         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-KA-00316-COA

ROTHELL CHAMBLISS A/K/A ROTHEL                                               APPELLANT
CHAMBLISS

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          02/16/2016
TRIAL JUDGE:                               HON. LAMAR PICKARD
COURT FROM WHICH APPEALED:                 JEFFERSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY:                         ALEXANDER C. MARTIN
NATURE OF THE CASE:                        CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                   CONVICTED OF BURGLARY OF A
                                           DWELLING AND SENTENCED AS A
                                           HABITUAL OFFENDER TO TWENTY-FIVE
                                           YEARS IN THE CUSTODY OF THE
                                           MISSISSIPPI DEPARTMENT OF
                                           CORRECTIONS, WITHOUT ELIGIBILITY
                                           FOR PAROLE OR PROBATION
DISPOSITION:                               AFFIRMED - 05/23/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       CARLTON, J., FOR THE COURT:

¶1.    A Jefferson County jury convicted Rothell Chambliss of burglary of a dwelling, and

the trial court subsequently sentenced Chambliss, as a habitual offender, to serve twenty-five

years in the custody of the Mississippi Department of Corrections (MDOC), without

eligibility for parole or probation. See Miss. Code Ann. § 99-19-81 (Rev. 2015).
¶2.    Chambliss now appeals his conviction and sentence, asserting the following

assignments of error: (1) the trial court erred when it denied his motion for a mistrial during

voir dire, and (2) the trial court violated the United States Constitution’s Confrontation

Clause when it admitted testimony regarding “known” fingerprints of Chambliss. Finding

no error, we affirm.

                                           FACTS

¶3.    On August 29, 2015, Michael Dubois discovered that two campers on his property in

Fayette, Mississippi, had been burglarized. Dubois observed that the campers had been

broken into and cameras on the property had been stolen. Dubois purchased new cameras

and installed them along the property.

¶4.    When Dubois returned to the property on September 2, 2015, he discovered that

someone had again broken into the campers. Dubois testified it appeared that someone

entered the campers through the storage compartments. Dubois observed that televisions and

other items had been removed from the campers. Dubois watched the footage from the new

cameras he installed, and he pulled photographs of an individual walking around the

property. Dubois then reported the burglary to the authorities.

¶5.    Jefferson County Sheriff’s Deputy James Bailey investigated the case and reviewed

the photographs taken from the camera on Dubois’s property. Deputy Bailey testified that,

while reviewing the footage, he observed a black male, whom he recognized as Chambliss,

on Dubois’s property. Deputy Bailey then processed the scene and collected fingerprints,

which he subsequently sent to the Mississippi Crime Laboratory for analysis.



                                              2
¶6.    Mike Hood, the forensic section chief of latent prints at the Mississippi State Crime

Laboratory, tested the latent prints collected from the crime scene and concluded they

matched the “known prints” of Chambliss. Hood testified that he obtained Chambliss’s

known prints from the Mississippi criminal history system database.

¶7.    On October 6, 2015, a Jefferson County grand jury indicted Chambliss on one count

of burglary of a dwelling in violation of Mississippi Code Annotated section 97-17-23 (Rev.

2014). Chambliss’s indictment reflected his status as a habitual offender pursuant to section

99-19-81.

¶8.    At a jury trial held on February 10, 2016, the jury heard testimony from Dubois,

Deputy Bailey, Hood, and Chambliss. After the State rested its case-in-chief, Chambliss

moved for a directed verdict, which the trial court denied. The trial court sentenced

Chambliss as a habitual offender to twenty-five years in MDOC’s custody. Chambliss filed

an unsuccessful motion for a new trial or, in the alternative, a judgment notwithstanding the

verdict (JNOV). Aggrieved, Chambliss appeals.

                                       DISCUSSION

       I.     Motion for Mistrial

¶9.    Chambliss argues the trial court erroneously denied his motion for a mistrial during

voir dire after a prospective juror made an improper statement regarding Chambliss’s alleged

criminal history. Chambliss submits that, because the jury that convicted him was tainted by

the highly prejudicial comments of the prospective juror, the trial court erred in not granting

Chambliss’s motion for a mistrial.



