        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-KA-01267-COA

LOREN WENDELL ROSS A/K/A LOREN ROSS                                       APPELLANT

v.

STATE OF MISSISSIPPI                                                        APPELLEE


DATE OF JUDGMENT:                         05/20/2014
TRIAL JUDGE:                              HON. EDWIN Y. HANNAN
COURT FROM WHICH APPEALED:                MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                          BY: GEORGE T. HOLMES
                                               ERIN ELIZABETH PRIDGEN
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: LISA L. BLOUNT
DISTRICT ATTORNEY:                        MICHAEL GUEST
NATURE OF THE CASE:                       CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                  CONVICTED OF FELONY DRIVING
                                          UNDER THE INFLUENCE AND
                                          SENTENCED TO FIVE YEARS IN THE
                                          CUSTODY OF THE MISSISSIPPI
                                          DEPARTMENT OF CORRECTIONS, WITH
                                          THREE YEARS TO SERVE, TWO YEARS
                                          SUSPENDED, AND FIVE YEARS OF
                                          SUPERVISED PROBATION
DISPOSITION:                              AFFIRMED - 01/12/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., BARNES AND JAMES, JJ.

       BARNES, J., FOR THE COURT:

¶1.    Loren Wendell Ross was convicted of felony driving under the influence (DUI) in

violation of Mississippi Code Annotated section 63-11-30 (Rev. 2013), and sentenced to five

years in the custody of the Mississippi Department of Corrections (MDOC), with three years
to serve and two years suspended, and five years of supervised probation. His motion for a

judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial, was denied,

and Ross is now appealing his conviction. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On August 2, 2013, at approximately 2 a.m., Ross was pulled over by patrolman Ryan

Kendrick of the Madison Police Department for not having lights illuminating his license

plate. Ross rolled down his window about one inch to hand the officer his driver’s license,

mistakenly giving the officer a credit card initially. Ross told the officer he had not been

drinking; however, the officer observed an empty bottle of liquor in the backseat floorboard

of the car. The officer ran a background check and, seeing Ross had prior DUIs, asked Ross

to get out of the car. He noted that Ross’s breath smelled of alcohol and that he had “glassy

eyes.” Ross agreed to perform a field sobriety test and to provide a breath sample. Officer

Drew Hall arrived to assist Officer Kendrick, and Ross told him that he had two margaritas

earlier that night. Ross gave two breath samples on the officer’s portable breath-test

machine; both were positive. Officer Hall then conducted several field sobriety tests,

including the horizontal-gaze-nystagmus test, the walk-and-turn test, and the one-leg-stand

test. After Officer Hall observed four of the eight clues to indicate a person is under the

influence, Ross was arrested for DUI and transported to the police department.

¶3.    At the police station, Ross agreed to blow into the Intoxilyzer 8000, but after two

attempts, the officer believed the machine was malfunctioning; so he took Ross to the


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Ridgeland Police Department to use its machine. However, Ross was unable to blow into

the machine long enough to provide a legitimate result. Ross consented to a blood sample,

and he was taken to Madison River Oaks Hospital where an emergency-room technician

drew two vials of blood around 4:30 a.m. The blood samples were submitted to the

Mississippi Crime Lab. The results revealed that Ross had a blood-alcohol concentration of

0.16, double the legal limit of 0.08.

¶4.    Ross was indicted for felony DUI. The indictment alleged that Ross had a blood-

alcohol concentration of .08 or more and that he had two or more prior convictions for DUI

in the last five years. After a jury trial held on April 7-8, 2014, Ross was convicted in the

Madison County Circuit Court of felony DUI and sentenced to five years in the custody of

the MDOC, with three years to serve and two years suspended, and five years of supervised

probation.1

¶5.    The circuit court denied Ross’s motion for a JNOV, or in the alternative, a new trial.

