       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                            NO. 2014-KA-01292-COA

HENRY J. PARKER, JR. A/K/A HENRY                                     APPELLANT
JACKSON PARKER, JR. A/K/A HENRY
PARKER, JR.

v.

STATE OF MISSISSIPPI                                                   APPELLEE


DATE OF JUDGMENT:                      02/12/2014
TRIAL JUDGE:                           HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED:             HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:               OFFICE OF STATE PUBLIC DEFENDER
                                       BY: GEORGE T. HOLMES
                                           MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE:                 OFFICE OF THE ATTORNEY GENERAL
                                       BY: BILLY L. GORE
DISTRICT ATTORNEY:                     JOEL SMITH
NATURE OF THE CASE:                    CRIMINAL - FELONY
TRIAL COURT DISPOSITION:               CONVICTED OF POSSESSION OF A
                                       CONTROLLED SUBSTANCE WITH
                                       INTENT TO DISTRIBUTE AND
                                       SENTENCED TO TWENTY YEARS IN THE
                                       CUSTODY OF THE MISSISSIPPI
                                       DEPARTMENT OF CORRECTIONS, WITH
                                       TEN YEARS SUSPENDED, FOLLOWED BY
                                       TEN YEARS OF POSTRELEASE
                                       SUPERVISION
DISPOSITION:                           AFFIRMED - 11/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., CARLTON AND FAIR, JJ.

      CARLTON, J., FOR THE COURT:

¶1.   After a trial held on February 11, 2014, a Harrison County jury convicted Henry
Parker Jr. of possession of a controlled substance with intent to distribute. The trial court

sentenced Parker to twenty years in the custody of the Mississippi Department of Corrections

(MDOC) with ten years suspended. The trial court further ordered that “[u]pon release from

incarceration, [Parker] shall be placed on three years reporting postrelease supervision with

any remainder as non-reporting postrelease supervision.” The trial court also ordered Parker

to pay a $2,000 fine, court costs, restitution, and other assessments.

¶2.    Parker filed a motion for a new trial or a judgment notwithstanding the verdict

(JNOV), which the trial court denied. Parker now appeals, arguing that the trial court erred

by allowing a drug analyst other than the one who performed testing on the substance to

testify about the test results and provide his own conclusion that the substance was

marijuana. Finding no error, we affirm.

                                          FACTS

¶3.    On September 18, 2010, Officer Pablo de la Cruz of the Harrison County Sheriff’s

Department stopped Parker on I-10 for driving carelessly. Officer de la Cruz inquired as to

whether Parker had “any kind of problems,” and Parker informed Officer de la Cruz that he

had diabetes and had not eaten recently. Parker also stated that he left his insulin and blood

meter in Texas. Officer de la Cruz offered to seek medical assistance and call an ambulance,

which Parker refused.

¶4.    As Officer de la Cruz talked with Parker, he noticed Parker acting nervously and

fidgeting. Officer de la Cruz also noticed that there were empty food containers in the car,

indicating that Parker had eaten recently. Parker informed Officer de la Cruz that he was



                                              2
traveling from Houston, Texas, to Moss Point, Mississippi, for a church opening; but Officer

de la Cruz observed no luggage in the back of the car. Officer de la Cruz then asked Parker

for consent to search the car. Parker consented. After Parker signed the consent form,

Officer de la Cruz opened the trunk of the rental car and saw nine cattle-feed bags, all full

of what Officer de la Cruz believed to be marijuana.

¶5.      A grand jury indicted Parker for possession of a controlled substance with the intent

to transfer or distribute, in violation of Mississippi Code Annotated section 41-29-139(a)(1)

(Supp. 2015), and a trial was held on February 11, 2014. At trial, Parker testified that he was

traveling to Moss Point to meet with various individuals about developing businesses in the

area. Parker explained that he had made five and ten trips to meet with these individuals in

Moss Point. Parker testified that the individuals he met with would rent a car for Parker to

drive.

