E-Filed Document May 15 2015 07:20:38 2013-KA-01629-COA Pages: 22 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI ROBERT BUFFORD APPELLANT VS. NO. 2013-KA-01629 STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 8007 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF AUTHORITIES..................................................... ii STATEMENT OF THE CASE.................................................... 1 STATEMENT OF THE FACTS................................................... 1 SUMMARY OF THE ARGUMENT............................................... 3 ARGUMENT.................................................................. 4 PROPOSITION ONE. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING OUT-OF-COURT STATEMENTS MADE BY THE VICTIM, DAVIE MILLER............................ 4 PROPOSITION TWO. WHETHER THE COURT ERRED WHEN IT EXCLUDED EVIDENCE WHICH BUFFORD CLAIMS SUPPORTED HIS THEORY OF THE CASE....................................... 10 PROPOSITION THREE. WHETHER THE COURT ERRED WHEN IT ADMITTED DR. ERIN BARNHART S TESTIMONY ABOUT THE FINDINGS FROM DAVIE MILLER S AUTOPSY................................ 13 CONCLUSION............................................................... 17 CERTIFICATE OF SERVICE................................................... 18 i
TABLE OF AUTHORITIES Federal Cases Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011).................................... 14 Crawford v. Washington, 541 U.S. 36 (2004)......................................... 5 Davis, 547 U.S., at 822, 126 S.Ct. 2266........................................... 6, 7 Melendez-Diaz, 557 U.S., at, n. 6, 129 S.Ct., at 2537, n. 6...................... 14, 15 Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143 (2011)...................... 6, 7, 8, 9, 10 State Cases Bishop v. State, 771 So.2d 397, 401, ( 18) (Miss.App.2000)............................ 11 Collins v. State, 513 So.2d 877 (Miss.1987)...................................... 10, 11 Grim v. State, 102 So.3d 1073 (Miss.2012)....................................... 14, 15 Hemingway v. State, 483 So.2d 1335 (Miss.1986).................................... 10 Lester v. State, 692 So.2d 755 (Miss.1997)........................................... 5 Pace v. State, 473 So.2d 167 (Miss.1985)........................................... 11 Pham v. State, 716 So.2d 1100, 1102, ( 12) (Miss.1998)........................... 10, 11 Ragin v. State, 724 So.2d 901 (Miss.1998).......................................... 11 Smith v. State, 733 So.2d 793 (Miss.1999).......................................... 11 Woods v. State, 393 So.2d 1319 (Miss.1981)..................................... 10, 11 State Court Rules M..R.E., Rule 703.............................................................. 16 Miss. R. Evid. 103(a)........................................................... 11 ii
M.R.E., Rule 401............................................................ 3, 11 iii
STATEMENT OF THE CASE This is a direct appeal from convictions in Hinds County Circuit Court, First Judicial District for deliberate design murder and felon in possession of a firearm. Robert Bufford brings this appeal. The Circuit Court of Hinds County, Honorable Jeff Weill presiding, sentenced Bufford to a term of life for the murder and a term of ten years for being a felon in possession of a firearm. COURSE AND DISPOSITION OF THE CASE IN THE CIRCUIT COURT The Grand Jury in Hinds County returned a true bill charging Robert Bufford with deliberate design murder of Davie Miller in Count One and with being a felon in possession of a deadly weapon in Count Two. C.P. 7-8. The Court tried Bufford before a jury. The jury returned verdicts of guilty on both counts. C.P. 185-186. The Court sentenced Robert Bufford to serve a term of life in Count One for the murder, C.P. 196, and a term of ten years for Count Two, possession of a deadly weapon by a convicted felon, to run consecutive to the life sentence for murder, C.P. 197. Robert Bufford filed a notice of appeal. C.P. 201. STATEMENT OF THE FACTS On July 5, 2011 Robert Bufford and Davie Miller left a club named Northside Legends in the city of Jackson, County of Hinds, and in the State of Mississippi. Davie Miller was driving, and Robert Bufford was in the passenger seat. Tr. 516-517. Robert Bufford was also known as Rod or Little Rob. Tr. 516, 524, 533. Carlos Smith saw Davie Miller and Bufford leave the club. Smith told law enforcement that they left the club at about 4:40 A.M. Tr. 520-521. 1