                                              3
¶10.     “[T]he decision to declare a mistrial is within the sound discretion of the trial judge.”

Whitaker v. State, 114 So. 3d 725, 730 (¶14) (Miss. Ct. App. 2012) (citing Evans v. State,

725 So. 2d 613, 649 (¶114) (Miss. 1997)); Tate v. State, 20 So. 3d 623, 629 (¶13) (Miss.

2009). “To obtain reversal based on a trial court’s refusal to . . . grant a mistrial, the

defendant must show prejudice.” Beasley v. State, 74 So. 3d 357, 363 (¶28) (Miss. Ct. App.

2010).

¶11.     During the trial court’s voir dire, the transcript reflects that the following exchange

occurred between the prospective juror and the trial judge:

         Prospective Juror:    I didn’t know who the defendant was when I came up
                               here, but—

         The Court:            Yes, sir. I didn’t either.

         Prospective Juror:    Well, I’m not sure if it’s been a year and a half, two years
                               ago I had to be here in court to testify against him for
                               breaking in—

¶12.     The transcript shows that Chambliss’s counsel immediately interrupted the comment

and requested an opportunity to approach the bench. However, the trial court continued its

voir dire as follows:

         The Court:            You don’t need to say anything else. You don’t think
                               you could be fair?

         Prospective Juror:    Well, I don’t think it would be—I couldn’t say I
                               wouldn’t lean one way or the other.

         The Court:            Well, we need jurors that will be right on the 50[-]yard
                               line and won’t lean one way or the other. Thank you, sir.

¶13.     At the end of the trial court’s voir dire, defense counsel moved for a mistrial, arguing



                                                 4
that the prospective juror “said that he had been up here a year and a half ago when he had

to testify against [Chambliss]. Everybody laughed.” The trial court denied the defense’s

motion and stated:

       [T]here was no explanation, there was no charge. I think that in a situation .
       . . where there was any indication, I would consider your request more
       harmful, but in this situation, the court finds that there was nothing said that
       would create or cause any prejudice to the [D]efendant. There was no mention
       of what kind of case it was, civil, criminal[,] or anything else, what the result
       was or anything else. Of course, the record will indicate what was said, but the
       juror merely indicated that he was up here testifying in a case that Mr.
       Chambliss was involved in, and that’s all that was said and . . . I don’t believe
       that there had been any prejudice that has been created that would [ad]here
       against the [D]efendant, so I’ll overrule your motion.

¶14.   Defense counsel reiterated that the prospective juror specifically mentioned that

Chambliss had previously been accused of a similar property crime, stating, “Your Honor,

I don’t mean to argue with you, but I wanted to make it clear that what I heard was that he

did specifically say for breaking in my place or whatever, but it’s the same kind of case that

he specifically said that.” Defense counsel asked that the trial court listen to what the

recorder picked up regarding the statement. The trial court refused and denied the motion

for a mistrial. The record reflects that the prospective juror was not chosen to sit on

Chambliss’s jury.

¶15.   We recognize that “the trial court is in the best position to determine if an alleged

improper comment had a prejudicial effect; therefore, absent an abuse of that discretion, the

trial court’s ruling will stand.” Tate, 20 So. 3d at 642 (¶48) (citing Jones v. State, 962 So.

2d 1263, 1275 (¶45) (Miss. 2007)). This Court has held:

       While a comment by a single prospective juror during voir dire may taint the

                                              5
       entire panel, where there is no evidence of such a taint, the court may correctly
       refuse to disqualify the entire panel from service if the jury affirms that it can
       render a verdict based solely on the evidence brought before the court.

Whitaker, 114 So. 3d at 730 (¶15). The Mississippi Supreme Court has explained that, when

a trial judge conducts follow-up questions and the jury panel shows no indiction of bias,

prejudice, or inability to be fair in discharging its duty, “it is proper for a trial judge to refuse

to disqualify the entire jury panel.” Id. at (¶14) (citing Benson v. State, 551 So. 2d 188, 191

(Miss. 1989)). We recognize the “presumption in Mississippi that juries have followed the

instructions of the trial judge.” Id. at 729 (¶14).

