                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2012-KA-00447-SCT

DERRICK ARTHUR BURDETTE

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         03/01/2012
TRIAL JUDGE:                              HON. SMITH MURPHEY
COURT FROM WHICH APPEALED:                PANOLA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF INDIGENT APPEALS
                                          BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: BILLY L. GORE
DISTRICT ATTORNEY:                        JOHN W. CHAMPION
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 03/28/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    Derrick Burdette was indicted and tried in the Circuit Court for the Second Judicial

District of Panola County for the murder of Herman Smith. The jury acquitted Burdette of

murder but found him guilty of the lesser offense of manslaughter. Burdette was sentenced

to a twenty-year term in the custody of the Mississippi Department of Corrections (MDOC),

to run consecutively with a sentence he already was serving for an unrelated offense. On

appeal, Burdette asserts two assignments of error: (1) that the jury verdict was against the
overwhelming weight of the evidence, and (2) that his Confrontation Clause rights were

violated at trial. We find that the jury verdict was not against the weight of the evidence.

While we do find error amounting to the violation of Burdette’s right to confront the

witnesses against him, the error did not result in a manifest miscarriage of justice.

Accordingly, we affirm the judgment of the circuit court.

                  FACTS AND PROCEEDINGS IN TRIAL COURT

¶2.    On the evening of January 26, 2011, Kenyada Smalley, a resident of Still Trailer Park

in Batesville, called the police to report a shooting at the trailer park. The victim, Herman

Smith, who used the nickname “Old School,” was the boyfriend of Kenyada’s mother,

Cynthia Smalley.1 Officer Jeremy Haley of the Batesville Police Department (BPD) was first

on the scene. When Officer Haley arrived, Cynthia was leaning into a gray Pontiac in which

Smith was sitting on the driver’s side; Smith had suffered several gunshots and was

conscious and alert, but apparently in great pain. From the record, it is unclear into which

side of the car the officers observed Cynthia leaning.

¶3.    BPD Lieutenant Ruby Myers arrived on the scene next and encountered Smith, who

was still sitting in the gray Pontiac, having suffered several gunshots. Smith was clearly in

pain, but remained alert and conscious. When Myers asked Smith who had shot him, he

stated that it was a person called “Scooter,” and Smith further identified this person as

Derrick Burdette, the defendant. Myers recorded this conversation with her “body mike,” and

a recording of this exchange later was played for the jury. Several shell casings were found



       1
         To avoid confusion, Kenyada Smalley and Cynthia Smalley will be referred to by
their first names.

                                             2
on the ground near a passenger door of the car, on the driver’s side floorboard, and in the

center console of the car. No weapons or drugs were found inside the car.2 Cynthia was still

present at the vehicle when Myers arrived. By the time of trial, Cynthia had passed away.

BPD Detective George Williford collected shell casings and bullets that he and other officers

found at the scene, and these were entered into evidence. All of the casings were determined

to be .380 casings. Williford found no weapon or drugs in Smith’s car, but he agreed with

defense counsel that such items potentially could have been removed before the police

arrived.

¶4.    Smith was taken by ambulance to the hospital, where Murdis Smith, the victim’s

mother, was permitted to talk to him. Smith informed his mother that “Scooter” had shot him,

and she so testified at trial. Smith also spoke to Detective Williford and informed him that

he had been shot by “Scooter;” he was able to identify a photograph of Burdette. That night,

Smith’s condition declined and he died. Dr. Paul McGarry, an expert in forensic pathology,

performed an autopsy on Smith’s body. At trial, he testified that the cause of death was

“continuing internal bleeding due to multiple gunshot wounds.” Dr. McGarry also recovered

three bullets from Smith’s body, which he transferred to Detective Williford, who entered

them into evidence.

¶5.    Four individuals, Robert Walker Jr., Shawanda Rushing, Latisha Curry, and Tim

Curry,3 all initially denied having been at the scene of the crime that night. All four later


       2
       However, the defense notes that Smith was conscious and suggests that he could
have handed incriminating items to Cynthia when she leaned inside the car.
       3
           Again, to avoid confusion, Latisha Curry and Tim Curry will be referred by their first
names.