Officer Ahvegail White heard shooting and responded. She found Davie Miller lying down on the ground on his back. He was drenched in blood. Davie Miller told Officer White that he had been shot. He told her that he and a friend left Northside Legends. Miller said he was driving to his friend s grandmother s house where the friend was staying. Miller said they got into an argument, and his friend began to shoot. Tr. 356-358. Miller identified the friend who shot him as Rod or Roderick. Tr. 366. Larry Smith, a paramedic, came to the scene and found Davie Miller. Tr. 381. Davie Miller gave Smith information about what happened to Miller. Miller told Smith that he was assaulted by a friend. Miller told Smith that they were coming from a nightclub. Tr. 382. Miller had multiple gunshot wounds to his left shoulder, left upper arm, his pelvis, right leg, and to the lower back. 381-383. Smith said that Davie Miller s wounds were possibly life threatening. Tr 384. Davie Miller was transported to UMC on July 5, 2011. Tr. 671. He was unconscious in the Intensive Care Unit ICU from July 5, 2011 until July 10, 2011. Tr. 671. Lee Ann Miller was Davie Miller s wife. The first time she was able to speak to Davie Miller after he was shot was on July 10, 2011, when he first regained consciousness.. She asked him if he knew what happened to him. Davie Miller replied, Rod. Tr. 672. Davie Miller told his wife, Lee Ann Miller, that he felt like he was not going to make it. He asked her to keep his kids grounded in church to try to get on with life every day. He said this to Lee Ann Miller numerous times while he was in UMC. Davie Miller told Lee Ann Miller that he thought he was going to die three or four times. Tr. 674. Davie Miller died on August 3, 2011. Tr. 675. He died as a result of his gunshot wounds. Tr. 595, and 600. 2
SUMMARY OF THE ARGUMENT PROPOSITION ONE. Robert Bufford claims that the court erred when it admitted statements made by Davie Miller to Miller s wife, the police officer who was the first to arrive on the scene, and the paramedic who responded, gave immediate care to Davie Miller and then had him transported to the hospital. The police officer and the paramendic were responding to an emergency and asked the questions for purpose of responding to the emergency, not to gather evidence for trial. Davie Miller s wife was asking Davie Miller a question when he first regained consciousness. He had been unconscious for five days, and she asked him if he knew what happened to him. She did not ask the question to gather evidence for trial. PROPOSITION TWO. Robert Bufford claims the court erred when it excluded evidence that marijuana was found in the car. He argues it was part of his theory that Davie Miller was killed in a drug deal gone bad. There was no evidence that there was any marijuana found in Davie Miller s car. There was evidence that a bag was found in Miller s car which contained some substance. The substance in the bag was never tested to determine if it was marijuana. The evidence was not relevant under M.R.E., Rule 401. PROPOSITION THREE. Bufford claims the trial court violated Bufford s right to confront witnesses against him when it admitted evidence of the autopsy. Despite having the opportunity to cross-examine the witness who wrote and signed the report, Dr. Barnhart, Bufford argues that the cross-examination 3
was meaningless because he was unable to cross-examine the witness who wrote the autopsy notes. Both the United States Supreme Court and the Mississippi Supreme Court have held that a defendant s right to confront witnesses against him is not violated if the defendant has the opportunity to cross-examine the author of the report. Bufford had that opportunity when he cross-examined Dr. Barnhart. ARGUMENT PROPOSITION ONE. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING OUT-OF-COURT STATEMENTS MADE BY THE VICTIM, DAVIE MILLER Robert Bufford claims that the trial court erred when it admitted in evidence statements made by Davie Miller to his wife, the paramedic who arrived first after Miller s condition was reported, and law enforcement. He claims that Davie Miller s statements were all hearsay and violated the Confrontation Clause. Davie Miller died less than a month after he was shot as a result of his gunshot wounds. Because of his death, Miller was not able to testify at Robert Bufford s trial. The short answer is that both Officer White and Larry Smith, the paramedic, were responding to an emergency when they questioned Davie Miller. Davie Miller was lying on the ground and was covered in blood. Officer White did not know whether the shooter was nearby or would return soon with his gun. If the shooter was still nearby and would begin shooting again, he would pose a danger to Davie Miller, Officer White herself, or to the public. Larry 4
