        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2016-KA-00659-COA

MITCHELL ROBERTS A/K/A JAMES                                            APPELLANT
MITCHELL ROBERTS A/K/A MITCHELL
JAMES ROBERTS A/K/A MITCHELL J.
ROBERTS A/K/A JAMES ROBERTS

v.

STATE OF MISSISSIPPI                                                      APPELLEE

DATE OF JUDGMENT:                        04/06/2016
TRIAL JUDGE:                             HON. LESTER F. WILLIAMSON JR.
COURT FROM WHICH APPEALED:               LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: BARBARA W. BYRD
DISTRICT ATTORNEY:                       BILBO MITCHELL
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED: 10/17/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.

      GRIFFIS, P.J., FOR THE COURT:

¶1.   Mitchell James Roberts was convicted of aggravated driving under the influence

(DUI) after a jury found that he operated a motor vehicle while under the influence of an

intoxicating substance, specifically, Xanax, which impaired his ability to drive, and

negligently caused the death of Arnold Altman Jr. Roberts was sentenced to twenty-five

years, with seven years suspended, leaving eighteen years to serve in the custody of the

Mississippi Department of Corrections, followed by five years of postrelease supervision.
Additionally, Roberts was ordered to pay all court costs, a $2,000 fine, and restitution in the

amount of $7,150. Following the denial of his posttrial motions, Roberts timely appealed.

Upon review, we find no error and affirm.

                                           FACTS

¶2.    On July 13, 2013, around 3:00 p.m., fourteen-year-old Altman Jr., who was a

passenger in his father’s automobile, died when his father’s vehicle was struck head-on by

a truck driven by Roberts. The accident occurred on a four-lane bridge on Highway 19 in

Meridian.

¶3.    At the time of the accident, Altman Jr. and his father were traveling to the store. As

they were driving, a truck, driven by Roberts and traveling in the opposite direction, crossed

the median-like lane, veered into the Altmans’ lane of traffic, and struck the passenger side

of the Altmans’ vehicle head-on, killing Altman Jr. Many witnesses observed the accident

and offered their assistance. Two of the witnesses, Margaret Davis and Stephanie Ruffin,

were nurses and testified at trial.

¶4.    Davis testified that she and her husband were traveling on Highway 19 when

Roberts’s truck veered toward their vehicle. Davis commented to her husband that the driver

almost hit them. As her husband continued to drive, Davis turned around and saw the truck

veer into oncoming traffic and “implode” into the Altmans’ vehicle. Davis and her husband

turned around in order to provide assistance. Davis initially went to Roberts’s vehicle and

attempted to give him aid. However, Roberts was incoherent. Davis stated that Roberts was

awake, but out of it and could not form a sentence.



                                              2
¶5.    In an attempt to explain Roberts’s behavior following the accident, defense counsel

suggested that Roberts was suffering from retrograde amnesia. While Davis acknowledged

that retrograde amnesia was common in people involved in automobile crashes, she did not

think Roberts was suffering from amnesia, but instead thought he appeared to be under the

influence of drugs or alcohol. Davis described Roberts’s face as “diaphoretic,” or sweaty,

and his pupils as “pinpoint.”

¶6.    Ruffin also saw Roberts veer out of his lane of traffic. Ruffin stated it was not an

abrupt move, but instead described Roberts as “gradually drifting” out of his lane. Based on

Roberts’s driving, Ruffin assumed he was texting and driving. However, Ruffin stated her

assumption changed when she saw the impact.

¶7.    Ruffin initially went to the Altmans’ vehicle and helped Altman out of the car.

However, she noticed Altman Jr. was not responsive and did not have a pulse. She then went

to Roberts’s truck. Ruffin described Roberts as “in and out” and stated his speech was

slurred. When Ruffin asked Roberts what had happened, Roberts responded that he had

“blacked out” or “blanked out.”

¶8.    Detective Greg Crain of the Meridian Police Department testified that he was called

to the scene of the accident at approximately 3:30 p.m. After Crain assessed the scene and

took photographs, he went to the hospital, where he eventually spoke with Roberts. Roberts

told Crain that the last thing he remembered was leaving his friend’s house in Collinsville.

