DATE OF JUDGMENT: 12/01/2011
HINDS COUNTY CIRCUIT COURT HON. TOMIE T. GREEN TRIAL JUDGE
ATTORNEY FOR APPELLANT: JANE E. TUCKER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT
DISTRICT ATTORNEY: ROBERT SHULER SMITH
BEFORE LEE, C.J., CARLTON AND MAXWELL, JJ.
¶1. A Hinds County grand jury indicted Darrell Tillis for the murder of Michael Olowo-Ake. After hearing all the testimony presented at Tillis's trial, a jury found Tillis guilty of manslaughter pursuant to Mississippi Code Annotated section 97-3-35 (Rev. 2006). On appeal, Tillis raises the following issues: (1) whether the circuit court erred by allowing the coroner to testify and the State to admit the coroner's report; (2) whether the circuit court erred by overruling Tillis's objection to an improper comment made by the State during closing argument; (3) whether Tillis was denied due process and a fair trial; (4) whether the circuit court erred by denying Tillis's request for Olowo-Ake's National Crime Information Center (NCIC) report; (5) whether Tillis should have been acquitted as a matter of law pursuant to the Weathersby rule; (6) whether there was sufficient evidence to support Tillis's conviction; (7) whether the verdict was against the overwhelming weight of the evidence; (8) whether the circuit court erred by refusing to allow Tillis to physically demonstrate how the shooting occurred; (9) whether the State committed prosecutorial misconduct by eliciting improper witness testimony; and (10) whether cumulative error requires the reversal of Tillis's conviction and sentence. Finding no error, we affirm.
¶2. On Sunday, April 11, 2010, Tillis and Olowo-Ake met at a Texaco in Jackson, Mississippi, so Tillis could purchase two pounds of marijuana from Olowo-Ake. According to the testimony given by Nathaniel Singleton, Olowo-Ake picked Singleton up the morning of the shooting, and the two men headed to the Texaco. Singleton testified that Olowo-Ake parked his truck by a gas pump, and then Tillis drove up and parked on the other side of the pump. Tillis took Singleton's seat in the front of Olowo-Ake's truck and began looking through a bag filled with marijuana that Olowo-Ake had in his truck. Tillis asked whether the marijuana in the bag was all that Olowo-Ake had with him, and Olowo-Ake answered affirmatively. Because Singleton did not want to be involved in the drug transaction, Olowo-Ake gave him some money to purchase a cigar inside the store.
¶3. When Singleton exited the store, he testified that Tillis had Olowo-Ake "on the back tire of the truck between the pump and the truck" and was hitting Olowo-Ake. Singleton testified that he ran up to hit Tillis when Tillis "pulled the pistol out on me and told me – he cursed at me and told me to get back." At that point, according to Singleton's testimony, Olowo-Ake stood up from his position on the ground, and Tillis grabbed Olowo-Ake by his shirt and threw him inside the truck. Singleton claimed that Tillis then pointed the gun at Olowo-Ake and said, "You better give it to me. You better give it to me." Singleton further testified that Tillis then shot Olowo-Ake once. Singleton stated that, at the time the gun fired, Tillis was on top of Olowo-Ake in the truck. Singleton testified that he could see clearly inside the truck because he was standing right beside the vehicle.
¶4. Once he heard the gunshot, Singleton ran into the Texaco and asked for help. He testified that, when he exited the Texaco, Tillis again pointed the gun at him, then at Olowo-Ake, and said, "You better give it to me." Singleton testified that Tillis then fired another shot, which did not hit Olowo-Ake. Singleton further testified that Tillis grabbed the bag containing the marijuana and some money from Olowo-Ake's left pocket, and then Tillis drove away from the Texaco. Singleton testified that Olowo-Ake was not known to carry a gun and that he did not see Olowo-Ake with any kind of weapon during the fight.
¶5. Scottie Morton, who lived in a nearby apartment complex, pulled into the Texaco just after the shooting. Testimony in the record reflects that Morton knew Singleton and Olowo-Ake, and when Singleton told Morton about the shooting, Morton called Olowo-Ake's brother, Anthony. Like Singleton, Morton testified that Olowo-Ake was not known to carry a gun, and Morton testified that he did not see a gun or a knife in Olowo-Ake's truck when he arrived at the Texaco. When Olowo-Ake's brother, Anthony, arrived at the Texaco, he drove Olowo-Ake's truck to a nearby Citgo gas station, where he had seen an ambulance in the parking lot. After police arrived at the Citgo, paramedics rendered first aid to Olowo-Ake. They then transported Olowo-Ake to the hospital, where he was pronounced dead.
