Travaris Richard Christian v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2014-KA-01202-SCT
TRAVARIS RICHARD CHRISTIAN a/k/a
TRAVARIS R. CHRISTIAN a/k/a TRAVARIS
CHRISTIAN a/k/a TREVARIS RASHAD
CHRISTIAN
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 10/30/2013
TRIAL JUDGE: HON. WINSTON L. KIDD
TRIAL COURT ATTORNEYS: TOM KESLER
KIMALON CAMPBELL
ALISON KELLY
ALICE STAMPS
MICHAEL HENRY
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: EMIL NICK CRAWFORD
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: ROBERT SHULER SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 11/10/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, C.J., LAMAR AND BEAM, JJ.
BEAM, JUSTICE, FOR THE COURT:
¶1. Travaris Christian was convicted in the Hinds County Circuit Court on two counts of
capital murder (underlying felony of robbery); one count of house burglary, conspiracy to
commit house burglary, felonious child neglect, and felon in possession of a firearm–all
offenses having occurred on or about January 24, 2011. Christian appeals, claiming his
constitutional rights to confrontation were violated; his convictions are supported by
insufficient evidence; and the trial court erred in granting the State an aiding-and-abetting
instruction and denying him an abandonment instruction. Finding no merit in any of the
issues raised, we affirm Christian’s convictions.
FACTS
¶2. On January 26, 2011, Hinds County Sheriff’s Deputy John Sanders was dispatched
to 1323 Timberidge Road in Terry, Mississippi, to conduct a welfare check and make contact
with Robert Carter. Carter’s vehicle had been found abandoned at a location in Jackson,
Mississippi. Upon arrival at the Terry home, Deputy Sanders proceeded to the door inside
the garage and rang the door bell. When no one answered, and finding the door unlocked,
Deputy Sanders entered the home.
¶3. Inside, Deputy Sanders discovered two deceased bodies, later identified as Carter and
Carter’s fiancé, Renita Marks. Carter’s body was found in the home’s dining room, and
Marks’s body was discovered behind the door to the master bedroom. Also found, lying
face down on the floor near Carter’s body and crying, was Carter’s and Marks’s seven-
month-old son, Carter, Jr. The baby’s diaper was soiled with “a lot of feces.”
¶4. Deputy Chris Smith, who responded to the scene shortly after Deputy Sanders,
testified at trial that when he picked up the baby, he appeared in a “very bad state.” He said
the baby appeared extremely hungry and thirsty. He changed the baby and fed him from
“premade bottles” found in the home’s refrigerator. Deputy Smith handed the baby over to
one of the female officers who subsequently had arrived at the scene.
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¶5. Investigator Greg Lewis of the Hinds County Sheriff’s Department testified that he
recovered nine, nine-millimeter spent casings in the home. Two projectiles were obtained
from Carter’s body. And two projectiles were found near Marks’s body, one in her clothing
and another on the floor. A bullet hole was discovered in the master bedroom door,
indicating that someone had shot through the door. Investigators determined that the
shootings had occurred on the evening of January 24, 2011.
¶6. Two days after the shootings, Hinds County Sheriff Investigators arrested Christian,
along with Deon Carter, at the home of Rhonda Shannon, Christian’s aunt. Deon was
Carter’s brother.
¶7. While in custody, Christian waived his right to an attorney and volunteered three
separate statements to investigators. In his first statement, Christian denied being in Terry
the day of the killings and denied any involvement in the case. He told investigators he had
met Deon just “three days” ago at Shannon’s house, where Deon was staying. Christian said
Deon was looking to sell a “black truck,” and he rode with Deon to a pawn shop, where Deon
pawned an air compressor. Christian told investigators that he “heard something had
happened in Terry and that someone was dead.” Christian recalled that when he first met
Deon at Shannon’s home, Deon was arguing on the phone with someone from Terry. After
the phone conversation, Deon told Christian this person had “really . . . f***ed over him.”
And “[t]hey” had “kicked him out” of his home. Christian told investigators this was all he
knew about the matter, at which point the interview ended.
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¶8. Christian gave another statement shortly thereafter. Again, Christian said he had met
Deon just “three days ago” at Shannon’s home. Deon was arguing on the phone with his
brother, who apparently had done Deon wrong. After the phone conversation, Christian rode
with Deon to Robert’s home in Terry. According to Christian, they rode there in a gray
Buick. When they arrived, Deon went up to the home to talk to his brother, while Christian
sat in the car. According to Christian, Deon and his brother had a conversation that lasted
for about five to ten minutes. Christian heard Deon say to Carter, “man, I’m out of gas man,
you got the money ready for me? And, . . . the brother was like, man just put the keys on the
table. . . .” The brothers then went inside the house. Next, Christian heard gunshots. At that
point, Christian got out of the car and ran down the street. Sometime afterward, Deon drove
up to Christian in a black truck. Christian got in the truck, and Deon drove them back to
Shannon’s house. While in the truck, Deon was “swinging the gun around,” which scared
Christian because it made him feel like Deon might shoot him “over somethin[g] like this.”
Deon told him, “I hate to do my brother like that, but he just messed over me man.”
Christian said a “50, 52” inch big-screen television was in the bed of the pickup, which Deon
later sold to Shannon. Investigators asked Christian how the gray Buick they took into Terry
arrived back at Shannon’s house in Jackson. Christian said, “I guess they went back and got
it.” Investigators then asked Christian to describe the gun used in the shootings. Christian
said, it was a “chrome and black [45].” Christian said Deon gave the gun to “Bo PeeP” after
the shootings.
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¶9. In his third statement, Christian told investigators that, on the day of the shooting,
Deon had told him that his brother had some “TV’s in his house” and he needed some help
carrying them out. Christian’s uncle, Alonzo Christian, drove Christian and Deon in the gray
Buick to Carter’s house and dropped them off. Christian stated, “We went behind the house,
and I went in the woods and he went and knocked on his brother’s door. And . . . when his
brother came to the door[, t]hey went to talkin.’” Later in his statement, Christian told
authorities he and Deon “went up the side of the house.” Deon told Christian, “stand right
here, I’m fixin’ to go knock on the door.” Deon knocked on the door, and Deon and Robert
“went to talkin.’” Christian said that, prior to going to Terry, Deon had told Christian that
Carter was at work and would not be home. When Carter came to the door, Carter and Deon
began arguing about gas money. Deon told Carter he needed gas money. Carter refused and
instructed Deon to put the keys to the Buick on the table outside. According to Christian,
Carter “tended to close the door,” and that is when Deon started shooting. Deon shot through
the glass door, and “busted up in there.” Christian said, at this point, he took off running.
While he was running, Christian heard more gunshots–three more, then two. He said Deon
picked him up down the street about twenty minutes later; Deon had a big-screen television
and an air compressor in the back of the truck. They drove back to Shannon’s house in
Jackson. When they arrived, Alonzo came out and helped Deon carry the television inside.
The next day, Christian rode with Deon to the pawn shop to sell the air compressor.
According to Christian, Deon had agreed to give Christian some of the proceeds from sale.
After the sale, Deon gave Christian $30.
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¶10. Alonzo testified at trial on the State’s behalf in exchange for a plea deal. According
to Alonzo’s testimony, Deon had approached Alonzo prior to the shootings and had told
Alonzo that “he had a lick,” and asked Alonzo if he was interested. Alonzo told Deon, “I
don’t do . . . licks,” and “never will . . . .” Alonzo then told Deon that he had a nephew
(Christian), that “probably will . . . .” Alonzo then introduced Deon to Christian. On the
evening of the shootings, Alonzo gave Deon and Christian a ride to Carter’s house in Terry.
Alonzo’s understanding was that Deon and Christian were going to break into Carter’s home,
since Robert was out of town. Alonzo dropped the two off at Carter’s house in Robert’s
Buick and drove the car back to Shannon’s house in Jackson. Alonzo indicated that Deon
told him it was okay for Alonzo to leave because they would have a ride back from Carter’s
home. According to Alonzo, Deon and Christian arrived back at Shannon’s house with
“nothing.” Deon and Christian then left for “about an hour.” When they returned, they had
a television in the back of the truck. Alonzo helped one of them–he could not remember
which one–take the television off the truck and into Shannon’s house.
¶11. Shannon also testified at trial on behalf of the State. According to her testimony, she
met Deon through Alonzo sometime in December 2010. Deon ended up staying at
Shannon’s home because he had no place else to go. Shannon said she did not find out about
the shootings until Wednesday morning, on January 26, 2011. Deon came to her house early
that morning, asking about Christian. Shortly thereafter, Shannon went and picked up
Christian and Christian’s girlfriend. Christian told Shannon that when he and Deon went
down to Terry, “it was just suppose[] to be a burglary.” But, Deon “ended up” shooting “his
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brother.” Christian said “he was scared and didn’t know what to do because [Deon] was
pointing the pistol . . . . And so he went in and, you know, I guess whatever and however
that went, I don’t know I wasn’t down there, but he was just saying how the boy had killed
his folks, you know, and they [were not] suppose to be there.”