Roberts asked Crain how the passenger of his truck was doing. However, Crain explained

to Roberts that he was the only person in his vehicle. Although Roberts did not recall what



                                             3
he was doing at his friend’s house, he admitted to Crain that he had consumed two beers

prior to the accident.

¶9.    Crain executed an affidavit and obtained a search warrant in order for a sample of

Roberts’s blood and urine to be seized and tested for the presence of drugs and alcohol. The

samples were collected at 6:35 p.m., over three hours after the accident occurred.

¶10.   Kara Jackson, a hospital nurse who treated Roberts in the emergency room, testified

that Roberts arrived at 3:28 p.m. and was agitated and cursing, but alert, oriented, and able

to follow commands. Jackson described Roberts’s eyes as reactive, equal in size, and small,

but not pinpoint. According to Jackson, Roberts’s skin was not diaphoretic when he arrived

at the hospital.

¶11.   Jackson noted that Roberts was experiencing “amnesia event retrograde,” since he

could not recall any details of the accident. However, Dr. Lindsey Prewitt, an internal-

medicine doctor, testified that based on her consultation with Roberts, there was no

indication of retrograde amnesia, and there was nothing in his medical history to support such

a finding. Additionally, Dr. William Billups III, a surgeon who treated Roberts in the

emergency room, testified that based on his consultation with other specialists, there was no

indication of any underlying medical problems, including head injury or seizure, which might

have caused or contributed to the accident.

¶12.   When asked about his medical history, Roberts advised the hospital staff that he was

not taking any medications and was not being treated for any medical issues. However, the

blood test revealed Roberts had benzodiazepines in his system. Specifically, the compound



                                              4
identified in his system was alprazolam, otherwise known as Xanax.1 Further testing

revealed Roberts had fifty-one nanograms per milliliter of Xanax in his system. According

to expert testimony, this amount of Xanax is within the therapeutic range. Roberts did not

test positive for alcohol.

¶13.   Maury Phillips, the State’s toxicology expert, testified that Xanax is usually prescribed

to manage anxiety or panic disorders. Phillips stated that the two most common side effects

of Xanax are drowsiness and light-headedness, but also include confusion, sweating, slurred

speech, pinpoint pupils, and “syncope,” which “means that you might faint or black out.”

Phillips explained that the effects of and tolerance to Xanax varied from person to person and

were influenced by the duration of use and the amount taken.

¶14.   Importantly, Phillips testified that impairment can still occur within the therapeutic

range. He explained that there was not a direct correlation between driving impairment and

drug concentration “like we have for alcohol to say that if you’re a certain number, you’re

impaired.”

¶15.   Phillips admittedly did not review Roberts’s medical records and was unable to render

an opinion as to whether Roberts was driving impaired based on the concentration of Xanax

alone, since the amount in his system was within the therapeutic range. According to

Phillips, in order to make an assessment about drug-induced driving impairment, you must

consider all of the evidence, including the particular events surrounding the accident, any

eyewitness testimony, the results of the toxicology report, and the individual’s information,



       1
           It is undisputed that Roberts was not administered Xanax while in the hospital.

                                               5
such as his medical history, drug tolerance, and reason for the drug use.

¶16.   Roberts’s information and medical history regarding his use of Xanax, including the

duration of use, the amount taken, and the reason for use, or whether the medication was

even prescribed, was unknown.2 However, Phillips stated that Davis’s and Ruffin’s

observations at the accident scene, along with the testimony regarding Roberts’s erratic

driving, were indicators of impairment.

¶17.   Dr. Richard Ogletree Jr., an expert in toxicology and pharmacology, testified on behalf

of Roberts. When asked whether Roberts was impaired, Ogletree, like Phillips, stated that

such a determination required specific clinical observations in addition to blood-

concentration levels. However, unlike Phillips, Ogletree reviewed Roberts’s medical records

and stated there was no evidence of impairment in the records. Ogletree stated he could not

consider Davis’s and Ruffin’s observations at the accident scene, since they were not made

under clinical conditions, nor were they contemporaneously recorded.

