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Hutto v. State

Supreme Court of Mississippi, En Banc

May 11, 2017


          DATE OF JUDGMENT: 05/28/2013





         ¶1. A jury convicted James Cobb Hutto III of capital murder for the death of Ethel W. Simpson. The jury also found Hutto should suffer death. Hutto raises fourteen assignments of error on appeal. Finding no reversible error, we affirm Hutto's conviction and sentence.


         ¶2. This case concerns the killing of eighty-one-year-old Ethel W. Simpson. The following facts were established at trial.

         ¶3. On September 8, 2010, James Cobb Hutto III, a Jasper, Alabama, resident, contacted his ex-girlfriend, Sherri Lawson. Hutto told Lawson he wanted to see her and, on Friday, September 10, he purchased a used Camaro and drove to Clinton, Mississippi. Hutto and Lawson stayed together that weekend at the Comfort Inn in Clinton. At some point that weekend, Hutto's Camaro broke down and was towed to a local repair shop.

         ¶4. On Monday, September 13, Hutto and Lawson parted ways after spending the weekend together. According to Lawson, Hutto indicated that he was trying to get back to Alabama. He also gave Lawson the paperwork to repair the broken Camaro in case she wanted to keep the car for herself. Later that afternoon, Hutto went to the Baptist Healthplex on the Mississippi College Campus in Clinton, located approximately half a mile away from the Comfort Inn. Several employees and patrons of the Healthplex encountered Hutto that day, including Ethel W. Simpson.

         ¶5. While at the Healthplex, Hutto befriended Simpson. Simpson drove Hutto back to the Comfort Inn and then drove home. And later that night, she went back to the hotel and picked up Hutto to socialize. The two took Simpson's silver Mercedes to the Riverwalk casino in Vicksburg, Mississippi, arriving at 8:45 p.m. Hutto and Simpson spent a few hours gambling, and Simpson bought dinner for the two at a restaurant inside the casino. Hutto and Simpson left the casino together at 11:24 p.m.

         ¶6. About an hour after leaving the casino, Hutto arrived back at the Comfort Inn alone with Simpson's Mercedes. He went to his room, emerged wearing different clothes, and left the Comfort Inn at approximately 12:51 a.m., seven minutes after arriving back at the hotel. Hutto then drove Simpson's Mercedes back to Vicksburg, where he gambled at the Ameristar casino. At 2:11 a.m., he left the casino, and, according to witness testimony, a tag-reading camera on Interstate 20 in Rankin County captured an image of Simpson's car traveling east toward Alabama just after 3:00 a.m.

         ¶7. On the morning of September 14, 2010, Thomas Winstead, Simpson's brother and roommate, alerted Simpson's son that Simpson had not returned home the night before. Ken Simpson attempted to inquire into his mother's whereabouts, and when she could not be found, he contacted the Clinton Police Department. During the investigation into Simpson's whereabouts, law-enforcement officials determined that Hutto was the last person seen with Simpson. On September 17, 2010, a member of the Auburn (Alabama) Police Department spotted Hutto driving Simpson's silver Mercedes. Law-enforcement officials stopped Hutto and took him into custody in Lee County, Alabama.

         ¶8. On the same day as Hutto's arrest, Simpson's body was found on a hog farm in Edwards, Mississippi, just off Interstate 20. Edwards is located in Hinds County and is approximately halfway between Clinton and Vicksburg. An empty hog-feed container partially covered Simpson's body. Simpson died from severe injuries to her head and neck, and forensic testing later identified her blood on the Nike flip-flops that Hutto wore on the night of Simpson's disappearance.

         ¶9. After Hutto's arrest, law-enforcement officials from Alabama interviewed him on four separate occasions. All four of these interrogations occurred in Alabama. Hutto told law-enforcement officials that he and Simpson had gone to the casino on the night of September 13, but he claimed that a man named Mark Cox had killed Simpson. Law-enforcement officials later determined that Mark Cox, an Alabama resident, was in Alabama at the time of Simpson's disappearance.


         ¶10. On March 1, 2011, a Hinds County grand jury indicted Hutto for capital murder while engaged in the commission of a robbery. Hutto was appointed counsel and, in May 2011, he entered a plea of "not guilty." The trial judge held numerous pretrial hearings, including a suppression hearing and a competency hearing. After the competency hearing, the trial judge determined Hutto to be competent to stand trial. Hutto also rejected a plea deal for life in prison without the possibility of parole, and the State sought the death penalty.

         ¶11. During the guilt phase of trial, the State called numerous witnesses, including Mark Cox. Cox testified that, prior to the trial, he had never been to Hinds County, Mississippi. Cox further testified that he met Hutto for the first time on the morning of September 17, 2010-the same day law-enforcement officials arrested Hutto-when the two discussed Cox selling Hutto some land. The State also introduced redacted portions of all four interrogations law-enforcement officials conducted with Hutto in Alabama.[1] At the guilt phase, Hutto presented no defense and exhibited crude behavior in the courtroom. The jury convicted him of capital murder, with robbery of the Mercedes as the underlying crime.

         ¶12. At the penalty phase, the State submitted three aggravating circumstances to the jury: the "prior violent felony" aggravator, the "heinous, atrocious, or cruel" aggravator, and the "capital offense committed in the commission of a robbery" aggravator. In mitigation, the jury heard testimony from Hutto's ex-wife, mother, and two sons, as well as testimony from a social worker. The jury found Hutto should suffer death. Hutto appeals, raising fourteen assignments of error, which we have restated and re-ordered for clarity.


         ¶13. "This Court reviews an appeal from a capital-murder conviction and death sentence under heightened scrutiny." Ronk v. State, 172 So.3d 1112, 1125 (Miss. 2015).

         Pretrial and Guilt Stage

         I1 . Whether the trial court erred when it determined Hutto was competent to stand trial and whether the trial court erred in not ordering further mental evaluation mid-trial.

         A. Pretrial Competency

         ¶14. After a competency hearing, the trial judge determined Hutto to be competent to stand trial. On appeal, Hutto argues: (1) that the trial judge erred when he placed the burden on him to prove his incompetence; (2) that the overwhelming weight of the evidence showed he was incompetent to stand trial; and (3) that the trial judge committed reversible error by failing to make specific findings of fact for each factor to determine a defendant's competence.

