Natyyo Gray v. State of Mississippi , 2015 Miss. App. LEXIS 560 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 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 WEILL SR.
COURT FROM WHICH 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 WITHOUT 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 sitting before the Hinds County Circuit Court found Natyyo Gray guilty of
capital murder. The circuit court sentenced Gray to life in the custody of the Mississippi
Department of Corrections (MDOC). Gray appeals. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. This appeal stems from the death of Aubrey Zoe Brown, the thirteen-month-old
daughter of Gray and Phyllis Brown. It is undisputed that Zoe was exclusively in Gray’s care
for approximately two hours and forty-five minutes before he called 911 and reported that
she needed emergency medical attention. It is also undisputed that Zoe died due to internal
bleeding caused by significant blunt-force trauma. The jury’s verdict supports the following
version of events.
¶3. Brown went to church at approximately 11:00 a.m. on Sunday, November 20, 2011.
She left Zoe at home with Gray. They were both asleep when she left. It was the last time
that Brown saw Zoe alive. At approximately 1:45 p.m., three firefighters with the Jackson
Fire Department were responding to Gray’s 911 call. Two minutes after they were
dispatched, the firefighters arrived at Brown’s apartment.
¶4. As they pulled up, Gray ran outside with Zoe, who was in cardiac arrest. According
to one of the firefighters, Gray was pressing Zoe’s stomach. Firefighter Zeric Washington
took Zoe from Gray and started performing chest compressions. Lieutenant Mario English
placed an “ambu bag” over Zoe’s mouth to deliver oxygen. Because Lieutenant English had
experience performing CPR on infants, he and Washington soon switched places.
¶5. When an ambulance arrived minutes later, Lieutenant English rushed Zoe to EMT
Andrew Aycox and paramedic Joey Sanders. As Sanders placed leads on Zoe’s chest to
monitor the electrical activity of her heart, he noticed bruising on her abdomen. Sanders later
testified that the bruising appeared to be the product of a “significant amount” of blunt-force
trauma. According to Sanders, it was the “type of injury that you would see in high[-]speed
2
. . . car accidents.” Gray told Sanders that he had pressed on Zoe’s abdomen to relieve
constipation, and later in an attempt to perform CPR. Because Zoe’s injuries did not match
Gray’s version of events, Sanders refused to let Gray ride in the ambulance. Washington
rode in the ambulance and assisted with CPR while Zoe was rushed to Baptist Hospital a few
miles away.
¶6. Emergency-room physicians Dr. Paul Zoog and Dr. Paul Petty were on duty when Zoe
arrived. She was still in cardiac arrest. Dr. Zoog and Dr. Petty both noticed bruising on her
abdomen. She also had bruises on her forehead, cheek, and the back of her head.
Additionally, there were lacerations in her mouth, and her maxillary frenulum was torn.1
Through the efforts of personnel at Baptist Hospital, Zoe’s heart began to beat on its own.
Approximately thirty-four minutes after she arrived, Zoe was rushed to Batson Children’s
Hospital at the University of Mississippi Medical Center (UMMC).2
¶7. Dr. Nancy Wahl and Dr. Sarah Sterling treated Zoe at Batson Children’s Hospital.
Dr. Wahl and Dr. Sterling both noticed bruising on her abdomen. Dr. Wahl also compared
Zoe’s injuries to the aftermath of “a motor[-]vehicle collision.” A CT scan of Zoe’s
abdomen revealed that she was bleeding internally from multiple liver lacerations and the
area around her duodenum. Zoe had lost approximately one-half of her entire blood volume.
1
Dr. Zoog later testified that the maxillary frenulum is the “little piece of tissue that
[attaches the] upper lip to [the] upper gum . . . between [one’s] two front teeth.”
2
Dr. Zoog testified that Zoe was transferred to Batson Children’s Hospital because,
unlike Baptist Hospital, it has a pediatric intensive-care unit. Zoe was initially taken to
Baptist Hospital because it was the closer to Brown’s apartment, and was the first option
available for emergency treatment.
3
According to Dr. Wahl, Zoe was bleeding internally as fast as they could give her
transfusions. During the eighty minutes the personnel at Batson Children’s Hospital treated
Zoe, she received transfusions amounting to almost her entire blood volume. Despite their
efforts, Zoe’s blood pressure was never high enough to treat her surgically. Zoe died at 4:29
p.m.
¶8. At that time, Gray was a detective with the Jackson Police Department. A number of
his fellow officers went to the hospital in either a personal or professional capacity. Five
officers later testified that while they were at Batson Children’s Hospital, Gray said that he
had killed Zoe by pressing on her stomach to relieve her constipation and improperly
performing CPR.
¶9. Later that day, Gray was transported to the police department for questioning. Gray
waived his right to remain silent and gave a statement. Gray was later indicted for capital
murder, which was elevated based on the allegation of felony child abuse. Gray pled not
guilty. Gray’s trial attorneys and the prosecution exchanged numerous volleys of pretrial
motions, which we will address as necessary below.
¶10. Gray’s trial began on February 11, 2013. Jury selection lasted that entire day. The
prosecution called twenty-six witnesses over four days. Briefly summarized, numerous
witnesses testified that the blunt-force trauma to Zoe’s abdomen lacerated her liver and
essentially tore her pancreas in half. A number of witnesses also testified that Zoe’s injuries
were the product of child abuse, and they were not caused by massaging her stomach or
improperly performing CPR by pressing on her abdomen. The prosecution called five
4
physicians as expert witnesses who testified that without medical intervention, Zoe would
have died less than an hour after sustaining her fatal injuries. The prosecution rested its case-
in-chief on February 19, 2013.
¶11. Gray testified in his own defense. Gray claimed that he was not responsible for Zoe’s
fatal injuries. His defense theory was to blame Brown for Zoe’s fatal injuries. According
to Gray, Brown had spanked Zoe before she went to church. Gray testified that Zoe behaved
unusually from the time that they woke up after Brown left. He claimed that Zoe was limp,
she would not stand up or walk, she stared into space, and she would not eat or drink. When
she started behaving as though she was constipated, he rubbed her abdomen. He claimed that
when she stopped breathing, he tried to perform CPR by pressing on her abdomen.