On appeal, Ross argues that testimony by a forensic scientist with the Mississippi Crime Lab,

who did not personally conduct the toxicology test on his blood sample, was a violation of

his constitutional right to confront witnesses. Upon review, we find no error and affirm.

                                         DISCUSSION

¶6.    The sole issue on appeal is whether Ross’s right to confront witnesses under the Sixth

Amendment of the United States Constitution was violated because his blood-analysis results


       1
           Prior to trial, both parties stipulated that Ross had two prior DUI violations.

                                                3
were authenticated and testified to at trial by David Lockley, a forensic scientist from the

Mississippi Crime Lab who did not conduct the actual testing of Ross’s blood sample. Dariel

McKenzie, the forensic scientist who personally conducted the tests, did not testify.

However, Lockley declared that he was the “technical reviewer and administrator reviewer

on [the] case” and was involved in the production of the report.

¶7.    During the trial, Ross, who has a bachelor’s degree in biology and a master’s degree

in hazardous-waste management, specifically requested to serve as his own counsel during

Lockley’s testimony. The circuit court granted Ross’s request, and defense counsel was

permitted to remain at the table to provide advice.

¶8.    Ross did not object to the admission of Lockley as an expert witness in the field of

forensic toxicology; nor did he object to the admission of the test results. However, after

Lockley testified, defense counsel, Michael Ward, did question whether Lockley’s testimony

was appropriate:

       MR. WARD:                   Did he run the test? Did this guy actually run the
                                   test, or was he relying on what somebody else
                                   did?

       MS. ALLEN:                  He was the technical reviewer.

       MR. WARD:                   But he didn’t actually perform the test.

       MS. ALLEN:                  No. He was the technical reviewer, which has
                                   been stated in case after case that it’s appropriate.

       MR. WARD:                   You don’t have to call the person who actually
                                   did the testing?


                                             4
          MS. ALLEN:                 No. And I’ve got the case law if you need to see
                                     it.

Notwithstanding defense counsel’s failure to assert a specific objection to Lockley’s

testimony, we will address the merits of Ross’s claim, as it was clearly an issue discussed at

trial.2

¶9.       In McGowen v. State, 859 So. 2d 320 (Miss. 2003), the Mississippi Supreme Court

considered whether a defendant’s constitutional right to confront witnesses was violated

when a crime-lab serologist testified on behalf of her coworker. 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.” Id. at 339

(¶68). The seriologist, a court-accepted expert in the field, was “actively involved in the

production of the report and had intimate knowledge of the analyses even though she did not

perform the tests firsthand.” Id. at 339-40 (¶68). Thus, the supreme court concluded that it

was not error to allow the testimony and, assuming it had been, any error was harmless. Id.

at 340 (¶69).

¶10.      In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court

held that an out-of-court statement introduced at trial that is testimonial in nature violates the



          2
        Additionally, as “ a Confrontation Clause violation is a violation of a ‘fundamental,
substantive right,” we may review it under the plain-error doctrine. Hingle v. State, 153 So.
3d 659, 662 (¶6) (Miss. 2015).

                                                5
Confrontation Clause unless the witness is unavailable and the defendant had the prior

opportunity to cross-examine the witness. Subsequently, the Supreme Court addressed

whether crime-lab-analysis reports are testimonial in nature, “rendering the affiants

‘witnesses’ subject to the defendant’s right of confrontation under the Sixth Amendment.”

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307 (2009). The Court concluded that such

analysis “certificates,” which identified the substance tested (cocaine), “are functionally

identical to live, in-court testimony, doing ‘precisely what a witness does on direct

examination.’” Id. at 310-11 (quoting Davis v. Washington, 547 U.S. 813, 830 (2006)).

       In short, under . . . Crawford[,] 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 (citing Crawford, 541 U.S. at 54).