¶6.      Timothy Gross, a forensic analyst, and also the associate director and regional lab

manager of the Gulf Coast Regional Crime Laboratory, testified regarding the testing of the

substance found in Parker’s car. Gross testified that he did not personally test the substance

in the car; rather, he supervised Tasha Carnes, a scientist who was in training with the crime

lab, in her testing of the substance. Gross signed off on Carnes’s report, and he made the

ultimate decision to identify the substance as marijuana, based on the data that was collected.

Gross testified that the total weight of the marijuana was 91.7 kilograms. Carnes was not

called to testify at trial.

¶7.      After the State rested its case-in-chief, the defense moved for a directed verdict.



                                               3
Defense counsel argued that there was a

       question as to whether or not the lab tech who testified was the actual person
       who performed the test. In the event that he was not, then the evidence that it
       is in fact marijuana would be inadmissible. He said he supervised. I didn’t
       seem to get a straight answer as to whether he conducted the test.

The trial judge denied the motion.

¶8.    The jury ultimately found Parker guilty of possession of a controlled substance with

intent to distribute. The trial court sentenced Parker to twenty years in the custody of the

MDOC, with ten years suspended, and three years of postrelease supervision. The trial court

also ordered Parker to pay a $2,000 fine, court costs, restitution, and other assessments.

Parker filed a motion for a new trial or JNOV, which the trial court denied. This appeal

followed.

                                STANDARD OF REVIEW

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

discretion. We will not reverse the trial court's evidentiary ruling unless the error adversely

affects a substantial right of a party.” Newell v. State, 49 So. 3d 66, 71 (¶9) (Miss. 2010)

(citing Mingo v. State, 944 So. 2d 18, 28 (¶23) (Miss. 2006)). Constitutional issues are

reviewed de novo. Smith v. State, 25 So. 3d 264, 269 (¶10) (Miss. 2009).

                                       DISCUSSION

¶10.   Parker argues that the trial court erred by allowing a drug analyst other than the one

who performed testing on the substance to testify about the test results and provide his own

conclusion that the substance was marijuana. Parker claims that as a result of this error, he

was denied a fair trial, and that his Sixth Amendment right to confront witnesses against him


                                              4
was violated. Parker alleges that without proof that the substance in his car was marijuana,

the conviction against him cannot stand.

¶11.   At trial, the State called Gross to testify regarding the substance tested in connection

with this case. Gross explained that as the manager of the lab, one of his duties is to train

new laboratory scientists. Gross stated that “as a laboratory trainee reaches a certain point

in their development, they need to actually examine samples, and it’s my job to supervise

those persons as they examine samples.” Gross testified that Carnes, the new laboratory

scientist in training, “assisted with [Parker’s] case and assisted with the work in this case.”

Regarding the work performed on the substance in the present case, Gross testified that he

“did not personally collect all the data. [He] supervised the analysis, and [he] made all of the

decisions based on the data that was collected, and [he] made the identification. . . . [A]ll of

the data and all of the work that was done [he] personally supervised.” Gross stated that

based on the data collected and the analysis performed, he identified the substance found in

Parker’s car as marijuana.

¶12.   The defense did not object to Gross’s testimony at the time; however, at the close of

the State’s case-in-chief, the defense moved for a directed verdict, arguing that there was a

“question as to whether or not the lab tech who testified was the actual person who

performed the test.” The trial judge denied the motion for a directed verdict, and Parker

failed to preserve any objection to the trial court’s admission of Gross’s testimony at trial.

The failure to make a contemporaneous objection bars the issue from being raised on appeal.

Rubenstein v. State, 941 So. 2d 735, 751 (¶27) (Miss. 2006). We therefore review to



                                               5
determine if plain error occurred by allowing Gross’s testimony. See Foster v. State, 639 So.

2d 1263, 1289 (Miss. 1994) (“The defendant who fails to make a contemporaneous objection

must rely on plain error to raise the assignment on appeal.”); see also Anderson v. State, 5

So. 3d 1088, 1095 (¶12) Miss. Ct. App. 2007) (explaining the plain-error doctrine).