                                                 3
admitted having ridden to the trailer park from Crenshaw with Burdette, and all four testified

for the State at trial. Three of the four used drugs on the trip; the exception was Latisha, who

was seven months pregnant. All agreed that the purpose of the trip was to buy drugs or pills

from Smith. Walker accompanied Burdette to meet Smith. Walker testified that he got to

Smith’s car first, and then Burdette shoved him out of the way and shot Smith, stating “I told

you I was going to get you.” Walker did not notice a gun on Smith, and he identified

Burdette’s pistol as chrome with a black handle. Latisha testified that she heard gun shots

and saw that Burdette’s eyes were red when he returned to the vehicle. Latisha asked

Burdette if it was him they had heard shooting, and he answered “yes.”

¶6.     Anthony and Fred Curry,4 Burdette’s brothers, were not present at the scene but were

both aware that Burdette recently had purchased a pistol. Fred stated that, the day of the

shooting, Burdette had left the courthouse in Sardis and had stated nonchalantly that “he was

going to kill somebody,” and Fred had believed him to be kidding.5 The day after the

shooting, Burdette called a family meeting and announced that he had killed someone, but

he did not make any claim at this meeting that he was defending himself at the time of the

killing. Burdette asked Anthony to help him dispose of the weapon, but Anthony refused.

Fred eventually disposed of the weapon by transporting it to Burdette’s cousin, Kendrick




        4
            Anthony Curry and Fred Curry will be referred to, respectively, as Anthony and
Fred.
        5
            Burdette apparently was at the Panola County Courthouse in Sardis (First Judicial
District of Panola County) to answer to a separate criminal charge, but this is not fully
explained in the record.

                                                4
Harris, also known as “Ken,” in Water Valley. Detective Williford eventually was able to

recover this weapon, a Sig Sauer nine-millimeter handgun, from Water Valley.

¶7.    The day following the shooting, January 27, 2011, Deputy Earl Burdette 6 took Derrick

Burdette into custody, and he was charged with the murder of Herman Smith. Burdette

initially made a statement that he was not involved in the shooting and was not even in

Batesville at the time. On February 10, 2011, Burdette for the first time admitted to the

police, via a written letter, to having shot Smith. Burdette stated that Smith had a weapon and

that Smith had drawn this weapon on him first, and that Burdette had responded in self-

defense by pulling his own weapon and shooting Smith.

¶8.    Quinton Tellis, who was Burdette’s cellmate in the Panola County Jail for a three-

month period, testified that, prior to the shooting, Smith had shown Tellis his .380 pistol and

stated that the gun was “to protect himself from Scooter [Burdette].” Tellis testified that

Smith had told him that Burdette had tried to rob him, and that Burdette also had sprayed

Smith with mace. James Fletcher, an acquaintance of both Smith and Burdette, testified that

in a December 26, 2010, phone call, Fletcher had informed Burdette that Smith was

threatening to kill him. He stated that this warning was consistent with “the word out on the

street.” Fletcher also claimed to have engaged in a conversation with Smith, wherein Smith

stated an intention to kill Burdette because Burdette previously had sprayed him with mace.




       6
           Deputy Earl Burdette is Derrick Burdette’s cousin.

                                               5
Ladarius Harris, another mutual acquaintance of Burdette and Smith,7 also testified that

Smith had threatened to kill Burdette and that he personally had seen Smith’s .380 pistol.

¶9.    At trial, Burdette took the stand in his own defense. He gave a version of events

different than that laid out by Robert Walker and by the victim, Herman Smith, after the

shooting and prior to his death. According to Burdette, bad relations had arisen between him

and Smith in a prior drug deal. Later, someone broke a window in Smith’s car and Smith

blamed Burdette. Also, Burdette stated that he knew that Smith had a weapon, and that

Smith had threatened him. Nevertheless, when Burdette called Smith on January 26, 2011,

his only intention was to buy drugs or pills. When Burdette and Walker approached the car,

Smith began cursing Burdette and demanding money. Walker moved out of the way, and

Burdette leaned into the car.