¶11.   In Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), the Supreme Court considered

whether testimony by an analyst, who “had neither participated in nor observed the [blood-

alcohol] test on Bullcoming’s blood sample,” to validate a report was a violation of the

Confrontation Clause. Id. at 2709-10. On the day of trial, the state noted that the analyst

who had performed the test, Curtis Caylor, was on “unpaid leave” and, instead, sought to

introduce the report findings as a “business record” though a “scientist who had neither

observed nor reviewed Caylor’s analysis.” Id. at 2711-12. In a plurality decision, the

Supreme Court said that the testimony violated the defendant’s rights under the Sixth


                                                6
Amendment’s Confrontation Clause. Id. at 2713. However, Justice Sotomayor’s separate

concurring opinion further expounded:

       [T]his is not a case in which the person testifying is a supervisor, reviewer, or
       someone else with a personal, albeit limited, connection to the scientific test
       at issue. [Gerasimos] Razatos conceded on cross-examination that he played
       no role in producing the [blood-alcohol-concentration] report and did not
       observe any portion of Curtis Caylor’s conduct of the testing. The court below
       also recognized Razatos’[s] total lack of connection to the test at issue. It
       would be a different case if, for example, a supervisor who observed an
       analyst conducting a test testified about the results or a report about such
       results. We need not address what degree of involvement is sufficient because
       here Razatos had no involvement whatsoever in the relevant test and report.

Id. at 2722 (emphasis added).

¶12.   Since these Supreme Court cases, the Mississippi Supreme Court has had

opportunities to address this issue. Conners v. State, 92 So. 3d 676 (Miss. 2012), involved

the admission of two reports: a ballistics report and a toxicology report. Neither analyst who

conducted the tests was called to testify. Id. at 682 (¶¶14-15). Instead, the reports were

admitted during the testimony of the detective who had investigated the crime. The supreme

court held that the reports were testimonial and inadmissible “absent the analysts’ live

testimony[.]” Id. at 684 (¶19). However, it concluded that the violation was harmless error

“due to the other evidence of the cause of death and in light of the overwhelming evidence

of the defendant’s guilt of murder.” Id. at (¶20).

¶13.   A few months later, in Jenkins v. State, 102 So. 3d 1063 (Miss. 2012), the supreme

court clarified that “[n]one of these cases stand for the proposition that, in every case, the

only person permitted to testify is the primary analyst who performed the test and prepared

                                              7
the report.” Id. at 1067 (¶13). In Jenkins, the State called Timothy Gross, the associate

director of the Mississippi Crime Lab and manager of the Gulf Coast Regional Laboratory,

to testify concerning the identification of a controlled substance (cocaine). The analyst who

had performed the analysis was on medical leave, and Gross, the supervisor and technical

reviewer for the case, was called to testify in her place. Id. at 1064 (¶3). “Gross did not

participate in or observe [Alison] Smith’s testing of the substance, but he was the ‘case

technical reviewer’ assigned to the matter.” Id at (¶4). The trial judge held that Gross’s

participation as a reviewer “was sufficient to satisfy the Sixth Amendment right to

confrontation.” Id. at 1065 (¶6). In a 5-4 decision, our supreme court affirmed the trial

court’s holding, stating:

       The dissent implies that McGowen is not good law following the Supreme
       Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004). The dissent
       relies on a comment in Justice Kennedy’s dissenting opinion in Melendez-Diaz
       that Mississippi’s Sixth Amendment practices may not be capable of
       reconciliation with Melendez-Diaz. Dis. Op. at ¶30 (citing Melendez-Diaz, 129
       S. Ct. at 2558 (Kennedy, J., dissenting)). With the utmost respect for Justice
       Kennedy, his statement that Mississippi “excuses the prosecution from
       producing the analyst who conducted the test, so long as it produces someone”
       is an inaccurate representation of our law. Melendez-Diaz, 129 S. Ct. at 2558
       (Kennedy, J., dissenting). Mississippi law requires far more than a “custodian”
       or “someone” who can authenticate the document; we require a witness – an
       analyst – who not only knows about the analysis performed, but is
       knowledgeable about the document as well. McGowen, 859 So. 2d at 340. As
       in the case at hand, we do not always require “the particular analyst who
       conducted the test” to testify, because we recognize that some tests involve
       multiple analysts. Melendez-Diaz recognized this fact as well.