Smith was preparing to give medical aid. Smith needed to know what happened to Davie Miller in order to determine the nature and extent of Miller s injuries. Smith, too, was facing an ongoing emergency. Miller s injuries were possibly life-threatening. Smith needed to do a rapid assessment and get Miller to a hospital as quickly as possible. They turned on the lights and sirens when transporting Miller to the hospital. Tr. 382-384. th Lee Ann Miller did not speak to her husband after he was shot until July 10. Before that date Davie Miller was sedated, on a ventilator, and non-responsive in ICU. Lee Ann Miller spoke to her husband. She wanted to know what happened to him, and she asked him, Do you know what happened to you? Davie Miller responded, Rod. Tr. 672. Lee Ann Miller was not attempting to gain evidence for a trial. She just wanted to know what happened to her husband. Robert Bufford is making the Confrontation Clause argument for the first time on appeal. At trial he filed and argued a motion in limine, but he based his argument solely on the rule against hearsay. He is only now making the Confrontation Claause argument for the first time on appeal. Bufford waived his Confrontation Clause claim. [O]bjection on one ground at trial waives all other grounds for objection on appeal. Lester v. State, 692 So.2d 755, 772 (Miss.1997). The State does not waive the procedural bar, but the State does address the merits. Testimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36, 59 (2004). Statements... are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or 5
prove past events potentially relevant to later criminal prosecution. Davis, 547 U.S., at 822, 126 S.Ct. 2266. Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1155 (2011). The existence of an emergency or the parties' perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial because statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation. Michigan v. Bryant, 562 U.S. 344, (2011). When the primary purpose of an interrogation is to respond to an ongoing emergency, its purpose is not to create a record for trial and thus is not within the scope of the Clause. Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1155 (2011). An emergency does not last only for the time between when the assailant pulls the trigger and the bullet hits the victim. Michigan v. Bryant, Id., at 1164. When determining whether the Confrontation Clause bars the admission of a statement at trial, the court should determine the primary purpose of the interrogation by objectively evaluating the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs. Michigan v. Bryant, Id., at 1162. Bufford s Motion in Limine to Exclude Hearsay from Lee Ann Miller, Larry Smith, and Officer White: Defense counsel filed a motion in limine on the basis of hearsay. He asked to exclude the testimony of the victim s wife, the paramedic who treated Davie miller at the scene, and the police officer who arrived on the scene. Tr. 127-128. 6
Testimony by Lee Ann Miller: Davie Miller was shot and transported to UMC on July 5, 2011. Tr. 671. Miller was unconscious in ICU from July 5, 2011 until July 10, 2011. Tr. 671. Lee Ann Miller was Davie Miller s wife. The first time she was able to speak to Davie Miller after he was shot was on July 10, 2011, when he first regained consciousness.. She asked him if he knew what happened to him. Davie Miller replied, Rod. Tr. 672. Davie Miller told his wife, Lee Ann Miller, that he felt like he was not going to make it. He asked her to keep his kids grounded in church to try to get on with life every day. He said this to Lee Ann Miller numerous times while he was in UMC. Davie Miller told Lee Ann Miller three or four times that he thought he was going to die. Tr. 674. Davie Miller died on August 3, 2011. Tr. 675. The record does not support a finding that Davie Miller s wife asked the question for the primary purpose of establishing or proving... past events potentially relevant to later criminal prosecution. Davis, 547 U.S., at 822, 126 S.Ct. 2266. Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1155 (2011). There was no Confrontation Clause issue involved when Davie Miller s wife asked him if he knew what happened. Testimony by Larry Smith: Larry Smith was a paramedic working for American Medical Response, aka AMR, on July 5, 2011. Tr. 378- On July 5, 2011 Smith responded to a dispatch to the scene of a shooting. Tr. 379. The call about the shooting came to AMR at 5:40 A.M. 7