         1. Whether the trial judge erred when he placed the burden on Hutto to prove he was incompetent to stand trial.

         ¶15. Hutto argues that this Court's decision in McGinnis v. State, 133 So.2d 399 (Miss. 1961), required the prosecution to prove Hutto was competent to stand trial. He claims that McGinnis stands for the proposition that, once an order requiring a mental evaluation is entered, "the burden shifts to the State to prove that a defendant is competent." We disagree.

         ¶16. Simply put, our decision in McGinnis does not stand for the proposition that the prosecution bears the burden of proving a defendant's competence after an order requiring a mental examination is entered. To the contrary, we consistently have placed the burden on the defendant to show his incompetence. See, e.g., Ross v. State, 954 So.2d 968, 1007 (Miss. 2007) ("The defendant must show incompetency by a preponderance of the evidence."); Evans v. State, 725 So.2d 613, 660 (Miss. 1997) ("The trial judge committed no error in holding that the burden of proof was allocated to the defense. This issue is without merit."); Emmanuel v. State, 412 So.2d 1187, 1188 (Miss. 1982) ("It naturally devolves upon the defendant to go forward with the evidence to show his probable incapacity to make a rational defense.").

         ¶17. Hutto also asserts that this Court has misinterpreted Medina v. California, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992), because Mississippi does not have a statute allocating the burden of proving an individual's competence as California did in Medina. But, though Mississippi does not have such a statute, the U.S. Supreme Court has held:

Once a State provides a defendant access to procedures for making a competency evaluation, however, we perceive no basis for holding that due process further requires the State to assume the burden of vindicating the defendant's constitutional right by persuading the trier of fact that the defendant is competent to stand trial.

Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). We find it immaterial that the Legislature has not spoken on this issue and see no reason to depart from our well-established precedent. This argument is without merit.

         2. Whether the overwhelming weight of the evidence showed Hutto was incompetent before trial.

         ¶18. Prior to trial, Hutto's counsel filed a motion to determine Hutto's competence. The trial judge then promptly entered an order for Hutto to undergo a mental evaluation. Due to a delay at the state hospital, a significant amount of time passed before Hutto underwent a mental evaluation. During this time frame, Hutto logged profanities and exhibited other crude behavior in court on numerous occasions. The trial judge determined that Hutto's outbursts generally concerned the circumstances of his confinement.

         ¶19. Due to the delay at the State Hospital, Hutto's counsel hired a private psychologist, Dr. Goff, to evaluate Hutto. Dr. Goff, however, could not complete "the psychological testing portion" of the examination because Hutto would not cooperate. Finally, on February 14, 2013, Dr. Robert Storer conducted Hutto's mental evaluation at the State Hospital.[2] Hutto initially stated that he would not cooperate with Storer, but he later agreed to complete the "Personality Assessment Inventory." Storer's report notes that Hutto completed the assessment in "an usually short period of time" and the report produced "an invalid profile due to elevations on the validity scales." [3]

         ¶20. Because of the invalid test scores and Hutto's refusal to answer questions, Storer could not give an expert opinion to a reasonable degree of psychological and psychiatric certainty that Hutto "does not have deficits in his competence-related abilities." But Storer did note that

. . . . collateral interviews and available records provide no evidence of cognitive deficits, memory problems, or irrational thought processes. Medical requests and grievance forms . . . demonstrate no deficits in his ability to communicate clearly and effectively or in his ability to think logically. Mr. Hutto also demonstrated the ability to reconsider and reverse a prior decision . . . During our evaluation of him on 14 February 2013, while Mr. Hutto was observed over the course of several hours and while he was completing psychological testing, he demonstrated no deficits in his ability to interact with staff. He also demonstrated no deficits in his awareness of his situation, his thought process, or his ability to understand a wide range of pertinent issues . . . . As for whether Mr. Hutto suffers from mental disease or defect, there appears to be good evidence . . . that he does not . . . . Likewise, although there appears to be good evidence . . . that he has the functional abilities associated with competence, because Mr. Hutto refused to answer our questions, I am not able to say with a reasonable degree of psychological and psychiatric certainty that Hutto does not have deficits in his competence-related abilities.

         ¶21. After the mental evaluation, the State extended to Hutto a plea offer of life without the possibility of parole. Hutto's counsel signed the plea petition, affirming they were satisfied that Hutto understood the contents of the petition. At the plea colloquy, however, Hutto rejected the plea deal after learning that he would waive his appeal rights by entering a guilty plea.

         ¶22. On April 22, 2013, the trial court held a competency hearing. Defense counsel called no witnesses and rested on Storer's report. Based on his observations of Hutto, Storer's report, and the plea colloquy, the trial judge found Hutto competent to stand trial. A written order subsequently was entered. Hutto claims that the overwhelming weight of the evidence showed him to be incompetent to stand trial and that the trial judge erred in relying on a report created by Dr. Robert Storer. We disagree.

         ¶23. A trial judge's determination that a defendant is competent to stand trial will be reversed only if it is "manifestly against the overwhelming weight of the evidence." Dickerson v. State, 175 So.3d 8, 15 (Miss. 2015) (citing Hearn v. State, 3 So.3d 722, 728 (Miss. 2008)). It is well-settled that the standard to determine whether a defendant is competent to stand trial is if "he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . and whether he has a rational as well as factual understanding of the proceedings against him." Id. (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 788-89, 4 L.Ed.2d 824, 825 (1960)). A competent defendant is one

(1) who is able to perceive and understand the nature of the proceedings; (2) who is able to rationally communicate with his attorney about the case; (3) who is able to recall relevant facts; (4) who is able to testify in his own defense if appropriate; and (5) whose ability to satisfy the foregoing criteria is commensurate with the severity of the case.

Id. (citing Hearn, 3 So.3d at 728).

         ¶24. We find the trial judge did not manifestly err in finding Hutto competent to stand trial. The record indicates that the trial judge held numerous pretrial hearings at which he could observe Hutto personally during the delay at the State Hospital. Hutto's outbursts at these hearings, though disruptive, do not suggest to this Court that Hutto was incompetent. Instead, the record supports the trial judge's conclusion that Hutto's outbursts generally concerned the conditions of the detention center, including showers and recreational time.