¶10.   Burdette testified that Smith then pulled a pistol on him, and that this made him feel

confused and scared and caused him to fear for his life. Burdette stated that he pretended to

reach for money, but instead pulled his pistol. He stated that he pulled the trigger once, and

the gun emptied. Burdette noticed drugs and a gun in Smith’s car. Burdette claimed that he

never intended to kill Smith, and specifically denied saying “I told you I was going to get

you,” as testified by Walker. Burdette stated that the eyewitness, Walker, was standing

between thirty and forty-five feet away at the time of the shooting, and that he could not have

heard anything that either Burdette or Smith said. Burdette further claims that the reason that

he failed to mention to his family that he acted in self-defense, and that he denied



       7
       Harris stated on cross-examination that he was a member of Burdette’s family,
although the record does not show the exact relationship between them.

                                              6
involvement to the police for nearly two weeks following his arrest, was because he was still

confused and shaken.

¶11.    Detective Williford was allowed to testify in two instances to information that

Burdette alleges constituted Confrontation Clause violations. In the first instance, Williford

testified to efforts made to verify that the nine-millimeter Sig Sauer handgun, which

undisputedly was the weapon used in the homicide, was able to fire .380 casings. Williford

stated that “we contacted the company that manufactured it and they definitely agreed with

that and were in the process of sending us a letter and we never received the letter stating that

it does shoot both bullets.” Neither the “we” who contacted the company nor the “they” at

the company who responded was identified, and there is no indication that either party

testified at trial. Burdette made no objection to this testimony at trial.

¶12.    In the second instance complained of, Williford testified to the results of the

Mississippi Crime Laboratory’s analysis of some of the casings and projectiles in question.

Williford stated that the crime lab’s results showed that all seven casings found and four of

the bullets found definitely were fired from the gun in question, and the other bullets were

consistent with having been fired by the gun in question but could not be definitively

included nor excluded. After this testimony, the crime lab report was admitted into evidence

without objection. No individual involved with the testing of the bullets or with the crime

lab testified at trial.

¶13.    The State was allowed to call Detective Barry Thompson of the Panola County

Sheriff’s Department as a rebuttal witness. Thompson testified that he is personally familiar




                                               7
with the Sig Sauer nine-millimeter handgun, and that it is capable of firing .380 ammunition.8

He also stated that he had fired Sig Sauer handguns tens of thousands of times in his life, and

that he had never seen one that would fire more than one time with a single pull of the

trigger. However, he testified that if the shooter were “scared, nervous, or anticipating,” he

might pull the trigger more times than he thought he had.

¶14.   The jury acquitted Burdette of murder but found him guilty of the lesser offense of

manslaughter. On January 30, 2012, Burdette filed a motion for judgment non obstante

verdicto (JNOV) or, in the alternative, for a new trial, challenging the weight of the evidence.

A sentencing hearing was held on March 1, 2012, and the court sentenced Burdette to serve

twenty years in the custody of the MDOC, to run consecutively with a sentence that Burdette

already was serving for an unrelated offense. On March 8, 2012, the trial court denied

Burdette’s motion for JNOV. Burdette appealed, asserting two assignments of error: (1) the

trial court erred in not sua sponte barring Detective Williford’s testimony in two instances

that allegedly amounted to Confrontation Clause violations, see infra, and (2) the verdict was

against the weight of the evidence. We choose to address the latter argument first.




       8
        The defendant’s brief contends in its recitation of facts that this rebuttal was
improper, since there was no testimony on the compatibility of the bullets with the handgun
offered by the defense. However, this objection was not made at trial, nor has any related
assignment of error been raised on appeal.

                                               8
                                       DISCUSSION

       A. Weight of the Evidence

¶15.   We note at the outset that Burdette does not attack the legal sufficiency of the

evidence but only the weight of the evidence. Burdette argues that “the opposing facts

presented to the jury supported either self-defense or murder,” but that they did not support

a verdict of manslaughter. To support this argument, Burdette makes the bald assertion that

when the jury declined to find him guilty of murder, it found that Smith had pulled a pistol

on him. Burdette next restates his theory of the case, and notes that the evidence could not

exclude the possibility that Smith had a weapon. Finally, Burdette makes the unclear

argument that “[t]he same witness relied upon by the State to support the theory of no gun

[sic] is the same witness that testified to the presence of drugs. Thus, that the gun was

removed at the same time as the drugs is the only plausible explanation.” 9 Burdette contends

that the jury verdict was against the weight of the evidence, and that the motion for JNOV 10

or a new trial should have been granted.