Tr. 380. Larry Smith reached Davie Miller at 5:48 A.M. Tr. 381. Davie Miller gave Smith information about what happened to Miller. Miller told Smith that he was assaulted by a friend. Miller told Smith that they were coming from a nightclub. Tr. 382. Miller had multiple gunshot wounds to his left shoulder, left upper arm, his pelvis, right leg, and to the lower back. 381-383. Smith said that Davie Miller s wounds were possibly life threatening. Tr 384. On cross-examination, Davie Miller told Smith that he was shot with a.45. Tr. 386. Larry Smith s job as a paramedic was to go the scene of an emergency and to render medical assistance to a victim before the victim was transported to a hospital or other medical facility. Smith s questions to Davie Miller were asked for the purpose of evaluating Miller s condition to determine what needed to be done depending upon Miller s injuries. This is outside the scope of the Confrontation Clause. When the primary purpose of an interrogation is to respond to an ongoing emergency, its purpose is not to create a record for trial and thus is not within the scope of the Clause. Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1155 (2011). Testimony of Officer Ahvegail White: Officer Ahvegail White responded to the shooting. She found Davie Miller lying down on the ground on his back. He was drenched in blood. White asked Miller what happened. Davie Miller said he had been shot. He told her that he and a friend left Northside Legends. Miller said he was driving to his friend s grandmother s house where the friend was staying. Miller said they got into an argument, and his friend began to shoot. Tr. 356-358. On cross-examination, White testified that when Davie Miller was asked for the identity 8
of the person, he responded Rod or Roderick. Tr. 366. When the primary purpose of an interrogation is to respond to an ongoing emergency, its purpose is not to create a record for trial and thus is not within the scope of the Clause. Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1155 (2011). Officer White responded to the sound of gunshots and a dispatch request early in the morning. She found a man lying on the ground covered in blood. This was an ongoing emergency. Officer White had heard the shots and had seen Davie Miller lying on the ground covered in blood.. She did not know if the shooter were still close by and might still be a danger to Miller, to her as a police officer, or to the public. The existence of an emergency or the parties' perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial because statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation. As the context of this case brings into sharp relief, the existence and duration of an emergency depend on the type and scope of danger posed to the victim, the police, and the public. Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 1162 (2011). An emergency does not last only for the time between when the assailant pulls the trigger and the bullet hits the victim. Michigan v. Bryant, Id., at 1164. The emergency was ongoing when Officer White asked Davie Miller who shot him. Knowing the identity of the shooter assisted Officer White in knowing who to look for if other people appeared nearby where Davie Miller was lying on the ground. Officer White could have been in danger as would other members of the public appeared and were close enough to be shot. The questions asked by Officer White, Larry Smith, and Lee Ann Miller were not within 9
the Confrontation Clause. Robert Bufford s Constitutional rights were not violated. PROPOSITION TWO. WHETHER THE COURT ERRED WHEN IT EXCLUDED EVIDENCE WHICH BUFFORD CLAIMS SUPPORTED HIS THEORY OF THE CASE. Bufford claims the trial court erred when it excluded evidence that marijuana was found in Davie Miller s car. Bufford claims this was evidence which supported a finding that Davie Miller was shot during a drug deal gone bad. He argues that was his theory of the case, the Court excluded the evidence, and the exclusion was error. There was no evidence that the substance was marijuana. Robert Bufkin of the City of Jackson Police Department testified that he performed an inventory of the 2004 Caillac which Miller was driving. Bufkin found a bag in the center console of the car. Bufkin suspected the bag contained marijuana. The substance was not tested to determine if it was marijuana. Tr. 392-394. Evidence may be introduced as part of the res gestae of a crime if it was an inseparable part of the entire transaction. Woods v. State, 393 So.2d 1319, 1324 (Miss.1981). Collins v. State, 513 So.2d 877, 878-879 (Miss.1987). The admission of res gestae evidence is largely left to the sound discretion of the trial judge. Hemingway v. State, 483 So.2d 1335, 1337 (Miss.1986). Collins v. State, 513 So.2d 877, 878-879 (Miss.1987). [F]or a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party. Pham v. State, 716 So.2d 1100, 1102, ( 12) (Miss.1998). Miss. R. Evid. 103(a). 10