         ¶25. Hutto fails to point to instances in the record showing that he lacked the ability to consult with his attorneys or lacked an understanding of the proceedings against him. See Dusky, 362 U.S. at 402. Though the record shows instances in which Hutto failed to cooperate with counsel, our review of the record does not suggest that Hutto lacked the ability to do so. Further, the record supports the trial judge's conclusion that Hutto understood the proceedings. The trial judge's competency order shows that Hutto chose not to enter a guilty plea when he learned he would be waiving his appeal rights. Even more, Hutto's counsel indicated, by signing the plea petition, that they believed Hutto was competent to enter a guilty plea.

         ¶26. Lastly, the trial judge did not err by relying on Dr. Storer's report to find Hutto competent. As previously mentioned, Storer could not form an opinion to a reasonable degree of psychological certainty regarding Hutto's competence because Hutto failed to cooperate. But, though Hutto alleges that the trial court erred by relying on Storer's "non-finding, " Hutto's counsel did not call and cross-examine Storer or any other medical professional at the competency hearing to discredit his observations. Simply put, we find Hutto presented no evidence to the trial judge suggesting he was incompetent to stand trial. Thus, we cannot conclude that the overwhelming weight of the evidence shows that the trial judge manifestly erred by finding Hutto competent to stand trial. This argument fails.

         3. Whether our decision in Conner requires a trial judge to make specific findings of fact for each competence consideration.

         ¶27. Hutto next argues that the trial judge erred by not making specific findings of fact for the five competence considerations listed in Conner v. State, 632 So.2d 1239 (Miss. 1993), overruled on other grounds by Weatherspoon v. State, 732 So.2d 158 (Miss. 1999). Hutto argues the trial judge did not consider the first or fifth criterion nor cite any legal standard in his order and therefore committed reversible error. We disagree.

         ¶28. In Conner, this Court considered whether a trial judge had erred by not ordering a competency hearing. Id. at 1247. In doing so, we took note of "a set of five criteria which, according the American Bar Association, collectively define a competent defendant." Id. at 1248. This Court then considered Conner's argument that he did "not meet factors two through five." Id. at 1249. Ultimately, we found "[t]he trial judge did not manifestly err in not ordering a competency hearing."[4] Id.

         ¶29. A review of Conner shows that we did not hold that a trial judge must make specific findings of fact based on the five competence criteria. Further, although the trial judge did not cite the applicable test for determining a defendant's competence in his order, the trial judge did determine that Hutto understood the nature of the proceedings and was able to assist his counsel rationally. This issue is without merit.

         B. Mid-trial Competence

         ¶30. Hutto argues alternatively that the trial judge erred by not ordering Hutto to undergo further mental evaluation after another outburst during trial. Hutto's cousin, Jason Wilson, testified for the State on the third day of trial. After the direct examination of Wilson, Hutto had another outburst:

BY THE DEFENDANT: Don't give a f--- about none of them, especially them - - them or them - - I don't care. F--- all of y'all. See that? F--- y'all.
BY DEFENSE COUNSEL: He's asked us some questions . . . but they are just designed to embarrass the witness . . . . . .
BY THE DEFENDANT: They're not telling you everything. There's other crimes, murders in Alabama and . . . attempted murders and all that in Alabama. Now, think about that and be fair about that. They're not going to be fair. I told y'all from the get-go what I wanted. I've been fighting my whole life. I'm tired of fighting the whole society . . . . . .
BY THE DEFENDANT: You're wasting money. Go ahead. Y'all can kill me today. I don't care. Do it today. Do it today. No. No. I'm just saying they can do it today if that's what y'all want to do. Do it today and get it over with . . . .

         ¶31. After this outburst, Hutto's counsel renewed their motion to determine competence, which the trial judge denied. At the following day's proceedings, the trial judge noted that Hutto was actively participating in the proceedings and that his outbursts were not helping his cause. During the discussion, Hutto acknowledged he had "acted like a pompous ass or prima donna." He also objected to his own counsel's renewed motion to determine competence. On appeal, Hutto argues his actions are similar to those of the defendant in Howard v. State, 701 So.2d 274 (Miss. 1997), and that the trial judge committed reversible error by failing to order, sua sponte, that Hutto undergo another mental evaluation. We disagree.

         ¶32. As to the issue of competence, we have stated that

"[I]f before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial the court shall order the defendant to submit to a mental examination by some competent psychiatrist selected by the court . . . ." . . .
"What constitutes 'reasonable ground' to believe that a defendant is incompetent to stand trial rests largely within the discretion of the trial judge." On review, the pertinent question is whether "the trial judge received information which, objectively considered, should reasonably have raised a doubt about defendant's competence and alerted him to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense."

Harden v. State, 59 So.3d 594, 601 (Miss. 2011) (emphasis added) (citations omitted).

         ¶33. In Howard, we examined whether the trial judge erred by failing to hold a competency hearing after witnessing the defendant's wholly ineffective self-representation.[5] Howard v. State, 701 So.2d 274 (Miss. 1997). At trial, the defendant attempted "to elicit information about an imagined conspiracy so complicated that it never took shape even in his own mind" and even suggested "that one of the jurors might have committed the crime." Id. at 278-79. The record "reveal[ed] that Howard's effort was at best incoherent and deluded, " and during mitigation, Howard "made no opening or closing statement, made no objections, submitted no mitigating evidence, and submitted no jury instructions." Id. at 279, 282. Ultimately, we concluded that the trial court erred by failing to order a competency hearing. Id. at 284.

         ¶34. We find Howard distinguishable. A review of the transcript does not indicate that Hutto was incoherent and deluded during trial; rather, as the trial judge noted, Hutto actively participated in the proceedings and engaged in discussions with his counsel. Hutto's counsel also cross-examined some witnesses, stated objections, and presented mitigating evidence in the penalty phase. Further, Hutto exclaiming in the presence of the jury that he should receive the death penalty did not, per se, require the trial judge to order further mental evaluation. To hold otherwise would bring our criminal judicial system to a grinding halt.

         ¶35. We conclude that Hutto's midtrial outburst was consistent with his outbursts before trial. A review of the transcript does not raise reasonable doubts that Hutto was competent; rather, it indicates that Hutto did not want to cooperate fully. See U.S. v. Flores-Martinez, 677 F.3d 699, 707 (5th Cir. 2012) (noting a defendant is not incompetent because he or she refuses to cooperate). Indeed, Hutto even admitted that he was acting "like a pompous ass or prima donna." This assignment of error fails.

