IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-00309-COA
FREDRICK SMITH JR. A/K/A FREDERICK J. APPELLANT
SMITH A/K/A FREDERICK SMITH A/K/A
FREDRICK SMITH A/K/A FREDERICK SMITH JR.
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/17/2015
TRIAL JUDGE: HON. WILLIAM A. GOWAN JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: JOHN M. COLETTE
SHERWOOD ALEXANDER COLETTE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: ROBERT SHULER SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED - 01/02/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
GREENLEE, J., FOR THE COURT:
¶1. Frederick Smith appeals his conviction from Hinds County Circuit Court, First
Judicial District, of two counts of aggravated assault with a deadly weapon. More
specifically, the jury found him guilty of shooting two people. On appeal, his asserted errors
are that: (1) the trial court did not allow an alibi witness to testify; (2) the trial court allowed
impermissible hearsay testimony in violation of Crawford v. Washington;1 and (3) the
1
Crawford v. Washington, 541 U.S. 36 (2004).
evidence was insufficient as to one of the counts. Upon review, we find the circuit court
erred by disallowing Smith’s alibi witness to testify. We reverse Smith’s conviction and
remand for a new trial.
BACKGROUND
¶2. On July 13, 2013, at approximately 1:30 a.m., Jessica Keys and Cameron Conner were
both shot at a gas station in Jackson, Mississippi. Keys was riding passenger in a car operated
by her coworker when they pulled into the gas station, and parked facing the station, with the
gas pump on the driver’s side. Conner was inside the station, and when he exited, Keys
recognized him. Keys opened her car door and stood up outside the car but from behind the
door, calling out to Connor. Connor then came over to Keys, almost reaching her door.
¶3. Earlier, while Keys’s vehicle was parked and Conner was inside, a car had pulled in
and parked on the opposite side of the same stall, also facing the station. No occupants exited
until approximately two minutes later, when Conner reached Keys’s door. At that time, three
individuals exited the car and opened fire on Keys and Conner. Both Keys and Conner
dropped to the ground for cover. Keys attempted to wedge herself under the car, lying along
the car’s length with her head toward the rear, while Conner used the outside of the still-open
car door for protection. One of the three shooters pivoted around the rear of Keys’s vehicle,
firing his weapon as he moved along the rear-passenger side. Conner crawled from the car
door to the front of the vehicle, attempting to seek better cover. As Conner moved, the same
shooter continued to fire, pivoting to get a better angle at Conner.
¶4. Keys was shot three times and remained alongside the car until she was transported
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by ambulance to University of Mississippi Medical Center. Conner left the scene prior to the
first responders’ arrival, when other individuals helped him inside their vehicle.2
¶5. Keys viewed a photo lineup and identified Fredrick Smith as one of the shooters.
Smith was indicted on January 29, 2014, on two counts of aggravated assault with a weapon
in violation of Mississippi Code Annotated section 97-3-7(2)(b) (Supp. 2012). On June 10,
2014, the Hinds County District Attorney’s Office withdrew because one of Smith’s co-
indictees was serving as a cooperating witness for the State in another prosecution. On June
23, 2014, the Mississippi Office of the Attorney General was appointed as special prosecutor
in Smith’s case.
¶6. During trial, the court granted Smith’s motion in limine to exclude third-party
identifications tying Smith to the shooting, including any identifications within tips submitted
to Crime Stoppers.3 Detective Rozerrio Camel of the Jackson Police Department, the
assigned investigator, testified for the State. Prior to his testimony, the trial judge advised the
State to inform Detective Camel he could not mention any information contained within the
Crime Stoppers tips, stating “[the nature of the tips] is hearsay.” However, during his
testimony, Detective Camel stated, “during the course of investigation, I received information
and tips—and tips regarding Frederick Smith. Tips was stating that Frederick Smith—
[(interrupted by colloquy regarding an objection)] . . . . Tips. I received tips regarding
2
A security camera captured the above incident in its entirety, and the jury viewed
the footage during trial.