¶18.   Ogletree testified that while fifty-one nanograms of Xanax per milliliter of blood is

in the middle of a therapeutic range, a person could still be impaired with such a blood-

concentration level. Ogletree agreed that tolerance is important in determining impairment,

but could not state whether Roberts had built up a tolerance, since he had not spoken with

Roberts or reviewed any medical history or medical records, other than those related to the

accident.

¶19.   Prior to trial, Roberts moved to suppress the results of the blood sample seized

       2
       The record shows Roberts did not disclose to anyone, including his own expert, any
information regarding his use of Xanax.

                                              6
pursuant to the search warrant obtained by Crain. Roberts claimed “there was no probable

cause to believe that [he] was operating a motor vehicle under the influence of drugs and/or

alcohol,” and, therefore, no “substantial credible evidence” existed to support the issuance

of the search warrant. A motion hearing was held wherein Crain and the municipal court

judge who issued the search warrant testified. The circuit court subsequently denied the

motion to suppress.

¶20.   Following his conviction, Roberts filed a motion for a judgment notwithstanding the

verdict and a motion for a new trial, both of which were denied. Roberts now appeals and

argues: (1) the evidence was insufficient to support the verdict , (2) the verdict was contrary

to the overwhelming weight of the evidence, (3) his confrontation rights were compromised

since the circuit court allowed the technical reviewer to testify in lieu of the actual crime-lab

analyst, (4) the circuit court erroneously denied his motion to suppress since there was

insufficient probable cause to issue the search warrant, and (5) he received an “unfair” trial

as a result of the prosecutor’s improper closing arguments.

                                         ANALYSIS

       I.     Sufficiency of the Evidence

¶21.   In considering whether the evidence is sufficient to sustain a conviction, “the relevant

question is whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citation omitted).

Where the facts and inferences “point in favor of the defendant on any element of the offense



                                               7
with sufficient force that reasonable men could not have found beyond a reasonable doubt

that the defendant was guilty,” the proper remedy is to reverse and render. Id. However, if

“reasonable fair-minded men in the exercise of impartial judgment might reach different

conclusions on every element of the offense, the evidence will be deemed to have been

sufficient.” Id. (citation and internal quotation marks omitted).

¶22.    Roberts was convicted of aggravated DUI in violation of Mississippi Code Annotated

section 63-11-30(5) (Rev. 2012). The essential elements for such offense are:

        (1) that the defendant negligently caused the death, disfigurement, or
        permanent disability . . . of another (2) while operating a motor vehicle under
        the influence of alcohol or [any other substance,] which has impaired such
        person’s ability to operate a motor vehicle.

Irby v. State, 49 So. 3d 94, 99 (¶11) (Miss. 2010) (citing Miss. Code Ann. § 63-11-30(1)(b),

(5)).

¶23.    It is undisputed that Roberts negligently caused the death of Altman Jr. However,

Roberts claims the State failed to prove that he was “operating [his] motor vehicle under the

influence of . . . [any substance,] which . . . impaired [his] ability to” drive. Id. We disagree

and find sufficient evidence to support the verdict.

¶24.    The testimonial evidence indicates Roberts swerved recklessly while he drove and was

unable to maintain his lane of traffic or control of his vehicle. Testimony further shows

Roberts exhibited the side effects of Xanax, including disorientation, confusion, slurred

speech, pinpoint pupils, diaphoretic, and syncope.

¶25.    While both experts opined that the amount of Xanax in Roberts’s system was within

the therapeutic range, both agreed that the amount was at a level that could cause impairment

                                               8
and affect his ability to drive. Phillips testified that eight to 640 nanograms per milliliter was

the range for DUI-reported arrests. Thus, the amount in Roberts’s system was within a range

that caused or contributed to impaired driving in people who had been arrested for DUI.

