SYLVESTER GARNER ON BEHALF OF TRACEY LYNN GARNER, DECEASED APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 09/02/2014
COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. WINSTON L.
KIDD TRIAL JUDGE.
ATTORNEYS FOR APPELLANT: JOHN M. COLETTE SHERWOOD ALEXANDER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LISA L. BLOUNT
DISTRICT ATTORNEY: ROBERT SHULER SMITH
A jury sitting before the Hinds County Circuit Court, First
Judicial District, found Tracey Lynn Garner guilty of
depraved-heart murder and conspiracy to commit wire fraud.
Garner appeals and claims the circuit court erred when it
allowed the prosecution to present expert testimony from
three physicians. We disagree. However, the circuit court
erred when it denied Garner's motion for a judgment
notwithstanding the verdict (JNOV) regarding the conviction
for conspiracy to commit wire fraud. Consequently, we affirm
the circuit court's judgment in part, and reverse and
render in part.
AND PROCEEDINGS BELOW
Karima Gordon died pursuing her goal to become what her
friend, Angelean Barber, described as an "urban hiphop
model." Convinced that she needed silicone injections in
her buttocks, in 2010 Gordon began emailing Natasha Stewart,
who worked under the stage name, "Pebbelz da
Model." Gordon asked Stewart for "information
regarding . . . butt enhancement . . . ." Describing it
as "a very touchy subject, " Gordon asked Stewart
to "let [her] know whatever [she] ha[d] to do to get
this taken care of." She also said that she had
"been to numerous websites" but she "could not
find the right information." Stewart responded
cordially, but she did not disclose anything about the
"enhancements" that Gordon sought. Gordon emailed
Stewart again and said that she would not "give up on
[her] mission to ultimately achieve a tastefully great butt
In November 2011, Gordon emailed Stewart again. Gordon said
she had "not gotten [her] situation fixed yet" and
she was "still looking for a good butt job like"
Stewart's. Gordon asked for a referral and told Stewart
that she did "not mind compensating [her] for this
secretive information . . . ." Apparently preferring to
speak in person, Stewart invited Gordon and Barber to a party
she was hosting at a club in Queens, New York. In February
2012, Gordon and Barber flew from Atlanta to Queens. During
their meeting at the club, Stewart revealed that "Miss
Tracey" had "been doing her[ enhancements] for
years." Stewart also represented that "Miss
Tracey" was a nurse. However, Stewart did not reveal
"Miss Tracey's" contact information or address
at that time. Subsequent testimony clarified that "Miss
Tracey" was the defendant, Tracey Lynn Garner.
On March 12, 2012, Stewart sent Garner a text message. Garner
replied one minute later. The record does not reveal the
substance of their exchange. Garner and Stewart exchanged a
few more text messages that week. Again, the record is silent
regarding what they said to one another.
On March 15, 2012, Stewart disclosed Garner's phone
number and gave Gordon directions to an address in Jackson,
Mississippi. According to Barber, she and Gordon thought the
directions were to Garner's house. Even so, Gordon's
handwritten directions indicate that she and Barber planned
to meet Garner at a Walgreens. The next morning, Gordon and
Barber drove from Atlanta to Jackson. During their trip,
Gordon and Garner exchanged a number of text messages.
Garner's outgoing messages are included in the record,
but Gordon's messages are not. Nearly all of Garner's
texts were inquiries about Gordon's location. Gordon also
communicated with Stewart several times during their trip.
When Gordon and Barber arrived at Walgreens in Jackson,
Garner was not there. Gordon went inside Walgreens and bought
a Green Dot Moneypak card. After using it to send Stewart a
$200 referral fee, Garner gave Gordon and Barber directions
to her house. Garner was wearing scrubs when she met Gordon
and Barber in the driveway.
When Barber saw that Garner appeared to be transgendered, she
decided not to get silicone injections. She waited in one
room while Gordon and Garner went into another part of the
house. Garner gave Gordon an unknown number of silicone
injections. Barber later said that Gordon was in obvious pain
after the injections. Barber relayed Gordon's claim that
it was "the worst feeling of her life."
Gordon and Barber immediately started their trip back to
Atlanta. They contacted Garner because Gordon had a
persistent cough and she was sweating profusely. Garner
recommended cough medicine or Benadryl. Around thirty minutes
after leaving Garner's house, Barber had to pull over so
Gordon could defecate on the side of the interstate. During
the return trip, Gordon continued to have difficulty
breathing, and Barber had to pull over several times so
Gordon could defecate on the side of the road.
When they got to Stockbridge, Georgia, Barber took Gordon to
the emergency room. Gordon and Barber did not tell hospital
staff about Gordon's silicone injections because they
were scared, and they had been "told not to tell exactly
what had happened to her at that time." The hospital
released Gordon early the next morning. Two days later,
Gordon went back to the emergency room, where she was treated
by Dr. Darina Stankeyeva.