¶12. Gray also testified that the firefighters who responded to his 911 call never performed
CPR on Zoe after they arrived, and all three who testified otherwise were lying. According
to Gray, they simply watched him push on Zoe’s abdomen and suggested that he hold her
nose and breathe less forcefully into her mouth. Gray claimed that he carried Zoe to the
ambulance, and the emergency responders acted casually while he continued to press on her
stomach.
¶13. Gray also testified that Zoe did not have any bruising in his care or at any time before
she arrived at Batson Children’s Hospital. According to Gray, “[s]omething happened to
[Zoe] while she . . . was being treated.” Gray claimed that the police officers who testified
that he had said that he killed Zoe were all either lying or testifying based on rumors that they
had heard from others.
5
¶14. Gray called Dr. Steven Hayne as an expert witness.3 Essentially, Dr. Hayne testified
that Zoe could have lived up to five hours without medical intervention after she received her
fatal injuries. In other words, Dr. Hayne’s testimony indicated that Zoe would have been in
Brown’s care at the time she sustained her fatal injuries. Dr. Hayne based his testimony on
the levels of certain biochemical markers in Zoe’s tissues, rather than the rate at which she
was bleeding internally, which he characterized as uncertain based on the undefined
characteristics of the liver lacerations.
¶15. The prosecution called two rebuttal witnesses. Brown said that she did not spank Zoe
the morning that she died. The prosecution also recalled Dr. Scott Benton,4 who had testified
during the prosecution’s case-in-chief. During his rebuttal testimony, Dr. Benton refuted Dr.
Hayne’s testimony that Zoe sustained her fatal injuries at approximately 9:30 or 10:00 a.m.
Dr. Benton reiterated his opinion that Zoe would have died within minutes of her fatal
injuries without medical intervention. He also refuted the methodology by which Dr. Hayne
arrived at his opinion. That is, Dr. Benton testified that concentrations of various substances
in the body cannot be used to extrapolate the time of an injury. Quoting a 2012 article in a
medical journal, Dr. Benton explained that hopefully “some day, someone will discover a
suitable chemical biomarker within the human body whose concentrations can be
quantitatively tracked over time to . . . predict the time of death.” However, he testified that
3
Dr. Hayne testified that he was not being compensated for his examination of Zoe’s
records or his testimony.
4
Dr. Benton was an associate professor of pediatrics and chief of the division of
forensic medicine at UMMC. He was also the medical director of the Children’s Justice
Center.
6
there is no current medical “science that justifies the use of biochemical markers . . . to
backdate [a] death.” He further explained that Dr. Hayne’s methodology was inaccurate
because there is no precise way to extrapolate the time of an injury based on the number of
white blood cells in human tissue. Finally, Dr. Benton testified that Gray’s testimony was
inconsistent with Dr. Hayne’s because if Zoe suffered the fatal injuries at 9:30 or 10:00 a.m.,
and Gray had pressed on her abdomen, Zoe would have been “screaming in pain,” and Gray
did not testify that she had done so.
¶16. On February 21, 2013, the jury found Gray guilty of capital murder. A week later, the
circuit court conducted a sentencing hearing and sentenced Gray to life without the
possibility of parole.5 Following his unsuccessful motion for a judgment notwithstanding the
verdict (JNOV), Gray appeals.
¶17. On appeal, Gray’s appointed attorney argues that Gray received ineffective assistance
of counsel at trial for multiple reasons, including that his trial attorneys failed to adequately
interview witnesses, failed to request an accident instruction, and failed to request a
manslaughter instruction. Gray has also filed a pro se supplemental brief. Gray lists twenty-
four issues in his supplemental brief, but based on the substance of his arguments and the fact
that they often overlap, we are able to address them in fifteen issues.
ANALYSIS
I. Assistance of Counsel
¶18. Gray argues that he received ineffective assistance of counsel because his trial
5
Based on Gray’s employment history as a law-enforcement officer, the circuit court
requested that MDOC place Gray in protective custody during his incarceration.
7
attorneys were not able to interview all of the prosecution’s witnesses. During a pretrial
hearing, the prosecution mentioned that Gray’s trial attorneys had not interviewed six
witnesses. Gray’s trial attorneys explained that the witnesses refused to talk to them.
¶19. At trial, one of Gray’s trial attorneys cross-examined Lieutenant English, who testified
that he had not previously spoken to either of Gray’s trial attorneys. There were similar
statements during cross-examination of the next three witnesses for the prosecution.
Additionally, Gray’s trial attorneys had not previously spoken to Zoe’s pediatrician, Dr.
Geraldine Chaney.
¶20. Gray also claims that one of his trial attorneys improperly gave a witness an
opportunity to explain why his testimony was different than the events he described in a
report, and his cross-examination of prosecution witnesses resulted in answers that
undermined Gray’s case. Additionally, Gray argues that one of his trial attorneys was
ineffective because he asked questions that were fruitless, he asked questions without
knowing what the witnesses would say, and he was not adequately prepared to cross-examine
witnesses. Gray also claims that one of his trial attorneys called Dr. Hayne, who was not an
effective witness. Finally, Gray argues that his trial attorneys were ineffective because they
did not request an accident instruction, and their frequent objections became tedious.
¶21. “The benchmark for judging any claim of ineffectiveness of counsel must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Foster v. State, 687 So. 2d 1124,
1129 (Miss. 1996) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)). “The test
8
is two pronged: The defendant must demonstrate that his counsel’s performance was
deficient, and that the deficiency prejudiced the defense of the case.” Id. (citations omitted).
¶22. “Generally, ineffective[-]assistance claims are more appropriately brought during
post[]conviction proceedings.” Bateman v. State, 125 So. 3d 616, 633 (¶60) (Miss. 2013).
