         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2016-KA-01579-COA

CARLOS C. JONES A/K/A CARLOS JONES                                              APPELLANT
A/K/A CARLOS J. JONES

v.

STATE OF MISSISSIPPI                                                              APPELLEE

DATE OF JUDGMENT:                            10/18/2016
TRIAL JUDGE:                                 HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED:                   JEFFERSON DAVIS COUNTY CIRCUIT
                                             COURT
ATTORNEY FOR APPELLANT:                      OFFICE OF STATE PUBLIC DEFENDER
                                             BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:                           HALDON J. KITTRELL
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED - 05/08/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       IRVING, P.J., FOR THE COURT:

¶1.    Carlos Jones appeals his conviction for second-degree murder, alleging three issues:

(1) the trial court erred in admitting a video depicting testimonial evidence; (2) the trial court

erred in refusing to allow his witness to testify as an expert; and (3) his trial counsel was

constitutionally ineffective. Finding no reversible error, we affirm.

                                            FACTS

¶2.    At the time of the events giving rise to trial, Jones and his wife, Tabatha Smith, were
living with Tabatha’s two children in Jefferson Davis County, Mississippi. Jones testified

that on the morning of December 5, 2014, he awoke, got out of bed, and left his and

Tabatha’s bedroom to wake the children.             Upon returning to the bedroom, he and

Tabatha—who was awake but still in bed at this point—began “fussing.”1 Tabatha rolled

over onto the handgun that Jones kept under his pillow and said, “You and this gun.” Jones

pulled the gun out from under the pillow and assured Tabatha that it was not loaded. He then

put the gun in the back pocket of his pants, but it fell through a hole in the pocket and hit the

floor. Jones later testified at trial as follows:

       BY DEFENSE COUNSEL

       Q.      And you’re not saying [the gun] fired when it hit the floor?

       A.      I’m not saying it fired when it hit the floor. I’m saying when I grabbed
               it, I don’t know how did I [sic] grab it, the gun went off. I know [sic].
               I didn’t even know how many times she was shot until, you know, I - -
               I just - - when she - - when that gun went off, she sa[id], “I told you.”
               I looked at my wife. She was bleeding.

                                             ****

       A.      When I was coming up, the gun went off.

       BY THE PROSECUTOR

       Q:      All right. So you - - you’re saying apparently that you didn’t even pull
               the trigger.

       A.      I don’t know how I retrieved that gun. . . .


       1
        At trial, Jones defined “fussing” as “[d]isagreeing about things” and just typical
“banter” between husbands and wives.

                                                2
                                            ****

       Q.     Well, where did you point the gun when you came up?

       A.     I didn’t - - I didn’t know it hit her. I just heard it go off. She just said,
              “I told you.” I didn’t point the gun.

                                            ****

       A.     In my attention [sic], I think the gun just shot. I didn’t pull no trigger
              on no gun [sic]. It was an accident. It was an accident.

¶3.    According to Jones, Tabatha, upon realizing that she had been shot, said, “I told you.”

Jones asserted that Tabatha told him not to call 911 because it would take too long, so he

dragged her out of the house and placed her into the back seat of his car. Then, with

Tabatha’s two children in the front seat, he drove to Prentiss Regional Hospital.

¶4.    Jones testified that when he reached the emergency room, he shouted for help from

a man standing nearby. The man, later identified as Antonio McClendon, helped Jones alert

the nurses, who loaded Tabatha into a wheelchair and admitted her. Tabatha was still

conscious at this point.

¶5.    McClendon later testified at trial that he had been standing outside of an apartment

complex near the emergency room when Jones drove up. He recognized Jones and Tabatha

from meeting them on a prior occasion and walked over to the hospital to investigate.

McClendon further testified:

       Q.     Okay. Did [Jones] tell you what had happened to her?

       A.     After - - after we got her out [of the car and into the hospital], he was -
              - he was saying that, you know, there was some kind of - - it was early

                                               3
              in the morning. He was - - you know, they was just [sic], you know,
              having words I guess or whatever, and he was, like, he was playing
              with her with - - with the gun, you know, like, [“Y]ou going to get this
              right here. Now give me some,[”] you know.

