        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-KA-00859-COA

CASEY BIRKLEY A/K/A CASEY ANTONIO                                           APPELLANT
BIRKLEY A/K/A CASEY A. BIRKLEY

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          05/11/2015
TRIAL JUDGE:                               HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED:                 WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                         WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE:                        CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                   CONVICTED OF ARMED ROBBERY AND
                                           SENTENCED AS A HABITUAL OFFENDER
                                           TO LIFE IMPRISONMENT IN THE
                                           CUSTODY OF THE MISSISSIPPI
                                           DEPARTMENT OF CORRECTIONS
                                           WITHOUT ELIGIBILITY FOR PAROLE OR
                                           PROBATION
DISPOSITION:                               REVERSED AND REMANDED - 11/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       BARNES, J., FOR THE COURT:

¶1.    Casey Birkley appeals his armed-robbery conviction and sentence as a habitual

offender of life without parole in the custody of the Mississippi Department of Corrections

(MDOC), claiming that the admission of evidence of prior convictions and testimonial

hearsay by a non-witness constitutes reversible error. Finding merit to both issues raised by
Birkley, we reverse the judgment and remand for a new trial consistent with this opinion.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On the night of January 20, 2014, Erica Wallace was working at an Exxon gas station

in Greenville, Mississippi. She was preparing to close the store when a man wearing dark

clothes and a “skull cap” walked in and asked for cigars. She recalled the same man was at

the store earlier, remembering he had stared intently at her. After retrieving the cigars, she

turned around at the register to find that he had a gun pointed at her face. She complied with

the robber’s demand to open the register, from which he took approximately $46.

¶3.    Birkley was later established as the suspect when a Greenville police officer,

Desmond Washington, identified him from a still image of the store’s surveillance video.

Officer Washington told investigating officers he had stopped Birkley the night before for

a warrant check. Wallace also identified Birkley from a photographic lineup as the man who

committed the store robbery.

¶4.    On May 5, 2015, Birkley was convicted by a Washington County Circuit Court jury

of armed robbery. He was sentenced to life imprisonment, as a habitual offender under

Mississippi Code Annotated section 99-19-83 (Rev. 2014), in the custody of the MDOC.

Birkley filed a motion for a judgment notwithstanding the verdict, which the trial court

denied.

¶5.    He now appeals, alleging the trial court erred in admitting evidence of his prior

convictions, and allowing hearsay testimony in violation of the Confrontation Clause of the


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Sixth Amendment. Upon review, we find: (1) that the evidence of Birkley’s prior

convictions was inadmissible under the facts of the case, and (2) that certain hearsay

testimony regarding the photo identification of Birkley by Officer Washington, who did not

testify at trial, was improper and constituted a violation of Birkley’s Sixth Amendment right

to confront and cross-examine witnesses.1

¶6.    Accordingly, we reverse the judgment of the circuit court and remand for a new trial

consistent with this opinion.

                                         DISCUSSION

       I.      Whether the trial court erred in admitting evidence of Birkley’s
               prior armed-robbery convictions.

¶7.    Prior to trial, Birkley filed a motion in limine to exclude evidence of his two prior

armed-robbery convictions. Defense counsel argued this evidence was prejudicial, as it

attempted to prove Birkley had “certain character traits and that he acted in conformity

therewith.” The State contended that because Birkley had robbed a gas station in the “same

manner” that this robbery was committed, the evidence of the prior convictions showed a

“consistent pattern.” The trial court denied the motion in limine, explaining: “[I]t seems to

me under [Mississippi Rule of Evidence] 404(b), this fits under the [modus operandi,]

showing his plan and preparation. . . . I think there is case law that says in a case like this, it’s


       1
           “The Sixth Amendment prohibits [the] ‘admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify, and the defendant
had . . . a prior opportunity for cross-examination.’” Hull v. State, 174 So. 3d 887, 896 (¶25)
(Miss. Ct. App. 2015) (quoting Crawford v. Washington, 541 U.S. 36, 53-54 (2004)).