The rationale for this is based on the fact that on direct appeal, an appellate court is limited
to the record in the trial court, “and there may be instances in which insufficient evidence
exists within the record to address the claim adequately.” Archer v. State, 986 So. 2d 951,
955 (¶15) (Miss. 2008). “This Court will rule on the merits on the rare occasions where (1)
the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties
stipulate that the record is adequate to allow the appellate court to make the finding without
consideration of the findings of fact of the trial judge.” McClendon v. State, 152 So. 3d
1189, 1192 (¶12) (Miss. Ct. App. 2014).
¶23. The record before us does not affirmatively show ineffectiveness of constitutional
dimensions, and the parties have not stipulated that the record is adequate to allow this Court
to rule on the issue without considering the circuit court’s findings of fact. “In such a case,
the appropriate procedure is to deny relief, preserving the defendant’s right to argue the issue
through a petition for post[]conviction relief.” Archer, 986 So. 2d at 955 (¶15).
Consequently, Gray is free to seek postconviction relief, if he chooses to do so.
II. Subpoena Duces Tecum
¶24. According to Gray, the circuit court erred when it granted the prosecution’s motion
to quash the subpoena duces tecum that he had served on Brown. Through the subpoena
9
duces tecum, Gray sought to have Brown appear at his trial attorney’s office and provide
twenty categories of material.6 The circuit court granted the prosecution’s motion to quash
the subpoena duces tecum because “it violated Rule 2.01 of the” Uniform Rules of Circuit
and County Court. An appellate court “applies a de novo standard of review to questions of
law, such as whether the trial court erred in granting a motion 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 criminal case may, without a motion or hearing, require the
production of books, papers, documents or other objects at the date, time and
place at which the trial, hearing or proceeding at which these items are to be
offered in evidence is scheduled to take place.
(Emphasis added). Additionally, Rule 2.01(C)(1) provides:
No subpoena in a criminal case may require the production of books, papers,
documents or other objects at a date and time or place other than the date, time
and place at which the trial, hearing or proceeding at which these items are to
be offered in evidence is scheduled to take place, unless the court has entered
an order pursuant to this rule authorizing the issuance of such subpoena.
The subpoena duces tecum at issue commanded Brown to appear at Gray’s trial attorney’s
office and produce the material at issue. The circuit court had not entered an order
authorizing the subpoena duces tecum. We find no merit to this issue.
III. Life Insurance
¶26. In the subpoena duces tecum discussed in the previous issue, Gray requested the
6
Among other things, the material Gray sought through the subpoena duces tecum
included Brown’s cellular phone, computers, emails, all pictures of Zoe, Brown’s medical
records, insurance policies, educational certificates, phone records, employment records, and
Zoe’s daycare documents.
10
disclosure of all material regarding any life insurance that Brown “sought on the life of” Zoe.
The prosecution filed a pretrial motion to suppress evidence of the two life-insurance policies
on Zoe: one with a $15,000 benefit, and the other with a $25,000 benefit. Brown was the
sole beneficiary under each policy.7 The prosecution argued that the life-insurance policies
were irrelevant. The circuit court took the matter under advisement until Brown could be
proffered regarding the policies.
¶27. During the proffer, Brown testified that she purchased the $25,000 whole-life policy
ten days after Zoe was born. Brown described the $15,000 policy as a “college fund” that
also would pay a death benefit, if necessary. Brown testified that she contacted State Farm
regarding the $25,000 policy on the day after Zoe died. Brown further testified as follows:
I can’t remember who exactly I spoke with, but they told me that Zoe had to
be moved from the hospital and I needed to decide which funeral home I
wanted her to go to. So I called [my insurance agent] to see if I needed like a
policy number, or what did I need in order to give to the funeral home so they
would be able to come and pick up Zoe.
Brown explained that she did not have enough money to pay for Zoe’s funeral without the
benefit from the life-insurance policy. After the proffer, the circuit court held that Gray
would be allowed to introduce evidence of the two policies and the time that Brown
contacted State Farm regarding the $25,000 policy. Gray’s trial attorney subsequently cross-
examined Brown regarding the insurance policies. On appeal, Gray claims the prosecution
withheld exculpatory material by not disclosing evidence of the life-insurance policies during
discovery. “In reviewing rulings of a trial court regarding matters of evidence, relevancy and
7
The $15,000 policy was through Gerber Life Insurance. The $25,000 policy was
through State Farm.
11
discovery violations, the standard 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 obligation to disclose exculpatory
material as required by Brady v. Maryland, 373 U.S. 83, 87 (1963). In Brady, the United
States Supreme Court held that “the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. The
Supreme Court later clarified that “evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). “A
‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”
Id.
¶29. Even assuming that the policies are considered exculpatory toward Gray and the
prosecution was obligated to disclose them during discovery, Gray cannot demonstrate a
reasonable probability that the outcome of the trial would have been different if the
prosecution would have disclosed the policies during discovery. “[T]he question is whether
there is a reasonable probability that the verdict would have been different but for
governmental evidentiary suppression which undermines confidence in the outcome of the
trial.” Montgomery, 891 So. 2d at 183 (¶8). Gray sought to create the inference that Brown
was financially motivated to kill Zoe because she was the beneficiary of the policies. He
succeeded. The jury heard Brown’s testimony that there were two life-insurance policies on
12
Zoe, she was the beneficiary of both policies, and she submitted a claim on the $25,000
policy on the day after Zoe died. The jury simply chose not to believe Gray’s theory. There
is no merit to this issue.
IV. Gray’s Prior Statements
¶30. On January 30, 2013, Gray filed a pretrial motion to suppress prior statements that he
“purportedly made in or about January or February . . . 2011, during the pe[nd]ency of a
paternity and child support action . . . .” Gray elaborated that in the statements, he
“purportedly referred to [Zoe] as an ‘ugly bastard’ and otherwise den[ied] that he was [her]
biological father . . . .” Gray claimed that he had never made the statements at issue, which
were introduced as evidence during a paternity and child-support hearing that he did not
attend.8 According to Gray, the statements were “irrelevant, highly prejudicial[,] and would
be solely offered to inflame the jury and otherwise present inadmissible character evidence.”
