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Garner v. State

Court of Appeals of Mississippi

May 15, 2018

SYLVESTER GARNER ON BEHALF OF TRACEY LYNN GARNER, DECEASED APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 09/02/2014

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. WINSTON L. KIDD TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: JOHN M. COLETTE SHERWOOD ALEXANDER COLETTE

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT

          DISTRICT ATTORNEY: ROBERT SHULER SMITH

         EN BANC.

          GREENLEE, J.

         ¶1. 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.

         FACTS AND PROCEEDINGS BELOW

         ¶2. 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 what[]ever [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 enhancement."[1]

         ¶3. 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.

         ¶4. 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.

         ¶5. 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.

         ¶6. 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."

         ¶7. 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.

         ¶8. 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.

         ¶9. 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.

         ¶10. 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.

         ¶11. 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.

         ¶12. 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.

         ¶13. 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 appeals.[2]

         DISCUSSION

         I. Expert Testimony

         ¶14. 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.

         ¶15. 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. 702.[3] 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 community.

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).

         ¶16. 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.

         ¶17. 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 ...


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