¶12. According to Shannon, prior to the shooting, while Deon was staying at her house,
Deon had told them that Carter had a lot of nice things. Carter allegedly had done Deon and
their mother wrong by kicking them out of his house because they could not get along with
Marks. And Deon said he was going to do something to Carter for doing them wrong.
¶13. Shannon also testified that the day after she was taken in for questioning on January
26, she found a box with a gun in it atop a coat rack in her home. She informed authorities,
who came and retrieved the weapon and placed it into evidence.
¶14. Forensic scientist Felicia Robinson testified that the shell casings recovered from the
crime scene matched the gun in evidence, which had been retrieved from Shannon’s home.
¶15. Investigator Eric Zetterholm of the Hinds County Sheriff’s Department testified at
trial that he was one of the investigators who had interviewed Christian the day Christian was
arrested. Investigator Zetterholm testified he had found a cell phone in Christian’s pocket
while booking Christian, which Zetterholm discovered the next day had belonged to Marks.
¶16. Zetterholm also testified about a recorded jail telephone conversation between
Christian and his mother or grandmother.1 That person informed Christian that the police
1
In his testimony, Zetterholm indicated that Christian was talking either to his
grandmother or his mother. The record does not indicate which person with whom Christian
spoke and the recording is not in the record.
7
had retrieved a gun from Shannon’s house. According to Zetterholm, when Christian learned
this information, he said that the gun was used in the shootings. Christian told the person
during the phone conversation that he was the last person to touch the gun and his
fingerprints were all over it.
¶17. Renita’s twin sister, Renata Marks, testified that the cell phone recovered from
Christian belonged to Renita. She also told the jury that at the time of the shootings, Carter’s
and Renita’s baby was seven to eight months old; the baby was three years old at the time of
trial.
¶18. Christian did not testify at trial. He put on one witness, Kindell Ard. Ard knew Carter
and Deon, and he said he had talked to Carter on the phone the night of the shootings.
According to Ard, during his and Robert’s conversation, Carter had said someone was
knocking on his window. Ard then heard arguing in the background and a baby crying.
Afterward, the phone went silent. Ard did not hear any glass breakage or any gunshots.
¶19. The jury found Christian guilty on all charged counts. He appeals, raising the
following issues:
1. Whether Christian’s federal and state constitutional right to
confront witnesses was violated when the trial court allowed a
pathologist to testify and offer opinions about the autopsy instead
of the pathologist who actually conducted the autopsy.
2. Whether the evidence is insufficient to support the verdicts and the
verdicts are against the overwhelming weight of the evidence.
3. Whether the trial court erred in granting the State’s jury
instruction on accomplice liability.
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4. Whether the trial court erred in rejecting the defendant’s jury
instruction D-3, abandonment of a criminal enterprise.
5. Whether the cumulative effect of errors requires reversal.
¶20. Additional facts, as necessary, will be related in our analysis.
1. Whether Christian’s federal and state constitutional right to
confront witnesses was violated when the trial court allowed a
pathologist to testify and offer opinions about the autopsy instead
of the pathologist who actually conducted the autopsy.
¶21. At trial, over Christian’s objection, the State tendered Dr. Erin Barnhart as an expert
in the field of pathology from the Mississippi State Medical Examiner’s Office. Dr. Barnhart
did not participate in any respect in the victims’ autopsies. Both autopsies were performed
by Dr. Adel Shaker, who did not testify, and who was no longer working at the Mississippi
State Medical Examiner’s Office. Dr. Barnhart testified that, although she did not perform
the actual autopsy procedures, she examined the autopsy reports, along with the photographs
and case notes. And she concluded based on a reasonable degree of medical certainty that
Carter and Marks died from gunshot wounds. We find no violation.
¶22. At the outset, we need to point out that the Court of Appeals recently addressed
similar testimony by Dr. Barnhart in Bufford v. State, 191 So. 3d 755 (Miss. Ct. App. 2015).
There, the defendant was charged in the shooting death of Davie Miller, and Dr. Shaker had
performed Miller’s autopsy. And like here, Dr. Barnhart testified at Miller’s trial, having
reviewed “Dr. Shaker’s case notes and photographs.” Id. at 757-59, 763. The Court of
Appeals found no Confrontation Clause violation. Id. at 763.
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¶23. Quoting this Court’s decision in Debrow v. State, 972 So. 2d 550, 554 (Miss. 2007),
the Court of Appeals found that “[w]hen the testifying witness is a court-accepted expert in
the relevant field who participated in the analysis in some capacity, . . . then the testifying
witness’s testimony does not violate the Confrontation Clause.” Bufford, 191 So. 3d at 762.
Bufford further added that this Court has held that “a supervisor, reviewer, or other analyst
involved may testify in place of the primary analyst where that person was ‘actively involved
in the production of the report and had intimate knowledge of analyses even though he or
she did not perform the tests firsthand.’” Id. at 763 (quoting Grim v. State, 102 So. 3d 1073,
1081 (Miss. 2012)). While our analysis in Debrow was correct, the Court of Appeals
misapplied it to the facts of the case before it.
¶24. Debrow2 and Jenkins v. State3 (which the Court of Appeals also cited) both
considered situations in which one expert performed a scientific test and the test results,
themselves, were admitted in evidence through the testimony of another. In those cases, this
Court’s analysis centered on whether the testifying expert was involved in the testing process
sufficiently to satisfy the Confrontation Clause.
¶25. Because Dr. Barnhart—according to her own testimony—did not participate in any
manner in the autopsies and, in fact, never spoke with Dr. Shaker about the autopsies, the
2
Debrow, 972 So. 2d at 553 (“Debrow also argues that the admission of the results
of his blood analysis violated his Sixth Amendment right to confrontation, as the State
provided no foundation for the submission of this evidence.”).
3
Jenkins v. State, 102 So. 3d 1063, 1065 (Miss. 2012) (“Jenkins contends that his
Sixth Amendment right to confrontation was violated because he was not provided an
opportunity to cross-examine the analyst who had performed the testing on the substance
and authored the forensic report admitted as evidence against him.”).
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cases cited by the Court of Appeals are inapplicable to the scenario at issue here and before
the Court of Appeals in Bufford.
¶26. But, as was the case in Buford, Dr. Shaker’s notes were not admitted in evidence, and
Dr. Barnhart did not relay the content of those notes through her testimony. Instead, while
Dr. Barnhart did state that she had reviewed the notes, she indicated that her expert opinions
were her own and would have been the same had she relied solely on the autopsy
photographs. Thus, we do not find that Dr. Barnhart served as a mere conduit for the
content of Dr. Shaker’s notes. Cf. Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct.
2705, 2709, 2713-15, 180 L. Ed. 2d 610 (2011) (holding that the surrogate testimony of a
lab analyst who was familiar with the laboratory procedures but had not completed the
testing on the defendant’s sample violated the defendant’s rights under the Confrontation
Clause).
¶27. We find no Confrontation Clause violation occurred in this instance. Therefore, this
issue is without merit.
2. Whether the evidence is insufficient to support the verdicts and the
verdicts are against the overwhelming weight of the evidence.
3. Whether the trial court erred in granting the State’s jury
instruction on accomplice liability.
¶28. Because issues two and three interrelate, we discuss them together.
¶29. Christian contends there is insufficient evidence to sustain a conviction on any of his
charges. Christian also argues that the verdicts were against the overwhelming weight of the
evidence.
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¶30. We find the State presented sufficient evidence in support of each conviction. We
also find the weight of the evidence does not preponderate against the verdict so as to
sanction an unconscionable injustice. The capital-murder, felon-in-possession-of-a-firearm,
and felonious-child-neglect convictions are the only ones that warrant discussion.
¶31. “In reviewing a challenge to the sufficiency of the evidence, [this Court] determines
whether, viewing the evidence in the light most favorable to the verdict, any rational trier of
fact could have found the defendant guilty beyond a reasonable doubt.” Wales v. State, 73
So. 3d 1113, 1120-21 (Miss. 2011) (citing Bush v. State, 895 So. 2d 826, 843 (Miss. 2005)).
The evidence is sufficient if it “is of such quality and weight that, ‘having in mind the beyond
a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of
impartial judgment might reach different conclusions on every element of the offense.’” Id.(citing Bush, 895 So. 2d at 843). The Court will reverse and render “if the facts and
inferences, properly considered, ‘point in favor of the defendant on any element of the
offense with sufficient force that reasonable men could not have found beyond a reasonable
doubt that the defendant was guilty.’” Id. (quoting Edwards v. State, 469 So. 2d 68,70
(Miss. 1985)).
¶32. When the weight of the evidence is challenged, this Court “will reverse only when the
verdict [is] so contrary to the weight of the evidence that to allow it to stand would sanction
an unconscionable injustice.” Wales, 73 So. 3d at 1121 (¶ 23) (citing Bush, 895 So. 2d at
844).