He also argued that because the statements allegedly occurred nine months prior to Zoe’s
death, the statements were too remote in time to have any probative value regarding his
relationship with Zoe.
¶31. The circuit court heard Gray’s motion to suppress the prior statements on February
5, 2013. During the hearing, the prosecution argued that the statements were relevant and
admissible to show that Gray did not want to be involved with Zoe.9 Gray’s trial attorney
8
Gray did not deny that he received notice of the paternity and child-support hearing.
He later stated that he did not attend it because of a job-related interview.
9
Among other things, Gray purportedly said that he had “no emotional ties” to Zoe,
and he was “completely flat towards her.”
13
noted that the statements also showed that Gray later sought a relationship with Zoe based
on the following statement: “I think of her and I want to change where we are today and be
a family to the both of you and her alone.” Gray’s trial attorney further pointed out that Gray
had later moved into Brown’s apartment, and Brown had never accused Gray of abusing Zoe.
The circuit court held that the statements, which were approximately nine to ten months
before Zoe’s death, were not too remote in time to have any probative value. The circuit
court also held that the statements were “relevant to the issue of [Gray]’s motivation.”
Consequently, the circuit court denied Gray’s motion to suppress the prior statements.
¶32. For the first time on appeal, Gray claims the prior statements were not properly
authenticated. Gray is procedurally barred from raising this issue. Berry v. State, 75 So. 3d
1053, 1060 (¶24) (Miss. Ct. App. 2011). “A contemporaneous objection is required in order
to preserve an issue for appeal.” Id. (citing Davis v. State, 43 So. 3d 1116, 1126 (¶35) (Miss.
2010)). An objection on particular grounds at trial “waives all other grounds for objection
on appeal.” Carter v. State, 722 So. 2d 1258, 1261 (¶13) (Miss. 1998).
V. Pictures of Zoe
¶33. In this issue, Gray claims the circuit court erred when it allowed the prosecution to
introduce pictures of Zoe that were taken after she died. Officer Robert Bufkin took most
of the pictures at issue while Zoe was at UMMC. The remainder of the pictures were taken
during Zoe’s autopsy. Gray claims that the pictures had no probative value because Dr.
Benton had illegally disturbed Zoe’s body. Additionally, Gray claims that the pictures should
have been suppressed based on the prejudicial effect of their gruesome nature.
14
¶34. “Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” M.R.E. 403. “[A] trial court must conduct a two-part test to determine whether
a crime victim’s photograph is admissible.” Bonds v. State, 138 So. 3d 914, 918 (¶8) (Miss.
2014). “First, the trial court must determine whether the proof is absolute or in doubt as to
identity of the guilty party. Secondly, it must be determined whether the photographs are
necessary evidence or simply a ploy by the prosecutor to arouse the passion and prejudice of
the jury.” Id. “Such photographs should not be admitted where the killing is not contradicted
or denied, and the corpus delicti 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 of [Dr.] Benton’s
disturbing the body.” First and foremost, there was no evidence that bruising can occur after
death. Additionally, Gray’s claim is contradicted by Dr. Benton’s testimony on cross-
examination that he “did not remove [Zoe] from the gurney” that she was on. He elaborated
as follows: “Did we pick up an arm and look at [it] and look at things that we could see
externally visible on the child[? Y]es. The nurses and I looked at the child from head to
toe.” There was no evidence that any of Zoe’s injuries were caused after her death. By
extension, there was no evidence that Dr. Benton caused any of Zoe’s injuries. It follows that
the probative value of the pictures was not diminished by the acts of anyone who attempted
to resuscitate Zoe or documented her injuries after she died.
15
¶36. Without question, all of the pictures at issue had some degree of prejudicial effect.
Pictures of a recently deceased thirteen-month-old baby are naturally disturbing. That effect
is multiplied when the pictures depict numerous external injuries. And the reaction is even
further exacerbated by pictures of an infant’s autopsy. If our analysis solely involved
determining whether the pictures were prejudicial, then we would go no further. However,
the circuit court was obligated to weigh the probative value of the pictures against their
“prejudicial potential to arouse the passions of the jury.” Bonds, 138 So. 3d at 919 (¶13).
¶37. The pictures were helpful to the jury because they were able to see Zoe’s injuries.
Without the pictures, the jury would have been left to imagine the frequency and severity of
bruising on Zoe’s abdomen, face, head, and inside her upper lip. The picture of Zoe’s
lacerated frenulum clarified the degree of the laceration and its precise location. The pictures
taken during Zoe’s autopsy were the most accurate way for the jury to comprehend the
severity of Zoe’s liver lacerations and the force that would have been necessary to cause
them. The same is true regarding Zoe’s “transected” pancreas and the damage to her bowel
mesentary. Finally, the autopsy pictures helped the jury to understand the volume of blood
that Zoe lost due to internal bleeding.
¶38. A critical variable in this case was the time that Zoe could have survived without
medical intervention after receiving her fatal injuries. The prosecution’s experts opined that
Zoe would have died within minutes, and certainly no later than an hour. Gray’s expert
opined that Zoe would have survived for approximately five hours. The pictures helped the
jury resolve that contradictory testimony. The circuit court acted within its discretion when
16
it declined to suppress the pictures at issue. See id. It follows that we find no merit to this
issue.
VI. Expert Testimony
¶39. This issue stems from Gray’s efforts to prevent the prosecution’s expert witnesses
from rebutting Dr. Hayne’s testimony that Zoe sustained her fatal injuries approximately five
hours before medical intervention was necessary. On January 30, 2013, Gray moved to
suppress any expert testimony from the prosecution’s expert witnesses “regarding the time
or duration between infliction of wounds or injuries to [Zoe] and [her] death[.]” Gray argued
that the prosecution’s experts had not provided any reports specifying the time that Zoe
sustained her fatal injuries.