Gordon was initially treated for pneumonia. She later
disclosed her recent silicone injections. Testing revealed
the presence of pulmonary emboli - "small particula[te]s
blocking out the blood vessels in her lungs." Despite
medical intervention, Gordon's condition deteriorated
until she died on March 24, 2012.
Gordon's autopsy was performed by Dr. Steve Atkinson, a
forensic pathologist employed by the Georgia Bureau of
Investigation and the Georgia Medical Examiner's office.
When Dr. Atkinson cut into Gordon's buttocks tissue, a
clear, oily liquid spilled out. The tissue also contained
numerous "cyst like spaces filled with silicone"
and "relatively recent" hemorrhaging. Dr. Atkinson
opined that Gordon died because some of the silicone entered
her bloodstream and eventually lodged in her pulmonary
capillaries, effectively preventing oxygen exchange.
Garner was subsequently charged with depraved-heart murder
and conspiracy to commit wire fraud. At trial, the
prosecution called fifteen witnesses during its
case-in-chief. The evidence showed that Garner had never been
a licensed medical professional. Instead, her most recent
employment had been as a cook at a nursing home. There was
also testimony that Gordon had been healthy and active before
Garner gave her silicone injections. Investigator Lee
McDivitt of the Mississippi Attorney General's Office
testified that he executed a search warrant at Garner's
house, and he found numerous needles, large-gauge syringes
labeled "for veterinary use only, " ten bottles of
superglue, cotton balls, a massage table, and a large
container of silicone.
Three of the prosecution's witnesses were medical
experts. During cross-examination, Dr. Constantino Mendieta,
a plastic and reconstructive surgeon, rejected the suggestion
that Gordon's death was caused by silicone that had been
injected prior to March 2012. Dr. Stankeyeva testified that
Gordon was treated for complications related to the March
2012 silicone injections. Dr. Atkinson testified that the
March 2012 silicone injections caused Gordon's death.
Garner chose not to testify, and she did not call any
witnesses in her defense. As mentioned above, the jury found
her guilty of depraved-heart murder and conspiracy to commit
wire fraud. Following her unsuccessful motion for a JNOV,
Garner claims that each of the prosecution's medical
experts provided inadmissible testimony. "[T]he
admission of expert testimony is within the discretion of the
trial court." Gray v. State, 202 So.3d 243, 256
(¶46) (Miss. Ct. App. 2015). We will not reverse the
trial court's decision to admit expert testimony unless
it "was arbitrary and clearly erroneous, amounting to an
abuse of discretion." Id.
A witness qualified as an expert may testify in the form of
an opinion if "(1) the testimony is based on sufficient
facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods to the facts of the case." M.R.E.
In short, expert testimony must be relevant and reliable.
Willie v. State, 204 So.3d 1268, 1273 (¶12)
(Miss. 2016). It is relevant when it helps the jury
understand the evidence or resolve a fact in issue.
Id. It "is reliable when it is based upon
sufficient facts or data, [when it] is the product of
reliable principles and methods, and when the witness has
applied the principles and methods reliably to the facts of
the case." Id. The Mississippi Supreme Court
has provided the following list of nonexhaustive factors that
a trial court may consider when assessing reliability:
whether the expert's theory can be or has been tested;
whether the theory has been the subject of peer review and
publication; the known or potential rate of error of the
technique or theory when applied; the existence of standards
to control the technique's operation; and the general
acceptance the theory has garnered in the relevant expert
Id. at 1273-74 (¶12). As the "gatekeeper,
" the trial court "must make a preliminary
assessment regarding the scientific validity of the reasoning
or methodology underlying the expert testimony and the proper
application of that reasoning or methodology to the facts of
the case at issue." Id. at 1274 (¶12).
Garner claims that all three experts' opinions should
have been excluded under the reasoning discussed in
Hawkins v. Florida, 933 So.2d 1186 (Fla. Dist. Ct.
App. 2006). Mark Hawkins was convicted of the unlicensed
practice of medicine causing death, felony third- degree
murder, and culpable negligence after he injected silicone
into Vera Lawrence's buttocks, and she died a few hours
later due to what was described as "massive systematic
silicone embolism." Id. at 1187-88. At
Hawkins's trial, Dr. Erston Price, the associate medical
examiner who conducted Lawrence's autopsy,
"testified that Lawrence was injected in the
subcutaneous tissue in her buttocks, which broke capillaries
within the area of the hips and buttocks, and allowed the
silicone to travel into the bloodstream." Id.
at 1188. "In other words, the silicone essentially
clogged the veins and arteries until the heart could not pump
blood sufficiently to sustain the body." Id.
Dr. Price explained "that even though the silicone was
not injected intravascularly, it 'could have migrated
into' [Lawrence's] bloodstream." Id.
Based on the evidence that the victim "had many, many
injections of silicone over a considerable period of time,
" Dr. Price could not "rule out the possibility
that prior silicone injections may have contributed to
Lawrence's death." Id. Dr. Price also
"conceded that she was not an expert regarding the
mechanism or speed that silicone migrates through the
body." Id. And "she could point to nothing
to support her conclusion that an injection of liquid
silicone could migrate through the vascular system as ...