¶6. The jury also heard testimony from Gregory Lott and Jack Evern, who pulled into the Texaco just before the shooting. Lott parked his truck by the front door of the Texaco and entered the store while Evern remained in the truck. Lott testified that he saw two men, later identified as Tillis and Olowo-Ake, fighting by the gas pump as he exited the Texaco and walked back to his truck. According to Lott's testimony, Tillis appeared to be waving a gun, and Olowo-Ake appeared to be defending himself from Tillis. Lott got back into his truck, and he testified that, as he and Evern drove away, he heard two gunshots.
¶7. Another witness, Evern, also testified to seeing the altercation at the Texaco. Evern testified that he saw three men in the area of the gas pumps as he and Lott pulled into the Texaco. Evern saw Olowo-Ake pumping gas and Tillis in the passenger seat of Olowo-Ake's truck "fumbling with something." Evern testified that Olowo-Ake and Tillis exchanged a few words, and then Olowo-Ake walked over to Tillis and took several swings at Tillis. According to Evern's testimony, Olowo-Ake and Tillis began to fight, and Evern saw Tillis with a pistol. Evern testified that Tillis shot Olowo-Ake once, then shot Olowo-Ake again, and then Evern and Lott left the Texaco. Evern further testified that he never saw a weapon of any kind in Olowo-Ake's possession.
¶8. The jury also heard testimony from the Defendant, Tillis, who stated that he brought no gun with him to the Texaco the day of the shooting. Tillis testified that, after inspecting the marijuana in Olowo-Ake's truck, he decided not to purchase any. He exited the truck and approached Olowo-Ake, who was still pumping gas. Tillis testified that Olowo-Ake became very upset when he learned that Tillis did not want to purchase any of the marijuana. According to Tillis's testimony, a heated exchange followed, and then Olowo-Ake reached for a gun. Tillis testified that he was able to snatch the gun from Olowo-Ake's grasp and that he held the gun in one hand as he tried to hold Olowo-Ake back with his other hand.
¶9. Tillis testified that he told Olowo-Ake, "Man, get back, man, before you make me shoot you." Tillis testified that Olowo-Ake tried to regain possession of the gun, but Tillis pushed him away and told him to "stop" and to "get back." According to Tillis's testimony, he was scared and terrified by the situation. He further testified that Olowo-Ake fell to the ground at one point during the altercation, but Tillis maintained that he never hit Olowo-Ake. Tillis claimed that he only wanted to keep Olowo-Ake from regaining possession of the gun. He also claimed that he had no memory of consciously pointing the gun at Singleton.
¶10. Tillis further testified that Olowo-Ake got up from the ground and dove back into his truck. Thinking that Olowo-Ake might be reaching for another weapon, Tillis testified that he tried to grab Olowo-Ake, and the gun "just went off." Tillis stated that he leaned over to check on Olowo-Ake when the gun accidentally fired again into the truck's seat. Tillis maintained at trial that the gun was not pointed at Olowo-Ake and that he was not trying to shoot Olowo-Ake for a second time. Following the shooting, Tillis got into his vehicle and left the Texaco. At trial, he stated that he left the Texaco because he feared retaliation from Singleton. He further testified that, when he learned Olowo-Ake's family was looking for him, he headed to New Orleans, Louisiana. Although police later found no weapon or marijuana in Olowo-Ake's truck, Tillis testified that he left both the gun and the marijuana on the truck's floorboard.
¶11. In their investigation, police found no physical evidence at the Texaco. When they searched Olowo-Ake's truck at the Citgo, they failed to find a weapon or any marijuana. However, the police discovered two 9mm-caliber spent cartridge casings in the driver's seat of Olowo-Ake's truck, and Olowo-Ake's autopsy led to the recovery of a projectile from his body.
¶12. Detective Kimberly Brown, who responded to the shooting, testified that she spoke with the clerk at the Texaco. Although the Texaco's surveillance recorder was not working the day of the shooting, Detective Brown was able to view surveillance video from an adjacent business. The business's recording could not be converted and was only viewable on the store's own equipment. Detective Brow n testified that the im ages from the video were fuzzy, but she observed a scuffle between two people at Olowo-Ake's truck. However, due to the video's poor quality, Detective Brown was unable to clearly identify anyone in the video or to see a gun.