¶40. The next day, Gray served the prosecution with a letter written by Dr. Hayne. Within
the letter, Dr. Hayne opined that Zoe’s injuries occurred approximately five hours before she
died, which meant that Zoe would not have been in Gray’s exclusive care, and he could not
have caused her fatal injuries. According to Dr. Hayne’s letter, he arrived at his opinion
based on “blood[-]chemistry results, microscopic findings, clinical history, and hematological
and chemistry values.” That was the prosecution’s first notice that there would be an issue
about the time that Zoe suffered her fatal injuries. The prosecution responded by demanding
that Dr. Hayne elaborate regarding his methodology.
¶41. On February 5, 2013, the circuit court heard several motions that Gray and the
prosecution had filed. Gray’s trial attorneys reiterated their position that the prosecution had
provided insufficient information regarding its experts’ opinions as to when Zoe’s fatal
17
injuries occurred, and they reasoned that the prosecution’s experts should not be allowed to
testify on the subject. Gray’s trial attorneys also argued that the prosecution’s experts were
not qualified to testify on the subject because, aside from Dr. Barnhart, they were not
forensic pathologists. As for Dr. Barnhart, Gray’s trial attorneys claimed that she was only
“marginally qualified” because she had been board certified for a relatively short time.
¶42. The prosecution noted that it had not disclosed its experts’ opinions regarding when
Zoe’s injuries had occurred because that first became an issue when Gray provided Dr.
Hayne’s report six days earlier. The prosecution further noted that it needed time to contact
its experts and obtain additional information.10 The circuit court ordered Gray and the
prosecution to supplement discovery with additional information no later than February 7,
2013. On that date, the prosecution complied and provided Gray with additional information
regarding the anticipated testimony of its seven proposed expert witnesses.
¶43. On February 8, 2013, Gray filed a supplemental motion to prevent the prosecution’s
experts from testifying regarding the time that Zoe’s fatal injuries occurred. Gray claimed
that the prosecution’s supplemental disclosures did not provide sufficient information. Gray
again claimed that none of the prosecution’s proposed expert witnesses were qualified to
offer expert testimony about the time that Zoe’s fatal injuries occurred. At a hearing that
same day, Gray’s trial attorneys argued that the prosecution’s proposed experts had not
“offered any scientific facts or literature or peer review or tests that they have actually
10
The prosecution explained that it had contacted Dr. Sterling and Dr. Barnhart, but
Dr. Petty was at a seminar in California, and Dr. Benton was involved in a trial. The
prosecution planned to meet with Dr. Wahl later that day.
18
performed” to support their conclusion that Zoe’s fatal injuries occurred less than an hour
before medical intervention became necessary. The circuit court took Gray’s motions under
advisement. After addressing the issues as the prosecution called its expert witnesses, the
circuit court found that they were qualified to testify that Zoe’s fatal injuries occurred
between “minutes” and an hour from the time that Gray called 911.
¶44. Next, Gray claims that the prosecution’s medical experts should not have been
allowed to testify regarding the time that Zoe’s fatal injuries occurred. He claims that the
prosecution did not disclose their anticipated testimony in a timely manner. He also claims
that the circuit court failed to conduct an adequate hearing under Daubert v. Merrell Dow
Pharmaceuticals Inc., 509 U.S. 579, 593 (1993). Finally, Gray claims that Dr. Benton was
not qualified to testify regarding the time that Zoe’s injuries occurred.
A. Disclosure
¶45. Gray claims the prosecution’s experts should not have been allowed to testify because
the prosecution did not provide his trial attorneys with timely or adequate reports regarding
their anticipated testimony. Essentially, Gray argues that the prosecution committed a
discovery violation, so its experts should not have been allowed to testify regarding the time
that Zoe suffered her fatal injuries. Gray never requested a continuance. Although we do
not find that the prosecution committed a discovery violation, even if we found that there was
one, “the failure to request 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.
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B. Daubert Hearing
¶46. Gray claims the circuit court erred because it did not conduct a Daubert hearing
regarding the prosecution’s expert witnesses. We are mindful that “[t]he admission of expert
testimony is within the discretion of the trial court.” Bateman, 125 So. 3d at 625 (¶28). We
“will not reverse the trial court’s decision to admit expert testimony unless the decision was
arbitrary and clearly erroneous, amounting to an abuse of discretion.” Id.
¶47. Gray appears to misunderstand what is required. The Mississippi Supreme Court has
unequivocally stated that a trial court “is not required to hold an actual hearing to comply
with Daubert.” Edmonds v. State, 955 So. 2d 787, 792 (¶10) (Miss. 2007). “[T]he basic
requirement under the law is that the parties have an opportunity to be heard before the [trial]
court makes its decision.” Id. Based on the logistics involved with the prosecution calling
multiple expert witnesses, the circuit court addressed Gray’s Daubert claims outside of the
jury’s presence at the time that the prosecution called each of its experts.
¶48. Rule 702 of the Mississippi Rules of Evidence governs the admissibility of expert
testimony. It allows a witness qualified as an expert to testify in the form of an opinion if
“(1) the testimony is based on sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and methods
to the facts of the case.” M.R.E. 702. The Mississippi Supreme Court has adopted the
United States Supreme Court’s standard for judging the admissibility of expert testimony set
forth in Daubert and later modified by Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
See Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 39 (¶23) (Miss. 2003). “Expert
20
testimony must be relevant and reliable to be admissible.” Bateman, 125 So. 3d at 625 (¶29).
Additionally, “the trial court must make a preliminary assessment of whether the reasoning
or methodology underlying the testimony is scientifically valid and of whether that reasoning
and methodology properly can be applied to the facts in issue.” Id. at 626 (¶29).