3
Crime Stoppers is an organization that solicits tips from the public in effort to gather
information concerning crimes.
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Frederick Smith and—and the purple automobile that he drives.” Following Detective
Camel’s statement, the trial court issued a cautionary instruction: “Ladies and gentlemen of
the jury, I’m instructing you to totally disregard the portion of the testimony of this witness
dealing with the identification of any vehicle.”
¶7. On the second day of trial, Smith’s trial counsel, Darla Palmer, notified the court that
there was a witness, Kenzoro Williams, who would state he was with Smith at the time of the
shooting. Palmer further stated that, although she had spoken with Smith on numerous
occasions about the upcoming trial, Smith’s first mention of the potential alibi witness was
on the second day of trial. Outside the presence of the jury, the court allowed a proffer of
Williams’s testimony. In his proffer, Williams stated that on the night of the shooting, he saw
Smith at a local club. He further stated that Smith did not leave until he did, at approximately
2 a.m. on Saturday morning. Following Williams’s proffer, Smith testified for the limited
purpose of explaining the timing of his alibi-witness disclosure. The State objected to
Williams’s testimony, and the trial court sustained the objection, disallowing Williams from
testifying.
¶8. Following trial, the jury found Smith guilty on both counts. Smith was subsequently
sentenced on each count to a term of twenty years in the custody of the Mississippi
Department of Corrections, with five years suspended and fifteen to serve, followed by five
years of probation. The sentences were ordered to run concurrently with one another. Smith
appeals.
DISCUSSION
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I. Denial of Smith’s Alibi Witness
¶9. On appeal, Smith challenges the court’s exclusion of his proposed alibi witness. “In
reviewing rulings of a trial court regarding matters of evidence, relevancy and discovery
violations, the standard of review is abuse of discretion.” Sims v. State, 928 So. 2d 984, 986
(¶8) (Miss. Ct. App. 2006).
¶10. Mississippi Uniform Rule of Circuit and County Court Practice 9.054 states:
Upon the written demand of the prosecuting attorney stating the time, date,
and place at which the alleged offense was committed, the defendant shall
serve within ten days, or at such other time as the court may direct, upon the
prosecuting attorney a written notice of the intention to offer a defense of alibi
....
(Emphasis added).
¶11. “The rule clearly states that the requirement to disclose an alibi witness is triggered
by the prosecution.” Hall v. State, 925 So. 2d 856, 857 (¶4) (Miss. Ct. App. 2005). “Only
after the prosecuting attorney makes a written demand is the defendant then required to
provide written notice of his intent to offer a defense of alibi.” Id. (quoting Ford v. State, 862
So. 2d 554, 557 (¶11) (Miss. Ct. App. 2003)). Upon thorough review, there is nothing
indicating that the prosecution made such a written demand, and we are not inclined to
assume one exists. We therefore find that Smith’s lack of disclosure was not a failure to
abide by Rule 9.05. On two prior occasions, we have reversed and remanded when a
defendant’s alibi witness was excluded, where the State did not make a written demand under
Rule 9.05. See Hall, 925 So. 2d at 857 (¶¶3-5); Ford, 862 So. 2d at 557 (¶¶10-12). The trial
4
Mississippi Rule of Criminal Procedure 17.4 replaced Rule 9.05 effective July 1,
2017. But because the proceedings in this case predate this change, the former rule applies.
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court likewise erred here, in denying Smith the opportunity to present his alibi witness. We
reverse and remand for a new trial.
II. Detective Camel’s Testimony
¶12. Smith next argues testimony of Detective Rozerrio Camel was admitted in violation
of the Confrontation Clause of the Sixth Amendment. Smith asserts that Detective Camel
gave, over a sustained objection, testimonial evidence concerning the tips he received via
Crime Stoppers. A criminal defendant’s argument is procedurally barred where he fails to
make a contemporaneous Sixth Amendment (Confrontation Clause) objection to the
admission of testimony and does not raise an objection in his post trial motions. Ezell v.
State, 132 So. 3d 611, 612 (¶3) (Miss. Ct. App. 2013). A general hearsay objection is
insufficient to preserve an alleged Confrontation Clause violation for appellate review.