              I guess something they always do [sic]. You know, I don’t
              know. You know, that’s what he was telling me. And he was,
              like, such and such, and the gun went off and shot her, like,
              three or four times.

       Q.     Okay. That’s what [Jones] told you?

       A.     Yes, ma’am.

       Q.     Did he tell you anything in particular about the condition of the gun?

       A.     Yeah. He told [me] it was, like, the gun kind of messed up. It had like
              a little hair trigger, you know, like. Like, it just went off, and it got
              stuck, and that’s how she got shot four or five times, or three or four
              times.

Finally, McClendon opined that Jones appeared to be high when Jones arrived at the hospital.

He maintained that Jones acted as if he did not want to sign any papers, and that he believed

Jones would have left the hospital if McClendon had not asserted that he needed to stay.

¶6.    Shortly after Tabatha was admitted, the hospital alerted law enforcement authorities.

Officer David Marshall with the Prentiss Police Department was the first to arrive, and

testified at trial that Jones told him the following:

       [He told me t]hat he keeps a Hi-Point .45 underneath his pillow at home and
       that he retrieved it and placed it in his rear, right pocket, which had a hole in
       it, [and] that the firearm fell through the hole. He picked it up, and he said that
       he pointed towards his wife and said, “I told you it wouldn’t fire,” and once he
       did that, the weapon fired.

Jones gave the gun—which he had brought with him to the hospital—to Officer Marshall,

                                               4
who secured it in his patrol vehicle.

¶7.    Subsequently, Deputy Denise Jackson and Investigator Charles Johnson, both with the

Jefferson Davis County Sheriff’s Department, arrived at the hospital. Deputy Jackson

retrieved the gun from Officer Marshall and placed Jones into custody. Both Investigator

Johnson and Deputy Jackson attempted to speak with Tabatha, but Investigator Johnson

testified that “she was not really talking” and “the only thing she was saying was, ‘Help me,

help me, help me.’” Similarly, Deputy Jackson testified that when she went into the hospital

room, all Tabatha said was “help me.”

¶8.    Investigator Johnson obtained a search warrant for Jones and Tabatha’s home, and he

and Deputy Jackson conducted a search of the premises. Sometime thereafter, Jones was

arrested on charges of “domestic violence, aggravated assault.” Jones waived his rights

pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and wrote the following statement:

       [Tabatha] rolled over on my side [of the bed.] She said[, “Y]ou and this
       gun[.”] I got my gun out from under my pillow and stuck it in my back pocket
       and it fell out[.] I picked it up and said[, “T]his gun ain’t loaded[.”] When I
       turened[,] [sic] it went off[.] She said[, “I] told you[.”] When I looked up[,]
       she was bleeding.

¶9.    On December 10, 2014, Investigator Johnson again attempted to speak to Tabatha.

This conversation, which lasted fifty-five seconds, was video-recorded. The video depicts

Investigator Johnson asking, “Tabatha, did Carlos shoot you?” Tabatha did not verbally

respond. Investigator Johnson said, “Let me know by shaking your head or raising your

hand.” Tabatha lifted her hand slightly. Investigator Johnson then said, “Okay. How many


                                             5
times he [sic] shoot you?” Tabatha moved her fingers.2 Investigator Johnson said, “Okay.

Thank you,” and the video concluded.

¶10.   After fifteen days in the hospital, on December 20, 2014, Tabatha succumbed to her

injuries. Dr. John Brentley Davis, a forensic pathologist and Deputy Chief Medical

Examiner for the State of Mississippi, reviewed Tabatha’s autopsy report3 and testified that

she had been struck by two bullets: one bullet hit Tabatha’s left shoulder and the right side

of her neck, and another bullet hit her right shoulder. As a result of the gunshots, Tabatha

sustained injury to her jugular vein and to vertebrae in her neck and upper back.

