         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2017-KA-00482-COA

CHRIS ANDRE FAIRLEY A/K/A CHRIS                                                APPELLANT
FAIRLEY

v.

STATE OF MISSISSIPPI                                                             APPELLEE

DATE OF JUDGMENT:                           03/08/2017
TRIAL JUDGE:                                HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED:                  HARRISON COUNTY CIRCUIT COURT,
                                            SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                     OFFICE OF STATE PUBLIC DEFENDER
                                            BY: ERIN ELIZABETH BRIGGS
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:                          JOEL SMITH
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED - 04/10/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND TINDELL, JJ.

       LEE, C.J., FOR THE COURT:

¶1.    Chris Fairley was convicted of murder and sentenced to life in the custody of the

Mississippi Department of Corrections. In this appeal, we must determine whether Fairley’s

right to confront a witness against him was violated and whether the evidence was sufficient

to support his conviction. Finding no error, we affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    It is undisputed that Fairley shot and killed his cousin, Mark Fairley, outside of a local

shaved-ice stand in Biloxi, Mississippi, on July 15, 2015. Although Fairley claimed to have
shot Mark in self-defense, a Harrison County Circuit Court jury found Fairley guilty of

deliberate-design murder in violation of Mississippi Code Annotated section 97-3-19(1)(a)

(Rev. 2014).

¶3.    On the day in question, Fairley, his pregnant girlfriend, and their two minor children

arrived at the shaved-ice stand. Fairley’s girlfriend, MeShawn McCauley, exited the car to

retrieve shaved ice for the family. Shortly after, Mark drove into the parking lot, parking

near Fairley’s car. According to Fairley, he and Mark had a strained relationship. Fairley

testified that Mark had threatened to kill him in the past. Witnesses disagreed as to whether

McCauley first confronted Mark or whether Mark first confronted both Fairley and

McCauley. Regardless, after arguing, all three retreated to their respective cars. Mark got

into his car and proceeded to back away, but exited his car and continued arguing with

Fairley. At some point, Fairley reached into his car, grabbed a gun, and shot Mark.

¶4.    Two eyewitnesses observed the shooting. One witness, Gary Gage, testified that he

was sitting in his car at the shaved-ice stand when he saw Fairley and McCauley arguing with

Mark. The other eyewitness, John Condon, was in a local gym that shared a parking lot with

the shaved-ice stand. Both saw Fairley shoot Mark and continue to shoot Mark several more

times as Mark turned back toward his car. Neither one saw a weapon in Mark’s hands or

thought Fairley was in any danger from Mark. Gage estimated that Fairley and Mark were

standing approximately fifteen feet apart when Fairley fired the first shot.

¶5.    Dr. Mark LeVaughn, chief medical examiner for the State of Mississippi, testified that

Mark had been shot three times, with the fatal gunshot wound to Mark’s head. Fairley



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objected to Dr. LeVaughn’s testimony since Dr. LeVaughn had not performed the autopsy.

The trial court overruled Fairley’s objection.

¶6.    According to testimony by police officers who responded to the scene, no weapon was

found in Mark’s car or on the ground near Mark’s car. Additionally, five shell casings were

recovered from the scene.

¶7.    Fairley testified in his own defense. Fairley stated that he shot Mark because he

thought Mark had a gun. Fairley said he was worried for the safety of his girlfriend and their

children. McCauley also witnessed Fairley shoot Mark. She testified that she was afraid of

Mark and that she thought Mark might kill them. But she admittedly did not see a weapon

in Mark’s hand prior to the shooting.

                                        DISCUSSION

       I.     Dr. LeVaughn’s Testimony

¶8.    Fairley claims his right to confrontation was violated when the trial court admitted Dr.

LeVaughn’s testimony because Dr. LeVaughn was not the medical examiner who performed

Mark’s autopsy or authored the autopsy report. The medical examiner who performed the

autopsy, Dr. Erin Barnhart, no longer worked at the medical-examiner’s office. The autopsy

report itself was not admitted into evidence.

¶9.    Our “standard of review regarding admission or exclusion of evidence is abuse of

discretion.” Jenkins v. State, 102 So. 3d 1063, 1065 (¶7) (Miss. 2012) (citation omitted).

But we review constitutional issues de novo. Id.

¶10.   The United States and Mississippi Constitutions guarantee the right of the defendant



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to confront witnesses against him. U.S. Const. amend. VI; Miss. Const. art. 3, § 26. “The

United States Supreme Court has held that the Sixth Amendment Confrontation Clause bars

the admission of ‘testimonial statements’ made by a witness who does not appear at trial,

unless the witness is unavailable and the defendant had a prior opportunity to cross-examine

him.” Jenkins, 102 So. 3d at 1066 (¶9) (citing Crawford v. Washington, 541 U.S. 36, 53-54,

59 (2004)). “Forensic laboratory reports created specifically to serve as evidence against the

accused at trial are among the ‘core class of testimonial statements’ governed by the

Confrontation Clause.” Id. (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310

(2009)). See also Bullcoming v. New Mexico, 564 U.S. 647, 664-65 (2011).

¶11.   However, the Mississippi Supreme Court has held that, “[b]y contrast, when the

testifying witness is a court-accepted expert in the relevant field who participated in the

analysis in some capacity, such as by performing procedural checks, then the testifying

witness’s testimony does not violate a defendant’s Sixth Amendment rights.” McGowen v.

