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
2
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.
10