analysis in some capacity, such as by performing procedural
checks, then the testifying witness’s testimony does not violate a defendant’s
Sixth Amendment rights.
Id. at 339 (¶68).
¶35. Here, Phillips was a court-accepted expert in the field of toxicology. The record
shows Phillips was actively involved in the production of the report, had intimate knowledge
of the tests that were performed and the process that was used to confirm the findings, and
3
The primary analyst was Duriel McKinsey. At the time of trial, McKinsey was no
longer employed at the crime lab and no longer lived in Mississippi.
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reviewed the analyst’s work, including the data, to ensure that the conclusions were correct
and accurate.
¶36. Specifically, Phillips testified that once an analyst has completed the analysis, his
work packet is submitted for review. Phillips explained that all reports issued by an analyst
must be technically and administratively reviewed before they are released. Phillips stated
that as the technical and administrative reviewer in this case, he verified that the analyst
followed protocol and used the proper scientific methods of toxicology. Moreover, Phillips
stated he received the analyst’s work packet “with all of the data” and examined it to ensure
that the policies were followed and that the analyst’s conclusions were accurate and correct.
We find Phillips, as the technical and administrative reviewer, was qualified to testify as a
surrogate witness in lieu of the primary analyst.
¶37. Roberts further claims Phillips, as a surrogate witness, never rendered his own
independent opinion, but instead “[became] a mere hearsay conduit for the original analyst.”
Roberts argues that “[n]ot requiring a surrogate witness . . . to render an independent opinion
is, therefore, inconsistent with Rule 703 [of the Mississippi Rules of Evidence].” We
disagree.
¶38. At the time of trial, Rule 7034 stated as follows:
The facts or data in the particular case upon which an expert bases an opinion
or inference may be those perceived by or made known to him at or before the
hearing. If of a type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject, the facts or data need not
be admissible in evidence.
4
The Mississippi Rules of Evidence were stylistically revised, effective July 1, 2016.
12
Rule 703 allows an expert to base his opinion on the opinions of others which are not in
evidence “so long as experts in the field ordinarily rely on such opinions in forming their own
opinions.” Alexander v. State, 759 So. 2d 411, 420 (¶30) (Miss. 2000). The Mississippi
Supreme Court has held that the opinion of a nontestifying expert is a type of evidence
reasonably relied upon by experts in forming their own opinions. Id. at (¶¶29-31). Thus, it
is admissible hearsay when relied on by a testifying expert. Id.
¶39. Phillips offered his expert opinion as the technical and administrative reviewer of the
primary analyst’s testing. The record shows Phillips testified regarding his findings and
analysis of the work and data generated by the primary analyst. Phillips opined that based
on the screening methods used and the findings that he confirmed, Roberts’s blood was
positive for benzodiazepines, and that the compound in Roberts’s blood was alprazolam,
otherwise known as Xanax. Thus, the record makes clear that Phillips was not “so far
removed from the analysis as to be essentially a records custodian for the purposes of
testifying at trial.” McGowen, 859 So. 2d at 339 (¶68).
¶40. Overall, we find Phillips’s testimony did not violate Roberts’s constitutional right to
confront witnesses against him and was permissible under Rule 703. See Byrd v. State, 741
So. 2d 1028, 1033 (¶23) (Miss. Ct. App. 1999) (finding defendant in a rape trial was not
denied confrontation when the DNA expert had not performed or observed the DNA testing
procedures, but testified to her analysis of the scientific data obtained from the technicians).
IV. Motion to Suppress
¶41. At the hearing on the motion to suppress, the municipal court judge who issued the
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search warrant testified that “the only substance that was brought to [his] attention was
alcohol.” As a result, Roberts claims the search warrant used to seize his blood was invalid,
as no probable cause existed for a drug analysis. Thus, Roberts argues the circuit court erred
in denying his motion to suppress.