¶26.   Additionally, Ogletree testified regarding a study wherein the test subjects were given

one milligram of Xanax. The results showed that one milligram of Xanax, which would

equate to around ten nanograms per milliliter in the blood, had a significant impact on the

person’s ability to drive. In fact, six out of ten people fell asleep during the study and could

not continue to drive. The study showed photographs of the participants “swerving across

the road.” Here, the record shows Roberts had fifty-one nanograms per milliliter of Xanax

in his blood, five times the amount in the study.

¶27.   Both experts agreed that how often a person takes Xanax would affect any reaction

he or she experienced. For instance, a person who takes Xanax acutely, or once in a while,

would experience more of an effect than a person who had been taking the drug chronically,

or multiple times a day for a period of weeks. Whether Roberts took Xanax once or whether

he had taken it chronically is unclear. However, it is clear, based on the record, that Roberts

was operating a motor vehicle while under the influence of Xanax and exhibited signs of

impairment.

¶28.   Based on the evidence presented, and considering the evidence in the light most

favorable to the State, a rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Accordingly, we find sufficient evidence exists to support

the verdict. Thus, Roberts’s motion for a judgment notwithstanding the verdict was properly



                                                9
denied.

       II.    Weight of the Evidence

¶29.   “When reviewing a denial of a motion for new trial based on an objection to the

weight of the evidence, we will only disturb a verdict when it is so contrary to the

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

unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18). The evidence is weighed in the

light most favorable to the verdict. Id.

¶30.   Here, the prosecution showed Roberts had Xanax in his system at the time of the

accident and exhibited signs of impairment. The fact that conflicting evidence was presented

does not warrant the granting of a new trial. See Williams v. State, 64 So. 3d 1029, 1032

(¶10) (Miss. Ct. App. 2011) (“[A] new trial should be [granted] only in exceptional cases in

which the evidence preponderates heavily against the verdict.”). “The jury is the sole judge

of the weight of the evidence and the credibility of the witnesses.” Id. at 1033 (¶13).

“Conflicts in the evidence are for the jury to resolve.” Id.

¶31.   Having considered the evidence presented, we do not find the verdict to be so contrary

to the overwhelming weight of the evidence that to allow the verdict to stand would sanction

an unconscionable injustice. Accordingly, we find the circuit court’s denial of Roberts’s

motion for a new trial was proper.

       III.   Roberts’s Confrontation Rights

¶32.   Phillips, the supervisor for the toxicology and implied-consent section of the

Mississippi Forensics Laboratory, testified regarding the results of Roberts’s blood and urine



                                             10
tests. Although Phillips did not conduct the testing of Roberts’s blood and urine, he served

as the technical and administrative reviewer of the primary analyst’s testing and released the

report.3

¶33.   Roberts claims that since Phillips was not actively involved in the production of the

lab report and did not reveal an intimate knowledge about the testing, he should not have

been allowed to testify in lieu of the primary analyst who conducted the tests and issued the

report. As a result, Roberts claims his “rights to confront his accusers were circumvented.”

¶34.   In criminal cases, the accused has a constitutional right to confront the witnesses

against him. U.S. Const. amend. VI; Miss. Const. art. 3, § 26. The Mississippi Supreme

Court has held that a supervisor, reviewer, or other analyst may testify in lieu of the primary

analyst where the surrogate witness was “actively involved in the production of the report

and had intimate knowledge of the analyses even though [he or] she did not perform the tests

first hand.” McGowen v. State, 859 So. 2d 320, 340 (¶68) (Miss. 2003). Additionally,

       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.

Id. at 339 (¶68).

¶35.   Here, Phillips was a court-accepted expert in the field of toxicology. The record

shows Phillips was actively involved in the production of the report, had intimate knowledge

of the tests that were performed and the process that was used to confirm the findings, and



       3
        The primary analyst was Duriel McKinsey. At the time of trial, McKinsey was no
longer employed at the crime lab and no longer lived in Mississippi.

                                              11
reviewed the analyst’s work, including the data, to ensure that the conclusions were correct

and accurate.