Capital Murder
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¶33. Christian contends that the evidence shows only that he was present at Carter’s home
before Deon shot and killed Carter and Marks; it does not demonstrate that he participated
in the shooting and killing. Christian acknowledges on appeal that he told authorities he
went up to the home with the intent to aid Deon with the house burglary; but there was no
evidence that he planned, aided, abetted, or participated in a robbery. Christian maintains
that he told authorities he had agreed to go with Deon to help remove a television from
Carter’s home, with the understanding that no one would be home, and when the shooting
started, he ran away. He argues that to be guilty as an aider and abettor, one must do
something that incited, encouraged, or assisted the actual perpetrator in the commission of
the crime. Christian further contends that the State presented no evidence to satisfy the
elements of robbery, to wit: that he or Deon took or attempted to take property “from the
person,” “against the person’s will,” by either “violence to the person” or “by putting the
person in fear of immediate injury to his person.”
¶34. Christian was charged and convicted on two counts of capital murder with the
underlying predicate felony of robbery or attempted robbery. Mississippi Code Section 97-3-
19(2)(e) states that “[t]he killing of a human being without the authority of law by any means
or in any manner shall be capital murder . . . [w]hen done with or without any design to effect
death, by any person engaged in the commission of . . . robbery.” Miss. Code Ann. § 97-3-
19(2)(e) (Rev. 2014). Mississippi Code Section 97-3-73 defines robbery as follows: “Every
person who shall feloniously take the personal property of another, in his presence or from
his person and against his will, by violence to his person or by putting such person in fear of
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some immediate injury to his person, shall be guilty of robbery.” Miss. Code Ann. § 97-3-73(Rev. 2014). By this definition, there are three essential elements of robbery: “(1) felonious
intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means
taking and carrying away the property of another from his person or in his presence.” Goff
v. State, 14 So. 3d 625, 647 (Miss. 2009).
¶35. The facts of this case show that Christian and Deon went to Carter’s home with the
felonious intent to break, enter, and steal. Carter and Marks were home at the time. An
argument ensued between Carter and Deon about money. Deon shot through the glass door
after Carter attempted to close it, and Deon entered the home. Carter and Marks were shot
and killed, and property belonging to both victims was taken from their home. Christian
shared in the spoils from the taking. And Marks’s cell phone was discovered on Christian’s
person by authorities after he was taken into custody two days after the shootings.
¶36. These facts belie any contention that this was not a planned burglary, that escalated
into robbery, that escalated into murder against two victims by Deon. The question for
consideration is whether the evidence supports the jury’s finding Christian equally culpable
for Deon’s actions beyond burglary and conspiracy to commit burglary, both of which
Christian admitted to authorities he had committed.
¶37. Mississippi has long recognized the rule that, “Where parties combine to commit
crime, the law imputes the guilt of each to all thus engaged, and pronounces all guilty of any
crime committed by any, in the execution of the common purposes, as one of its natural and
probable consequences, even though none of the parties intended at the outset to do the
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particular thing constituting the crime.” Lusk v. State, 64 Miss. 845, 850, 2 So. 256, 257
(1887). But, “[i]f the act is not the natural and probable outcome of the common design, but
is the independent act of some of the party, conceived of by them, and outside of the common
purpose, those not participating in it are not responsible for this independent act.” Id.
¶38. Christian contends the latter principle applies. He points to his statement to
authorities, evincing that, even though he agreed to help Deon burglarize Carter’s home, he
did so with the understanding that Carter would not be there. However, the prosecution
presented countervailing evidence that allowed the jury to reject this claim.
¶39. In Christian’s second statement to authorities, he said that when he first met Deon at
Shannon’s house, Deon was arguing on the phone with his brother from Terry. Christian
then made the following statement: “And when this was, I ain’t sure [of the] date, but we
rode down there. He [was sup]pose[] to . . . get[] some gas money and all this from his
brother. We rode down there, in the gray Buick.”
¶40. In his third statement, Christian said Carter was not supposed to be there. Christian
also gave two different accounts as to what he did after he and Deon walked up to the house.
Christian first said he had walked with Deon up to the side of the house and then had walked
straight into the woods while Deon walked up to the door. Later, in his third statement,
Christian said that when he and Deon walked up to the house, Deon had told him to “stand
here,” and Deon then had walked up to the door and knocked.
¶41. Fundamentally, the jury may consider any evidence presented at trial. It “may accept
the testimony” or statements “of some witnesses and reject that of others, and may accept in
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part and reject in part the testimony” or statement “of any witness, or may believe part of the
evidence on behalf of the [S]tate and part of that for the accused, and the credibility of such
witnesses is not for the reviewing court, but only for the jury.” Bond v. State, 249 Miss. 352,
357, 162 So. 2d 510, 512 (1964).
¶42. In Woodward v. State, 166 Miss. 596, 143 So. 859, 860 (1932), this Court affirmed
a coconspirator’s murder conviction, where a shopkeeper was robbed and killed “in the
night-time in a store owned by him, and adjoining which was a bedroom occupied by him.”
The evidence in Woodward presented four theories, which the Court described as follows:
(1) That the appellant and Will Dixon entered the store at night, as aforesaid,
for the purpose of larceny, and while thus engaged they were surprised by the
entry into the store of the deceased, who threw a flash-light upon the parties,
and that thereupon the appellant beat the deceased to death with an iron twine
stand which was a part of the store equipment. We think under all the evidence
the theory just stated is improbable. (2) That in the same situation as above
stated Will Dixon did the killing, appellant being actually present. (3) That
appellant, who was an employee at the store, and who was present at the time
the store was closed at 10 o’clock, did by a prearranged plan with Dixon leave
the back door open, so that Dixon could enter noiselessly, as it was calculated,
and that appellant thereafter kept watch at the front of the premises; but that
Dixon, who entered the store, did not succeed in doing so without noise, and
that the deceased, hearing the noise in the store, went from his bedroom to the
store room adjoining, and having, by the aid of a flash-light, discovered the
said Dixon, the latter murdered the deceased in the manner above mentioned.
(4) That by the said prearranged plan appellant left the back door open, and
appellant thereupon departed, and was not within the immediate neighborhood
of the store at the time of the entry and killing by Dixon, and that the
conspirators met some hour or two after the homicide and divided the money
at a point remote from the store.
Id. at 859-60.
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¶43. The appellant’s contention on appeal in Woodward was that the jury could not find
him guilty of murder if it believed the fourth theory. Id. at 860. This Court disagreed,
reasoning as follows:
[I]f the verdict was based on the theory of a conspiracy the least that could
have been considered by the jury in that respect was that the coconspirators
had agreed to a larceny of a small store building in the adjoining room to
which it was known by them that the proprietor of the store was present, and
that it was more than remotely possible, even if we are not to say probable, that
the said proprietor would hear the noise which would likely be made in
working at such a crime in the dark, and would at once go into the store to
search for the cause of the noise, and would intercept any persons there present
in the commission of the larceny.
Id. Woodward reiterated:
In such a situation the great weight of authority is . . . that the coconspirators
are equally guilty of murder which directly results from the discovery and the
resistence to the crime being committed as originally planned, although the
murder, as a part of it, had not been actually agreed upon, and had not[ i]n fact,
been taken into consideration.
Id.
¶44. In the case before us, the jury was instructed with the aiding-and-abetting jury
instruction adopted by this Court in Milano v. State, 790 So. 2d 179, 182 (Miss. 2001), from
the Fifth Circuit Court of Appeals Pattern Jury Instruction on Aiding and Abetting. The
instruction reads as follows:
The guilt of a defendant in a criminal case may be established without proof
that the defendant personally did every act constituting the offense alleged.
The law recognizes that, ordinarily, anything a person can do for himself may
also be accomplished by that person through the direction of another person
as his or her agent, by acting in concert with, or under the direction of, another
person or persons in a joint effort or enterprise.
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If another person is acting under the direction of the defendant or if the
defendant joins another person and performs acts with the intent to commit a
crime, then the law holds the defendant responsible for the acts and conduct
of such other persons just as though the defendant had committed the acts or
engaged in such conduct.
Before any defendant may be held criminally responsible for the acts of others
it is necessary that the accused deliberately associate himself in some way with
the crime and participate in it with the intent to bring about the crime.
Of course, mere presence at the scene of a crime and knowledge that a crime
is being committed are not sufficient to establish that a defendant either
directed or aided and abetted the crime unless you find beyond a reasonable
doubt that the defendant was a participant and not merely a knowing spectator.
In other words, you may not find any defendant guilty unless you find beyond
a reasonable doubt that every element of the offense as defined in these
instructions was committed by some person or persons, and that the defendant
voluntary participated in its commission with the intent to violate the law.
¶45. The trial court did not err in granting this instruction. The State’s evidence against
Christian sufficiently permitted the jury to conclude he was more than just present or just a
knowing spectator at Carter’s home when the robbery and killings occurred.
¶46. Again, Christian, by his own admission, entered into a plan with Deon to assist him
in taking property belonging to Carter from Carter’s home. Contrary to his claim otherwise,
there is evidence that Christian did so with the understanding that Carter or someone else
likely would be present at the time. Given this circumstance, there was more than a remote
possibility their plan would be met with resistance. Woodward, 166 Miss. 596, 143 So. at
860.