¶16.   A “motion for a new trial is addressed to the discretion of the trial court, and such

motion should be considered with caution. ‘[T]he power to grant a new trial should be



       9
       Burdette does not clarify which witness he is referring to; the record shows that no
witness at trial testified that Smith did not pull a weapon but did have drugs in the car with
him. Most likely, he refers to Robert Walker, Jr., the eyewitness to the shooting. Walker
testified that Smith did not pull a weapon on Burdette, and he testified that he believed the
purpose of the trip to Batesville was to purchase drugs or pills from Smith. However, he did
not testify that Smith actually did or did not have drugs physically present with him in the
car at the time of the shooting.
       10
        But again, it must be emphasized that Burdette does not assert a “sufficiency-of-the-
evidence” argument but only a “weight-of-the-evidence” argument.

                                              9
invoked only in exceptional cases in which the evidence preponderates heavily against the

verdict.’” Weatherspoon v. State, 56 So. 3d 559, 564 (Miss. 2011). This Court must “weigh

the evidence in the light most favorable to the verdict” and must therefore look at the

evidence in the light most favorable to the State’s theory of the case. Id. at 564 (citations

omitted).   This Court “will disturb the verdict only ‘when it is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.’” Ben v. State, 95 So. 3d 1236, 1253 (Miss. 2012) (citing Bush

v. State, 895 So. 2d 836, 844 (Miss. 2005)).

¶17.   Although he now argues that the evidence supported murder but not manslaughter,

at trial, Burdette himself put forth Jury Instructions D-2 and D-3 on the lesser offense of

manslaughter. Instruction D-3, defining “heat of passion,” actually was granted as Jury

Instruction 16.   Burdette withdrew Instruction D-2 and did not object to the State’s

presentation of the similar Instruction S-5, both defining manslaughter; Instruction S-5 was

given to the jury as Jury Instruction 17. Finally, the Court granted the State’s Instruction S-

4A as Jury Instruction 18 on the form of the verdict, without any objection from Burdette.

Thus, Burdette’s claim on appeal that the evidence supported a finding of either self-defense

or murder, but not of manslaughter, is belied both by the record and by his actions at trial.

¶18.   In Mississippi, manslaughter is defined as “[t]he killing of a human being, without

malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous

weapon, without authority of law, and not in necessary self-defense. . . .” Miss. Code Ann.

§ 97-3-35 (Rev. 2006). This Court has held that “when the evidence would justify a

conviction of murder, the defendant may not complain of a conviction of the lesser offense

                                               10
of manslaughter, nor of an instruction covering such offense.” State v. Shaw, 880 So. 2d

296, 309 (Miss. 2004) (citing Huffman v. State, 192 Miss. 375, 6 So. 2d 124, 125 (1942)).

In Pruitt v. State, 28 So. 3d 585 (Miss. 2010), a defendant was, as in the case at bar,

convicted of manslaughter in the wake of a murder indictment, where his theory of defense

was that he acted in necessary self-defense because he believed that the victim had threatened

him with a gun. Other witnesses present did not see a gun, and after the shooting, it was

determined that the victim actually did not have a gun. This Court held that “[r]elying on the

absence of a gun or other evidence of deadly force, the jury reasonably could have

determined that Pruitt did not act in necessary self-defense.” Id., 28 So. 3d at 589.

¶19.   In today’s case, we find that the overwhelming weight of the evidence did not

preponderate against a manslaughter or even a murder conviction. Although there was

testimony that Smith possessed a gun, only Burdette saw him wield it before the shooting,

and his testimony was contradicted by eyewitness Robert Walker, who testified to a killing

with no immediate provocation. No gun was found in the car where Smith was shot,

although there was testimony alleging that Cynthia Smalley or even Smith himself could

perhaps have disposed of the gun before police arrived. Smith survived the shooting long

enough to name Burdette as his shooter. Burdette admitted to several family members that

he had killed someone but did not allege self-defense; for nearly two weeks after his arrest,

he denied to police even being in Batesville at the time of the killing. Burdette testified that

he was shaken and confused and therefore did not volunteer the information to his loved ones

or to law enforcement that he had acted in self-defense.