¶36.   Specifically, Phillips testified that once an analyst has completed the analysis, his

work packet is submitted for review. Phillips explained that all reports issued by an analyst

must be technically and administratively reviewed before they are released. Phillips stated

that as the technical and administrative reviewer in this case, he verified that the analyst

followed protocol and used the proper scientific methods of toxicology. Moreover, Phillips

stated he received the analyst’s work packet “with all of the data” and examined it to ensure

that the policies were followed and that the analyst’s conclusions were accurate and correct.

We find Phillips, as the technical and administrative reviewer, was qualified to testify as a

surrogate witness in lieu of the primary analyst.

¶37.   Roberts further claims Phillips, as a surrogate witness, never rendered his own

independent opinion, but instead “[became] a mere hearsay conduit for the original analyst.”

Roberts argues that “[n]ot requiring a surrogate witness . . . to render an independent opinion

is, therefore, inconsistent with Rule 703 [of the Mississippi Rules of Evidence].” We

disagree.

¶38.   At the time of trial, Rule 7034 stated as follows:

       The facts or data in the particular case upon which an expert bases an opinion
       or inference may be those perceived by or made known to him at or before the
       hearing. If of a type reasonably relied upon by experts in the particular field
       in forming opinions or inferences upon the subject, the facts or data need not
       be admissible in evidence.



       4
           The Mississippi Rules of Evidence were stylistically revised, effective July 1, 2016.

                                               12
Rule 703 allows an expert to base his opinion on the opinions of others which are not in

evidence “so long as experts in the field ordinarily rely on such opinions in forming their own

opinions.” Alexander v. State, 759 So. 2d 411, 420 (¶30) (Miss. 2000). The Mississippi

Supreme Court has held that the opinion of a nontestifying expert is a type of evidence

reasonably relied upon by experts in forming their own opinions. Id. at (¶¶29-31). Thus, it

is admissible hearsay when relied on by a testifying expert. Id.

¶39.   Phillips offered his expert opinion as the technical and administrative reviewer of the

primary analyst’s testing. The record shows Phillips testified regarding his findings and

analysis of the work and data generated by the primary analyst. Phillips opined that based

on the screening methods used and the findings that he confirmed, Roberts’s blood was

positive for benzodiazepines, and that the compound in Roberts’s blood was alprazolam,

otherwise known as Xanax. Thus, the record makes clear that Phillips was not “so far

removed from the analysis as to be essentially a records custodian for the purposes of

testifying at trial.” McGowen, 859 So. 2d at 339 (¶68).

¶40.   Overall, we find Phillips’s testimony did not violate Roberts’s constitutional right to

confront witnesses against him and was permissible under Rule 703. See Byrd v. State, 741

So. 2d 1028, 1033 (¶23) (Miss. Ct. App. 1999) (finding defendant in a rape trial was not

denied confrontation when the DNA expert had not performed or observed the DNA testing

procedures, but testified to her analysis of the scientific data obtained from the technicians).

       IV.    Motion to Suppress

¶41.   At the hearing on the motion to suppress, the municipal court judge who issued the



                                              13
search warrant testified that “the only substance that was brought to [his] attention was

alcohol.” As a result, Roberts claims the search warrant used to seize his blood was invalid,

as no probable cause existed for a drug analysis. Thus, Roberts argues the circuit court erred

in denying his motion to suppress.

¶42.   “The Fourth Amendment prohibition against unreasonable search and seizure applies

when an intrusion into the body—such as a blood test—is undertaken without a warrant,

absent an emergency situation.” Cole v. State, 493 So. 2d 1333, 1336 (Miss. 1986). “A

search warrant is validly issued when based upon probable cause.” Thompson v. State, 92

So. 3d 691, 695 (¶8) (Miss. Ct. App. 2012) (quoting Phinizee v. State, 983 So. 2d 322, 328

(¶18) (Miss. Ct. App. 2007)). Our supreme court has described probable cause as follows:

       Probable cause is a practical, nontechnical concept, based upon the
       conventional considerations of everyday life on which reasonable and prudent
       men, not legal technicians, act. It arises when the facts and circumstances
       within an officer’s knowledge, or of which he has reasonably trustworthy
       information, are sufficient in themselves to justify a man of average caution
       in the belief that a crime has been committed and that a particular individual
       committed it.