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not unduly prejudicial and it does come in.” Then, during in-chamber proceedings at the start

of trial, the trial judge asked the following:

       [J]ust for clarification, does the State intend to introduce the convictions or just
       the similarity on how the crimes occurred or allegedly occurred? You want the
       conviction in or how it occurred?

       ....

       What I am getting at is I think you can get the particulars of the prior without
       getting into whether or not he was convicted or not. . . . I think it comes in
       under 404(b) and then clearly the probative value outweighs any kind of
       prejudicial effect. It’s clearly probative.

       ....

       Well, it is not a question of showing bad character. That’s not what they are
       trying to do. . . . It’s not like, you know, that he is a bad person therefore he
       is more likely to do “X.” That’s what’s prohibited. You can’t do that. But
       you can say plan, intent, lack of mistake, all those things listed in 404(b) and
       looks to me like it fits and passes through [Mississippi Rule of Evidence] 403.

The defense renewed its objection.

¶8.    Birkley claims that the trial court should have granted his motion in limine, as the

evidence of his prior convictions was prejudicial and too remote to prove any plan or motive.

He also asserts that the scheme used to rob the gas station was “common and typical,” and

“not so unusual or distinctive such that they may sensibly be considered as the handiwork of

. . . Birkley[.]”2 Evidence of prior bad acts may be admissible if its probative value


       2
        As the State notes, Birkley did testify on direct examination that he had his facial
scar “since before [he] went to prison in 2003.” (Emphasis added). And on cross-
examination, he replied: “[The police] knew I had a past history, record of armed robbery.”
However, we find this does not constitute a waiver of this issue. See Wright v. Royal Carpet

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outweighs its prejudicial effect and if it is offered “for other purposes such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” M.R.E. 404(b).

       The question on review is not whether [our appellate c]ourt[s] would have
       admitted the evidence, but whether the trial court abused its discretion in doing
       so, for the exclusion of prejudicial evidence is permissive; that is, if a trial
       court determines that the prejudicial effect of evidence substantially outweighs
       its probative value, it is not obligated to exclude the evidence, but may do so
       at its discretion.

Stone v. State, 94 So. 3d 1078, 1085 (¶20) (Miss. 2012) (internal quotations and emphasis

removed) (quoting Ross v. State, 954 So. 2d 968, 993 (¶44) (Miss. 2007)). An erroneous

admission of evidence will not be reversed on appeal “unless the error adversely affects a

substantial right of the party.” Vaughn v. State, 189 So. 3d 650, 652 (¶9) (Miss. Ct. App.

2016) (quoting Pryer v. State, 958 So. 2d 818, 820-21 (¶5) (Miss. Ct. App. 2007)).

¶9.    Officer Eric Sutton, the investigator for the 2003 robberies, testified that in both

robberies, which occurred within days of one another, two “black males” with caps on their

heads asked for cigarettes and pulled a gun on the cashier when the cashier turned. One

eyewitness identified Birkley, and a surveillance video showed the other male refer to his

accomplice as “Casey.” Although the prosecution never mentioned that Birkley was

convicted, it did solicit testimony from Officer Sutton that Birkley was charged with both



Servs., 29 So. 3d 109, 118 (¶30) (Miss. Ct. App. 2010) (Maxwell, J., concurring in part and
in result) (reasoning that “in light of [an] adverse ruling on [a] motion in limine,” counsel
is permitted to adjust “his trial strategy to take the sting out of what he perceive[s] to be
damning evidence”).