         II. Whether the trial judge erred in admitting custodial statements Hutto had made to law-enforcement officials.

         ¶36. Prior to trial, Hutto sought to exclude from evidence statements he had made during four interrogations. The trial judge held a suppression hearing and ultimately allowed the State to admit highly redacted portions of each of the four interrogations. Hutto's second assignment of error consists of two arguments: first, Hutto claims his statements made to law-enforcement officials after his arrest were involuntary because the police induced him to talk by offering him promises of rewards; and second, Hutto argues that the excerpts from the second, third, and fourth interrogations should not have been admitted because the interrogations occurred without counsel and after Hutto had invoked his Fifth Amendment rights. We analyze these arguments separately.

         A. Whether Hutto was offered promises for his cooperation.

         ¶37. Hutto claims for the first time on appeal that his statements made to law-enforcement officials were involuntary because "[e]arly in th[e] first interrogation, Hutto clearly seeks and receives promises that his cooperation will result in rewards for him." We note that Hutto's voluntariness argument at the trial level concerned whether his statements were inadmissible due to alleged physical violence during his arrest, not promises or rewards. Therefore, we will employ only plain-error review to determine if Hutto's "substantive or fundamental rights [were] affected." Dickerson, 175 So.3d at 29-30 (citing Foster v. State, 148 So.3d 1012, 1018 (Miss. 2014)). "Applying the plain-error rule, the Court must determine: (1) whether the trial court deviated from a legal rule; (2) whether the error is plain, clear, or obvious; and (3) whether the error prejudiced the outcome of the trial. Id. We will reverse the conviction only if the error "'resulted in a manifest miscarriage of justice."' Id.

         ¶38. "Long before Miranda warnings were mandated by the U.S. Supreme Court, it was well settled in Mississippi jurisprudence that a confession [or statements] given after promises of leniency was incompetent as evidence." Jones v. State, 841 So.2d 115, 129 (Miss. 2003) (quoting Dunn v. State, 547 So.2d 671, 674 (Miss. 1989)). The State has the burden to prove, beyond a reasonable doubt, that a confession is voluntary. Id. at 130. "This burden [of making out a prima facie case of voluntariness] is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward." Id.

         ¶39. We note that the Alabama police officers who interrogated Hutto testified at a suppression hearing that they never offered rewards or promises to Hutto for his cooperation. After a thorough review of the record, including all four interrogations conducted, we also find that Hutto's statements to law-enforcement officials were not induced by promises or rewards. Hutto points to a portion of the first interrogation in which an unidentified officer told Hutto that he should cooperate with law-enforcement officials. We note, however, that the unidentified officer did not promise Hutto that he would be given leniency or any type of reward for doing so. This issue fails.

         B. Whether statements admitted into evidence were taken in violation of Hutto's Fifth Amendment right to counsel.

         ¶40. Next, Hutto asserts that redacted portions of the second, third, and fourth interrogations were improperly admitted at trial because these interrogations occurred after he had invoked his right to counsel and without an attorney present. We agree that it was error to submit the redacted portion of the second interrogation to the jury but conclude the error was harmless beyond a reasonable doubt.

         First Interrogation

         ¶41. Investigator Kwesi Drake of the Lee County, Alabama, Sheriff's Department conducted the first interrogation not long after Hutto's arrest on September 17, 2010. This interrogation took place at the Lee County Sheriff's Office and lasted approximately one hour and forty-two minutes. The redacted portion of the interrogation admitted at trial was forty-eight minutes long. Drake gave Hutto a warning pursuant to Miranda v. Arizona [6] and Hutto subsequently admitted going to the casino with Simpson and taking the Mercedes after Simpson's death. He claimed, however, that a man named Mark Cox killed Simpson. Hutto also told Drake that, while back in Alabama after Simpson's death, he told a woman named Melanie that he had won money at the casino and bought the Mercedes for her as a gift. Drake recounted some of Hutto's statements and further questioned Hutto. Later in the interrogation, Hutto asked Drake if he needed a lawyer, and shortly thereafter Hutto asked for a lawyer. Drake then terminated the interview.

         Second Interrogation

         ¶42. Approximately thirty minutes after the first interrogation, John Tanks and Marcel Walker of the Birmingham Police Department conducted a second interrogation of Hutto at the Lee County Sheriff's Office. The interview lasted two hours and nineteen minutes; the redacted portion admitted at trial lasted less than four minutes. The focus of this interrogation concerned the death of Hutto's aunt, Virginia "Faye" Rardon, and Tanks was unaware that Hutto had invoked his right to counsel in the prior interrogation. After being given a Miranda warning by Tanks, Hutto made the following statements, which were heard by the jury during the four-minute video played at trial:

Hutto stated that he did not want to answer any questions, but instead wanted to make some statements. He stated that Mark Cox found him in Mississippi and followed him back to Alabama. Hutto claimed that he stayed in a hotel with a girl when he returned to Alabama. Officers Tank and Walker asked Hutto who the woman was, and Hutto stated it was a woman he met at a bar.
Officer Tanks questioned Hutto about what happened after he and Mark Cox went to his Aunt Faye's house. Hutto stated that he and Mark Cox did not go to his aunt's house, but rather that he took the car he had from Mississippi (Simpson's Mercedes) straight to a motel where he spent the night after returning from Mississippi. Hutto claimed he woke up the next morning and called his Aunt Lois, who lived at his Aunt Faye's house. Hutto said he then went to his aunt's house, but that she would not let him stay at her house with the stolen Mercedes. Hutto stated that he then left his Aunt Faye's house and went to see a girlfriend named Melanie. Hutto told the officers that he lied to Melanie, telling her that he had won a bunch of money and had bought the Mercedes for her. He then told officers that while he was in Mississippi, an old woman tried to mess with him. Hutto told the detectives he had no reason to lie to them and that if they wanted to put him to sleep or shoot him in the head, it would make his day because he was now free.

         ¶43. At this point, the detectives left and ended the interview.

         Third Interrogation

         ¶44. On September 22, 2010, Drake conducted another interview of Hutto at the Lee County Sheriff's Office. The interview concerned the events that occurred in Mississippi, including Simpson's death. The interrogation lasted two hours and thirteen minutes, and the redacted portion admitted at trial lasted seventeen minutes. Drake conducted this interview only after Hutto had sent a request to speak to an investigator concerning the charges against him.