Id. (citation omitted).

¶43.   “Probable cause exists where it is based on ‘information reasonably leading an officer

to believe that then and there contraband or evidence material to a criminal investigation

would be found.’” Id. at 696 (¶9) (quoting Phinizee, 983 So. 2d at 328 (¶18)). “[P]robable

cause is determined by assessing the ‘totality of the circumstances.’” Id. In reviewing a

finding of probable cause, “this Court does not make a de novo determination of probable

cause, but only determines if there was a substantial basis for the determination of probable



                                             14
cause.” Id. at 695 (¶7) (quoting Roebuck v. State, 915 So. 2d 1132, 1137 (¶12) (Miss. Ct.

App. 2005)). “On appeal, the issuance of a warrant will not be reversed where substantial

evidence supports the [issuing judge’s] determination that probable cause existed.” Phinizee,

983 So. 2d at 328 (¶18).

¶44.   According to his affidavit and testimony at the suppression hearing, Crain had

information that witnesses observed Roberts’s erratic driving and saw him cross over into

the oncoming lane of traffic. Additionally, Crain was advised that prior to the accident, an

anonymous caller had contacted law enforcement, complained of Roberts’s erratic driving,

and provided a license-plate number. When officers arrived at the scene, they were able to

confirm the information provided by the anonymous tip. Moreover, when talking to Roberts

at the hospital, Crain detected the faint smell of alcohol.

¶45.   As the circuit court properly noted during the suppression hearing,

       Crain felt that it’s obvious that there was an impaired driver, impaired to the
       point where you are driving erratically and in the wrong lane. A faint smell of
       alcohol would indicate that [alcohol] may be part of it, but . . . that [alcohol is]
       not all of it.

       The fact that [Crain] didn’t mention what drug that might be, he couldn’t
       know. That’s why he asked that the blood be tested. And obviously, [Crain]
       [felt] like he [had] a severely impaired driver and only a faint smell of alcohol.
       [T]hat’s . . . why he asked for the authority to search for alcohol and/or drugs
       present in [Roberts’s] blood.

¶46.   Although the municipal court judge did not recall a discussion regarding potential

drug impairment, he acknowledged that Crain’s affidavit specifically stated that blood and

urine were needed to determine if Roberts was driving under the influence of drugs or

alcohol. Moreover, the municipal court judge acknowledged that the warrant he read and

                                               15
signed authorized drug and alcohol testing.

¶47.   Considering the totality of the circumstances, we find substantial evidence supports

the municipal court judge’s determination that probable cause existed. As probable cause

existed for the issuance of the search warrant, the circuit court did not err in denying

Roberts’s motion to suppress.

       V.       Prosecutorial Misconduct

¶48.   Roberts last asserts the prosecutor committed prosecutorial misconduct during his

rebuttal closing argument when he made the following statement:

       It ain’t about nothing except you good people in Lauderdale County letting
       him know that you’re not going to allow him to drive impaired on the highway
       and kill our children.

Although no objection was made in response to the statement, Roberts argues this was an

improper “send a message” argument and asks this Court to find plain error.

¶49.   “The supreme court has condemned any prosecution suggestion that the jurors ‘send

a message’ with a verdict.” Forbes v. State, 771 So. 2d 942, 950 (¶25) (Miss. Ct. App.

2000). To determine whether a “send a message” argument constitutes reversible error, we

apply two threshold questions, followed by a two-pronged test, as outlined in Spicer v. State,

921 So. 2d 292, 318 (¶55) (Miss. 2006). O’Connor v. State, 120 So. 3d 390, 399 (¶23)

(Miss. 2013).

¶50.   The first threshold inquiry is whether defense counsel objected to the statement at

issue. Id. While the failure to contemporaneously object generally waives a claim of

prosecutorial misconduct during closing argument, “we will review such a claim if the



                                              16
prosecutor’s statement was so inflammatory that the [circuit] judge should have objected on

his own motion.” Id. at (¶26). For the second threshold inquiry, we must consider “whether,

in light of the surrounding circumstances, defense counsel invited the statement.” Id. at

(¶24).