Id. at 1068 (¶14). Reasserting this analysis in Grim v State, 102 So. 3d 1073, 1080-81

(¶¶17,20) (Miss. 2012), the supreme court held that testimony by the laboratory supervisor

                                             8
who had signed the report “as the ‘case technical reviewer’” did not violate the Confrontation

Clause. This Court has followed this precedent in subsequent cases. See Miller v. State, 144

So. 3d 199, 203 (¶13) (Miss. Ct. App. 2014) (finding Grim and Jenkins to be “dispositive”

of this issue and holding that testimony by the analyst who reviewed the report “did not

violate Miller’s Sixth Amendment right to confrontation”).3

¶14.   More recently, in Hingle, 153 So. 3d at 662-65 (¶¶9, 13), the supreme court, in another

5-4 decision, upheld its findings in Jenkins and Grim “that a defendant’s right of

confrontation is satisfied by the testimony of an analyst who reviewed the report for accuracy

and signed it as a technical reviewer.”

       In the instant case, the report itself was not admitted into evidence, but [Gary]
       Fernandez testified about the results of the tests. Fernandez provided
       meaningful testimony and adequately responded to all questions asked on
       direct and cross-examination. Fernandez was well versed in the general
       process for substance testing as well as the specific testing of the substance at
       issue. He explained that every test performed at the Mississippi Crime
       Laboratory must be reviewed by a second analyst of equal accreditation before
       the test is considered complete. The second analyst, or the “technical and
       administrative reviewer,” reviews the report “line by line to make sure
       everything is correct” and ensures that the “results are commensurate with the
       information provided by his instrumentation and his other tests.” The


       3
        We acknowledge that the United States District Court for the Northern District of
Mississippi recently vacated Grim’s conviction on federal habeas review in Grim v. Epps,
No. 3:14-CV-00134-DMB-DAS, 2015 WL 5883163 at *15 (N.D. Miss. Oct. 8, 2015).
Rejecting the Mississippi Supreme Court’s holding, the district court concluded that the
testimony by the technical reviewer in that case violated the petitioner’s right to
confrontation as he “had no firsthand knowledge regarding what [the analyst] knew or
observed during the course of his examination of the evidence.” Id. at *12. This case is
currently on appeal to the United States Court of Appeals for the Fifth Circuit. However,
this Court is obligated to follow the precedent established by our supreme court.

                                              9
       reviewing analyst reaches a conclusion based on his review of the report, and
       he signs the report if he is confident that it is correct.

Id. at 664 (¶11). Accordingly, “[t]he admission of Fernandez’s testimony was not error and

did not result in prejudice to [Danielle] Hingle.” Id. at 665 (¶13).

¶15.   Thus, the Mississippi Supreme Court has consistently held that as long as the

testifying analyst had intimate knowledge of the testing and had reviewed the results of the

original analyst, there is no violation of the defendant’s right of confrontation under the Sixth

Amendment. Lockley stated at trial that, as a technical reviewer, he was “peer-reviewing”

the work of McKenzie and “checking to make sure the scientific princip[les] used in the

testing [were] fundamentally sound, as well as the techniques used to produce a result.” He

also averred that he was involved in the production of the report. Ross even acknowledges

in his brief that “Lockley was able to testify that he looked at McKenzie’s report and made

sure that McKenzie followed the procedures and that McKenzie’s results were correct.”

¶16.   Accordingly, we find that Lockley’s testimony did not violate Ross’s right to

confrontation.

¶17. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF
CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE AND
SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH THREE YEARS TO SERVE, TWO
YEARS SUSPENDED, AND FIVE YEARS OF SUPERVISED PROBATION, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

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


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