                                              11
¶20.   All told, Burdette had a plausible tale of self-defense that the jury might have chosen

to believe; but the jury did not. We find that the evidence did not preponderate in support

of the self-defense claim, nor did it render the verdict an unconscionable injustice. Rather,

the evidence presented a factual question for the jury to determine, beyond a reasonable

doubt, whether Burdette acted in necessary self-defense. As noted above, where, as here, the

evidence would justify a conviction of murder, the defendant may not complain of a

conviction of the lesser offense of manslaughter.

¶21.   In addition, evidence supported a manslaughter conviction as opposed to a murder

conviction because of the significant testimony of recent bad blood and prior confrontation

between Burdette and Smith. The evidence shows that Burdette used a dangerous weapon,

to wit, a Sig Sauer nine-millimeter handgun. The jury could have found, based on the

evidence before it, that Burdette had acted in the heat of passion, without malice but not in

necessary self-defense, and therefore was guilty of manslaughter. The weight of the evidence

supports the jury verdict, and this issue is therefore without merit.

       B. Confrontation Clause

¶22.   As    noted   above,    Burdette    contends    that   Detective    Williford testified,

without objection, to statements made by others, thereby violating his right to confront

witnesses guaranteed by the Sixth Amendment of the U.S. Constitution and Article 3, Section

26 of the Mississippi Constitution. Williford testified he verified that the weapon used in the

crime, a Sig Sauer nine-millimeter handgun, could fire .380 bullets via the following method:

“We contacted the company that manufactured it and they definitely agreed with that and

were in the process of sending us a letter and we never received the letter stating that it does


                                              12
shoot both bullets.” As already noted, neither the “we” who contacted the company nor the

“they” who verified the compatibility of .380 bullets was ever identified. The record shows

that no one from the company testified at trial. In addition, Williford testified that personnel

at the crime lab determined that all seven casings found and four of the bullets found

definitely were fired from the gun in question, and the other bullets were consistent with

having been fired by the gun in question but could not be definitively included nor excluded.

This testimony was used to enter the crime lab’s report into evidence. No individual

involved with the testing of the bullets or with the crime lab testified at trial.

¶23.   Even though no objection was entered in either instance, Burdette raises an issue

implicating a fundamental constitutional right and asks that we consider it as plain error. See

Conners, 92 So. 3d at 682          (“a Confrontation-Clause violation is a violation of a

fundamental, substantive right”).

       Under the plain-error doctrine, we can recognize obvious error which was not
       properly raised by the defendant and which affects a defendant’s fundamental,
       substantive right. For the plain-error doctrine to apply, there must have been
       an error that resulted in a manifest miscarriage of justice or seriously affects
       the fairness, integrity or public reputation of judicial proceedings.

Id. (internal quotations omitted). Burdette, as the accused, had the right to be confronted

with the witnesses against him. U.S. Const. amend. VI.; Miss. Const. art. 3 § 26. The United

States Supreme Court has stated:

       The text of the Confrontation Clause reflects this focus. It applies to
       “witnesses” against the accused – in other words, those who “bear testimony.”
       2 N. Webster, An American Dictionary of the English Language (1828).
       “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made
       for the purpose of establishing or proving some fact.” Ibid. An accuser who
       makes a formal statement to government officers bears testimony in a sense
       that a person who makes a casual remark to an acquaintance does not.

                                               13
Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177 (2004).

The purported statements of unidentified persons at the company constituted hearsay, and

– since it is unclear who contacted the company – perhaps double hearsay and its admission

resulted in a violation of the Confrontation Clause.

¶24.   The admission of the crime lab report also was error. The United States Supreme

Court has held:

       The question presented is whether the Confrontation Clause permits the
       prosecution to introduce a forensic laboratory report containing a testimonial
       certification—made for the purpose of proving a particular fact—through the
       in-court testimony of a scientist who did not sign the certification or perform
       or observe the test reported in the certification. We hold that surrogate
       testimony of that order does not meet the constitutional requirement. The
       accused’s right is to be confronted with the analyst who made the certification,
       unless that analyst is unavailable at trial, and the accused had an opportunity,
       pretrial, to cross-examine that particular scientist.