                                              5
robberies. During closing arguments, the State reiterated:

       What did Officer Sutton tell you? He goes to the store, asks for a tobacco
       product. He wants Newports. That’s on the 23rd. She turns around, gets the
       Newports, here’s the gun. October 26th, he goes to another Double Quick,
       asks for Newports, tobacco products. Turns around, what do you have again,
       a gun? And guess what, on January 20th, 2014, he decided to go to 711 Reed
       Road, this Exxon[]. . . . But instead of him just coming in to purchase
       something like he did earlier that day at 9:00 o’clock when she saw him and
       leaving, what does he do? He comes in because he has already scoped the
       scene out at 9:00 o’clock. He’s been paying attention. . . . [J]ust as the 23rd
       of October, just as the 26th of October, those other two robberies, he asks for
       instead of Newports, this time he asks for two Black & Milds. She turns
       around, and she comes back, there’s the gun to her face.

       This is what he does. This is his scheme. This is what he does. This is
       nothing new for this defendant.

¶10.   “[E]vidence of prior crimes or offenses is not admissible ‘merely because it is similar,

but only if it bears such a high degree of similarity as to mark it as the handiwork of the

accused.” Burrell v. State, 727 So. 2d 761, 768 (¶19) (Miss. Ct. App. 1998) (quoting United

States v. Silva, 580 F.2d 144 (5th Cir. 1978)). Although the Mississippi Supreme Court has

not directly addressed the issue of “signature” crimes, this Court has commented that if the

similarities of a crime are “‘generic,’ . . . they will not constitute a ‘signature crime.’”

Lenard v. State, 77 So. 3d 530, 541 (¶46) (Miss. Ct. App. 2011) (Maxwell, J., concurring in

part and in result) (quoting Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008)).

In Segundo, the Court of Criminal Appeals of Texas reasoned:

       One of the main rationales for admitting extraneous-offense evidence is to
       prove the identity of the offender. Here, the theory of relevancy is usually that
       of modus operandi in which the pattern and characteristics of the charged
       crime and the uncharged misconduct are so distinctively similar that they

                                              6
       constitute a “signature.” Usually, it is the accretion of small, sometimes
       individually insignificant, details that marks each crime as the handiwork or
       modus operandi of a single individual. No rigid rules dictate what constitutes
       sufficient similarities; rather, the common characteristics may be proximity in
       time and place, mode of commission of the crimes, the person’s dress, or any
       other elements which mark both crimes as having been committed by the same
       person. But if the similarities are “generic,” i.e., typical to this type of crime,
       they will not constitute a “signature” crime.

Segundo, 270 S.W.3d at 88.

¶11.   The Tennessee Supreme Court has further observed that “[a]s to ‘signature’ crimes,

we have described such offenses as involving a modus operandi so unique and distinctive,

and involving ‘such unusual particularities,’ that reasonable persons would conclude that the

means of committing the crimes ‘would not likely be employed by different persons.’” State

v. Garrett, 331 S.W.3d 392, 404 (Tenn. 2011) (citation omitted).

       Although the evidence of the other crime need not be identical to the evidence
       of the charged offense, for other crime evidence to have probative value it
       must bear a sufficient connection to the issue of identity so as to establish the
       defendant’s commission of “signature crimes.” . . . The test, therefore, is not
       whether the evidence demonstrates that the defendant committed both crimes,
       but whether the defendant used a peculiar and distinctive method in
       committing the crimes.

State v. Jones, 450 S.W.3d 866, 895 (Tenn. 2014) (internal citations omitted and emphasis

added).

¶12.   Under the circumstances of this case, we find the evidence of the prior convictions did

not have a sufficient connection to have probative value on the issue of identity, and

Birkley’s prior armed robberies were not so “peculiar and distinctive” to establish that he had

committed a “signature” crime. As Birkley notes, “[g]as station robberies are commonly

                                               7
accomplished by requesting or purchasing a small item” from behind the counter “as a

diversion to brandish a weapon and/or to cause the attendant to open the register.” In Smith

v. State, 90 So. 3d 122, 125 (¶2) (Miss. Ct. App. 2012), a “gunman approached the store

clerk and asked her for some Black & Mild cigars. When the man handed [the clerk] a five-

dollar bill, she opened the cash register. The gunman then demanded, ‘Give me all the

money,’ and brandished a firearm he had hidden beneath his shirt.” See also Rash v. State,