         Fourth Interrogation

         ¶45. On September 23, 2010, Tanks and Walker conducted another interview of Hutto concerning the death of Hutto's aunt, but Hutto made statements about Simpson as well. The interview took place at the Jefferson County Jail in Birmingham, Alabama, after Hutto had asked to speak with Tanks and Walker again. The interrogation lasted thirty minutes, but the jury heard only six and a half minutes of the interrogation. During the interrogation, Hutto claimed he had slept with Simpson on the day he met her and told law-enforcement officials they could kill him if they wanted to.

         Suppression Hearing

         ¶46. Both Drake and Tanks testified at a suppression hearing on this issue. The videos of the first and third interrogations were admitted during Drake's testimony, and the videos of the second and fourth interrogations were admitted during Tanks's testimony. Both Drake and Tanks testified that they never had threatened Hutto or offered him promises of rewards for cooperation. On cross-examination, Drake admitted that Hutto had invoked his right to counsel at the end of the first interrogation. Further, Tanks admitted on cross-examination that he and Detective Walker had questioned Hutto during the second interrogation. After arguments, the trial judge determined that parts of each interview would be admissible at trial. The trial judge determined that Hutto's second interrogation concerned a separate crime and a completely different matter than the first interrogation and that Hutto was read his rights in the second interrogation.


         ¶47. We previously have stated that:

It is fundamental that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation. The Fifth and Fourteenth Amendment prohibition against self-incrimination requires that custodial interrogation be preceded by advising the defendant that he has the right to remain silent and the right to the presence of an attorney. If the subject indicates that he wishes to remain silent, then the questioning must stop; and if he requests counsel, the questioning must stop until an attorney is present.
When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by proving that the accused responded to further police-initiated interrogation, even if he has been advised or re-advised of his rights. Furthermore, when an accused has expressed a desire to deal with the police only through counsel, further interrogation is absolutely barred until counsel has been made available to him, unless the accused himself initiates further communication.

Balfour v. State, 598 So.2d 731, 744-45 (Miss. 1992) (emphasis added)(citations omitted). The United States Supreme Court also has determined that it is irrelevant whether a law-enforcement official conducting a second interrogation knew that the suspect had invoked his Fifth Amendment right to counsel in a prior interrogation:

Finally, we attach no significance to the fact that the officer who conducted the second interrogation did not know that respondent had made a request for counsel. . . . Whether a contemplated reinterrogation concerns the same or a different offense, or whether the same or different law enforcement authorities are involved in the second investigation, the same need to determine whether the suspect has requested counsel exists. The police department's failure to honor that request cannot be justified by the lack of diligence of a particular officer.

Arizona v. Roberson, 486 U.S. 675, 687-88, 108 S.Ct. 2093, 2101, 100 L.Ed.2d 704 (1988) (emphasis added) (citation omitted).

         ¶48. We find that Hutto's statements given in the second interrogation were taken in violation of his Fifth Amendment rights. Hutto clearly and unequivocally asked for counsel at the end of his first interrogation; therefore, it is immaterial that Officers Tanks and Walker, who conducted the second interrogation, were unaware that Hutto had invoked his rights in the prior interrogation. The State requests this Court to note that the United States Supreme Court stated in Roberson that the police "are free to inform the suspect of the facts of the second investigation as long as such communication does not constitute interrogation[.]" Roberson, 486 U.S. at 687. We conclude, however, that the police did more than inform Hutto of the second investigation involving his aunt; they interrogated him. The State's own brief concedes that questions were asked in this interview.

         ¶49. But the admission of statements taken in violation of an accused's Fifth Amendment rights is "amenable to harmless error analysis." Haynes v. State, 934 So.2d 983, 991 (Miss. 2006) (citing Goodwin v. Johnson, 132 F.3d 162, 181 (5th Cir. 1998); United States v. Webb, 755 F.2d 382, 392 (5th Cir. 1985)). "In order for a violation of a constitutional right to be held harmless, this Court must determine that the violation was harmless beyond a reasonable doubt." Id. (citing Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). We have held that "errors involving a violation of an accused's constitutional rights may be deemed harmless beyond a reasonable doubt where the weight of the evidence against the accused is overwhelming." Id. (quoting Clark v. State, 891 So.2d 136, 142 (Miss. 2004)). Further, inadmissible statements that are cumulative of other admissible statements may render the admission of the statements harmless beyond a reasonable doubt. Byrom v. State, 863 So.2d 836, 858 (Miss. 2003).

         ¶50. We find that the admission of the redacted video of Hutto's second interrogation constituted harmless error beyond a reasonable doubt. Hutto's statements given in the second interview were exculpatory rather than inculpatory and cumulative of other properly admitted statements. In the second interrogation, Hutto mentioned Mark Cox, the stolen Mercedes, and attempting to give the Mercedes as a gift to a woman named Melanie. We note that all of these statements were cumulative of statements Hutto gave in the properly admitted first interrogation that took place thirty minutes prior to the commencement of the second interrogation.

         ¶51. Further, Hutto's statement that an old woman in Mississippi tried to mess with him is cumulative of a statement given in Hutto's fourth interrogation. In the fourth interview, Hutto stated that Simpson was "a horny old broad" and that they slept together on the day they met. This later statement encompasses the statement in the second interview. Hutto's final statement in the second interview that the police could put him to sleep or shoot him in the head also is cumulative because, in the fourth interview, Hutto also stated that police could do whatever they wanted to him: "lethal-injection, firing squad, electric chair."

         ¶52. Finally, the trial judge did not err in admitting portions of the third and fourth interviews into evidence. Again, this Court has acknowledged that "when an accused has expressed a desire to deal with the police only through counsel, further interrogation is absolutely barred until counsel has been made available to him, unless the accused himself initiates further communication." Balfour , 598 So.2d at 744-45 (emphasis added). The term "initiate" requires "more than the inquiry of simply 'who talks first.'" Haynes, 934 So.2d at 989. For an Edwards[7] initiation to occur, the suspect must show "a willingness and a desire to talk generally about his case, " and such a willingness must not be influenced by law-enforcement officials. Id. (quoting U.S. v. Whaley, 13 F.3d 963, 967 (6th Cir. 1994)).