¶11.   The Grand Jury of Jefferson Davis County indicted Jones for one count of murder, in

violation of Mississippi Code Annotated section 97-3-19 (Supp. 2017). Jones’s trial was

conducted over the course of three days, from October 10, 2016, to October 12, 2016. The

jury heard testimony from Tabatha’s oldest son, Daniel,4 who was seven years old at the time

of the shooting. Daniel testified that, on the morning of the incident, he heard his mother and

Jones arguing. The arguing stopped for some time, then it resumed, and then Daniel heard

three gunshots. Daniel indicated what the gunshots sounded like by knocking his fist against



       2
         The State in its brief on appeal says that Tabatha indicated Jones shot her twice,
while Jones does not purport either that Tabatha did or did not make such an indication. It
is this Court’s opinion that Tabatha’s movements were not intelligible to the extent that we
can definitively say she indicated Carlos shot her twice.
       3
        Tabatha’s autopsy was actually performed by Dr. Erin Barnhart, who was
unavailable to testify at Jones’s trial.
       4
           The minor child’s name has been changed to protect his privacy.

                                              6
the ledge of the witness stand three times. While the record is unclear as to the exact timing

pattern of Daniel’s knocks, the State maintained during closing arguments that two of the

knocks were closer together than the third, which differs from an episode of rapid fire, during

which all shots would have occurred in quick succession with no variance in timing between

them. Jones’s counsel did not refute the State’s recollection of Daniel’s knocks against the

witness stand, but instead argued that Daniel was incorrect in remembering the timing pattern

of the shots or that he had been coached prior to his testimony.

¶12.   Investigator Johnson also testified at trial, during which the video of his interview

with Tabatha at the hospital was admitted into evidence. Jones’s defense counsel objected

on the basis that the video was more prejudicial than probative. The court allowed the video

into evidence on the basis that it was a part of Investigator Johnson’s continuing

investigation. Investigator Johnson further testified as to his investigative report, wherein

he recounted the following:

       [Jones] stated that he had the gun under the pillow and he accidentally shot his
       wife, and he also told Officer Marshall the same thing.

                                           ****

       Mr. Jones stated that the gun was under the pillow and Tab[ath]a was
       complaining about it[,] so he took the gun from under the pillow and put it in
       his back pocket, and the gun fell out [of] his pocket and hit the floor[. H]e
       stated that Tab[ath]a stated[, “Y]ou need to put that gun up[.”] Mr. Jones
       stated that he pick[ed] the gun up and was trying to show her that it wasn’t
       loaded, and the gun went off[,] shooting her in the neck[,] both shoulder[s],
       and chest.

¶13.   Two witnesses testified about the handgun’s functionality: Darrell Carey, a firearms

                                              7
instructor who testified for the defense, and Carl Fullilove, a forensic scientist who testified

for the State. After conducting a voir dire examination of Carey, the trial court refused to

admit him as an expert under Rule 702 of the Mississippi Rules of Evidence, on the basis that

he had not shown that his testimony was “based on sufficient facts or data” or “based on

reliable principles and methods.” Specifically, the trial judge noted that Carey had not

produced written documentation or publication that could be cross-examined by counsel

opposite, and that “his testimony was strongly weighted or heavily weighted toward firearm

shooting and not the mechanics of the firearm itself, i.e., the assembling, disassembling, [or]

the methodology of how it operates.” Jones’s counsel argued that Carey’s testimony was

relevant because a theory of its case was that “if you hold the weapon without a rigid wrist,

. . . due to the weight of the slide, . . . when you fire the weapon, you can get basically a

repetitive firing, very, very rapidly.” As Carey was experienced in shooting handguns, the

defense argued that he was an expert and should be able to testify as such. However, the

court ultimately refused to allow Carey to testify as an expert, and allowed him to testify only

as to his personal observations as a lay witness.