Briggs v. State, 16 So. 3d 696, 698-99 (¶11) (Miss. Ct. App. 2008).
¶13. Smith failed to make a Sixth Amendment objection to the admission of Detective
Camel’s testimony either at trial or in a post trial motion (and instead asserted hearsay
objections). Smith’s arguments on this issue are therefore procedurally barred. We note that
Detective Camel’s statement, given over a sustained hearsay objection, was clearly improper.
However, we do not find this issue dispositive, and decline to review it for plain error.
III. Sufficiency of the Evidence
¶14. In his third assignment of error, Smith asserts the State presented insufficient evidence
to convict him of aggravated assault, as to the charge concerning Conner. Smith argues that:
(1) Connor did not testify; (2) no witnesses testified that Smith shot Conner; and (3) Keys’s
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testimony was unreliable.
¶15. In considering whether the evidence is legally sufficient to sustain Smith’s conviction,
the critical inquiry is whether the evidence shows beyond a reasonable doubt that Smith
committed the act charged, and that he did so under such circumstances that every element
of the offense existed. Russell v. State, 924 So. 2d 604, 608 (¶8) (Miss. Ct. App. 2006). “The
key question in this analysis is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id. (quotation marks omitted) (quoting Bush v. State, 895
So. 2d 836, 843 (Miss. 2005) (abrogated on other grounds)). If the evidence against Smith
is such that “reasonable fair-minded [jurors] in the exercise of impartial judgment might
reach different conclusions on every element of the offense,” we will deem the evidence
sufficient. Id. We will only reverse the jury’s verdict when evidence of one or more of the
elements of the charged offense are such that reasonable and fair-minded jurors could only
find the accused not guilty. Wilson v. State, 936 So. 2d 357, 362 (¶16) (Miss. 2006). In
analyzing such a claim of error, we are required to view the evidence in the light most
favorable to the State and consistent with the verdict. Id. The State receives the benefit of all
favorable inferences that may be reasonably drawn from the evidence. Id.
¶16. For the jury to find Smith guilty of aggravated assault, the State was required to prove
beyond a reasonable doubt that Smith: (1) attempted to cause or purposely or knowingly (2)
caused bodily injury to another (3) with a deadly weapon or other means likely to produce
death or serious bodily harm. Miss. Code Ann. § 97-3-7(2) (Supp. 2012).
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¶17. Looking to the record, we find the evidence such that a rational trier of fact could have
found beyond a reasonable doubt that Smith attempted to cause or purposefully or knowingly
caused bodily injury to Conner with a deadly weapon. Keys picked Smith out of a lineup, and
identified him as one of the three shooters. She testified that she was able to identify Smith
because she recognized his eyes. Keys also identified Smith during trial, and stated that
during the shooting, while she was underneath her car, Smith came close to where she was,
and shot over the car at Conner. Keys stated that when she was under the car, she was on her
stomach, but had her head up, and her eyes open.
¶18. Smith’s assertion that Keys’s testimony was unreliable is an attempt to attack her
credibility, and we have consistently held that the jury determines a witness’s credibility at
trial, and the weight and worth of her testimony. See, e.g., Odom v. Roberts, 606 So. 2d 114,
118 (Miss. 1992); Burge v. Spiers, 856 So. 2d 577, 580 (¶9) (Miss. Ct. App. 2003). Smith’s
assignment of error regarding the sufficiency of the evidence is without merit.
CONCLUSION
¶19. The State did not issue a written demand that Smith disclose his intent to offer an
alibi, and therefore, Smith was not required to disclose his intention to call Williams. Thus,
the trial court erred when it denied Smith the opportunity to present his alibi witness. Smith’s
second assignment of error is procedurally barred, and we find that Smith’s third assignment
concerning the sufficiency of the evidence is without merit.
¶20. REVERSED AND REMANDED.
LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WESTBROOKS AND
TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT
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SEPARATE WRITTEN OPINION. GRIFFIS, P.J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.
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