840 So. 2d 774, 775 (¶3) (Miss. Ct. App. 2003) (After the defendant asked the convenience-

store clerk for “three packages of Newport cigarettes,” the clerk turned to find the defendant

“pointing a silver pistol at her,” whereupon the defendant took “some fives and some ones”

from the cash register.); Grihim v. State, 760 So. 2d 865, 866 (¶2) (Miss. Ct. App. 2000)

(After the assailant “walked in, approached the counter[,] and requested a pack of cigarettes,

. . . [he] produced a pistol, pointed it at [the store clerk,] and ordered her to give him all of

the cash in the register.”). Based upon their prior activities, Antonio Smith, Floyd Rash, or

Tully Grihim could just as easily have been the perpetrator of the robbery in the present case.

The trial court abused its discretion in admitting Birkley’s prior armed-robbery convictions

to prove a common plan or modus operandi.

¶13.   “The reason for [Rule 404(b)] is to prevent the State from raising the inference that

the accused has committed other crimes and is therefore likely to be guilty of the offense

charged.” White v. State, 842 So. 2d 565, 573 (¶24) (Miss. 2003) (citations omitted). The

admission of Birkley’s prior armed robberies under Rule 404(b) was more prejudicial than


                                               8
probative and constitutes reversible error, and we remand for a new trial consistent with this

opinion. Birkley’s argument that the evidence of the prior convictions was too remote to be

probative is rendered moot by our holding.

       II.      Whether testimony regarding the photo identification of Birkley by
                a witness who did not testify was improper hearsay and violated
                Birkley’s rights under the Sixth Amendment Confrontation Clause.

¶14.   Although we have found reversible error, we find it proper to address Birkley’s

remaining claim concerning hearsay testimony, as it may affect the admission of evidence

on remand. Birkley contends that testimony by the two investigating officers, Officer Jeremy

Arendale and Investigator Steven O’Neal, regarding Officer Washington’s identification of

Birkley from the photo, was inadmissible hearsay. Hearsay is “a statement, other than one

made by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” M.R.E. 801(c).

                A.     Officer Arendale’s Testimony

¶15.   At the pretrial motion hearing, Officer Arendale stated that Officer Washington

identified Birkley from the surveillance-video image, since the perpetrator did not cover his

face.3 The defense did not object to this statement. Although the State named Officer

Washington as a potential witness, he was not called at trial. Subsequently, during direct

examination at trial, Officer Arendale stated:

       [W]e stopped a patrol officer by the name of Desmond Washington with the


       3
           The surveillance video was later shown to the jury.

                                               9
       Greenville Police Department, and I showed him the photo of the offender.
       And at that time, he advised me that the guy in the video on the phone, he had
       stopped the night before at the intersection of Sunflower and Delta Street. . .
       . At that time, I asked him did he know his name. He advised he did. So at
       that time, I went to the police department because they can do warrant checks,
       write the names down for the person they’re seeking the warrants on. Once I
       looked at the file and it showed Casey Birkley at Nelson and Sunflower had
       the warrant checked on him by the desk in Washington. At that time, [we] did
       a background check on him and developed a suspect.

Again, the defense made no objection to this testimony. Generally, “[t]he failure to object

to testimony at trial ‘waives any assignment of error on appeal.’” Ross v. State, 16 So. 3d 47,

57 (¶21) (Miss. Ct. App. 2009) (quoting Johnson v. State, 477 So. 2d 196, 214 (Miss. 1985)).

Therefore, Birkley “must rely on the plain error rule to raise th[is] assignment [of error] on

appeal.” Foster v. State, 639 So. 2d 1263, 1289 (Miss. 1994) (citing Gray v. State, 487 So.

2d 1304, 1312 (Miss. 1986)).

¶16.   We find Officer Arendale’s testimony did not constitute hearsay. “Statements do not

constitute hearsay when admitted to explain an officer’s course of investigation or motivation

for the next investigatory step by that officer.” Fullilove v. State, 101 So. 3d 669, 675 (¶20)

(Miss. Ct. App. 2012) (citing Smith v. State, 984 So. 2d 295, 300 (¶8) (Miss. Ct. App. 2007)).