Bullcoming v. New Mexico, 131 S. Ct. 2705, 2710, 180 L. Ed. 2d 610 (2011); see also

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314

(2009). Here, the surrogate testimony was presented by a police officer with no apparent

relation to the Mississippi Crime Laboratory or to this particular report.        The report

undoubtedly was testimonial; we have held in a similar case that a “ballistics report provided

‘testimony’ against [the defendant] by showing that the shotgun shells found at the scene

were consistent with having been fired from the shotgun found at the scene.” Conners v.

State, 92 So. 3d 676, 684 (Miss. 2012). The analysts were not found to be unavailable, and

Burdette had no prior opportunity for cross-examination. The admission of the document

without live testimony from an individual involved in the analysis constituted a violation of

the Confrontation Clause.

                                             14
¶25.   However, that is not the end of this Court’s inquiry. Having determined that a

defendant’s right of confrontation was violated, we do not recognize plain error unless “the

error resulted in a manifest miscarriage of justice.” Conners, 92 So. 3d at 684. In this case,

there was no manifest miscarriage of justice, since the only testimony improperly introduced

related to an issue agreed upon by the parties and uncontroverted by the evidence: the fact

that Smith was killed with a Sig Sauer nine-millimeter handgun wielded by Burdette.

Detective Williford’s statement that an unknown person verified that a Sig Sauer nine-

millimeter handgun can fire .380 caliber bullets was echoed by the introduction of the exact

same testimony by Detective Barry Thompson, who testified from personal knowledge.

While the report of the Mississippi Crime Laboratory was the only proof that the bullets

collected at the scene were either fired by or consistent with having been fired by the gun in

question, the parties at trial were in agreement that Burdette shot Smith at point-blank range

with that weapon. The only disputed question was whether Burdette did so in necessary self-

defense.

¶26.   Burdette suggests for the first time on appeal that, while he did not “recall or testify

that ‘Old School’ [Herman Smith] actually fired his weapon, that otherwise could be inferred

from the numerous .380 shell casings recovered.” Although there was testimony that Smith

owned a .380 pistol, neither Burdette nor any other witness at trial ever contended or implied

that Smith had fired a weapon during the incident. Burdette contended only that Smith had

pointed the weapon at him. No evidence was before the jury to indicate that anyone other

than Burdette had fired bullets at the scene. Burdette’s sole theory in this case was that he

fired in self-defense after Smith pointed, but did not fire, a pistol at him. Since all of the


                                              15
properly admitted evidence – including statements by the victim himself prior to his death,

and testimony by both the defendant and eyewitness Robert Walker – showed that the sole

shooter was Derrick Burdette, the improperly admitted evidence that the bullets at the scene

were fired by Burdette’s Sig Sauer handgun did not harm or prejudice him. Because we find

that the constitutional errors in this case did not prejudice the outcome of the trial, there was

no manifest miscarriage of justice and no reversible error.

                                       CONCLUSION

¶27.   We affirm the judgment of conviction and sentence entered by the Circuit Court for

the Second Judicial District of Panola County.

¶28. CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY (20)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH CONDITIONS, AFFIRMED. SENTENCE SHALL RUN
CONSECUTIVELY WITH ALL OTHER SENTENCES. APPELLANT SHALL
RECEIVE CREDIT FOR 133 DAYS PREVIOUSLY SERVED IN THIS CAUSE AND
PAY COURT COSTS AND A FINE OF $6,000.00 TO THE CRIME VICTIM
COMPENSATION FUND, WITH CONDITIONS.

     WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS,
CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR. KITCHENS, J.,
SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY
DICKINSON, P.J., CHANDLER AND KING, JJ.

       KITCHENS, JUSTICE, SPECIALLY CONCURRING:

¶29.    I agree that Burdette’s conviction must be affirmed, as he has not raised any issues

warranting reversal. I write separately to ensure that my vote in no way implies any sort of

approval of the improperly admitted evidence.

¶30.   I agree with the majority that a plain-error review is appropriate, because the manner

in which certain evidence was presented immediately calls to mind the accused’s



                                               16
constitutional right to confront the witnesses against him. U.S. Const. amend. VI; Miss.