According to M.R..E., Rule 401, for evidence to be relevant, it must have a "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." Miss.R.Evid. 401. Ragin v. State, 724 So.2d 901, 903 4 (Miss.1998) The scope of cross-examination is ordinarily broad; however, it is within the sound discretion of the trial court to limit cross-examination to relevant matters. Pace v. State, 473 So.2d 167, 169 (Miss.1985). 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. Smith v. State, 733 So.2d 793, 801 (Miss.1999). Bishop v. State, 771 So.2d 397, 401, ( 18) (Miss.App.2000). The nature and identity of the substance in the bag was unknown. Robert Bufkin suspected it to be marijuana, but it was never tested. R. 393-394. Robert Bufford, the defendant, did not seek to have the substance in the bag examined or tested to determine what it contained. Nor did Bufford or anyone else seek to have the bag itself dusted in order to determine whose finger prints, if any were found, were on the bag. Bufford did not make a sufficient showing that the evidence was relevant. There was no evidence that there was a drug sale that resulted in violence. The Court conducted a hearing outside the presence of the jury. The hearing included a proffer of Investigator Bufkin s testimony. Investigator Bufkin testified that he was with the crime scene unit of the Jackson Police Department. Bufkin said he examined Davie Miller s car. Bufkin said he found a bag which contained a substance which was suspected to be marijuana. The bag and the substance contained therein were marked as Exhibit for identification only No. 7. Bufkin said he was not aware that the substance inside the bag was ever tested. Tr. 392-394. 11
Bufkin testified that he took a photograph of the interior of Davie Miller s car. The photograph included a view of the console between the driver s seat and the passenger s seat. What appears to be a bag tied in a knot is seen resting on top of the console. The photograph was marked Exhibit 9 for identification only. Tr. 397-399. The State argued that the substance was never tested and was not proved to be marijuana. It lacked relevance and was prejudicial. Bufford argued that it was his theory of the case that... this marijuana possibly has something to do with the motive for which the victim was shot. He argued that... or we could come to the conclusion that there was a possible drug deal that just occurred. Tr. 401. The Court found that the car was owned by someone other than Davie Miller, and the substance in the bag was never proven to be marijuana. The Judge concluded that the evidence was not relevant. The court sustained the State s motion in limine to exclude any testimony about marijuana. Tr. 405-406. Robert Bufford said in his opening that the evidence would show that he was not the one who shot Davie Miller, and he... was not in the vicinity of where Mr. Miller was killed on Martin Luther King Drive. Tr. 351. Bufford does not mention a drug deal gone bad during opening statement. The bullet which penetrated Davie Miller s driver s side front window was fired from inside Davie Miller s car. Tr. 414-415. In his closing Robert Bufford argued that the evidence was inconsistent and did not prove beyond a reasonable doubt that Bufford shot and killed Davie Miller. He does not mention someone else killing Davie Miller during the sale or purchase of illegal drugs. Neither Bufford s opening statement nor his closing argument support a finding that 12
Robert Bufford s theory of the case was that Davie Miller was shot while he was attempting to buy or sell marijuana. There was no evidence supporting a theory of a drug deal gone bad. There was no evidence that marijuana was found in Davie Miller s car. If Bufford had asked to admit the bag found in the car, and the court admitted the bag, there was still no proof that the bag contained marijuana. Bufford never authenticated the contents of the bag which was resting on the console. The substance inside the bag was never tested. To conclude that the substance was marijuana would be mere speculation. There was no scientific evidence that identified the nature of the substance. The substance in the bag was not identified. Here, the issues could have been confused or the jury misled because the there was no authenticated evidence that the contents of the bag was marijuana. It was mere speculation, first, to believe the substance was marijuana, and, second, to believe that there was a drug deal gone bad. In the absence of any evidence supporting a finding of drug deal gone bad, the trial judge did not abuse his discretion when he excluded the evidence. PROPOSITION THREE. WHETHER THE COURT ERRED WHEN IT ADMITTED DR. ERIN BARNHART S TESTIMONY ABOUT THE FINDINGS FROM DAVIE MILLER S AUTOPSY. 13