¶14.   Carey, as a lay witness, testified that he attempted to recreate Jones’s theory of

defense: that he had picked up the gun and it somehow discharged several times. A video

recording of this recreation is included in the record. Carey testified to the following:

       It [did] not occur with every pick up of the firearm, but what I did observe is
       that if you grasp that firearm . . . like this (indicating) with that finger on that
       trigger . . . and that weight of that firearm basically weighs against your hand,
       it will go off several times in quick succession.

                                                8
Carey further noted that he had personally observed that, on one occasion, when he lifted the

gun up, “the heavy weight of [the] slide (indicating) basically cause[d] the firearm to bump

against [my] trigger finger.” Carey testified that once, as he lifted up the gun, it “actually

went off twice, and then there was a second time where it actually went off three times

without me consciously pulling the trigger. Just the weight of that slide (indicating)

reciprocating back and forth caused it to continue firing.”

¶15.   Fullilove, as an expert witness for the State, testified that, like Carey, he had fired

Jones’s gun to ascertain its functionality. Fullilove testified that he conducted several tests

to see if the gun would misfire, even using a rawhide hammer to strike the weapon. Fullilove

opined that, to fire the weapon, a person would have had to pull the trigger once per shot.

¶16.   At the conclusion of trial, the jury found Jones guilty of second-degree murder. He

was sentenced to forty years in the custody of the Mississippi Department of Corrections,

with thirty-five years to serve. Jones filed a timely motion for judgment notwithstanding the

verdict, which was denied. Jones now appeals his conviction.

                                       DISCUSSION

       I.     Admission of the Video

¶17.   Jones argues that the trial court’s admission of Investigator Johnson’s video of

Tabatha at the hospital violated his fundamental rights under the Sixth Amendment’s

Confrontation Clause. Jones concedes that his counsel did not properly object, but maintains

that this issue may proceed under the doctrine of plain error. The State, in response, argues


                                              9
(1) that the issue is waived due to Jones’s failure to properly object, and (2) even assessing

the issue under plain error, “the admission of the video is not grounds for reversal because

the statements that Tabatha made on the video were cumulative of other evidence that was

admitted at trial, including the admissions that Jones, himself, made.”

¶18.   First, we note that regardless of whether Jones’s counsel objected, we may proceed

with this analysis under the plain-error doctrine. “Under the plain-error doctrine, we can

recognize obvious error which was not properly raised by the defendant on appeal, and which

affects a defendant’s ‘fundamental, substantive right.’” Smith v. State, 986 So. 2d 290, 294

(¶10) (Miss. 2008). “A Confrontation Clause violation is a violation of a ‘fundamental,

substantive right.’” Bufford v. State, 191 So. 3d 755, 760 (¶18) (Miss. Ct. App. 2015)

(quoting Ezell v. State, 132 So. 3d 611, 612 (¶3) (Miss. Ct. App. 2013)). Thus, this issue is

proper for our review even though it may not have been properly preserved for appeal.

¶19.   “The Confrontation Clause guarantees a criminal defendant the right ‘to be confronted

with the witnesses against him.’” Id. at 759 (¶13) (quoting U.S. Const. amend. VI). “In

Crawford v. Washington, 541 U.S. 36[, 54] (2004), the United States Supreme Court held

that ‘testimonial’ evidence could not be admitted against a criminal defendant unless the

declarant was unavailable at trial, and the defendant had a prior opportunity to cross-examine

him.” Id. (citation omitted). The Supreme Court provided in Michigan v. Bryant, 562 U.S.

344, 370 (2011), that, when determining whether a statement is testimonial and therefore

barred by the Confrontation Clause, “it should determine the ‘primary purpose of the


                                             10
interrogation’ by objectively evaluating the statements and actions of the parties to the

encounter, in light of the circumstances in which the interrogation occurs.” The Court held:

       Statements are nontestimonial when made in the course of police interrogation
       under circumstances objectively indicating that the primary purpose of the
       interrogation is to enable police assistance to meet an ongoing emergency.
       They are testimonial when the circumstances objectively indicate that there is
       no such ongoing emergency, and that the primary purpose of the interrogation
       is to establish or prove past events potentially relevant to later criminal
       prosecution.