¶47. Whether Christian actually ran or not when the shooting started was a question for the
jury to contend with. The jury may have rejected this claim based on the fact that the
18
property of one of the victim’s (Marks’s cell phone) was found on Christian’s person after
he was arrested.
¶48. As we reiterated in Goff, 14 So. 3d at 647, “[P]ossession of a deceased’s property
creates a reasonable inference that the property was stolen.” (Quoting Spicer v. State, 921
So. 2d 292, 312 (Miss. 2006), abrogated on other grounds by O’Connor v. State, 120 So.
3d 390 (Miss. 2013); cf. Wilson v. United States, 162 U.S. 613, 16 S. Ct. 895, 40 L. Ed. 1090(1896) (“Possession of the fruits of crime, recently after its commission, justifies the
inference that the possession is guilty possession, and . . . that there is a like presumption in
the case of murder accompanied by robbery.”). In Knox v. State, 805 So. 2d 527, 531-32
(Miss. 2002), we held that, “when the defendant is discovered with the personal property of
the deceased on his person it is entirely within reason for the jury to find that this fact in itself
constitutes robbery.”
¶49. Or the jury may have believed Christian did run when the shooting started, but it also
could have found he still had the requisite intent for the underlying crime of robbery.
Robbery requires the taking of personal property achieved by use of force or fear. That
Christian may have run when Deon acted with deadly force does not automatically negate
a finding that Christian willingly assisted Deon in employing the use of fear prior to the
shooting.
¶50. Christian’s multiple statements as to whether he was standing nearby while Deon was
talking to Carter, or sitting in a car, or standing in the woods presented conflicting stories.
19
This conflicting evidence was for the jury’s consideration and determination on the question
of Christian’s intent. Bond, 162 So. 2d at 512.
¶51. From this and other evidence in the case, rational minds reasonably could conclude
that Christian willingly sanctioned the act of using fear to achieve the planned takings, the
spoils of which–the evidence shows–Christian shared in after the killings. The State’s
evidence sufficiently supports either above scenario, and rational minds could conclude
under either, beyond a reasonable doubt, that Christian aided and abetted Deon in the
commission of robbery, in which death resulted.
¶52. Nor can it be said that the weight of the evidence in this case preponderates against
the jury’s verdict so as to sanction an unconscionable injustice. Accordingly, Christian’s
weight-of-the-evidence claims and his insufficient-evidence claims are without merit.
Felon in Possession of a Firearm
¶53. Section 97-37-5(1) prohibits any person who previously has been convicted of a
felony from possessing a firearm. That Christian was a convicted felon was stipulated at trial.
The issue before the Court is whether sufficient evidence was presented that Christian
possessed a firearm.
¶54. Because the gun was not found on Christian’s person, the State had to prove that
Christian had constructive possession of the gun. Williams v. State, 971 So. 2d 581, 587
(Miss. 2007). “Constructive possession allows the prosecution to establish possession of
contraband when evidence of actual possession is absent. Constructive possession is
established by showing that the contraband was under the dominion and control of the
20
defendant.” Roberson v. State, 595 So. 2d 1310, 1319 (Miss. 1992) (citing Vickery v. State,
535 So. 2d 1371, 1379 (Miss. 1988)). “[T]here must be sufficient facts to warrant a finding
that the defendant was aware of the presence and character of the particular [contraband] and
was intentionally and consciously in possession of it.” Id. Further, in Ginn v. State, we
stated:
We have held that where contraband is found upon premises not in the
exclusive control and possession of the accused, additional incriminating facts
must connect the accused with the contraband. Where the premises upon
which contraband is found is not in the exclusive possession of the accused,
the accused is entitled to acquittal, absent some competent evidence
connecting him with the contraband.
Ginn v. State, 860 So. 2d 675, 685 (Miss. 2003).
¶55. The gun was found in a box atop a coat stand in Shannon’s residence. Christian had
been in Shannon’s home following the murders, specifically, the day he was arrested. During
a recorded jail telephone conversation, which was played to the jury, either Christian’s
mother or grandmother informed him that the police had recovered a gun from Shannon’s
house. Christian admitted in that conversation that the gun had been used to commit the
murders, and that he was the last person to touch the gun, so his fingerprints would be on it.
¶56. Considering the gun’s location, along with Christian’s statement to his grandmother
or mother that his fingerprints were on the gun, any rational trier of fact could have found
that Christian exercised dominion and control of the gun at some point just prior to when it
was discovered. Accordingly, we find sufficient evidence was presented to support the jury’s
finding that Christian was in possession of the gun found in Shannon’s home.
Felonious Child Neglect
21
¶57. Christian also was convicted for felonious child neglect under then-Mississippi Code
Section 97-5-39(1)(b),4 which at the time of his indictment read in pertinent part:
If the child’s deprivation of necessary food, clothing, shelter, health care or
supervision appropriate to the child’s age results in substantial harm to the
child’s physical, mental or emotional health, the person may be sentenced to
imprisonment in custody of the Department of Corrections for not more than
five (5) years or to payment of a fine of not more than Five Thousand Dollars
($ 5,000.00), or both.
Section 97-5-39(1)(a) then stated that “any . . . person who willfully commits any acts or
omits the performance of any duty, which act or omission contributes to or tends to
contribute to the neglect . . . of any child . . . shall be guilty of a misdemeanor.”5
¶58. We find sufficient evidence was presented from which the jury reasonably could find
that Christian knew a baby was left in the home following the shootings and remained there
for two days without necessary food or supervision.
¶59. First, Christian was found with Marks’s cell phone on his person. From this evidence,
the jury reasonably could infer that Christian had obtained this item from inside the home.
¶60. Second, the State also presented evidence that a large, flat-screen television set was
taken from the home. Christian said in one of his statements that the television was “50 [or]
52” inches in size. Conflicting evidence was presented as to whether the size of the
4
This section was amended in 2013, and now prescribes felonious child neglect in
any case, whether bodily harm results or not, if the person intentionally, knowingly, or
recklessly: “(i) Burn[s] any child; (ii) Physically tortures any child; (iii) Strangle[s], choke[s],
smother[s] or in any way interfere[s] with any child’s breathing; (iv) Poison[s] a child; (v)
Starve[s] a child of nourishments needed to sustain life or growth; (vi) Use[s] any type of
deadly weapon upon any child[.]” Miss. Code Ann. § 97-5-39(2)(a) (Rev. 2014).
5
Under the current statute, a person who “intentionally, knowingly or recklessly”
commits child neglect is guilty of a misdemeanor.
22
television necessitated at least two persons to carry it. In his third statement, Christian said
that when he and Deon arrived back at Christian’s aunt’s house, Christian’s uncle, Alonzo,
came outside and helped Deon remove the television from the back of the truck. Christian’s
aunt testified that Deon brought the television inside her home by himself. But Alonzo
testified that he helped Christian or Deon remove the television from the bed of the truck and
carry it into Shannon’s house. In addition to this testimony, photographs of the television,
along with the actual television itself, were presented to the jury for its inspection. From this
evidence, even though it was conflicting, it was not outside the realm of reason for the jury
to find that Deon needed and had assistance from Christian in removing the television from
the victims’ home.
¶61. Also, Renata testified that the television had been set up in the bedroom where
Renita’s body was found. A layout drawing of the home was presented to the jury, showing
the home’s various rooms and how one would have to traverse through the house to get to
any particular room. Thus, if the jury concluded that Christian was inside the home at some
point, it also could reasonably infer that he knew there was a baby inside the home,
particularly in light of where the baby was found by authorities.
¶62. In addition, the jury heard testimony from Ard, who said that when he was on the
phone with Carter and overheard Carter and Deon arguing, he also heard a baby crying in the
background. While Christian claimed in his statements he was never inside the home, he
admitted to being in such proximity to Deon and Carter as to hear the crux of their argument.
From this evidence, rational minds reasonably could infer that Christian also heard a baby
23
crying. Thus, even if the jury believed Christian was never in the home, it still could
conclude that Christian knew a baby was in the home at the time of the shootings.
¶63. On the question of substantial harm, the only evidence presented was from Deputies
Sanders and Smith. Both said the baby’s diaper was soiled with feces. Deputy Smith
testified that the baby was extremely hungry and appeared in “very bad shape.” In Renata’s
testimony, she mentioned only that the baby now is three years old.
¶64. The statute does not define substantial harm, and this Court has not said what
constitutes substantial harm. In 2007, the Legislature amended Section 97-5-39(1)(a)-(b) to
provide that child deprivation now constitutes a felony if substantial harm resulted. Lenard
v. State, 51 So. 3d 239 (Miss. Ct. App. 2011); see Miss. Code Ann. § 97-5-39(1)(a)-(b) (Rev.
2014). Prior to the 2007 amendment, Section 97-5-39(2) governed felonious child abuse, and
required the conduct to cause serious bodily harm. It stated:
Any person who shall intentionally (a) burn any child, (b) torture any child or,
(c) except in self-defense or in order to prevent bodily harm to a third party,
whip, strike or otherwise abuse or mutilate any child in such a manner as to
cause serious bodily harm, shall be guilty of felonious abuse and/or battery of
a child and, upon conviction, may be punished by imprisonment in the
penitentiary for not more than twenty (20) years.