Bufford claims the court erred when it allowed Dr. Barhart to testify because she did not perform or witness the autopsy, despite the fact that she authored the report. The Doctor who performed the autopsy had left the medical examiner s office. Bufford moved to suppress the evidence of the autopsy report. He argued that Dr. Shaker performed the autopsy but failed to complete the autopsy report. He argued that Dr. Erin Barnhart completed the report. She was the Deputy Medical Examiner. Tr. 135. Bufford said that since Dr. Barnhart s participation was strictly preparing the report, that it would deny Bufford s rights under the confrontation clause and the holding in Bullcoming. Tr. 135. This issue is controlled by Bullcoming v. New Mexico, 131 S.Ct. 2705, 2716 (2011), and Grim v. State, 102 So.3d 1073, 22 (Miss.2012). Both the United States Supreme Court and the Mississippi Supreme Court say that the right of the defendant is to cross-examine the analyst who wrote the report or actively participated in the production of the report and... had intimate knowledge of analyses even though [he or] she did not perform the tests first hand. The cases also say that the analyst who wrote the report will be allowed to testify if the defendant then has the opportunity to cross-examine the anayst. The United States Supreme Court said in Bullcoming v. New Mexico, 131 S.Ct. 2705, 2716 (2011), as follows: Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess the scientific acumen of Mme. Curie and the veracity of Mother Teresa. Melendez-Diaz Melendez Diaz, 557 U.S., at, n. 6, 129 S.Ct., at 2537, n. 6. On that same issue the Mississippi Supreme Court said in Grim v. State, 102 So.3d 1073, 14
22 (Miss.2012)., as follows: We hold 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 first hand. Dr. Barnhart testified that she examined Dr. Shaker s notes which he took at the autopsy. She testified that she also reviewed the photographs which were taken at the time of the autopsy. Dr. Barnhart testified that she compiled the contents. She then wrote and signed the autopsy report. Dr. Barnhart testified that she based her opinion on her review of Dr. Shaker s notes and her examination of the photographs taken at the autopsy. Tr. 571-573. Dr. Barnhart and her report both met the requirements for admission into evidence found in Bullcoming and Grim. The autopsy report was both written and signed by Dr. Barnhart. She expressed the opinions which were found in both the report of the autopsy and her trial testimony. Dr. Barnhart was available for cross-examination by Robert Bufford. Counsel for Bufford cross-examined Dr. Barnhart. Dr. Barnhart testified that Davie Miller died as a result of gunshot wounds. Counsel for Robert Bufford was then allowed to cross-examine Dr. Barnhart. Bufford had the opportunity to ask Dr. Barnhart what facts she discovered in the photographs and Dr. Shaker s notes which she used as a basis for her opinion that Davie Miller s death was caused by gunshot wounds. Robert Bufford s right under the Confrontation Clause is to cross-examine the witnesses who give evidence against him. The goal is to allow the defendant to test the evidence in the crucible of cross-examination. The State responded that Dr. Barnhart s testimony was admissible under M..R.E., Rule 15
703, which allows an expert to give their opinion based upon the data of other experts rather than by personal observation. Tr. 136-137. The court denied the motion to suppress the autopsy. Tr. 151-152. At trial, Bufford moved to strike Dr. Barnhart s testimony. Tr. 570. The court found that it was appropriate for Dr. Barnhart to give her independent opinion. The Court denied Bufford s motion Tr. 578-579. 16
CONCLUSION The State asks the court to affirm the judgment of conviction of the Circuit Court of Hinds County, First Judicial District. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 8007 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 17
CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable Jeff Weill, Sr. Circuit Court Judge Post Office Box 22711 Jackson, Mississippi 39225 Honorable Robert Shuler Smith District Attorney Post Office Box 22747 Jackson, Mississippi 39225-2747 W. Daniel Hinchcliff, Esquire Attorney At Law MS Office of the State Public Defender Indigent Appeals Division Post Office Box 3510 Jackson, Mississippi 39207-3510 This the 15th day of May, 2015. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI 39205-0220 TELEPHONE: (601) 359-3680 s/ Scott Stuart SCOTT STUART SPECIAL ASSISTANT ATTORNEY GENERAL 18