Id. at 356 (citing Davis v. Washington, 547 U.S. 813, 822 (2006)).

¶20.   We hold that the video was, under this standard, testimonial. Investigator Johnson

asked Tabatha two questions: (1) whether Jones shot her and (2) how many times he shot her.

We see no purpose for those questions other than to establish events potentially relevant to

Jones’s later criminal prosecution. Further, we note that Tabatha was unavailable to testify

at trial due to her unfortunate death, and that Jones had no opportunity to cross-examine her.

¶21.   However, while we find that the circuit court erred in admitting the video, we also

find that Jones was not prejudiced by this violation. The Supreme Court has held that “[a]

defendant is entitled to a fair trial but not a perfect one,” and that, therefore, “most

constitutional errors can be harmless.” In Delaware v. Van Arsdall, 475 U.S. 673, 684

(1986), the Supreme Court provided the following with respect to when Confrontation-

Clause violations may be considered harmless error:

       The correct inquiry is whether, assuming that the damaging potential of the
       cross-examination [was] fully realized, a reviewing court might nonetheless
       say that the error was harmless beyond a reasonable doubt. Whether such an
       error is harmless in a particular case depends upon a host of factors, all readily

                                              11
       accessible to reviewing courts. These factors include the importance of the
       witness’ testimony in the prosecution’s case, whether the testimony was
       cumulative, the presence or absence of evidence corroborating or contradicting
       the testimony of the witness on material points, the extent of cross-examination
       otherwise permitted, and, of course, the overall strength of the prosecution’s
       case.

¶22.   Under these parameters, we are satisfied that the trial court’s error in admitting the

video was harmless beyond a reasonable doubt. First, we note that Tabatha’s testimony was

not particularly beneficial to either the State or Jones. Tabatha was unable to provide definite

answers to either of Investigator Johnson’s questions, as she appeared to be only semi-

conscious when she lifted her hand or moved her fingers. Second, the evidence was

cumulative, at least with respect to Investigator Johnson’s question of whether Jones shot

Tabatha, as Jones, himself, admitted that he was in control of the gun when Tabatha was

shot. Third, we cannot say that there was evidence corroborating or contradicting Tabatha’s

testimony on material points, because she made no material points, as her nonverbal

communication was ambiguous at best. As discussed earlier in this opinion, there was

sufficient admissible and credible evidence upon which the jury could rely to convict Jones

without considering Tabatha’s nonverbal ambiguous communication about who shot her.

Based on these facts, we hold that, while admission of the video was erroneous due to its

testimonial nature, the error was harmless.

       II.    Expert Witness

¶23.   Jones argues that the trial court erred in failing to admit Carey as an expert witness

in the field of firearm operations and functions, which consequently prejudiced his right to

                                              12
present his defense that the shooting was accidental. In response, the State contends that the

trial court did not err, because Carey did not disclose “what his expert opinion would be, as

was required by URCCC 9.04(c)(3),”5 and because Jones did not show that Carey satisfied

the requirements for admission of expert testimony under the Mississippi Rules of Evidence.

Further, the State maintains that Jones never made a proffer of what Carey’s testimony would

have been, had he been qualified as an expert, rendering the record insufficient for us to

determine whether the trial court’s refusal of his expert testimony was reversible error.

Finally, the State maintains that the trial court did not deny Jones the opportunity to present

his theory of defense, in part because Carey’s purported testimony and personal observations

did not prove that Tabatha’s death was accidental.

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

discretion.” Tillis v. State, 176 So. 3d 37, 45 (¶15) (Miss. Ct. App. 2014). Rule 702 of the

Mississippi Rules of Evidence provides:

       A witness who is qualified as an expert by knowledge, skill, experience,
       training, or education may testify in the form of an opinion or otherwise if:

              (a) the expert’s scientific, technical, or other specialized
              knowledge will help the trier of fact to understand the evidence
              or to determine a fact in issue;

              (b) the testimony is based on sufficient facts or data;


       5
         We note that the Uniform Rules of Circuit and County Court relating to criminal
practice have been supplanted by the Mississippi Rules of Criminal Procedure, effective July
1, 2017. Because the former rules were still in effect during Jones’s trial, Rule 9.04(c)(3)
applies to Jones’s case. The same applies to any other former rules cited in this opinion.