         ¶53. Drake testified at trial that the reason for the third interrogation was because Hutto "sent up a request from the jail to speak to an investigator." Indeed, the last two interrogations began with law-enforcement officials stating they were meeting with Hutto because Hutto had asked to speak with them. In the third interrogation, Drake clearly said to Hutto: "I know you said you wanted to talk to somebody, but I still have to read you your rights." After his rights had been read, Hutto confirmed that no threats, promises, or rewards had been offered to him "whatsoever, " and that he did "want to answer questions and make some statements." And at the beginning of the fourth interrogation, Tanks clearly stated to Hutto: "you called us over here, what do you need to tell us? But before we begin, I need to read you your rights." Tanks proceeded to read Hutto his rights, and Hutto waived his rights before further questioning began. For these reasons, we find that Hutto reinitiated contact with law-enforcement officials, and, thus, the trial judge did not err in admitting portions of the third and fourth interrogations into evidence. Hutto's second assignment of error fails.

         III. Whether the trial judge improperly admitted prejudicial and inflammatory post- autopsy photos.

         ¶54. Next, Hutto asserts that the trial judge improperly admitted four autopsy photos. He claims that "[w]hile these photos would assist a medically trained doctor in reaching a forensic opinion[, ] they show nothing to a layman beyond the undisputed testimony." Hutto also argues that autopsy photos "are almost per se inadmissable." Hurns v. State, 616 So.2d 313, 319 (Miss. 1993) ("Few autopsy photographs will meet the criteria of containing more probative value, as compared to being unfairly prejudicial or inflammatory, or overly gruesome."). In sum, Hutto states these photos were overly prejudicial and inflammatory.

         ¶55. "On appeal, this Court will give great deference to trial judges in the sound exercise of their discretion in the admission of photographs[.]" Bonds v. State, 138 So.3d 914, 919 (Miss. 2014). Though this discretion is not unlimited, it is "considerable, " and we will reverse a trial judge's decision to admit a photograph only if he abused that discretion. Id. at n.2. In Keller v. State, we noted that

In Westbrook v. State, 658 So.2d 847, 849 (Miss. 1995), this Court found that photographs of a victim have evidentiary value when they aid in describing the circumstances of the killing, Williams v. State, 354 So.2d 266 (Miss. 1978); describe the location of the body and cause of death, Ashley v. State, 423 So.2d 1311 (Miss. 1982); or supplement or clarify witness testimony, Hughes v. State, 401 So.2d 1100 (Miss. 1981).

Keller v. State, 138 So.3d 817, 857 (Miss. 2014) (quoting Le v. State, 913 So.2d 913, 955 (Miss. 2005), overruled in part by Bonds, 138 So.3d at 919).

         ¶56. We find that the trial judge did not abuse his discretion in admitting the autopsy photos. Before admitting the photos, the trial judge conducted a Rule 403 balancing test and found the photos admissible. And at trial, Dr. Adele Lewis testified that Simpson had suffered numerous injuries which led to her death. Exhibits 64, 65, and 66 were introduced during Lewis's testimony as evidence that Simpson had suffered a "fracture or break in the spine." Lewis testified that these photos showed "bleeding in the muscles of the neck" and that such injuries "could be consistent with either a blow or with strangulation." Exhibit 67 also was introduced during Lewis's testimony as evidence that Simpson had suffered an ear-to-ear skull fracture. Lewis testified that the injury shown in the photo was consistent with blunt-force trauma. Lewis further stated that either the broken neck shown in Exhibits 64, 65, and 66 or the skull fracture shown in Exhibit 67 "could have caused [Simpson's] death by itself." Because the photos aided Lewis in describing "the circumstances of the killing" and "clarified her testimony, " we find this issue to be without merit. See Keller, 138 So.3d at 857.

         IV. Whether Hutto's Sixth Amendment right to confront the witnesses against him was violated.

         ¶57. During the investigation of Hutto, the Mississippi Crime Laboratory used blood taken from Simpson's autopsy to make a bloodstain card. Hinds County Sheriff's Department Investigator Greg Lewis, a chain-of-custody witness, testified that he had retrieved the bloodstain card from the crime lab and delivered it to Scales Bio Lab for DNA testing. The testing would determine if Simpson's blood matched a substance found on Hutto's Nike flip-flop that he wore on the night of Simpson's disappearance. During cross-examination, the defense asked Lewis whether the bloodstain card he received from the crime lab was the first or second card that he had taken to the bio lab. The State objected because the trial judge had not yet ruled on a motion in limine seeking to exclude any testimony that the crime lab initially had mislabeled Simpson's bloodstain card with the incorrect crime lab number. The trial judge accepted a proffer from Kristy Fuson, an employee of the crime lab, on the issue.

         ¶58. Fuson stated that all cases at the crime lab are assigned case numbers. Simpson's case number was SME No. 10-1136, but the labels to be attached to Simpson's files were transposed with the number "8" instead of the number "6." Thus, the first bloodstain card that Lewis delivered to the bio lab was labeled with the number "10-1138." When tested at the bio lab, the bloodstain card generated a male profile. After a male profile was generated from "Simpson's" bloodstain card during DNA testing, the bio lab informed the crime lab of this finding. The crime lab found the error and then relabeled Simpson's actual bloodstain card with the correct case number; it was then delivered by Lewis to the bio lab. Kathryn Rodgers, a forensic DNA analyst, later determined the substance on Hutto's flip-flop to be Simpson's blood. Rodgers testified as to her conclusions at trial, noting that the result was a match frequency of less than one in 276 billion.

         ¶59. After the proffer, the trial judge granted the State's motion in limine. The trial judge found the mislabeling at the lab was irrelevant or, alternatively, would create juror confusion. On appeal, Hutto argues that his constitutional right of confrontation was violated when the trial judge ruled Hutto could not cross-examine witnesses about the error in the lab. We agree that the trial judge should have allowed cross-examination about the mislabeling, but we determine this error to be harmless beyond a reasonable doubt.

         ¶60. "Defendants in criminal cases have a fundamental constitutional right to be confronted with witnesses against them." Armstead v. State, 196 So.3d 913, 917 (Miss. 2016) (citing U.S. Const. amend. VI; Miss. Const. art. 3, § 26 (1890)). And "[t]he right of a criminal defendant . . . to cross examine witnesses against him is at the heart of the [C]onfrontation [C]lause." Id. (quoting Lanier v. State, 533 So.2d 473, 488 (Miss. 1988)). The right of confrontation "extends to and includes the right to fully cross examine the witness on every material point relating to the issue to be determined that would have a bearing on the credibility of the witness and the weight and worth of his testimony." Scott v. State, 796 So.2d 959, 964 (Miss. 2001) (quoting Myers v. State, 296 So.2d 695, 700 (Miss. 1974)).