¶13.   The Mississippi Supreme Court has clarified:

       The Sixth Amendment to the United States Constitution and Article 3, Section
       26 of the Mississippi Constitution guarantee a criminal defendant the right to
       confront and cross-examine the 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.
       Though there is no exhaustive list defining testimonial statements, a document
       created solely for an evidentiary purpose ranks as testimonial. 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.

Jenkins v. State, 102 So. 3d 1063, 1066 (¶9) (Miss. 2012) (internal quotation marks and

citations omitted); see also Crawford v. Washington, 541 U.S. 36, 53-54, 59 (2004).

¶14.   In Jenkins, 102 So. 3d at 1064 (¶3), the Mississippi Supreme Court addressed this

exact same situation involving the exact same forensic analyst. The defendant, Robert

Jenkins, argued that the trial court erred “by allowing Gross, the laboratory supervisor, to

testify in place of the analyst who had performed the substance testing.” Id. at 1065 (¶7).

Like Parker, Jenkins asserted “that his Sixth Amendment right to confrontation was violated

because he was not provided an opportunity to cross-examine the analyst who had performed

the testing on the substance and authored the forensic report admitted as evidence against

him.” Id. The Jenkins court reviewed the record and found that

                                              6
       Gross was able to explain competently the types of tests that were performed
       and the analysis that was conducted. He performed “procedural checks” by
       reviewing all of the data submitted to ensure that the data supported the
       conclusions contained in the report. Based on the data reviewed, Gross
       reached his own conclusion that the substance tested was cocaine. His
       conclusion was consistent with the report, and he signed the report as the
       technical reviewer. Gross satisfied the McGowen test because he had
       “intimate knowledge” about the underlying analysis and the report prepared by
       the primary analyst.

Id. at 1069 (¶17).1 The Jenkins court reiterated 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 the analyses even

though [he] did not perform the tests firsthand.’” Id. at (¶19) (citing McGowen, 859 So. 2d

at 340 (¶68)).

¶15.   The supreme court also distinguished the facts of Jenkins from the facts of Melendez-

Diaz v. Massachusetts, 557 U.S. 305, 308-311 (2009). In Melendez-Diaz, 557 U.S. at 308,

the prosecution introduced three sworn certificates of state laboratory analysts without any

live testimony. The United States Supreme Court held that the “analysts' affidavits were

testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth

Amendment. Absent a showing that the analysts were unavailable to testify at trial and that

petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘be

confronted with’ the analysts at trial.” Id. at 311.



       1
          In McGowen v. State, 859 So. 2d 320, 339 (¶68) (Miss. 2003), the supreme court
held that “when the testifying witness is a court-accepted expert in the relevant field who
participated in the analysis in some capacity, such as by performing procedural checks, then
the testifying witness's testimony does not violate a defendant's Sixth Amendment rights.”


                                              7
¶16.     The Jenkins court ultimately found that the trial court did not abuse its discretion by

allowing Gross to testify regarding the laboratory report and identify the substance,

explaining that “Jenkins had the opportunity to confront and cross-examine Gross at trial,

which satisfied his Sixth Amendment right to confront the witness against him.” Jenkins,

102 So. 3d at 1069 (¶19); see also Grim v. State, 102 So. 3d 1073, 1078-81 (¶¶12-22) (Miss.

2012).

¶17.     In this case, the record reflects no abuse of discretion in the admission of Gross’s

testimony into evidence; accordingly, we also find that Gross’s testimony failed to

prejudicially affect Parker’s substantive rights or the fairness of his trial.

¶18. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE WITH
INTENT TO DISTRIBUTE AND SENTENCE OF TWENTY YEARS, WITH TEN
YEARS SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO HARRISON COUNTY.

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, MAXWELL,
FAIR, JAMES AND WILSON, JJ., CONCUR.




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