¶49. In multiple issues, Gray claims that the circuit court should not have allowed any of
the prosecution’s expert witnesses to testify regarding the time that Zoe could have survived
after sustaining her fatal injuries. Gray repeatedly argues that the prosecution’s experts
“collectively failed to point to any medical authority in support of their opinions,” and “failed
to substantiate their opinions and testimony based upon medical facts and properly supported
medical peer review and authoritative medical support.”
¶50. Daubert does not state that expert testimony is per se inadmissible if the substance of
the testimony has never been the subject of peer review. Kumho, 526 U.S. at 151. The
subject matter of the testimony 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 testified that
without medical intervention, Zoe would have lived for an hour or less after her fatal injuries
occurred. As Dr. Benton explained during his proffered cross-examination testimony, “these
are experiential issues . . . . [W]e can’t go beating kids in the abdomen and finding out what
happens . . . . [W]e don’t have a reproducible[,] testable event where we beat the child or
injure the child [and] see how long it takes for them to bleed.” Thus, the absence of peer-
review articles to support the prosecution’s experts does not render their expert opinions
inadmissible. The prosecution’s expert physicians explained that their opinions were based
21
on their education, experience, and training. Based on the subject matter of the testimony
at issue – the time that a thirteen-month-old child could survive after sustaining fatal internal
injuries – it was within the circuit court’s discretion to allow the expert testimony. We find
no merit to this issue.
C. Qualifications
¶51. According to Gray, Dr. Benton’s testimony exceeded his qualifications. However,
Gray does not elaborate regarding which portion of Dr. Benton’s testimony allegedly
exceeded his qualifications. On appeal, errors in the admission of evidence, including expert
testimony, are reviewed for an abuse of discretion. Parvin v. State, 113 So. 3d 1243, 1246
(¶12) (Miss. 2013). Unless the circuit court’s decision was arbitrary and clearly erroneous,
the decision will stand. Galloway v. State, 122 So. 3d 614, 632 (¶27) (Miss. 2013).
¶52. Expert testimony is governed by Rule 702, which states that a properly qualified
witness may testify “in the form of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to the facts of the case.”
The opinions given “must rise above mere speculation” and “be [found] relevant and
reliable.” Parvin, 113 So. 3d at 1247 (¶14) (quoting Williams v. State, 35 So. 3d 480, 486
(¶19) (Miss. 2010)); Ross v. State, 954 So. 2d 968, 996 (¶57) (Miss. 2007). “Testimony is
relevant if it will assist the trier of fact in understanding or determining a fact at issue.” Ross,
954 So. 2d at 996 (¶57). Testimony is reliable if it is “based on the methods and procedures
of science, and not merely on subjective beliefs or unsupported speculation.” Id.
22
¶53. Dr. Benton testified that he was an “associate professor of pediatrics,” “chief of the
division of forensic medicine,” and “the medical director of the Children’s Justice Center.”
Dr. Benton also noted that he had testified in numerous cases as an expert in pediatric
forensic medicine. Although Dr. Benton’s testimony was certainly prejudicial to Gray’s
defense that Zoe sustained her fatal injuries approximately five hours before she died, we do
not find that the circuit court abused its discretion when it held that Dr. Benton was qualified
to testify as an expert in pediatric forensic medicine. There is no merit to this issue.
VII. Evidence of Brown’s Mental Health
¶54. In this issue, Gray claims he should have been allowed to obtain Brown’s mental-
health records and introduce them into evidence. Gray sought to introduce evidence that
Zoe’s death was due to Brown’s mental instability. As mentioned above, we will not disturb
the circuit court’s decisions regarding the admissibility of evidence unless the circuit court
abused its discretion. Montgomery, 891 So. 2d at 182 (¶6).
¶55. On January 31, 2013, Gray filed a motion for disclosure of Brown’s mental-health
records. Within the motion, Gray claimed that Brown’s phone records indicated that she had
communicated with a mental-health counselor on the day that Zoe died. Gray also claimed
that Brown “has a history of mental and emotional problems.” Gray further alleged that
because Brown was from Meridian, Mississippi, “information suggests that she has sought
therapy at Weems Mental Health Center.”
¶56. During a subsequent hearing, it became clear that there was no specific indication that
Brown had ever suffered from mental-health problems. Although Brown’s phone records
23
indicated that she had spoken with someone from the Boston, Massachusetts area on the day
that Zoe had died, there was no evidence regarding the substance of the communication.
Without any more specific indication that Brown had been treated for mental-health issues,
the circuit court stated that “it just sounds like there’s a serious fishing expedition going on
to find out what may be in mental[-]health records,” and he needed to hear “something that
would suggest that there’s other than just an effort to root around in Ms. Brown’s record to
see if there’s something that may be useful” to Gray.
¶57. At trial, Gray’s trial attorney elicited testimony from Brown during a proffer. Brown
stated that she had sought some unspecified treatment “years ago” regarding her relationship
with her mother, and she had sought grief counseling after Zoe died. Otherwise, she had not
sought any treatment for her mental health. She also clarified that she had not spoken with
a mental-health counselor from Boston on the day Zoe died. Brown explained that the
Boston phone number belonged to a friend who happened to be a public-health advisor for
teen pregnancy. Following the proffer, the circuit court held that Brown’s previous treatment
for grief and her relationship with her mother were irrelevant, and Gray was prohibited from
eliciting testimony on the subjects.
¶58. Rule 401 of the Mississippi Rule of Evidence defines “relevant evidence” as
“evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence.” It is unclear exactly when Brown sought counseling or some other form of
treatment based on her relationship with her mother. The record merely states that it was
24
“years” before Gray’s trial. Brown was not asked to elaborate during the proffer. On appeal,
Gray does not clarify how Brown’s previous treatment would be relevant to his trial for
capital murder. There is no evidence that Brown was mentally unstable, violent, or that she
had ever been hospitalized or medicated for a mental-health issue. There is no merit to this
issue.