         ¶61. Hutto claims the United States Supreme Court opinions Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), and Melendez-Diaz v. Massaschusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), support his argument that reversible error was committed. But at issue in those cases was whether testimonial statements or documents were admitted against the defendant without being accompanied by proper witness testimony. See Armstead, 196 So.3d at 918. We noted in Armstead that

[u]nder Melendez-Diaz and Bullcoming, forensic reports created specifically to serve as evidence against an accused at trial are among the "core class of testimonial statements" governed by the Confrontation Clause. Melendez-Diaz, 129 S.Ct. at 2532; Bullcoming, 131 S.Ct. at 2717. The Confrontation Clause prohibits the introduction of these testimonial documents through the "surrogate testimony" of a witness who had no involvement in the creation of those documents. Bullcoming, 131 S.Ct. at 2709.


         ¶62. Rodgers, the bio lab analyst, was the only witness for the State who testified about forensic DNA testing. Further, she testified about her own specific findings and conclusions, not the findings of another person. The trial judge did not allow the State to introduce testimonial hearsay against Hutto and, therefore, the Melendez-Diaz and Bullcoming decisions do not require reversal of Hutto's conviction.

         ¶63. Hutto also directs this Court to Terry v. State, 718 So.2d 1115 (Miss. 1998). In Terry, a jury convicted the defendant of embezzling. Terry v. State, 718 So.2d 1115, 1117 (Miss. 1998). At trial, a witness for the State testified that a document at issue "could not be altered." Id. at 1125. During cross-examination of the witness, defense counsel attempted "to introduce a counterfeit document[] to prove that an altered document could have been substituted for the real one[, ]" but the trial judge did not allow the attorney to do so. Id. This Court held that Terry "was denied her right to cross-examine" when the trial judge prevented defense counsel from impeaching the witness's assertion "with the 'fake' [document]. " Id.

         ¶64. This case is distinguishable from Terry because, in that case, the defendant was denied her right to impeach a witness about a statement the witness had offered to the court. Here, Hutto merely was denied the opportunity to show the jury that Simpson's bloodstain card initially was mislabeled. The trial judge allowing cross-examination on this point would not have changed the fact that, when Simpson's actual bloodstain card was compared to the substance found on Hutto's flip-flop, it resulted in a match frequency of less than one in 276 billion. Defense counsel also failed to request a proffer of Lewis or any other witness to articulate any prejudice on this issue. We find that the trial judge's failure to allow defense counsel to question Lewis about the error in the lab did not prejudice the outcome of the trial.

         V. Whether Hutto's motion for a mistrial should have been granted after a jail administrator testified he had received "threats" from Hutto.

         ¶65. Next, Hutto argues that a request for a mistrial should have been granted. Michael Ivy, a former jailhouse administrator with the Hinds County Sheriff's Department, testified for the State. During Ivy's testimony, the State admitted two letters that Hutto had written to the district attorney's office. After testifying to the substance of the letters, the following exchange took place between counsel for the State and Ivy:

Q. And would [Hutto] generally give you correspondence, Captain Ivy?
A. Yeah. He gave me quite a bit of correspondence and notes and threats and all kind of stuff.

         Defense counsel immediately moved for a mistrial, and the trial judge denied the motion.

         ¶66. We employ an abuse-of-discretion standard of review to determine whether a trial judge erred in denying a request for a mistrial. Pitchford v. State, 45 So.3d 216, 240 (Miss. 2010). A trial judge need declare a mistrial only "when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant's case." Id. (quoting Parks v. State, 930 So.2d 383, 386 (Miss. 2006)).

         ¶67. Hutto cites Rose v. State, 556 So.2d 728 (Miss. 1990), and Sample v. State, 643 So.2d 524, 528-29 (Miss. 1994), to support his argument that the trial judge should have granted a mistrial. In Rose, the defendant was indicted for conspiracy to commit larceny. Rose, 556 So.2d at 729. During cross-examination at trial, the State questioned the defendant about arson and the fact that her house burned down. Id. at 730-31. On appeal, we found that the defendant "did not place her character at issue" and concluded that the effect of cumulative errors denied Rose a fair trial. Id. at 731, 735.

         ¶68. In Sample, a jury convicted the defendant of possession of marijuana with intent to distribute. Sample, 643 So.2d at 528-29. The defendant was arrested while driving a black Camaro. Id. The officer who arrested Sample testified that his attention was drawn to the Camaro because "it was parked at a residence where a shooting had occurred a week earlier" and he "had received official information at a pre-patrol briefing that a car matching the description of the black Camaro had recently been stolen." Id. We reversed the defendant's conviction, finding the testimony about the shooting and stolen car "was unduly prejudicial in that it allowed an inference that Sample was engaged in other crimes." Id. at 529.

         ¶69. We find Rose and Sample distinguishable, as both of those cases involved direct evidence of other possible crimes. Though Ivy should not have testified about receiving "threats, " the passing reference was too vague and nondescript to amount to evidence of other crimes or bad acts. See Miss. R. Evid. 404(b). Further, this testimony was not introduced to show that Hutto was the kind of person who would commit capital murder. See id.; see also Rose, 556 So.2d at 730. Ivy's brief reference did not result "in substantial and irreparable prejudice to the defendant's case." Pitchford, 45 So.3d at 240.

         VI. Whether evidence of the victim's character was admitted improperly during the trial.

         ¶70. Hutto next contends that the trial judge erred in allowing the State repeatedly to elicit testimony concerning Simpson's character and reputation "designed to do nothing but prejudice the jury against Hutto." Hutto points to multiple instances in which he argues error occurred.

         The State's Opening Statement

         ¶71. During the prosecution's opening statement, counsel stated:

You're going to hear that Ethel Simpson was 81 years old at the time of her death. But don't let her age fool you. She was lively, she was vivacious, she loved to socialize, she had a very busy life. She was survived by a son, Ken Simpson, who described his mother as social. She loved to travel, she loved to eat and she loved people.