¶16.   In the case before us, the trial transcript shows that, at various points after the

prospective juror made his comment, all the prospective jurors, including those ultimately

seated on Chambliss’s jury, were asked by the trial judge whether they could be impartial and

base their decisions solely on the evidence. The trial judge instructed the jury as follows:

“You should base your decision . . . strictly on what you hear from the witness stand and the

evidence that’s introduced into a trial. Is there any one of you who could not do that?

Anyone?” The trial judge further explained: “Mr. Chambliss is presumed innocent . . . .

You’ll be required as jurors to maintain that presumption unless and until the State proves

his guilt beyond a reasonable doubt. Anyone of you who could not do that? Anyone?”

¶17.   The trial judge also asked the jurors if the “nature of the charges in this case . . . makes

you question in your mind whether or not you could be completely fair and impartial or

anything about your past experiences with the law or as the victim of a crime which would

cause you to lean one way or the other in this case? Anyone?”



                                                 6
¶18.   Finally, before permitting the parties to proceed with voir dire, the trial court

instructed the jury as follows:

              Both the [S]tate of Mississippi and the [D]efendant have a right to
       expect that the jurors who hear this case will be completely fair and impartial
       to both sides, will base their verdict solely on the basis of the evidence
       adduced in open court and the law as instructed by the court.

               Ladies and gentlemen, I would ask you to examine your own hearts and
       minds, and if you could not be that juror, please indicate by raising your hand
       at this time. Anyone?

¶19.   After our review of the record, we find no abuse of discretion in the trial court’s

finding of no indication that the jurors in this case were “biased, prejudiced, or would be less

than fair in discharging [their] duty” due to the comment made by the prospective juror.

Whitaker, 114 So. 3d at 730 (¶14). Furthermore, the trial court instructed the jurors of their

duty to be fair and impartial. Accordingly, we find no abuse of discretion by the trial judge

in denying Chambliss’s motion for a mistrial and allowing the jury to continue to trial. See

Tate, 20 So. 3d at 629 (¶13). This issue lacks merit.

       II.    Testimony

¶20.   Chambliss next argues that the trial court violated the Confrontation Clause of the

United States Constitution by admitting Hood’s testimony about a “known” fingerprint of

Chambliss that matched the fingerprints collected at the scene of the burglary. Chambliss

submits that the “known” fingerprint is part of a criminal history database that exists for the

purpose of identifying criminals and thus is being used in a future criminal prosecution. As

a result, Chambliss argues that the statement about his “known print” constituted testimonial

hearsay, which violated his constitutional right to confront the witnesses against him.


                                               7
¶21.   This Court reviews the admission or exclusion of evidence at trial for an abuse of

discretion. Jenkins v. State, 102 So. 3d 1063, 1065 (¶7) (Miss. 2012). “Constitutional issues

are reviewed de novo.” Id.

¶22.   In Conners v. State, 92 So. 3d 676, 682-83 (¶16) (Miss. 2012), the supreme court

explained:

       The Sixth Amendment to the United States Constitution states that[,] in all
       criminal prosecutions, the accused shall enjoy the right to be confronted with
       the witnesses against him. The Confrontation Clause confers a right to
       confront those who bear testimony against the defendant. Thus, the
       testimonial statements of a witness who does not testify at trial are
       inadmissible unless the witness is unavailable and the defendant had a prior
       opportunity for cross-examination.

(Internal quotation marks and citations omitted).

¶23.   The record reflects Hood’s testimony that he assigned Chambliss’s case to himself,

so he personally pulled Chambliss’s prints from the Mississippi criminal history system

database and compared them to the fingerprints collected from the crime scene. The trial

transcript further reveals that Chambliss failed to object to Hood’s testimony at trial, nor did

Chambliss raise this issue in his motion for a new trial or JNOV. As a result, Chambliss’s

argument is procedurally barred from appellate review. See Anthony v. State, 23 So. 3d 611,

620 (¶41) (Miss. Ct. App. 2009) (“Since [the defendant] made no Sixth-Amendment

objection to the admission of the [evidence] at trial or in her posttrial motion, her arguments

on [the Confrontation Clause] issue are procedurally barred.”).