VIII. Character Evidence
¶59. Prior to Gray’s trial, the State moved to prohibit testimony from three of Gray’s
prospective witnesses: Tamara Milliken, Yolanda Davis, and Morgan Washington. Gray is
the father of one of Davis’s children. The defense planned to call Davis to testify regarding
the manner in which Gray had disciplined their child. Milliken was the former deputy chief
of police who had supervised Gray during their time with the Jackson Police Department.
And although Gray was not Washington’s biological father, he had treated her as his own
child. The prosecution argued that their anticipated character testimonies were irrelevant and
inappropriate character evidence. The circuit court took the prosecution’s motion under
advisement, and opted to hear proffers before ruling on the motion.
¶60. At trial, Gray’s trial attorneys chose not to call Washington as a witness or proffer her
testimony. During Davis’s proffer, she testified that Gray had never used corporal
punishment to discipline their child. She also testified that she did not know that Gray was
romantically involved with Brown, or that they had a child. The circuit court held that
Davis’s testimony was not relevant, and whatever probative value her testimony had was
substantially outweighed by the danger of misleading the jury, confusion of the issues, and
25
the unfair prejudice her testimony would produce. Consequently, the circuit court granted
the prosecution’s motion to exclude Davis’s testimony.
¶61. During Milliken’s proffer, she testified that she had been the deputy chief of special
operations when Zoe died, and she was Gray’s supervisor at the Jackson Police Department.
According to Milliken, she had been at a cookout when she heard that Gray had been taken
in for questioning. Although she had been drinking, Milliken went to the Jackson Police
Department and had a “heated discussion” with the deputy chief in charge of major
investigations, because no one would tell her what was going on with Gray’s investigation.
As a result of the “heated discussion,” Milliken resigned.
¶62. The circuit court held that Milliken’s proffered testimony was irrelevant, and its
probative value was outweighed by the likelihood of confusing and misleading the jury.
Citing Rule 403, the circuit court granted the prosecution’s motion to exclude Milliken’s
testimony.
¶63. Gray claims the circuit court should have allowed Milliken to testify regarding his
“profession[al] character.” He further argues that Davis should have been allowed to testify
regarding his “private character.” To support his claims, Gray cites Rule 608(a)(1) of the
Mississippi Rules of Evidence and Hall v. State, 490 So. 2d 858, 859 (Miss. 1986), for the
general principle that it is reversible error to prohibit a defendant from calling witnesses and
questioning them before a jury. However, Gray cites no authority that supports his specific
claims that Milliken and Davis should have been allowed to testify regarding his personal
and professional character. Arguments advanced on appeal must “contain the contentions
26
of the appellant with respect to the issues presented, and the reasons for those contentions,
with citations to the authorities, statutes, and parts of the record relied on.” M.R.A.P.
28(a)(6). “Failure to comply with [Rule] 28(a)(6) renders an argument procedurally barred.”
Rogers v. State, 994 So. 2d 792, 800 (¶31) (Miss. Ct. App. 2008). Therefore, this issue is
procedurally barred.
IX. Circumstantial-Evidence Instruction
¶64. Gray claims the circuit court should have given a circumstantial-evidence instruction.
However, Gray did not request one. Consequently, Gray is procedurally barred from raising
this issue for the first time on appeal. See McCoy v. State, 147 So. 3d 333, 351 (¶48) (Miss.
2014).
X. Sufficiency of the Evidence
¶65. Next, Gray argues that there was insufficient evidence to convict him of capital
murder because there was no evidence that he abused Zoe.11 In reviewing the sufficiency of
the evidence, “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.” Nolan v. State, 61 So. 3d 887, 893 (¶24) (Miss.
2011) (quoting Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005)). All credible evidence
11
This issue encompasses Gray’s arguments that the circuit court erred when it
instructed the jury regarding the elements of felony child abuse and capital murder. In
separate issues, Gray submits that there was insufficient evidence to support the instructions.
Stated differently, Gray argues that the circuit court should have given a peremptory
instruction that he was not guilty. We review the sufficiency of the evidence based on the
last occasion that the challenge was raised in the circuit court. McClain v. State, 625 So. 2d
774, 778 (Miss. 1993). Gray last challenged the sufficiency of the evidence in his motion
for a JNOV.
27
consistent with the defendant’s guilt will be accepted as true, together with all favorable
inferences that may be reasonably drawn from the evidence. Robinson v. State, 940 So. 2d
235, 240 (¶13) (Miss. 2006) (citing McClain v. State, 625 So. 2d 774, 778 (Miss. 1993)).
The evidence will be considered in the “light most favorable to the State.” Id.
¶66. Numerous physicians, including Dr. Hayne, testified that Zoe’s death was the result
of child abuse. There was evidence that Zoe had multiple contusions on her head and bruises
on her face. Her maxillary frenulum was torn, which was consistent with a shearing force
caused by something hitting her in the side of her face. She also had bruises on the inside
of her lip, which were likely caused when something hit her in the mouth and the inside of
her lip impacted her teeth. The jury heard numerous witnesses testify regarding the
substantial bruising on Zoe’s abdomen, which were caused by “multiple impacts” of blunt-
force trauma. The force that caused her abdominal injuries was compared to being kicked
by a horse, falling from a height, or being involved in a “motor[-]vehicle collision.” The
force was so significant that it lacerated her liver, and her pancreas was “basically torn in
half” when it impacted her spine.
¶67. Gray initially claimed that he had merely massaged Zoe’s abdomen to relieve her
constipation before she lost consciousness. He testified that Brown admitted that she had
caused Zoe’s fatal injuries, but Brown disputed that. The testimonies of prosecution’s expert
witnesses also supported the conclusion that Zoe’s fatal injuries occurred while she was in
Gray’s exclusive care. Additionally, Gray testified that he had improperly performed CPR,
and emergency responders did not stop him. However, that was contradictory to the
28
testimony of three firefighters and the ambulance crew. And Dr. Hayne’s expert testimony
suggested that Zoe’s fatal injuries occurred when she was in Brown’s care, but the
prosecution’s experts disagreed and clearly explained the flaws in Dr. Hayne’s methodology.