¶65. In Buffington v. State, 824 So. 2d 576, 580 (Miss. 2002), this Court held that serious
bodily harm means “bodily injury which creates a substantial risk of death, or permanent or
temporary disfigurement, or impairment of any function of any bodily organ or function.”
Buffington adopted the definition announced in Wolfe v. State, 743 So. 2d 380, 385 (Miss.
1999), which was a plurality opinion. “Prior to Wolfe, only permanent disfigurement was
found sufficient to prove felony child abuse.” Buffington, 824 So. 2d at 580. Buffington
24
noted that the definition announced in Wolfe was the same definition provided for in Section
4f of the Model Child Protection Act of the National Center on Child Abuse and Neglect.
Id. at 580.
¶66. The term “substantial harm” does not lend itself to easy definition. “Substantial” is
defined as “consisting or relating of substance, considerable in quantity.” Substantial,
Merriam Webster Dictionary, http:// www.merriam-webster.com/dictionary/substantial (last
visited November 9, 2016). “Harm” is defined as “physical, mental, or emotional damage,
impairment, or deterioration.” Harm, Merriam Webster Dictionary, http://
www.merriam-webster.com/dictionary/substantial (last visited November 9, 2016). Putting
the plain meaning together, “substantial harm” means physical, mental, or emotional damage,
impairment, or deterioration that is of substance or considerable in quantity.
¶67. Here, evidence was presented that the baby was left without food, water, or
supervision for more than thirty-six hours. Deputy Smith testified that he was in a “very bad
state” when they found him.
¶68. From the deputies’ testimony at trial, we find sufficient evidence was presented for
the jury to find that substantial harm resulted. Accordingly, this issue is without merit.
4. Whether the trial court erred in rejecting defendant’s jury
instruction D-3, abandonment of a criminal enterprise.
¶69. Christian contends that the trial court erred when it refused to give his jury instruction
on abandonment, violating his fundamental right to a fair trial. The proposed instruction read:
The Court instructs the jury that the abandonment of a criminal enterprise prior
to the completion of the crime may, under certain circumstances, be a valid
defense to a criminal charge. If a person becomes engaged in a criminal
25
enterprise and, before completion of that enterprise, that person completely
renounces and abandons the criminal enterprise voluntarily and of his own free
will without intervention from legal authorities, then that person shall not be
held criminally liable for any actions thereafter by other unlawful actors.
If you believe that Travaris Christian, on January 24, 2011, unlawfully and
feloniously embarked upon a criminal enterprise, that enterprise being the
commission of house burglary, and if you believe that Travaris Christian
renounced and abandoned that criminal enterprise prior to commission thereof
by running away from the house, and if you believe that Travaris Christian
abandoned that criminal enterprise voluntarily and of his own free will without
the intervention of law enforcement, then you shall find Travaris Christian not
guilty of house burglary as set forth in Count Three of the indictment.
¶70. We find that the trial court properly denied Christian’s proposed abandonment
instruction. People v. Nichols, 230 N.Y. 221, 129 N.E. 883 (1921), is a persuasive case
directly on point.
¶71. In Nichols, the defendant claimed the trial court had erred by refusing to submit to the
jury the question of whether the defendant had abandoned the criminal enterprise before the
shot which killed the victim was fired by one of the coconspirators. Id. at 228. Finding no
error, the New York Court of Appeals explained as follows:
Whatever may be the other requirements of an effective abandonment of a
criminal enterprise it is certain both as a matter of law and of common sense
that there must be some appreciable interval between the alleged abandonment
and the act from responsibility for which escape is sought. It must be possible
for a jury to say that the accused had wholly and effectively detached himself
from the criminal enterprise before the act with which he is charged is in the
process of consummation or has become so inevitable that it cannot reasonably
be stayed. The process of detachment must be such as to show not only a
determination upon the part of the accused to go no farther [sic] but also such
as to give his co-conspirators a reasonable opportunity, if they desire, to follow
his example and refrain from further action before the act in question is
committed. A conspirator cannot escape responsibility for an act which is the
natural result of a criminal scheme which he has helped to devise and carry
forward because as the result either of fear or even of a better motive he
26
concludes to run away at the very instant when the act in question is about to
be committed and when the transaction which immediately begets it has
actually been commenced, as in this case. While it may make no difference
whether mere fear or actual repentance is the moving cause, one or the other
must lead to an actual and effective retirement before the act in question has
become so imminent that its avoidance is practically out of the question.
Id. at 229-30.
¶72. Here, no evidentiary basis existed to find Christian “voluntarily and of his own free
will” abandoned the crime of “house burglary” prior to its commission. This Court has held
that for an abandonment instruction to be warranted, the evidence must show that the
defendant voluntarily abandoned his intent and did “not have his intent frustrated by the
resistance of the victim . . . .” Pruit v. State, 528 So. 2d 828, 831 (Miss. 1988). Further, as
Nichols recognized, “a conspirator cannot escape responsibility for an act which is the
natural result of a criminal scheme which he has helped to devise and carry forward because
as the result of fear or even of a better motive he concludes to run away . . . .” Nichols, 230
N.Y. at 230.
¶73. Christian’s alleged abandonment, under the most favorable aspect of the evidence,
would not permit a jury to say that he had effected any such retirement from the criminal plan
to which he was a party after the first shot was fired by Deon.
¶74. This issue is without merit.
5. Cumulative Error
¶75. Christian requests that this Court consider the prejudicial effect of cumulative errors
which would warrant a new trial. Having found no error as to the issues raised, we find no
cumulative errors that necessitate reversal.
27
CONCLUSION
¶76. The Hinds County Circuit Court’s judgment of conviction is affirmed.
¶77. COUNT I: CONVICTION OF CAPITAL MURDER AND SENTENCE OF
LIFE IMPRISONMENT, WITH ELIGIBILITY FOR PAROLE, IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT
II: CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE
IMPRISONMENT, WITH ELIGIBILITY FOR PAROLE, IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III:
CONVICTION OF HOUSE BURGLARY AND SENTENCE OF TWENTY (20)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF CONSPIRACY AND
SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT V: CONVICTION OF
FELONY CHILD NEGLECT AND SENTENCE OF FIVE (5) YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. COUNT VI: CONVICTION OF FELON IN POSSESSION OF A
FIREARM AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES IN
ALL COUNTS ARE TO RUN CONCURRENTLY.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR AND
COLEMAN, JJ., CONCUR. MAXWELL, J., SPECIALLY CONCURS WITH
SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., RANDOLPH, P.J.,
LAMAR, COLEMAN AND BEAM, JJ. KITCHENS, J., CONCURS IN PART AND
IN RESULT WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.
MAXWELL, JUSTICE, SPECIALLY CONCURRING:
¶78. The majority is correct that Dr. Barnhart did not violate Christian’s Sixth Amendment
right to confront his accuser.6 But I write separately to address Christian’s very specific
Bullcoming-based Confrontation Clause argument. Christian clearly raised this precise
argument. And this is an issue the resolution of which is important to our circuit judges and
criminal practitioners who face this claim frequently.
6
U.S. Const. amend. VI.
28
¶79. Relying on Bullcoming v. New Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d
610 (2011), Christian asserts that, because Dr. Barnhart did not personally conduct Carter’s
and Marks’s autopsies, she cannot testify about their causes of death. This notion is incorrect
and stretches Bullcoming’s “limited reach” too far. Id., 564 U.S. at 668, 131 S. Ct. at 2719(Sotomayor, J., concurring). Bullcoming does not restrict testimony by a pathologist who
was personally involved in creating the autopsy report, albeit in a more limited fashion than
performing the autopsy. Nor does it categorically prohibit an expert pathologist from giving
her independent opinion about the cause of death because she did not perform the autopsy.
I. Sufficient Involvement with the Process
¶80. Among the issues Bullcoming left unresolved was “the degree of proximity the
testifying witness must have to the scientific test.’” Grim v. Fisher, 816 F.3d 296, 309 (5th
Cir. 2016) (quoting Flournoy v. Small, 681 F.3d 1000 (9th Cir. 2012)); see Bullcoming, 564
U.S. at 668, 131 S. Ct. at 2722 (Sotomayor, J., concurring) (noting “this is not a case in
which the person testifying [was] a supervisor, reviewer, or someone else with a personal,
albeit limited, connection to the scientific test at issue”). This is why our Court’s pre-
Crawford7 and pre-Bullcoming test for the sufficient degree of involvement to satisfy the
Confrontation Clause is still good law. See Grim v. Fisher, 816 F.3d at 310 (finding no
federal-law violation of this Court’s application of its degree-of-involvement test).
¶81. In McGowen v. State, we held that “when the testifying witness is a court-accepted
expert in the relevant field who participated in the analysis in some capacity, such as by
7
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
29
performing procedural checks, then the testifying witness’s testimony does not violate a
defendant’s Sixth Amendment rights.” McGowen v. State, 859 So. 2d 320, 339 (Miss. 2003)
(emphasis added). From this principle evolved a two-part test—“First, we ask whether the
witness has ‘intimate knowledge’ of the particular report, even if the witness was not the
primary analyst or did not perform the analysis firsthand. Second, we ask whether the
witness was ‘actively involved in the production’ of the report at issue.” Grim v. State, 102
So. 3d 1073, 1079 (Miss. 2012) (quoting Conners v. State, 92 So. 3d 676, 690 (Miss. 2012)).