¶13. Detective Brown attempted to obtain a copy of the surveillance video, but each attempt proved unsuccessful. On her third attempt to convert the video to a readable format, she learned that the business's recording system had "rolled over" and recorded over the footage from the day of Olowo-Ake's shooting. Detective Brown further testified that during her investigation she showed Singleton a photo lineup containing Tillis's photograph and that Singleton positively identified Tillis as Olowo-Ake's shooter. Law enforcement officials later apprehended Tillis in New Orleans.
¶14. After considering the testimony and evidence presented at trial, the jury found Tillis guilty of manslaughter. The circuit court judge sentenced Tillis to a term of twenty years in the custody of the Mississippi Department of Corrections. Tillis filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. However, the circuit court judge denied Tillis's motion. Aggrieved by his conviction and the circuit court judge's ruling, Tillis now appeals to this Court.
I. Whether the circuit court erred by allowing the coroner to testify and the State to admit the coroner's report.
¶15. "The standard of review regarding admission or exclusion of evidence is abuse of discretion. Where error involves the admission or exclusion of evidence, this Court will not reverse unless the error adversely affects a substantial right of a party." Whitten v. Cox, 799 So.2d 1, 13 (¶27) (Miss. 2000) (citation and internal quotation marks omitted). "Unless the trial court has so abused this discretion as to prejudice the defendant's case, we will not reverse the ruling of the trial court." Tidwell v. State, 806 So.2d 1146, 1148 (¶7) (Miss. Ct. App. 2002) (citation omitted). We employ "a de novo standard of review when presented with constitutional issues." Smith v. State, 25 So.3d 264, 269 (¶11) (Miss. 2009) (citation omitted).
¶16. In his first assignment of error, Tillis argues that the circuit court judge erred by allowing Sharon Grisham-Stewart, the Hinds County Coroner, to testify about the medical examiner's findings. Tillis further argues that the circuit court judge erred by allowing the State to admit the coroner's report into evidence during the coroner's testimony. In his brief, Tillis asserts that the circuit court judge erred for the following reasons: (1) the coroner's testimony violated Tillis's right to confront the witnesses against him; (2) the coroner lacked the expertise to testify as to the manner of Olowo-Ake's death; (3) the State's argument regarding "homicide" and "accident" misled the jury; and (4) the State committed a discovery violation by failing to provide the coroner's report prior to trial.
a. The coroner's testimony violated Tillis's right to confront the witnesses against him.
¶17. In attacking the admission of the coroner's testimony and report, Tillis relies upon the United States Constitution and the Mississippi Constitution, which both guarantee a criminal defendant the right to confront and cross-examine the witnesses against him. U.S. Const. amend. VI; Miss. Const. art. 3, § 26. Tillis argues that the circuit court erred by allowing the coroner to testify in place of the medical examiner. Tillis asserts that the admission into evidence of the coroner's testimony prevented him from confronting the medical examiner, who actually performed Olowo-Ake's autopsy and determined Olowo-Ake's manner of death.
¶18. The record reflects that, during its direct examination of the coroner, the State elicited information pertaining to the preparation of the coroner's report. The record also reflects that the State elicited sufficient testimony to lay an evidentiary foundation to admit the coroner's report as a public record and a record of vital statistics. See M.R.E. 803(8)-(9). With no objection from the defense, the State then admitted into evidence the coroner's report on Olowo-Ake's death investigation.
¶19. The coroner testified that she completes her report as part of her duties and in the normal course of her business. The coroner's official report contained a section entitled "Manner of Death" and a subsection entitled "Probable Cause of Death, " as needed to fulfill the statutory requirement to report this information. The form also contained the following six choices for manner of death: natural, homicide, accident, suicide, unknown, or pending. The coroner testified that she usually selects "homicide" whenever a person's death results from the actions of another individual. The coroner explained that she checked "homicide" on her report for Olowo-Ake's manner of death and that she indicated the probable cause of death was a gunshot wound to Olowo-Ake's back.