State, 859 So. 2d 320, 339 (¶68) (Miss. 2003). We apply a two-part test when determining

whether a witness satisfies the defendant’s right to confrontation:

       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. We require a witness to be
       knowledgeable about both the underlying analysis and the report itself to
       satisfy the protections of the Confrontation Clause.

England v. State, 195 So. 3d 830, 833-34 (¶12) (Miss. Ct. App. 2016) (quoting Jenkins, 102

So. 3d at 1067 (¶13)).

¶12.   In Christian v. State, 207 So. 3d 1207, 1213 (¶21) (Miss. 2016), the Mississippi

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Supreme Court rejected a similar argument. In Christian, Dr. Barnhart was tendered as the

pathology expert, but Dr. Adel Shaker had performed the actual autopsy. Id. At the time of

Christian’s trial, Dr. Shaker no longer worked at the medical-examiner’s office. Id. Dr.

Barnhart testified that she examined the autopsy, photographs, and case notes and concluded

that the victims had died of gunshot wounds. Id. The supreme court ultimately concluded

that Dr. Barnhart’s testimony did not serve as a “mere conduit for the content of Dr. Shaker’s

notes.” Id. at (¶26).

¶13.   Like Dr. Barnhart in Christian, Dr. LeVaughn testified that, although he did not

perform the actual autopsy procedures, he examined the autopsy reports, along with the

photographs and case notes. He also consulted with Dr. Barnhart at the time of the autopsy,

testifying that he reviewed and discussed the report with Dr. Barnhart prior to signing off on

the report. And he concluded based on a reasonable degree of medical certainty that Mark

died from gunshot wounds.1 We find no violation here.

¶14.   Fairley further suggests that our supreme court’s holdings in McGowen, 859 So. 2d

at 320, and Grim v. State, 102 So. 3d 1073 (Miss. 2012), are in conflict with the Supreme

Court’s holdings in Melendez-Diaz and Bullcoming. However, the Fifth Circuit Court of

Appeals and our supreme court have held otherwise. See Grim v. Fisher, 816 F.3d 296, 307

(5th Cir. 2016) (Neither Melendez-Diaz nor Bullcoming established a rule of federal law that

“when the prosecution introduces a forensic laboratory report containing a testimonial

certification . . .[,] the only witness whose in-court testimony can satisfy the Confrontation



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           We reiterate that Fairley admittedly shot and killed Mark.

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Clause is the analyst who performed the underlying analyses contained in the report.”);

Christian, 207 So. 3d at 1223 (¶80) (Maxwell, J., concurring) (“[O]ur Court’s pre-Crawford

and pre-Bullcoming test for the sufficient degree of involvement to satisfy the Confrontation

Clause is still good law.”); Armstead v. State, 196 So. 3d 913, 921 (¶21) (Miss. 2016)

(finding the defendant’s argument that Grim was contrary to established federal law to be

without merit). This argument is without merit.

       II.    Sufficient Evidence

¶15.   Fairley claims that the evidence was not sufficient to convict him of murder. He

argues that at most, he was guilty of heat-of-passion manslaughter or imperfect self-defense.

In reviewing the sufficiency of the evidence, “the critical inquiry is whether the evidence

shows beyond a reasonable doubt that [the] accused committed the act charged, and that he

did so under such circumstances that every element of the offense existed[.]” Bush v. State,

895 So. 2d 836, 843 (¶16) (Miss. 2005) (citation and internal quotation marks omitted)

(abrogated on other grounds by Little v. State, 233 So. 3d 288 (Miss. 2017)). If, viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found,

beyond a reasonable doubt, that the essential elements of the crime existed, this Court will

affirm the conviction. Id. Furthermore, it is well-settled law that the jury determines the

credibility of the witnesses and resolves conflicts in the evidence. Davis v. State, 866 So. 2d

1107, 1112 (¶17) (Miss. Ct. App. 2003).

¶16.   Section 97-3-19(1)(a) defines deliberate-design murder as “[t]he killing of a human

being without the authority of law by any means or in any manner . . . [w]hen done with



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deliberate design to effect the death of the person killed, or of any human being[.]” The State

must prove beyond a reasonable doubt that: “(1) the defendant killed the victim; (2) without

authority of law; and (3) with deliberate design to effect his death.” Brown v. State, 965 So.

2d 1023, 1030 (¶27) (Miss. 2007). “Deliberate design to kill a person may be formed very

quickly, and perhaps only moments before the act of consummating the intent.” Id. at (¶28)

(citations omitted). “Deliberate-design connotes an intent to kill and may be inferred through

the intentional use of any instrument which, based on its manner of use, is calculated to

produce death or serious bodily injury.” Id. (citation omitted).

¶17.   The evidence presented at trial showed that Fairley and Mark argued; Fairley first shot

Mark from approximately fifteen feet away; Mark ran toward his car; Fairley followed him

and continued to shoot at him; and Mark did not have a weapon in his car or near his body.

¶18.   Here, the jury was instructed on murder, heat-of-passion manslaughter, imperfect self-

defense, and self-defense. It was for the jury to decide whether the elements of murder were

proven by the State. Viewing the evidence in the light most favorable to the State, we find

that the evidence was legally sufficient to support the verdict. This issue is without merit.

¶19.   AFFIRMED.

    IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.




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