         The defense objected, claiming the statements concerning Simpson's character were improper. The State countered that these statements were going to come into the prosecution's case-in-chief to indicate why she was targeted by Hutto. Counsel for the State continued:

Again, Ethel Simpson was vivacious, she was alive and she was full of life. Ken Simpson, her son, described her as colorful in the way she dressed. She also died [sic] her hair bright red. She was a lover of people. And one of the qualities that people loved so much about Ethel was how much she loved people and how outgoing she was. And what you'll come to find out is that's one of the reasons that led to her demise and that's one of the reasons that she's not here today and that's one of the reasons why James Hutto targeted her.
You'll hear that Ethel Simpson was widowed in 2005 when her husband died of lung cancer.

         After these statements, defense counsel asked for a continuing objection to all victim character evidence. On appeal, Hutto argues these statements prejudiced the jury against him.

         ¶72. Though these statements concerned the victim's character, we find these statements "set the stage for the presentation of relevant evidence." Goff v. State, 14 So.3d 625, 652 (Miss. 2009)). In Goff, we reiterated that "the purpose of an opening statement is to inform the jury what a party to the litigation expects the proof to show." Id. at 652 (quoting Slaughter v. State, 815 So.2d 1122, 1131 (Miss. 2002)). "Attorneys are also allowed a wide latitude in arguing their cases to the jury, including opening statements and closing arguments." Dycus v. State, 875 So.2d 140, 170 (Miss. 2004), sentence vacated by Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (citing Sheppard v. State, 777 So.2d 659, 661 (Miss. 2000)). And further, opening statements "do not constitute evidence." Goff, 14 So.3d at 652.

         ¶73. In Dycus, the prosecution claimed in its opening statement that the victim was seventy-six years old, had lived in the same house for forty years, and made cookies for neighbors. Dycus, 875 So.2d at 870. And in its closing argument, the State told the jury that the victim "had recently recovered from a serious bout with cancer." Id. On appeal, Dycus alleged that such statements were irrelevant and inflammatory, but we concluded "that the relatively minor statements" about the victim did not result "in prejudice so substantial that it influenced the outcome of the trial." Id.

         ¶74. The only caselaw Hutto cites in support of his position is Wiley v. State, 484 So.2d 339 (Miss. 1986), vacated by Wiley v. State, 635 So.2d 802 (Miss. 1993). In that case, this Court "held that in death penalty cases, as in other cases, the victim's character is ordinarily not at issue and reference thereto is improper." Mack v. State, 650 So.2d 1289, 1324 (Miss. 1994) (citing Wiley, 484 So.2d at 348). But we also have "held that such evidence as is relevant to the crime charged is admissible, notwithstanding an objection that it bears on the victim's character." Id. Indeed, "evidence of the victim's character is admissible if it is relevant to the crime." Dycus, 875 So.2d at 870; see also Randall v. State, 806 So.2d 185, 225 (Miss. 2001); Hansen v. State, 592 So.2d 114, 146-47 (Miss. 1991).

         ¶75. We find no error in the prosecution's statements above. Again, opening statements do not constitute evidence, and the State is allowed to argue its theory of the case. Moreover, the statements about Simpson's outgoing character did "set the stage for the presentation of relevant evidence." See Goff, 14 So.3d at 625. As shown in the trial transcript, a witness for the State testified that Hutto catered "his story to the people that were around him [at the Healthplex] to try to entice people and pull people in." Further testimony was elicited during the State's case-in-chief that Hutto claimed to have the same type of cancer that Simpson's husband had died from. The "relatively minor statements" concerning Simpson's character followed the State's theme that Hutto had manipulated an outgoing and social Simpson. Dycus, 875 So.2d at 170.

         Bible-Study Testimony

         ¶76. Hutto further argues he was prejudiced when the jury heard testimony that Simpson participated in Bible study. At trial, Daty Rochelle testified that she and Simpson were "friends." Counsel for the State asked Rochelle how she knew the victim, to which Rochelle responded: "I knew her from a Bible study at First Baptist in Clinton. She was in a small - she and I were in a small group together." The prosecution then moved on to questions concerning Rochelle's encounter with Hutto and Simpson at the Heathplex.

         ¶77. Simply put, the State asked the witness how she knew the victim, the witness answered, and the State moved on. Hutto cites no caselaw showing that such testimony is improper. The testimony of how Rochelle knew Simpson is relevant for the purpose of Rochelle's credibility and personal knowledge of the events in question.

         Statement from Simpson's Brother

         ¶78. Hutto objected at trial to testimony given by Simpson's brother and roommate, Thomas Winstead. On direct examination, the prosecution asked Winstead why he and Simpson lived together. Winstead responded: "Well, [we were] just kind of looking after each other." Again, this is simply a background question concerning how the witness knew the victim and resulted in no prejudice to Hutto.

         Photo of the Victim

         ¶79. Hutto also objected to the introduction of a photo of Simpson during the testimony of her son, Ken Simpson. The prosecution countered that the photo was "relevant for the purpose of identification" and the judge admitted the photograph into evidence.

         ¶80. In Spicer v. State, this Court noted that "[t]he trial judge has discretion to determine whether or not photographs have a legitimate evidentiary purpose." Spicer v. State, 921 So.2d 292, 306 (Miss. 2006) (citing Walker v. State, 671 So.2d 581, 601 (Miss.1995)). In Spicer, the State introduced, and the trial judge admitted, a photo of the victim "for identification purposes." Id. at 307. On review, we determined that "[s]ince the trial court admitted the photograph of [the victim] for a legitimate evidentiary purpose and there was nothing otherwise prejudicial about the picture itself, " the trial judge did not err in admitting the photograph. Id.

         ¶81. As in Spicer, the State sought to introduce the picture of Simpson for the purpose of identification. And having viewed the photograph, we find nothing prejudicial about the photograph itself. The photo does not show Simpson with her family or any other person; rather, it is simply a professional photo of Simpson. No error occurred here.

         Testimony of Jan Cossitt

         ¶82. Hutto also claims testimony from Jan Cossitt, an employee of the Healthplex, prejudiced him. When asked how she knew the victim, Cossitt testified:

Ethel is a - was a longtime member of the Baptist Healthplex, also a friend, a member of the church that I attended and a member of an organization called the Red Hat Society, which is group of ladies 50 years of age and above who get together at least once a month to have a meal together or participate in some program.

         When the State asked what Simpson was like, Cossitt testified:

A. Probably one of the most generous, giving people I've ever met in my life. ...

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