Const. art. 3 § 26. The officer’s testimony and admission of the laboratory report should

prompt us to question the constitutional implications of this evidence, especially in the

context of the facts presented. Detective Williford testified that someone from the company

that manufactured Burdette’s handgun had said the pistol was capable of firing .380

ammunition, but the police were unable to obtain written confirmation from the

manufacturer. In addition to this unverified hearsay, the crime laboratory report matching

Burdette’s nine-millimeter pistol to all of the shell casings and most of the bullets was

admitted into evidence via Detective Williford, without any testimony from the person who

had performed the testing. Notably, there was evidence that might cause a juror to question

Williford’s testimony, including testimony that Smith, the shooting victim, was known to

carry a .380 calibre pistol and that Smith had threatened to kill Burdette. Burdette also

claimed that he had shot Smith in self-defense, and seven .380 casings were found in and

around his car. However, Burdette’s gun was a Sig Sauer nine-millimeter pistol, and the

evidence offered as proof that this weapon was capable of firing .380 ammunition is the very

evidence claimed by Burdette to have violated the Confrontation Clause.

¶31.   Despite the curious nature of this evidence, it would be a stretch to find plain error

when, as here, it turned out to be consistent with the defendant’s prior statements and his trial

testimony. Burdette never said that Smith had fired a weapon, and Burdette never disputed

that he had fired the nine-millimeter handgun recovered by law enforcement personnel and

received into evidence at trial. The evidence now complained of on appeal did not conflict

with Burdette’s version of the facts. Therefore, we cannot say that the admission of this


                                               17
evidence resulted in a “manifest miscarriage of justice,” when, based on the record before

us, there was no apparent contradiction between this evidence and Burdette’s account of

relevant events. See, e.g., Cox v. State, 793 So. 2d 591, 599 (Miss. 2001) (“To constitute

plain error, the trial court must have deviated from a legal rule, the error must be plain, clear

or obvious, and the error must have prejudiced the outcome of the trial.”) (citing Grubb v.

State, 584 So. 2d 786, 789 (Miss. 1991); Porter v. State, 749 So. 2d 250, 260-61 (Miss. Ct.

App.1999)).

¶32.   Additionally, I have significant reservations regarding the testimony from another

officer that, in his experience, the Sig Sauer nine-millimeter was capable of firing .380

calibre ammunition. Without any evidence that the officer’s experience qualified him as an

expert on this subject, his opinion testimony did not meet the legal requirements for

admission. See M.R.E. 701 (opinion testimony by lay witness); M.R.E. 702 (testimony by

experts). Whether a firearm with a rifled barrel that is of a particular calibre is capable of

firing ammunition of a different calibre is a technical question that may have numerous

subparts, including, but not necessarily limited to, whether the weapon merely is capable of

firing such other-calibre ammunition one time, or whether it is capable of doing so multiple

times, semi-automatically, without the necessity of reloading manually after each shot. It is

the sort of question that, in a trial setting, usually would have been submitted to an expert,

or to multiple experts, in advance of the trial, and subjected to appropriate scientific study

by such expert(s) in accordance with established testing procedures. A different set of testing

procedures likely would be required to ascertain whether it was possible for a certain firearm

to have fired other-calibre ammunition. Forensic firearms examiners might also be called

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upon to determine whether a certain firearm had fired ammunition of the same calibre, but

of different brands or configurations or comprised of different components.

¶33.   However, there was no objection to this opinion testimony. Therefore, like the

laboratory report and the unverified statements of the pistol’s manufacturer regarding the

gun’s firing capabilities, the admission of this evidence does not warrant reversal on appeal

absent plain error. Given that there was no apparent conflict between this evidence offered

by the State and the defendant’s self-defense claim, it cannot be said that there was an

obvious, prejudicial effect on the jury’s verdict. See, e.g., McGee, 953 So. 2d at 215

(explaining that plain error requires reversal if “the error results in a manifest miscarriage of

justice”) (citing Williams v. State, 794 So. 2d 181, 187-88 (Miss. 2001), overruled on other

grounds, Brown v. State, 995 So. 2d 698, 708 (Miss. 2008)). It is not difficult to imagine

that, under a different set of facts, this evidence might very well require reversal.

       DICKINSON, P.J., CHANDLER AND KING, JJ., JOIN THIS OPINION.




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