¶51.     If the threshold inquiries are met, then the Court must proceed to the two-pronged test

set forth in Spicer and determine “(1) whether the [prosecutor’s] remarks were improper, and

(2) if so, whether the remarks prejudicially affected the accused’s rights.” Id. at (¶25)

(quoting Spicer, 921 at 318 (¶55)).

¶52.     Here, it is undisputed that no objection was made by defense counsel. Nevertheless,

we do not find that the prosecutor’s statement was so inflammatory that the circuit judge

should have objected on his own motion. Moreover, the record shows defense counsel

invited the statement.

¶53.     During his closing argument, defense counsel stated as follows:

         This question is about whether or not Mitchell Roberts is criminally
         responsible for this death. This is not about race.[5] This is not about whether
         black lives matter in Meridian[,] Lauderdale County, Mississippi. They do.
         This is not about whether there’s equal access to justice in Meridian[,]
         Lauderdale County, Mississippi[,] for African Americans as well as white
         folks. There is. The issue for y’all to decide is whether or not Mitchell
         Roberts was impaired by Xanax on that day.

In response, during his rebuttal closing argument, the prosecutor made the following

statement:

         It ain’t about black/white. It ain’t about nothing except you good people in
         Lauderdale County letting him know that you’re not going to allow him to

         5
             Roberts is Caucasian; Altman Jr. was African American.

                                               17
       drive impaired on the highway and kill our children.

(Emphasis added to note the portion omitted by Roberts).

¶54.   Based on the transcript, it appears Roberts has taken the prosecutor’s comment out of

context. “Given the latitude afforded an attorney during closing argument, any allegedly

improper prosecutorial comment[s] must be considered in context, considering the

circumstances of the case, when deciding on their propriety.” Ahmad v. State, 603 So. 2d

843, 846 (Miss. 1992). Considering the context in which the comment was made and the

circumstances of the case, we find the prosecutor’s remarks were made in response to the

defense counsel’s comments on race.

¶55.   Upon review, we find the prosecutor’s statement was invited by defense counsel and

was not so inflammatory that the circuit judge should have objected. As a result, the

threshold inquiries for prosecutorial misconduct have not been met, and this issue is therefore

waived. See O’Connor, 120 So. 3d at 400 (¶27).

¶56.   Notwithstanding the waiver, we find the prosecutor’s comments do not survive the

two-part test of Spicer. A statement is not “improper simply because it sends a message that

the community will not tolerate violence . . . .” Spicer, 921 So. 2d at 318 (¶55). Instead, a

statement is improper if it “tend[s] to cajole or coerce a jury to reach a verdict for the purpose

of meeting public favor and not based on the evidence.” Id.

¶57.   Here, defense counsel advised the jury that it must decide whether Roberts was

impaired by Xanax and was therefore criminally responsible for Altman Jr.’s death. In

response, the prosecutor advised that if the jury determined that Roberts drove impaired and



                                               18
killed fourteen-year-old Altman Jr., he would face the consequences of his actions. Such

comments did not urge the jury to reach a verdict based on emotion or public favor. Instead,

the comments were based on the evidence presented at trial.

¶58.   Additionally, Roberts’s rights were not prejudicially affected by the prosecutor’s

remarks. Indeed, a review of the record shows that absent the prosecutor’s comments during

closing arguments, the jury would still have found Roberts guilty. See Brown v. State, 986

So. 2d 270, 276 (¶16) (Miss. 2008) (To meet the second prong of the Spicer test, it must be

clear that absent the prosecutor’s comments, the jury would have found the defendant

guilty.). Accordingly, Roberts’s claim of prosecutorial misconduct fails.

                                     CONCLUSION

¶59.   We find the judgment of the Lauderdale County Circuit Court of conviction of

aggravated DUI and sentence of twenty-five years in the custody of the Mississippi

Department of Corrections, with seven years suspended and eighteen years to serve, followed

by five years’ reporting postrelease supervision, a $2,000 fine, and $7,150 in restitution,

should be affirmed.

¶60.   AFFIRMED.

    LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE
AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.




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