“Out-of-court statements made to police during the course of their investigations are

admissible.” Id. In Fullilove, we concluded the admission of testimony by the investigating

officer – that another officer had identified three men on a store surveillance tape – was not

hearsay, as it merely showed the investigator’s reasons for interrogating the defendant. Id.

Similarly, Officer Washington was referenced by Officer Arendale merely as a source of


                                              10
information to show how law enforcement came to interview Birkley as a suspect; Officer

Arendale’s testimony was not given for the purpose of proving the truth of Officer

Washington’s assertion. Therefore, we find the testimony by Officer Arendale did not

constitute plain error.

              B.      Investigator O’Neal’s Testimony

¶17.   Defense counsel did object on the basis of hearsay during Investigator O’Neal’s

testimony.    When asked how he had developed a suspect during the investigation,

Investigator O’Neal testified on direct examination: “As we were in the area, we came

across a former Greenville police officer, and we just said, ‘Hey, can you look at this on the

phone, see if you can identify this guy [from the surveillance video]?’ And, of course, he

did. Officer Washington, he said he actually stopped . . . .” It was at this point defense

counsel objected, and the State said it would rephrase the question. But the State then asked:

       Q.     Don’t tell me what he said, but once you obtained the information of
              the fact that he identified Casey Birkley, what did you do?

       A.     Okay, after he was identified by the still shot on the phone, I passed it
              along to my supervisor.

(Emphasis added). The State’s rephrased question was worse, rather than better. Rather than

asking what Officer Washington said, the prosecution included the answer in a leading

question. Both the question and Investigator O’Neal’s answer exceeded merely testifying

as to the course of the investigation and constituted improper hearsay. The question and

answer were given for the purpose of proving the truth of the matter asserted – that Birkley


                                             11
was the armed robber in the surveillance video from the store. See M.R.E. 801(c). This was

reinforced during the State’s closing arguments:

       We know exactly who committed this crime. . . . [Officer] Arendale, he knew
       exactly who committed this crime. [Investigator] O’Neal reviewing the video,
       he knew exactly who committed this crime. Other officers reviewing the
       video, they knew exactly who committed this crime. This is not a case of
       mistaken identity.

(Emphasis added). The State further noted: “[O]ne officer that saw a screen shot that had

just stopped him the night before [said], yeah, I saw him the other night.” We recognize that

the prosecution’s closing argument is not evidence. Henton v. State, 752 So. 2d 406, 409

(¶11) (Miss. 1999). However, the prosecution’s comments demonstrate that the State was

attempting to, as Birkley asserts, “buttress Wallace’s identification by providing evidence of

an additional identification by [Officer] Washington.”

¶18.   Although defense counsel did not renew her objection or move for a mistrial, we find

the comments regarding Officer Washington’s identification of Birkley, during Investigator

O’Neal’s testimony, constituted plain error. We acknowledge this improper hearsay may be

considered harmless error, since Birkley was also identified by Wallace and the surveillance

video was admitted into evidence. Here, however, identity was the crucial issue, and the

State clearly used Officer Washington’s identification hearsay statement as proof of Birkley’s

guilt. As we have already found reversible error concerning the admission of Birkley’s prior

convictions, we find it unnecessary to make the determination as to whether this issue, in and

of itself, would be sufficient for reversal.


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             C.     Sixth Amendment Confrontation Clause

¶19.   Birkley failed to make a contemporaneous Sixth Amendment objection to the

admission of Officer Washington’s testimony. Having found the evidence improperly

admitted, we find it unnecessary to address the constitutional issue under the plain-error

doctrine.

¶20.   We reverse and remand for a new trial consistent with our findings.

¶21. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY
IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO WASHINGTON COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, FAIR AND GREENLEE, JJ.,
CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.




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