The jury is responsible for resolving conflicts in the evidence and the credibility of witnesses.
Brown v. State, 796 So. 2d 223, 227 (¶12) (Miss. 2001). The jury resolved the conflicting
evidence in the prosecution’s favor. We find no merit to this issue.
XI. Weight of the Evidence
¶68. Gray claims the jury’s verdict is contrary to the overwhelming weight of the evidence.
According to Gray, the prosecution failed to prove that he abused Zoe. An appellate court
will only disturb a verdict based on the weight of the evidence “when [the verdict] 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). As we review this issue, we
weigh the evidence in the light most favorable to the verdict. Id.
¶69. We do not find that allowing the verdict to stand would sanction an unconscionable
injustice. As mentioned above, the jury is responsible for resolving conflicts in the evidence
and the credibility of witnesses. Brown, 796 So. 2d at 227 (¶12). Furthermore, “[f]actual
disputes are properly resolved by a jury and do not mandate a new trial.” Ealey v. State, 158
So. 3d 283, 293 (¶31) (Miss. 2015). This issue has no merit.
XII. Prosecutorial Misconduct
¶70. In this issue, Gray claims the prosecution knowingly presented false testimony, but
there is no support for his claim. Additionally, Gray claims the prosecution made
29
inappropriate comments during its closing argument. However, Gray did not object at any
time during the prosecution’s closing argument. As an appellate court, we have no original
jurisdiction to review this issue. See Milano v. State, 790 So. 2d 179, 189 (¶47) (Miss. 2001)
(holding that a prosecutorial-misconduct claim was procedurally barred when raised for the
first time on appeal). Accordingly, this issue is procedurally barred. Davis v. State, 660 So.
2d 1228, 1255 (Miss. 1995).
XIII. Comments by the Circuit Court
¶71. Next, Gray claims the circuit court committed reversible error by admonishing his trial
attorneys to “move along.” Gray also complains that the circuit court “hurried [his attorneys]
to finish [their] examinations when it was obvious [that they] had not completed
examinations of witnesses.” According to Gray the circuit court “simply wanted to conclude
the trial.” Finally, Gray argues that he was prejudiced by the circuit court’s “countenance
toward Gray, his counsel, his cross-examinations[,] and evidence of innocence . . . .”
¶72. As stated previously, evidentiary matters are subject 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 “shall exercise reasonable control over the mode
. . . of interrogating witnesses and presenting evidence so as to . . . avoid needless
consumption of time . . . .” Furthermore, the circuit judge has a duty “to guide the procedure
of [a] trial, and in so doing he is not . . . a mere moderator . . . .” Jackson Yellow Cab Co.
v. Alexander, 246 Miss. 268, 278, 148 So. 2d 674, 678 (1963).
¶73. Gray’s trial began on February 11, 2013, which was spent on voir dire and selecting
30
the jury. The remainder of the trial lasted eight days. The prosecution called numerous
witnesses during its case-in-chief, which lasted four full days and a very brief portion of a
fifth. Gray raised a number of objections during that time, and the circuit court adequately
addressed each one. Gray presented his own case for more than two days. His own
testimony encompassed nearly an entire day of the trial. The prosecution’s rebuttal was very
brief. The transcript of Gray’s trial encompasses more than two thousand pages of the
record. Not once does Gray cite to any portion of it to support his claim in this issue.
Arguments advanced on appeal must “contain the contentions of the appellant with respect
to the issues presented, and the reasons for those contentions, with citations to the authorities,
statutes, and parts of the record relied on.” M.R.A.P. 28(a)(6) (emphasis added). “Failure
to comply with Rule 28(a)(6) renders an argument procedurally barred.” Rogers, 994 So. 2d
at 800 (¶31). Additionally, Gray cites no authority to support his claim that the circuit court
committed reversible error by admonishing his attorneys to move along during some
unspecified times during the trial. It follows that this issue is further barred based on Gray’s
failure to cite authority to support his argument.
XIV. Sentencing
¶74. Gray claims that the circuit court erred when it sentenced him to life without eligibility
for parole. According to Gray, the circuit court should have considered sentencing him to
life 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 shall be convicted of capital murder shall be sentenced (a) to
31
death; (b) to imprisonment for life in the State Penitentiary without parole; or (c) to
imprisonment for life in the State Penitentiary with eligibility for parole . . . .” Miss. Code
Ann. § 97-3-21(3) (Rev. 2014). However, “[n]o person shall be eligible for parole who is
charged, tried, convicted and sentenced to life imprisonment under the provisions of
[Mississippi Code Annotated s]ection 99-19-101 [(Supp. 2014).]” Miss. Code Ann. §
47-7-3(1)(e) (Supp. 2014). The supreme court has held that “[t]he reading of these statutes
together indicate[s] that a defendant on trial for capital murder may only be sentenced to
death or life imprisonment without eligibility [for] parole.” Flowers v. State, 842 So. 2d 531,
557 (¶77) (Miss. 2003). Furthermore, “a trial judge may impose the only possible sentence
[for capital murder] without formally returning the matter to the jury for sentencing.” Pham
v. State, 716 So. 2d 1100, 1103 (¶21) (Miss. 1998). There is no merit to this issue.
XV. Cumulative Errors
¶76. Finally, Gray claims he is entitled to a new trial based on the cumulative effect of the
errors. “This Court may reverse a conviction and sentence based upon the cumulative effect
of errors that independently would not require reversal.” McLaurin v. State, 31 So. 3d 1263,
1270 (¶35) (Miss. Ct. App. 2009) (citation omitted). “However, where there was no
reversible error in any part, there is no reversible error to the whole.” Id. (citation and
internal quotation marks omitted). Having found no individual error, there can be no
cumulative error. This issue has no merit.
¶77. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF
CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT
ELIGIBILITY FOR PAROLE OR EARLY RELEASE IS AFFIRMED. ALL COSTS
32
OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, MAXWELL,
FAIR, JAMES AND WILSON, JJ., CONCUR.
33