¶42. “The Fourth Amendment prohibition against unreasonable search and seizure applies
when an intrusion into the body—such as a blood test—is undertaken without a warrant,
absent an emergency situation.” Cole v. State, 493 So. 2d 1333, 1336 (Miss. 1986). “A
search warrant is validly issued when based upon probable cause.” Thompson v. State, 92
So. 3d 691, 695 (¶8) (Miss. Ct. App. 2012) (quoting Phinizee v. State, 983 So. 2d 322, 328
(¶18) (Miss. Ct. App. 2007)). Our supreme court has described probable cause as follows:
Probable cause is a practical, nontechnical concept, based upon the
conventional considerations of everyday life on which reasonable and prudent
men, not legal technicians, act. It arises when the facts and circumstances
within an officer’s knowledge, or of which he has reasonably trustworthy
information, are sufficient in themselves to justify a man of average caution
in the belief that a crime has been committed and that a particular individual
committed it.
Id. (citation omitted).
¶43. “Probable cause exists where it is based on ‘information reasonably leading an officer
to believe that then and there contraband or evidence material to a criminal investigation
would be found.’” Id. at 696 (¶9) (quoting Phinizee, 983 So. 2d at 328 (¶18)). “[P]robable
cause is determined by assessing the ‘totality of the circumstances.’” Id. In reviewing a
finding of probable cause, “this Court does not make a de novo determination of probable
cause, but only determines if there was a substantial basis for the determination of probable
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cause.” Id. at 695 (¶7) (quoting Roebuck v. State, 915 So. 2d 1132, 1137 (¶12) (Miss. Ct.
App. 2005)). “On appeal, the issuance of a warrant will not be reversed where substantial
evidence supports the [issuing judge’s] determination that probable cause existed.” Phinizee,
983 So. 2d at 328 (¶18).
¶44. According to his affidavit and testimony at the suppression hearing, Crain had
information that witnesses observed Roberts’s erratic driving and saw him cross over into
the oncoming lane of traffic. Additionally, Crain was advised that prior to the accident, an
anonymous caller had contacted law enforcement, complained of Roberts’s erratic driving,
and provided a license-plate number. When officers arrived at the scene, they were able to
confirm the information provided by the anonymous tip. Moreover, when talking to Roberts
at the hospital, Crain detected the faint smell of alcohol.
¶45. As the circuit court properly noted during the suppression hearing,
Crain felt that it’s obvious that there was an impaired driver, impaired to the
point where you are driving erratically and in the wrong lane. A faint smell of
alcohol would indicate that [alcohol] may be part of it, but . . . that [alcohol is]
not all of it.
The fact that [Crain] didn’t mention what drug that might be, he couldn’t
know. That’s why he asked that the blood be tested. And obviously, [Crain]
[felt] like he [had] a severely impaired driver and only a faint smell of alcohol.
[T]hat’s . . . why he asked for the authority to search for alcohol and/or drugs
present in [Roberts’s] blood.
¶46. Although the municipal court judge did not recall a discussion regarding potential
drug impairment, he acknowledged that Crain’s affidavit specifically stated that blood and
urine were needed to determine if Roberts was driving under the influence of drugs or
alcohol. Moreover, the municipal court judge acknowledged that the warrant he read and
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signed authorized drug and alcohol testing.
¶47. Considering the totality of the circumstances, we find substantial evidence supports
the municipal court judge’s determination that probable cause existed. As probable cause
existed for the issuance of the search warrant, the circuit court did not err in denying
Roberts’s motion to suppress.
V. Prosecutorial Misconduct
¶48. Roberts last asserts the prosecutor committed prosecutorial misconduct during his
rebuttal closing argument when he made the following statement:
It ain’t about nothing except you good people in Lauderdale County letting
him know that you’re not going to allow him to drive impaired on the highway
and kill our children.
Although no objection was made in response to the statement, Roberts argues this was an
improper “send a message” argument and asks this Court to find plain error.
¶49. “The supreme court has condemned any prosecution suggestion that the jurors ‘send
a message’ with a verdict.” Forbes v. State, 771 So. 2d 942, 950 (¶25) (Miss. Ct. App.
2000). To determine whether a “send a message” argument constitutes reversible error, we
apply two threshold questions, followed by a two-pronged test, as outlined in Spicer v. State,
921 So. 2d 292, 318 (¶55) (Miss. 2006). O’Connor v. State, 120 So. 3d 390, 399 (¶23)
(Miss. 2013).