¶82. We applied this test in Grim to hold that a laboratory supervisor—who was “not
involved in the actual testing” of the substance seized from a defendant but “had reviewed
the report for accuracy and signed the report as the ‘case technical reviewer’”—was
“sufficiently involved with the analysis and overall process” to testify the substance was
cocaine without violating the Confrontation Clause. Id. at 1081.
¶83. After we affirmed his conviction, Grim filed for federal habeas corpus relief. A
district judge in the Northern District of Mississippi granted Grim relief, holding that
Bullcoming clearly establishes that, when a laboratory report is introduced into evidence, the
defendant has a right to confront the analyst who performed the underlying analysis. Grim
v. Fisher, 816 F.3d at 298 (discussing district court’s decision in Grim v. Epps, 2015 WL
5883163 (N.D. Miss. Oct. 8, 2015)). Christian cites this district-court case as proof that this
Court has been wrong in its analysis of Bullcoming.
¶84. But the Fifth Circuit recently said it was the district court that was wrong and reversed
it. Id. at 299. In doing so, the Fifth Circuit held the exact opposite. It instead found that
30
Bullcoming “did not clearly establish the categorical rule . . . that when the prosecution
introduces a forensic laboratory report containing a testimonial certification . . . the only
witness whose in-court testimony can satisfy the Confrontation Clause is the analyst who
performed the underlying analyses contained in the report.” Grim v. Fisher, 816 F.3d at 307
(emphasis added). And in the absence of a clear rule, this Court’s holding that the
supervisor’s testimony did not violate Grim’s right to confrontation did not run afoul of
federal law. Id. at 310.
¶85. So, contrary to Christian’s argument, this Court’s Bullcoming analysis has not been
rejected. And this analysis leaves open the possibility that someone other than the
pathologist that performed the underlying autopsy may testify about the autopsy report if he
or she was sufficiently involved with the analysis and overall process.
¶86. But as Dr. Shaker’s autopsy report was not introduced into evidence here, I agree with
the majority that the particular sufficient-involvement analysis we performed in Grim is not
necessary.
II. Independent Expert Testimony
¶87. Despite Dr. Shaker’s report and notes not being introduced into evidence, Christian
still insists that Dr. Barnhart’s testimony violated Bullcoming. According to Christian, Dr.
Barnhart could not testify about the causes of death because she did not perform the autopsies
herself.
¶88. But Bullcoming was “not a case in which an expert witness was asked for his
independent opinion about underlying testimonial reports that were not themselves admitted
31
into evidence.” Id., 564 U.S. at 673, 131 S. Ct. at 2722 (Sotomayor, J., concurring)
(emphasis added). Instead, Bullcoming specifically concerned “surrogate testimony”—i.e.,
the prosecution’s introduction of a forensic report containing a testimonial certification
through the in-court testimony of a forensic analyst “who did not sign the certification or
perform or observe the test reported in the certification.” Id., 564 U.S. at 651, 131 S. Ct. at
2710. In his separate opinion, Justice Kitchens assumes Dr. Barnhart was called to be a
surrogate witness. But Dr. Barnhart was no surrogate. She was called as an expert witness
to give her independent opinion about the cause of Carter’s and Marks’s deaths. See
Commonwealth v. Brown, 139 A.3d 208, 217-19 (Pa. Super. Ct. 2016) (holding medical
examiner’s independent conclusions regarding the cause of death were admissible); see also
State v. Gonzalez, 274 P.3d 151, 158-59 (N.M. Ct. App. 2012) (finding no per se
Confrontation Clause violation by allowing one expert pathologist to testify based on
information gathered in an autopsy performed by another pathologist). Thus, it is obvious
Bullcoming’s surrogate-testimony prohibition was not violated here, since Dr. Barnhart did
not testify from the autopsy report but instead gave her independent expert opinion about the
cause of death.
WALLER, C.J., RANDOLPH, P.J., LAMAR, COLEMAN AND BEAM, JJ.,
JOIN THIS OPINION.
KITCHENS, JUSTICE, CONCURRING IN PART AND IN RESULT:
¶89. I write separately because Travaris Christian was not afforded the opportunity to cross
examine Dr. Adel Shaker, the forensic pathologist who conducted the autopsies of the
homicide victims. Instead, the findings of Dr. Shaker, in the form of notes and photographs,
32
were brought to the attention of the jury through the testimony of a surrogate witness, Dr.
Erin Barnhart, in violation of the Confrontation Clause. Nevertheless, because the extent of
Dr. Barnhart’s testimony was that the victims had succumbed to gunshot wounds, I would
conclude that the Confrontation Clause violation constituted harmless error.
¶90. In all criminal proceedings, the accused enjoys the right to confront his or her accuser.
U.S. Const. amend. VI, Miss. Const. art. 3, § 26. The United States Supreme Court has held
that the Confrontation Clause disallows “admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify, and the defendant had had
a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54,
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In 2009, the Court held that “affidavits reporting
the results of forensic analysis which showed that material seized by the police and connected
to the defendant was cocaine” constituted testimonial statements and that their admission
violated the Confrontation Clause “[a]bsent a showing that the analysts were unavailable to
testify at trial and that petitioner had a prior opportunity to cross-examine them . . . .”
Melendez-Diaz v. Mass., 557 U.S. 305, 307, 310-11, 129 S. Ct. 2527, 174 L. Ed. 2d 314(2009) (emphasis in original). In 2011, the Court held that the Confrontation Clause is
violated when a surrogate analyst witness, having neither participated in nor observed the
testing itself, testifies regarding the results of a forensic laboratory report certifying the
defendant’s blood-alcohol content. Bullcoming v. N.M., 564 U.S. 647, 652, 131 S. Ct. 2705,
180 L. Ed. 2d 610 (2011).
33
¶91. A plurality of the Supreme Court considered whether a surrogate expert witness could,
consistent with Crawford and its progeny, testify “that a DNA profile produced by an outside
laboratory, Cellmark, matched a profile produced by the state police lab using a sample of
petitioner’s blood.” Williams v. Ill., 132 S. Ct. 2221, 2227, 183 L. Ed. 2d 89 (2012). The
testimony substantiated that the DNA from the defendant matched semen collected from
vaginal swabs. Id. at 2237.
¶92. A plurality8 of the Court distinguished the case from Bullcoming and Melendez-Diaz
by pointing out that, in those cases, forensic reports were admitted into evidence “for the
purpose of proving the truth of what they asserted: in Bullcoming that the defendant’s blood
alcohol level exceeded the legal limit and in Melendez-Diaz that the substance in question
contained cocaine.” Id. at 2240. In Williams, the plurality found, the expert witness testified
only that the DNA profile report produced by the laboratory matched the defendant’s DNA.
Id. The expert witness did not, according to the plurality, testify to the truth of the matter
asserted, that the DNA profile report from the vaginal swab accurately represented the
defendant’s DNA. Id. The plurality found further that the report was not prepared for an
accusatory purpose, but rather to capture a rapist who remained at large. Id.
¶93. The dissent argued that the Confrontation Clause plainly was violated when an expert
witness testified regarding the contents of the DNA profile report which identified the
defendant, in the absence of his having been given the opportunity to cross examine the
8
Justice Alito authored an opinion, joined by Chief Justice Roberts and Justice
Kennedy. Justice Breyer concurred in full with separate written opinion. Justice Thomas
concurred only in the judgment and filed a separate written opinion. Justice Kagan dissented,
joined by Justice Scalia, Justice Ginsburg, and Justice Sotomayor.
34
report’s preparer: “[t]he report at issue here shows a DNA profile produced by an analyst at
Cellmark’s laboratory allegedly from a vaginal swab taken from a young woman, L.J., after
she was raped. That report is identical to the one in Bullcoming (and Melendez-Diaz) . . . .”
Williams, 132 S. Ct. at 2266 (Kagan, J., dissenting). The report, according to the dissent, was
created for the purpose of establishing the identity of the perpetrator and, therefore, “the
substance of the report could come into evidence only if Williams had a chance to cross-
examine the responsible analyst.” Id. at 2267. The dissent posed the question “[h]ave we not
already decided this case?” and noted that it had “[b]een there, done that” in Melendez-Diaz
and Bullcoming. Id. at 2267, 2275.
¶94. This Court has struggled with the application of the Confrontation Clause in the
context of admission of forensic evidence in the absence of testimony of the testing forensic
analyst. See Conners v. State, 92 So. 3d 676 (Miss. 2012) (admission of a firearm
identification report and a toxicology report violated the Confrontation Clause but was
deemed harmless error because the firearm identification report did not establish conclusively
that the spent shell casings came from the shotgun found at the scene and the toxicology
report supported the defendant’s theory of defense); Jenkins v. State, 102 So. 3d 1063 (Miss.