                                              13
                (c) the testimony is the product of reliable principles and
                methods; and

                (d) the expert has reliably applied the principles and methods to
                the facts of the case.

In contrast, Rule 701 of the Mississippi Rules of Evidence provides that a lay witness may

testify as to his opinion if that opinion is “(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue;

and (c) not based on scientific, technical, or other specialized knowledge within the scope

of Rule 702.”

¶25.   We do not find that the trial court abused its discretion in allowing Carey to testify as

a lay witness, but not as an expert. As previously stated, the trial judge found that Carey’s

testimony was not “based on sufficient facts and data,” because it concerned firearm shooting

and not the actual mechanics of the firearm. Further, the trial judge held that Carey could not

offer any “reliable principles or method[s] that could be cross-examined by the opposite

counsel,” such as written reports or other documentation, or any published materials.

¶26.   The record supports these conclusions: Carey admitted that he had never written any

articles or periodicals on shooting firearms, and could not provide the court with any

“reliable principles and methods” on which his testimony was based. Further, Carey did not

hold an engineering degree and did not seek to testify as to the gun’s mechanics. Such

knowledge probably would have been more akin to relevant expert testimony in this case,

which revolved around the gun’s mechanical propensity to misfire. Carey’s testimony, as

                                               14
presented during the voir dire examination, was largely contingent upon his own personal

observations of the handgun’s functionality, in light of Jones’s theory of defense. As such,

we hold that he was properly allowed to testify as a lay witness, only. We decline to address

the State’s other arguments regarding Carey’s testimony, as they are consequently moot.

       III.   Sufficiency of Counsel

¶27.   Jones argues that his counsel was constitutionally ineffective because he failed to offer

an accident instruction which would have allowed the jury to consider his theory of defense.

In response, the State maintains that Jones’s counsel’s decision was trial strategy and,

therefore, not subject to review.

¶28.   To prove ineffective assistance of counsel, a party must show (1) that his counsel’s

performance was deficient and (2) that this deficiency prejudiced his defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984). However, we have repeatedly held that:

       [T]he merits of an ineffective-assistance-of-counsel claim on direct appeal
       should be addressed only when (1) the record affirmatively shows
       ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the
       record is adequate to allow the appellate court to make the finding without
       consideration of the findings of fact of the trial judge.

Robinson v. State, 68 So. 3d 721, 723 (¶10) (Miss. Ct. App. 2011) (internal quotation marks

omitted). Here, the record does not affirmatively show ineffectiveness of constitutional

dimensions. Further, the parties have not stipulated that the record is adequate to allow this

Court to make a finding without consideration of the trial judge’s findings of fact. Thus, we

dismiss with respect to this issue, without prejudice, so that Jones may properly seek leave


                                               15
from the Mississippi Supreme Court to raise this issue in a post-conviction relief motion.

¶29.   Although we found error in the trial court’s admission of testimonial evidence, that

error was harmless, particularly in light of the other evidence presented at trial. We note,

specifically, that Jones offered varying accounts of the events that occurred just prior to the

shooting. As stated above, Jones testified at trial that the gun “just went off” as he was

lifting it from the ground. However, in his police statement, Jones said that the gun went off

when he turned. Further, at trial, Jones maintained both that he did not know how he

retrieved the gun, and that he did not pull the trigger on the gun. Such a statement belies

McClendon’s testimony that Jones told him he and Tabatha had been “playing,” when he shot

her due to the gun’s “hair trigger.” In light of these inconsistencies, combined with the

testimony of all witnesses at trial, we affirm.

¶30.   AFFIRMED.

     LEE, C.J., CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND
TINDELL, JJ., CONCUR. GRIFFIS, P.J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS
IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.




                                              16
