        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-KA-00838-COA

LAMARCUS WALLACE A/K/A LaMARCUS                                          APPELLANT
WALLACE

v.

STATE OF MISSISSIPPI                                                       APPELLEE

DATE OF JUDGMENT:                        05/18/2016
TRIAL JUDGE:                             HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED:               BOLIVAR COUNTY CIRCUIT COURT,
                                         SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: KATY TAYLOR GERBER
DISTRICT ATTORNEY:                       BRENDA FAY MITCHELL
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF MURDER AND
                                         SENTENCED TO LIFE IN THE CUSTODY
                                         OF THE MISSISSIPPI DEPARTMENT OF
                                         CORRECTIONS, WITH THE SENTENCE TO
                                         RUN CONSECUTIVELY TO ANY
                                         PREVIOUSLY IMPOSED SENTENCES
DISPOSITION:                             AFFIRMED - 08/01/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

      LEE, C.J., FOR THE COURT:

¶1.   Lamarcus Wallace was convicted of murder by a Bolivar County Circuit Court jury.

Wallace was sentenced to life in the custody of the Mississippi Department of Corrections,

with the sentence to run consecutively to any previously imposed sentences. His posttrial

motion was denied, and he now appeals, asserting the following issues: (1) the trial court
erred by failing to grant a mistrial; (2) his right to confront witnesses was violated; (3) the

State improperly commented on his failure to call an alibi witness; and (4) cumulative error

requires reversal of his conviction.

                                           FACTS

¶2.    Around 7 p.m. on September 13, 2014, Officer Earl Hodges with the Cleveland Police

Department responded to a disturbance call near Brewer Drive in Cleveland, Mississippi.

Officer Hodges saw Wallace arguing with Tony Jones, also known as “Fat Cat.” Officer

Hodges testified that the call indicated Jones had a gun. Officer Hodges searched Jones and

told Wallace to leave the area. Officer Hodges testified that as Wallace left, he made

threatening statements to Jones. But Officer Hodges stated he could not remember the exact

statements since his primary concern was making sure Jones did not have a gun.

¶3.    Officer Darrin White also responded to the disturbance call. When Wallace left,

Officer White heard him say to Jones, “It isn’t over.” Officer White thought Wallace’s

comment “sounded like revenge,” as if “something [was] going to happen later.”

¶4.    On that same evening, around 9:15 p.m., Officer Emily McCain with the Cleveland

Police Department responded to a shooting on Brewer Drive. When Officer McCain arrived

she noticed Jones lying on the driveway and bleeding from multiple gunshot wounds. Jones

died shortly thereafter. Officer White also responded and, after seeing that Jones had been

shot, then went to look for Wallace.

¶5.    Kimberly Thomas, Crystal Thomas, and Debra West were present when the shooting

occurred. Kimberly testified that she was outside with West when she saw someone wearing



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a black hooded jacket with the hood pulled over his head running toward where Jones was

standing. This person then fired several shots at Jones. Kimberly did not see the assailant’s

face.

¶6.     Crystal testified that she saw Wallace hiding behind a tree. She said although Wallace

was wearing a black hooded jacket with the hood pulled over his head, she was able to see

his face and immediately recognized him. Crystal then went inside the house, but could still

see Wallace from an open window. According to Crystal, Wallace was “creeping” around

and holding a gun. Once Crystal saw the gun, she ran outside. Before she reached the door,

Crystal said she heard gunshots. West, who was dating Jones at the time, testified she was

standing outside with Jones when a man ran towards them. The man said, “I told you I was

going to get you b[****]-a[**] n[*****,]” and fired his gun at Jones.

¶7.     Wallace testified in his own defense. He stated that he was in Greenville at 7

p.m.—the same time as the first incident in Cleveland—delivering drugs to a friend named

Tavarous at a local car wash.

                                        DISCUSSION

        I.     Mistrial

¶8.     In his first issue on appeal, Wallace argues that the trial court should have sua sponte

declared a mistrial because multiple jurors were seen sleeping during trial. At the end of the

first day of trial, Wallace’s attorney stated, “I do want to make one comment on the record

before we leave. I just got a note from my partner that jurors number [two], [four], [nine],

and [ten] were sleeping.” On the second day of trial, Wallace’s attorney stated that jurors



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one, two, four, and ten had fallen asleep that morning. The trial court stated that it had been

watching the jury and noticed juror four “appeared to perhaps have her eyes closed at one

time.” Ultimately, the trial court stated that it would continue to observe the jury to see if any

jurors fell asleep.

¶9.    Wallace did not request a mistrial. He did raise this issue in his posttrial motion. The

trial court found no merit to this argument, stating that it “had not noticed any excessive

inattentiveness.” The trial court further stated, “The court did observe jury members that, on

occasion, would close their eyes momentarily and thus appear to be asleep or inattentive, but

who, on continued watching, would open their eyes and appear to give the witness the

required attention.” The trial court reiterated that these jurors were not asleep, instead they

were “sufficiently attentive to dispel any claim of violation of due process.”