2014) (Confrontation Clause not violated where witness testified that the substance found
in the possession of the defendant was cocaine. Although the witness was a mere technical
reviewer who did not test the substance but rather reviewed a report prepared by the primary
analyst who actually had conducted the testing, the technical reviewer was actively involved
in the production of the report and had intimate knowledge of the analyses); Grim v. State,
35
102 So. 3d 1073 (Miss. 2014) (same); Hingle v. State, 153 So. 3d 659 (Miss. 2014)
(Confrontation Clause not violated where technical reviewer, who reviewed the report of the
primary analyst but did not test the substance, testified that pills in the possession of the
defendant contained morphine).
¶95. Three of my colleagues and I declined to join this Court’s decisions in Jenkins, Grim,
and Hingle, holding that “the admission of [the analyst’s] laboratory report via [the technical
reviewer’s] testimony, without the defendant’s having had a prior opportunity to cross-
examine [the analyst], violated [the defendant’s] constitutional right to confrontation, thereby
impairing his right to a fair trial.” Grim, 102 So. 3d at 1082 (Kitchens, J., dissenting). We
agreed that the technical reviewer “could not testify as to whether [the analyst] had received
the sample intact, whether [the analyst] had dropped or mishandled the sample, or whether
[the analyst] had encountered any problems with the testing equipment” and that the technical
reviewer’s “surrogate testimony could not ‘expose any lapses or lies on the analyst’s part.’”
Hingle, 153 So. 3d at 669 (Chandler, J., dissenting) (citing Bullcoming, 131 S. Ct. at 2715).9
¶96. Never before has this Court or the United States Supreme Court considered whether
a forensic pathologist who did not conduct an autopsy could, consistent with the
Confrontation Clause, Crawford, Melendez-Diaz, and Bullcoming, testify as a surrogate
witness about the autopsy’s results. Justice Kennedy pointed out in his dissent in Melendez-
Diaz that “every court post-Crawford has held that autopsy reports are not testimonial.”
9
Recently, I reiterated “that Jenkins, Grim, and Hingle ‘are inconsistent with the
strictures of Bullcoming’ and ‘I would overrule those cases.’” Armstead v. State, 196 So.
3d 913, 926 (Miss. 2016) (Kitchens, J., dissenting) (quoting Hingle, 153 So. 3d at 670
(Chandler, J., dissenting)).
36
Melendez-Diaz, 557 U.S. at 335 (Kennedy, J., dissenting) (citing Carolyn Zabrycki, Toward
a Definition of “Testimonial”: How Autopsy Reports Do Not Embody the Qualities of a
Testimonial Statement, 96 Cal. L. Rev. 1093, 1094 (2008)).
¶97. More recently, another commentator has opined that forensic autopsy reports
themselves constitute testimonial statements because they “formally describe autopsy
findings and report the cause and manner of death” and that “[f]orensic pathologists are quite
aware that their autopsy reports will be evidentiary and that the testimony of a forensic
pathologist will be sought at trial.” Marc D. Ginsberg, The Confrontation Clause and
Forensic Autopsy Reports—A “Testimonial,” 74 La. Law Rev. 117, 171 (2013). As such,
“the accused must be entitled to confront and cross-examine the examining forensic
pathologist to test the validity of the autopsy and the pathologist’s observations, conclusions,
and opinions.” Id.
¶98. A split of federal and state authority exists on the question of whether autopsy reports
and/or surrogate testimony about the autopsy results are testimonial for purposes of a
Confrontation Clause analysis. Various federal courts articulate a variety of reasons why
autopsy reports are not testimonial and, as such, do not implicate the Confrontation Clause
at all. See U.S. v. De La Cruz, 514 F.3d 121 (1st Cir. 2008) (an autopsy report is a business
record kept in the course of regularly conducted business activity and is expressly excluded
from the scope of Crawford); Nardi v. Pepe, 662 F.3d 107 (1st Cir. 2011) (an autopsy report
is distinguishable from the sworn documents at issue in Melendez-Diaz and Bullcoming);
Hensley v. Roden, 755 F.3d 724, 735 (1st Cir. 2014) (no Confrontation Clause violation
37
where surrogate medical examiner testified about the autopsy report prepared by another
because, at the time the decision was made to allow the testimony “it was not settled that
autopsy reports fell within the core class of testimonial documents enumerated in
Crawford”); U.S. v. Feliz, 467 F.3d 227 (2d Cir. 2006) (an autopsy report is not testimonial
because it is a business record); U.S. v. James, 712 F.3d 79 (2d Cir. 2013) (an autopsy report
is not testimonial because it is not created to establish a fact at trial); Mitchell v. Kelly, 520
F. App’x 329 (6th Cir. 2013) (per curiam) (given the lack of guidance from the Supreme
Court, autopsy reports are admissible as nontestimonial business records and no
Confrontation Clause violation occurs where a surrogate witness testifies regarding its
contents); McNeiece v. Lattimore, 501 F. App’x 634, 636 (9th Cir. 2012) (testimony from
surrogate witness about the autopsy results “was not contrary to or an unreasonable
application of clearly established federal law” and the autopsy report was a nontestimonial
business record); U.S. v. MacKay, 715 F.3d 807 (10th Cir. 2013) (defendant had an
opportunity to object to the autopsy report’s admission on the basis of Bullcoming but failed
to do so).
¶99. Other federal courts deem autopsy reports to be testimonial or assume that they are
testimonial. See Martinez v. Davis, 2016 WL 3509589 (5th Cir. June 24, 2016) (any
Confrontation Clause error in admitting autopsy reports and testimony of surrogate
pathologist was harmless because other evidence linked defendant to the crime); U.S. v.
Ignasiak, 667 F.3d 1217 (11th Cir. 2012) (an autopsy report is testimonial because it is
prepared for use at trial; the surrogate medical examiner witness’s testimony about contents
38
of the autopsy reports violated the Confrontation Clause because the surrogate “had neither
performed nor been present during the autopsies in question” and therefore “was not in a
position to testify on cross-examination as to the facts surrounding how the autopsies were
actually conducted or whether any errors, omissions, or mistakes were made”); U.S. v.
Moore, 651 F. 3d 30, 74 (D.C. Cir. 2011) (“Assuming error with respect to admission of the
autopsy reports, and thus not reaching the question left open in Bullcoming, . . . we hold the
error was harmless beyond a reasonable doubt” because evidence presented substantiated that
the murders in question were accomplished by gunshots); U.S. v. Bostick, 791 F.3d 127(D.C. Cir. 2015) (no plain error in admitting the autopsy reports because they “did not play
an important role in the trial” because there was no dispute that gunshots killed the victims),
petition for cert. filed, Edelin v. U.S. (U.S. July 7, 2016) (No. 05-3010).
¶100. States, likewise, disagree with regard to testimony of surrogate witnesses about the
autopsy results and admissibility of autopsy reports, themselves. Many states hold that
autopsy reports are nontestimonial and that a surrogate pathologist may, consistent with the
Confrontation Clause, express independent conclusions about the autopsy. See State v.
Medina, 306 P.3d 48 (Ariz. 2013) (autopsy report is not testimonial because its primary
purpose is not to identify a particular suspect; surrogate witness’s testimony concerning that
witness’s independent conclusions about the autopsy does not violate the Confrontation
Clause); People v. Leon, 352 P. 3d 289 (Cal. 2015) (the conclusions of the surrogate witness
were recited from the autopsy report of a deceased forensic pathologist, which was admitted;
assuming those were admitted erroneously, they were harmless beyond a reasonable doubt
39
because the cause of death, shooting, was undisputed); People v. Dungo, 286 P.3d 442 (Cal.
2012) (no Confrontation Clause violation where surrogate pathologist expressed his own
opinions based on a nontestifying forensic pathologist’s autopsy report); People v. Leach,
980 N.E.2d 570 (Ill. 2012) (autopsy report qualifies as a business record and is
nontestimonial because it is not prepared for the primary purpose of providing evidence
against the accused; surrogate pathologist’s testimony about autopsy report did not violate
the Confrontation Clause); State v. Maxwell, 9 N.E. 3d 930 (Ohio 2014) (autopsy reports are
created for the primary purpose of documenting cause of death for public records and
surrogate pathologist’s testimony about the autopsy report did not violate the Confrontation
Clause because he provided independent conclusions about cause and manner of death);
State v. Craig, 853 N.E.2d 621 (Ohio 2006) (an autopsy report admissible as a
nontestimonial business record; surrogate pathologist’s testimony about the autopsy findings
did not violate the Confrontation Clause); State v. Cutro, 618 S.E.2d 890 (S.C. 2005) (an
autopsy report is a public record and, therefore, is not testimonial; surrogate pathologist’s
testimony satisfied the right of the accused to confront the pathologist); State v. Hutchison,
482 S.W.3d 893 (Tenn. 2015) (an autopsy report is admissible as a business record;
testimony of surrogate pathologist, therefore, did not violate the Confrontation Clause).