¶24.   However, under the plain-error doctrine, this Court may examine “obvious errors”

affecting a defendant’s “fundamental, substantive right” that the defendant failed to properly



                                               8
raise at trial. Conners, 92 So. 3d at 682 (¶15). The supreme court “has held that a

Confrontation-Clause violation is a violation of a fundamental, substantive right.” Id.

(internal quotation marks omitted). Accordingly, we must examine the record to determine

whether a violation of the Confrontation Clause “occurred that resulted in a manifest

miscarriage of justice.” Id. (citing Corbin v. State, 74 So. 3d 333, 337 (¶11) (Miss. 2011)).

¶25.   In Jenkins, 102 So. 3d at 1066 (¶9), the supreme court discussed the United States

Supreme Court’s holding 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.”

(citing Crawford v. Washington, 541 U.S. 36, 53-54, 59 (2004)). The Jenkins court

explained that, “[t]hough there is no exhaustive list defining testimonial statements, a

document created solely for an evidentiary purpose ranks as testimonial.” Id. (internal

quotation marks omitted) (citing Bullcoming v. New Mexico, 564 U.S. 647, 664 (2011)); see

also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11 (2009). The Jenkins court

further clarified that “[f]orensic 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, 102 So. 3d at 1066 (¶9) (citing Melendez-Diaz, 557 U.S.

at 309).

¶26.   The State argues, however, that the United States Supreme Court’s concerns regarding

confrontation in Melendez-Diaz and Bullcoming are not present in the case before us.1

       1
        The State cites to United States v. Williams, 720 F.3d 674, 698 (8th Cir. 2013),
where the Eighth Circuit Court of Appeals observed:

                                              9
During Hood’s testimony, the State introduced into evidence a fingerprint card containing

Chambliss’s fingerprints. Hood testified that he matched fingerprints collected from the

crime scene to Chambliss’s known prints obtained from a law-enforcement database. The

law-enforcement database contained fingerprints from Chambliss taken as part of a routine

booking during the course of a previous arrest. As a result, the State submits that the

fingerprints on the card were not collected in anticipation of prosecution. The State further

argues that the fingerprint card alone does not serve a prosecutorial purpose absent additional

analysis and testimony.

¶27.   The supreme court has held that, “[c]learly, fingerprints are not testimonial evidence.”

Newton v. State, 321 So. 2d 298, 300 (Miss. 1975). See also Maryland v. King, 133 S. Ct.

1958, 1976 (2013) (describing fingerprinting as a natural part of the “routine administrative

step incident to arrest”). The supreme court also clarified that the Confrontation Clause does

not apply to nontestimonial hearsay. Rubenstein v. State, 941 So. 2d 735, 754 (¶47) (Miss.

2006). As a result, we find that Chambliss’s right to confront witnesses against him was not



       We do not believe that the Supreme Court’s concerns regarding confrontation
       in Melendez-Diaz and Bullcoming are present here with respect to the
       fingerprint cards. Unlike the evidence in those cases, the fingerprint cards
       were created as part of a routine booking procedure and not in anticipation of
       litigation . . . . By contrast, the excluded evidence deemed to be “testimonial”
       in both Bullcoming and Melendez-Diaz . . . went straight to the heart of the
       offenses for which the petitioners in those cases were respectively charged.
       See Bullcoming, 131 S. Ct. at 2709 (petitioner charged with driving while
       intoxicated and the evidence at issue was a forensic report regarding the
       defendant’s blood-alcohol level); Melendez-Diaz, 557 U.S. at 308, . . .
       (petitioner charged with distributing and trafficking cocaine and the evidence
       at issue was “certificates of analysis” regarding the composition of seized
       substance).

                                              10
violated by Hood’s testimony about Chambliss’s “known” fingerprints.

¶28.   After our review, we find no abuse of discretion by the trial court in admitting Hood’s

testimony, nor can we say that Hood’s testimony regarding Chambliss’s “known” fingerprints

resulted in a “manifest miscarriage of justice.” Conners, 92 So. 3d at 682 (¶15). This issue

therefore lacks merit.

¶29. THE JUDGMENT OF THE JEFFERSON COUNTY CIRCUIT COURT OF
CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE AS A
HABITUAL OFFENDER OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR
PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO JEFFERSON COUNTY.

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, FAIR, WILSON, GREENLEE
AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.




                                             11