¶50. The first threshold inquiry is whether defense counsel objected to the statement at
issue. Id. While the failure to contemporaneously object generally waives a claim of
prosecutorial misconduct during closing argument, “we will review such a claim if the
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prosecutor’s statement was so inflammatory that the [circuit] judge should have objected on
his own motion.” Id. at (¶26). For the second threshold inquiry, we must consider “whether,
in light of the surrounding circumstances, defense counsel invited the statement.” Id. at
(¶24).
¶51. If the threshold inquiries are met, then the Court must proceed to the two-pronged test
set forth in Spicer and determine “(1) whether the [prosecutor’s] remarks were improper, and
(2) if so, whether the remarks prejudicially affected the accused’s rights.” Id. at (¶25)
(quoting Spicer, 921 at 318 (¶55)).
¶52. Here, it is undisputed that no objection was made by defense counsel. Nevertheless,
we do not find that the prosecutor’s statement was so inflammatory that the circuit judge
should have objected on his own motion. Moreover, the record shows defense counsel
invited the statement.
¶53. During his closing argument, defense counsel stated as follows:
This question is about whether or not Mitchell Roberts is criminally
responsible for this death. This is not about race.[5] This is not about whether
black lives matter in Meridian[,] Lauderdale County, Mississippi. They do.
This is not about whether there’s equal access to justice in Meridian[,]
Lauderdale County, Mississippi[,] for African Americans as well as white
folks. There is. The issue for y’all to decide is whether or not Mitchell
Roberts was impaired by Xanax on that day.
In response, during his rebuttal closing argument, the prosecutor made the following
statement:
It ain’t about black/white. It ain’t about nothing except you good people in
Lauderdale County letting him know that you’re not going to allow him to
5
Roberts is Caucasian; Altman Jr. was African American.
17
drive impaired on the highway and kill our children.
(Emphasis added to note the portion omitted by Roberts).
¶54. Based on the transcript, it appears Roberts has taken the prosecutor’s comment out of
context. “Given the latitude afforded an attorney during closing argument, any allegedly
improper prosecutorial comment[s] must be considered in context, considering the
circumstances of the case, when deciding on their propriety.” Ahmad v. State, 603 So. 2d
843, 846 (Miss. 1992). Considering the context in which the comment was made and the
circumstances of the case, we find the prosecutor’s remarks were made in response to the
defense counsel’s comments on race.
¶55. Upon review, we find the prosecutor’s statement was invited by defense counsel and
was not so inflammatory that the circuit judge should have objected. As a result, the
threshold inquiries for prosecutorial misconduct have not been met, and this issue is therefore
waived. See O’Connor, 120 So. 3d at 400 (¶27).
¶56. Notwithstanding the waiver, we find the prosecutor’s comments do not survive the
two-part test of Spicer. A statement is not “improper simply because it sends a message that
the community will not tolerate violence . . . .” Spicer, 921 So. 2d at 318 (¶55). Instead, a
statement is improper if it “tend[s] to cajole or coerce a jury to reach a verdict for the purpose
of meeting public favor and not based on the evidence.” Id.
¶57. Here, defense counsel advised the jury that it must decide whether Roberts was
impaired by Xanax and was therefore criminally responsible for Altman Jr.’s death. In
response, the prosecutor advised that if the jury determined that Roberts drove impaired and
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killed fourteen-year-old Altman Jr., he would face the consequences of his actions. Such
comments did not urge the jury to reach a verdict based on emotion or public favor. Instead,
the comments were based on the evidence presented at trial.
¶58. Additionally, Roberts’s rights were not prejudicially affected by the prosecutor’s
remarks. Indeed, a review of the record shows that absent the prosecutor’s comments during
closing arguments, the jury would still have found Roberts guilty. See Brown v. State, 986
So. 2d 270, 276 (¶16) (Miss. 2008) (To meet the second prong of the Spicer test, it must be
clear that absent the prosecutor’s comments, the jury would have found the defendant
guilty.). Accordingly, Roberts’s claim of prosecutorial misconduct fails.
CONCLUSION
¶59. We find the judgment of the Lauderdale County Circuit Court of conviction of
aggravated DUI and sentence of twenty-five years in the custody of the Mississippi
Department of Corrections, with seven years suspended and eighteen years to serve, followed
by five years’ reporting postrelease supervision, a $2,000 fine, and $7,150 in restitution,
should be affirmed.
¶60. AFFIRMED.
LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE
AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.
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