¶101. Other states take different approaches. See Commonwealth v. Reavis, 992 N.E.2d 304(Mass. 2013) (surrogate medical examiner may not testify about an autopsy report that is not
admitted, but such testimony amounted to harmless error because the testimony was
cumulative of properly admitted evidence); Commonwealth v. Avila, 912 N.E.2d 101440
(Mass. 2009) (surrogate medical examiner’s testimony about findings in the autopsy report
prepared by another medical examiner constituted testimonial hearsay and their admission
violated the Confrontation Clause; but any error was harmless because other evidence
supported the Commonwealth’s theory); State v. Sisneros, 314 P.3d 665 (N.M. 2013)
(surrogate pathologist who was not present at autopsy testified about the cause and manner
of death based on her review of the autopsy, though the autopsy report was not admitted into
evidence; because the surrogate pathologist was allowed “to parrot” the subjective statements
of the pathologist who conducted the autopsy, the Confrontation Clause was violated, but the
error was deemed harmless because the cause and manner of death, multiple gunshot
wounds, was not disputed); State v. Navarette, 294 P.3d 435 (N.M. 2013) (autopsy reports
“regarding individuals who suffered a violent death are testimonial” and their admission
through a surrogate pathologist witness who testified about the subjective findings and
conclusions of the pathologist who conducted the autopsy violated the Confrontation Clause
and constituted reversible error); State v. Locklear, 681 S.E.2d 293 (N.C. 2009) (admission
of testimony of a surrogate medical examiner about the contents of an autopsy report and a
forensic dental analysis violated the Confrontation Clause but was harmless error because
the testimony, which identified the victim’s body and cause of death, was not critical to the
prosecution); State v. Flack, 753 S.E.2d 761 (2013) (reiterated prior holdings that
Confrontation Clause is violated when a surrogate medical examiner who did not conduct
the autopsy testified about the contents of an autopsy report prepared by another pathologist;
41
but because the testimony established merely that the cause of death was a gunshot wound
and that the manner of death was homicide, the error was harmless).
¶102. In the present case, the testifying forensic pathologist, Dr. Erin Barnhart of the
Mississippi State Medical Examiner’s Office, stated that she did not conduct autopsy
procedures on the bodies of Robert Carter and Renita Marks. Dr. Adel Shaker, who was at
the time of Christian’s trial no longer with the Mississippi State Medical Examiner’s Office,
conducted the autopsies. According to Dr. Barnhart, “during the course of the autopsy the
forensic pathologist will make some rough handwritten notes; some pathologists may dictate
during the course of their autopsy, and a number of photographs are taken during the autopsy
in order to document whatever during the procedure.” While Dr. Shaker did not write formal
autopsy reports, Dr. Barnhart “reviewed the autopsy notes and the autopsy photographs” and
made notes herself.
¶103. Based on the available materials, Dr. Barnhart concluded that “Mr. Carter sustained
three gunshot wounds, two to his chest area and one to the lower abdomen area” and that
“both gunshot wounds to the chest resulted in injury to the heart, and the gunshot wound to
the abdomen resulted in soft tissue abrasion.” According to Dr. Barnhart, Renita Marks
“suffered six gunshot wounds, five perforating . . . , and one penetrating.”10 Gunshot wounds
“of her chest area and abdominal area” caused Marks’s death. With regard to both Carter and
Marks, Dr. Barnhart testified that “the manner of death is homicide.”
10
Dr. Barnhart explained that “perforating” means “there’s both an entry and exit
component meaning that there’s no projectile left in the body.”
42
¶104. The majority cites Bufford v. State, in which the Mississippi Court of Appeals quoted
the rule from this Court that “‘a supervisor, reviewer, or other analyst involved may testify
in place of the primary analyst where that person was “actively involved in the production
of the report and had intimate knowledge of analyses even though he or she did not perform
the tests firsthand.”’” Bufford v. State, 191 So. 3d 755, 763 (Miss. Ct. App. 2015) (quoting
Grim, 102 So. 3d at 1081) (quoting McGowen v. State, 859 So. 2d 320, 340 (Miss. 2003)).
The Court of Appeals was considering a case similar to this. Dr. Shaker had performed the
victim’s autopsy, but Dr. Barnhart, as here, reviewed Dr. Shaker’s notes and photographs and
“compiled an autopsy report from which she testified at trial.” Bufford, 191 So. 3d at 763.
The Court held that no Confrontation Clause violation had occurred by such testimony from
Dr. Barnhart because she “actively participated in the analysis, forming her own report based
on Dr. Shaker’s case notes and photographs as well as her education and experience.” Id. I
voted to grant Bufford’s petition for writ of certiorari, which was denied on May 19, 2016.
¶105. I am persuaded by the reasoning of those federal and state courts which have held that
an autopsy report, whether itself admitted in evidence, testimonially related by a forensic
pathologist or both, is testimonial. This Court has defined “testimonial statements” to be
those “reasonably expected to be used ‘prosecutorially,’ such as confessions, affidavits,
custodial police examinations, and depositions.’” Armstead, 196 So. 3d at 917 (quoting
Rubenstein v. State, 941 So. 2d 735, 754 (Miss. 2006)). Irrespective of whether the results
of an autopsy identify a particular defendant, which some courts deem relevant, an autopsy
report in a homicide case reasonably is expected to be used prosecutorially. One
43
commentator has observed that “[f]orensic pathologists are quite aware that their autopsy
reports will be evidentiary and that the testimony of a forensic pathologist will be sought at
trial.” Ginsberg, supra ¶ 98 at 171. The adjective forensic signals that the work product of
the pathologist is destined for judicial proceedings.
¶106. Here, the State has adduced testimony from Dr. Barnhart about the autopsy findings
of Dr. Shaker. A law enforcement investigator was present at the autopsies conducted by Dr.
Shaker. Investigator Greg Lewis with the Hinds County Sheriff’s Office testified that he
“made it a practice to . . . try to attend most of the autopsies of the cases that I work for
various reasons to where I could take photographs at the autopsy if I needed to . . . .”
Investigator Lewis testified that, in this case, he “took photographs along with the medical
examiner’s office . . . .” He authenticated two such photographs he had taken during the
autopsies. The results of the autopsies, about which Dr. Barnhart testified, were testimonial
in nature, and the Confrontation Clause applies.
¶107. I would hold also that the Confrontation Clause requires the forensic pathologist who
conducted the autopsy to testify regarding his or her conclusions. A surrogate forensic
pathologist cannot, consistent with the Constitution, testify about the expert conclusions of
the forensic pathologist who conducted the autopsy. In this context, a surrogate forensic
pathologist who was not present at the autopsy cannot be cross examined in an adequate and
meaningful way with regard to the findings of the forensic pathologist who conducted the
autopsy. As I would have held in Hingle with regard to the testimony of the technical
reviewer, here “surrogate testimony could not ‘expose any lapses or lies on the [conducting
44
pathologist’s] part.’” Hingle, 153 So. 3d at 669 (Chandler, J., dissenting) (citing Bullcoming,
131 S. Ct. at 2715). One commentator has observed that:
The only vehicle by which a criminal defendant may explore the subjectivity
involved in the performance of the forensic autopsy—to question the judgment
of the examining forensic pathologist—is cross-examination. The in-court
testimony of the surrogate forensic pathologist who examines the autopsy
report prepared by the examining pathologist is an inadequate substitute. The
surrogate witness is not the physician who was required to be familiar with the
facts and the autopsy protocol, examine the victim’s body, perform the autopsy
procedure, make and report findings, and report the cause and manner of
death. The cross-examination of the surrogate yields very little. The surrogate
can rely on the autopsy findings with impunity. There is simply little to be
gained by the defendant in the effort to cross-examine the surrogate.
Cross-examination is the great truth-seeking test, but it is an empty exercise
when the surrogate testifies at trial.
Ginsburg, supra ¶ 98 at 170.
¶108. Of course, any interpretation of the federal Constitution is subject to change by the
United States Supreme Court, which has not decided whether the admission of autopsy
reports or the testimony of surrogate forensic pathologists violates the Confrontation Clause.
However, this Court, based on our state’s constitution, can afford greater constitutional
protections by setting a higher standard than the federal floor. Downey v. State, 144 So. 3d
146, 151 (Miss. 2014) (“We are empowered by our state constitution to exceed federal
minimum standards of constitutionality . . . .”) Here, Christian has raised both the Sixth
Amendment Confrontation Clause and its Mississippi counterpart, Article 3, Section 26, of
the Mississippi Constitution. Irrespective of future federal jurisprudence on the topic, I would
hold that the Confrontation Clause of Article 3, Section 26, of the Mississippi Constitution
45
requires that the forensic pathologist who conducted and/or observed an autopsy testify about
the results, reports, photographs, or notes derived therefrom.
¶109. Dr. Barnhart reviewed Dr. Shaker’s notes and photographs and made notes herself.
But I cannot agree that the Confrontation Clause has been satisfied by her testimony. I would,
however, find that, because Dr. Barnhart’s testimony established only that the deaths were
caused by gunshot wounds, an undisputed fact, its admission in this case was harmless
beyond a reasonable doubt. Accordingly, I concur in part and in result.
KING, J., JOINS THIS OPINION.
46