¶10.   Wallace relies upon Carpenter v. State, 132 So. 3d 1053 (Miss. Ct. App. 2013), for

support. In Carpenter, the trial court was informed that several jurors fell asleep at one point

during trial, and, as a result, the defendant requested a mistrial. Id. at 1058 (¶16). The trial

court denied the motion but, noting that one of the jurors had been sleeping, replaced the

sleeping juror with an alternate. Id. at 1058-59 (¶¶16-17). This Court found no abuse of

discretion by the trial court. Id. at 1059 (¶17).

¶11.   In this case, however, the trial court determined that no jurors had fallen asleep. Thus,

the trial court was under no obligation to replace a juror with an alternate or sua sponte grant

a mistrial. See Hines v. State, 417 So. 2d 924, 925 (Miss. 1982). This issue is without merit.

       II.     Violation of Right to Confront Witnesses



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¶12.   In his next issue, Wallace argues that his right to confront witnesses was violated

because the forensic examiner who tested the gunshot-residue sample did not testify at trial.

Chad Suggs was the forensic examiner from the Mississippi Crime Laboratory who tested

the sample, but David Whitehead testified regarding the results of the test. As the chief of

the Trace Evidence Section, Whitehead technically reviewed all the reports issued by the

crime lab. The report itself was not admitted into evidence.

¶13.   Specifically, Wallace contends that the State never made a preliminary finding that

Suggs was unavailable to testify regarding the gunshot-residue test. In Crawford v.

Washington, 541 U.S. 36, 53-54 (2004), the United States Supreme Court 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. However, our supreme court has held on

numerous occasions that technical reviewers can testify at trial in place of an analyst who

actually conducted the test if the reviewers had personal knowledge of the testing procedures

and were involved in the creation of the underlying reports. See Armstead v. State, 196 So.

3d 913, 919 (¶18) (Miss. 2016); Hingle v. State, 153 So. 3d 659, 665 (¶13) (Miss. 2014);

Grim v. State, 102 So. 3d 1073, 1081 (¶22) (Miss. 2012); Jenkins v. State, 102 So. 3d 1063,

1069 (¶19) (Miss. 2012).

¶14.   We note that during trial Wallace’s attorney conceded that it was acceptable for

Whitehead to testify rather than Suggs. Regardless, Whitehead testified that he served as the

technical reviewer on the gunshot-residue test. According to Whitehead, he reviewed the



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evidence and Suggs’s analysis before signing the report. Whitehead also offered his own

opinion regarding the test results, noting that the sample taken from the back of Wallace’s

right hand tested positive for gunshot residue. It is clear from his testimony that Whitehead

was actively involved in the production of the report and had intimate knowledge of the

testing procedures. This issue is without merit.

       III.   State’s Comment Regarding Alibi Witness

¶15.   Wallace next argues that the trial court should have sua sponte declared a mistrial after

the State commented on Wallace’s failure to call an alleged alibi witness. During the State’s

cross-examination of Wallace, Wallace stated he was in Greenville at the time of the

shooting, meeting his friend Tavarous. The State then asked, “Is Tavarous here today?”

Wallace responded, “No.” The State responded, “Oh. No further questions.”

¶16.   However, Wallace failed to object either during trial or in his posttrial motions; thus,

this issue is procedurally barred. Davis v. State, 660 So. 2d 1228, 1246 (Miss. 1995).

Regardless of the procedural bar, Wallace’s argument is also without merit. “[G]enerally,

‘the failure of either party to examine a witness equally accessible to both parties is not a

proper subject for comment before a jury.’” Pearson v. State, 64 So. 3d 569, 575 (¶22)

(Miss. Ct. App. 2011) (quoting Ross v. State, 603 So. 2d 857, 864 (Miss. 1992)). But

       the rule barring comment [does] not apply where a witness, while technically
       accessible to both parties, stood more available to the complaining party.
       Where a defendant fails to call a witness more available to him and
       presumptively in a closer relationship with him, the [S]tate is fully entitled to
       comment on the party’s failure to call the witness.

Ross, 603 So. 2d at 864. In Ross, the defendant testified that he was fishing with his brother



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at the time the crime was committed. Id. The supreme court held that due to the defendant’s

relationship to the alleged alibi witness, “the [S]tate had every entitlement to comment on the

absence of testimony from” the defendant’s alleged alibi witness. Id. In Pearson, this Court

found that “[b]ased on [the defendant’s] testimony that he was at home with his wife at the

time the sale took place, . . . the State was permitted to delve into whether [the defendant]

intended to call his wife to verify his alibi.” Pearson, 64 So. 3d at 576 (¶24). Here, Wallace

testified that Tavarous was his “homeboy,” establishing their close relationship. Thus, the

State’s comment asking whether Tavarous would testify was not improper.

       IV.    Cumulative Error

¶17.   In his final issue, Wallace contends that all of the errors in his case, taken together,

warrant relief. Under the cumulative-error doctrine, individual errors “may combine with

other errors to make up reversible error, where the cumulative effect of all errors deprives

the defendant of a fundamentally fair trial.” Ross v. State, 954 So. 2d 968, 1018 (¶138)

(Miss. 2007). “However, where there is no error in part, there can be no reversible error to

the whole.” Harris v. State, 970 So. 2d 151, 157 (¶24) (Miss. 2007). Finding no error, there

can be no cumulative error. This issue is without merit.

¶18.   AFFIRMED.

    IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.




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