¶20. During cross-examination, Tillis's attorney asked the coroner additional questions regarding her report. Tillis's attorney asked what kind of cases generally involve marking "accident" for manner of death, and in response, the coroner admitted that such a death could involve an accidental shooting. The defense then asked the coroner about Olowo-Ake's autopsy report, which was prepared by the Mississippi Medical Examiner rather than the coroner. Despite the State's objection to relevance, the circuit court judge allowed the defense to continue with its line of questioning. When Tillis later made a record of his objections to the coroner's testimony, including references to the medical examiner and the medical examiner's autopsy report, the circuit court judge acknowledged on the record that the defense—rather than the State—asked the coroner about the autopsy report and opened the door to that issue.
¶21. As the record reflects, Tillis confronted and cross-examined the coroner about her report. The record further reflects that, when the State offered the coroner's report into evidence, Tillis failed to object to the admission of the report. Additionally, as noted by the circuit court judge, Tillis, not the State, elicited from the coroner the testimony at issue about the autopsy report. The record also reflects that the State elicited sufficient testimony for the admission of the coroner's report into evidence as a public record and as a record of vital statistics. See M.R.E. 803(8)-(9). Therefore, for these reasons, we find that Tillis's argument regarding this claim of error is procedurally barred and lacks merit.
b. The coroner lacked the expertise to testify as to the manner of Olowo-Ake's death.
¶22. Tillis next argues that the coroner, without qualifying as an expert under Rule 702 of the Mississippi Rules of Evidence, provided expert testimony regarding the manner of Olowo-Ake's death. He further argues that the coroner's testimony on this subject fell outside her area of expertise. As previously acknowledged, our caselaw recognizes that a circuit court's admission of evidence, including testimony, is reviewed for abuse of discretion. See Clark v. Miss. Transp. Comm'n, 767 So.2d 173, 175 (¶8) (Miss. 2000).
¶23. The coroner testified at trial that, as part of her duties and in the normal course of her business, she completed her official report after examining Olowo-Ake's body. As reflected in the record, the coroner's official report contained a section entitled "Manner of Death, " which provided six different options, including "homicide" and "accident." The coroner testified that, consistent with her duties as coroner, she completed the report, including the section entitled "Manner of Death." Regarding the manner of Olowo-Ake's death, the coroner testified that Olowo-Ake suffered a gunshot wound to his back, and she testified that she usually selects "homicide" if a person's death resulted from the actions of another. However, she also admitted on cross-examination that an accidental shooting could constitute an "accident" for the purposes of her report.
¶24. The coroner's testimony explained why she concluded in her official report that Olowo-Ake's death constituted a "homicide." The coroner explained that, for the purpose of completing her report, she usually concluded "homicide" for any death resulting from the actions of another. As reflected in the coroner's report and explained by her testimony, the decision to select "homicide" failed to constitute a matter requiring an expert opinion. Instead, the coroner's decision simply reflected that Olowo-Ake died due to another person's actions.
¶25. As explained during her testimony, the coroner's determination was not based upon scientific, technical, or other specialized knowledge but rather upon her statutorily required duty to report and her personal observations about the circumstances of Olowo-Ake's death. See Miss. Code Ann. § 41-61-63(2) (Rev. 2013); M.R.E. 701. On cross-examination, the defense not only asked the coroner questions about her own report, but it also raised the issue of the medical examiner's autopsy report. As previously noted, the State objected to this line of questioning by the defense, but the circuit court judge overruled the State's objection.
¶26. On appeal, Tillis is procedurally barred from asserting any error regarding testimony about the medical examiner's autopsy report that he elicited from the coroner. See Murray v. State, 849 So.2d 1281, 1288 (¶29) (Miss. 2003); Lewis v. State, 445 So.2d 1387, 1389 (Miss. 1984). Based on the evidence in the record, we find no abuse of discretion by the circuit court's decision to admit into evidence the coroner's testimony. See Clark, 767 So.2d at 175 (¶8). This issue therefore lacks merit.
c. The State's argument regarding "homicide" and "accident" misled the jury.
¶27. Tillis next asserts that the State's argument regarding the coroner's classification of Olowo-Ake's manner of death as a "homicide" rather than an "accident" misled the jury. During its closing argument, the State said:
Second of all[, ] the coroner took the stand, and she said that this case was a homicide. And there is a coroner's report where there are several options at the bottom. And one of those options is accident, and that wasn't checked.
So the coroner took the stand, and she explained why this was a homicide based on the information gathered from the police, based on the examination of the ...